Crucial new court ruling for Christian schools seals a leader’s legacy

The potential danger this year to the religious freedom of American faith-based colleges and universities was beyond grave.
When the attorneys general of 22 states supported a lawsuit filed by 40 students asking a federal court to gut the religious exemption Congress included in Title IX, the threat was existential, many religious school officials believed. The LGTBQ+ students and the attorneys general wanted to cut off access to any federal financial assistance for students at schools that operate according to religious beliefs on gender and sexual morality.
“If we would have lost (the case), our students wouldn’t be able to get Pell Grants or loans. That’s checkmate,” said David Hoag, the new president of the Council of Christian Colleges and Universities.
CCCU’s outgoing president, Shirley Hoogstra, reacted immediately when the suit was filed in 2021. She led her organization of 180 evangelical schools to intervene directly in the court case and to spend $1 million in defense of the religious exemption.
Brigham Young University leaders were concerned, too. Three attorneys in the school’s Office of General Counsel wrote and submitted an amicus brief to the 9th Circuit Court of Appeals to support their friends at the CCCU.
The BYU brief was joined by BYU-Hawaii, BYU-Idaho, Ensign College, Southern Virginia University, the Association of Catholic Colleges and Universities and several other schools.
“One of the most beautiful things that we do in our work is interfaith work among people of faith,” said Steven Sandberg, assistant to the president and general counsel at BYU, during a campus Education Week presentation in August. “My friends at the CCCU are true disciples of Jesus Christ, and I know he loves them. I love working with them, and working with a group like this that was willing to stand up for things that are right is a beautiful thing to do.”
On Aug. 30, the final day of Hoogstra’s decade-long tenure as CCCU president, a three-judge panel of the 9th Circuit of Appeals affirmed a district court’s previous dismissal of the lawsuit. The religious exemption in Title IX was safe.
“I would say it was a God-wink moment,” said Hoag, Hoogstra’s successor, referring to a moment of divine intervention. “That’s a huge victory for Title IX and the 18 schools we represented in that case. That is a Hall of Fame accomplishment for her career.”
Hoogstra and Hoag sat down with the Deseret News this month in Salt Lake City.
The lawsuit named the Department of Education as the defendant, and Hoogstra described the CCCU board’s decision to intervene in the case as courageous. She said her leadership on the issue was rooted in her belief that the Department of Education would defend the law supporting the religious exemption but would not fully represent the religious schools’ side.
“We knew that the Title IX exemption is the cornerstone of our ability to live our religious mission,” she told the Deseret News. “So our membership invested $1 million in order to make sure that the historical (court) record shows that Christian higher education enables all students, including LGBTQ students, to have a great education without harassment, without bullying, and that record should be made in this legal case.”
Congress included a religious exemption in Title IX, which is a federal law passed in 1972 that prohibits discrimination on the basis of sex in educational programs and activities that receive federal funding.
“That religious exemption allows us to continue practicing our faith free from interference by government regulators, in the context of Title IX enforcement, if the application of Title IX is not consistent with our religious terms and if we are controlled by a religious organization,” said David Andersen, university counsel at BYU.
The students who sued argued, according to the 9th Circuit Court’s opinion, that Title IX’s religious exemption:
A judge in the U.S. District Court of Oregon dismissed those claims in February 2023, but the students appealed.
That’s when Sandberg, Andersen and a third BYU attorney, Madelyn Blanchard, wrote the amicus, or friend-of-the-court brief to support CCCU’s position.
CCCU argued that Congress, in creating the Title IX law, was allowed to rely on the First Amendment to adopt the religious exemption, something it has done repeatedly and that the courts have upheld across decades.
BYU’s brief made three arguments, according to a briefing Andersen and Sandberg gave this summer during BYU Education Week:
“We wanted to get that in front of the court and share that evidence and show why the religious exemption is so critical to what we do,” Andersen said.
Andersen said BYU does not discriminate on the basis of sex.
“We’ve taken the position that the term sex does not include sexual orientation or gender identity,” he said. “We all the time are facing issues where we’re trying to promote nondiscrimination based on sex.”
The 9th Circuit panel upheld the Oregon district court judge’s dismissal of the lawsuit.
“This case addresses, among other issues, the question of whether Congress’s attempt to balance the important interests of religious freedom and gender-based equality violated the Constitution,” the panel wrote in its opinion. “Because we hold that Congress did not exceed its constitutional boundaries, we affirm (the district court ruling).”
The judges said the federal funding to religious schools through the Title IX exemption does not establish a religion.
“We … hold that, on the merits, the Title IX exemption does not violate the Establishment Clause,” they wrote, adding later, “Title IX’s religious exemption does not violate the Fifth Amendment’s Equal Protection guarantee.”
The decision, handed down on Aug. 30, will be a part of Hoogstra’s legacy at the CCCU, Hoag said.
“Advocacy has always been the No. 1 priority of my decade,” Hoogstra told the Deseret News.
For example, the CCCU has been deeply involved in Fairness For All project, an effort by churches and LGBTQ+ organizations to strengthen both protections for religious freedom and for LGBTQ+ people in housing, education and accommodations.
“We were successful at making sure people understood that it could be a both/and approach. We could make law that was good for religious freedom and we could have law that was good for LGBTQ Americans,” Hoogstra said.
Looking back, Hoogstra said she can see God had a plan for her life that she couldn’t see.
After she earned a law degree and worked as a litigator and a partner in a law firm negotiating agreements, she made a 180-degree pivot. She became an administrator in higher education, working as the vice president for Student Life at her alma mater, Calvin University, a Christian school in Grand Rapids, Michigan.
“What I didn’t know along the way is that the job at the CCCU would need both of those parts,” she said. “It would require a person with legal experience who could navigate these court cases and the legislative work and understand the law, etc., but it (would) also require someone who understood what was happening on a campus, both the academic issues and the social issues facing students — mental health, Christian formation, sports, service learning, all those kinds of things.
“Those got put together 100% in this job at the CCCU. I think that God has allowed me to have a six-cylinder job and provided me with the six cylinders with which to do it.”
Hoogstra is one of the inaugural co-chairs of the new Commission on Faith-based Universities, hosted by the American Council on Education.
Beside the Hall of Fame accomplishment of the successful defense of Title IX’s religious exemption and the formation of the national commission, Hoogstra listed three main achievements of her tenure.
“Our members stayed with us, learned about the legislative opportunities and were loyal and faithful,” Hoogstra said. “A membership organization is only as good as its members.”
“We did not go the way of a secular understanding of what diversity means,” she said. “We went with a Biblical understanding of what diversity is, which is make sure that all of God’s children are welcome to the life-changing, transformational opportunities of higher education.”
“We have 17 institutions that grant bachelor’s degrees in prisons across the country,” Hoogstra said. “This work of loving the least of these, from Matthew 25 — the colleges have been as blessed as the students who are incarcerated individuals.”
Hoogstra said her successor, Hoag, also has been prepared to lead the CCCU as its new president. He holds a bachelor’s degree from a CCCU school, Asbury University, a master’s in education from Kentucky and a doctorate in higher education from Saint Louis University.
“I thought I had this one track in mind for my career, but the Lord had other things in mind,” Hoag said.
He has been president of Warner University since 2016, the fourth time he has served in a leadership position at a CCCU school, including Trinity International University, Greenville University and Asbury University.
“The CCCU’s in my DNA,” Hoag said.
Hoogstra announced her retirement in December, and Hoag had served on the CCCU board since 2021.
Hoag said his priorities are to: