The College of the Ozarks in Branson will not be able to revive its lawsuit challenging a federal directive prohibiting housing discrimination based on gender identity or sexual orientation, the U.S. Supreme Court ruled on Tuesday. In a brief, unsigned order, the justices declined to take up the college’s appeal of a lower ruling that found the school had no legal standing to move forward with its pre-enforcement challenge.
On the day he took office, President Joe Biden signed an executive order directing federal agencies to interpret sex-discrimination provisions in various federal laws to protect sexual orientation and gender identity. The Department of Housing and Urban Development issued a directive the next month updating its interpretation of the Fair Housing Act. The College of the Ozarks, however, wishes to assign its dormitory housing assignments based on students’ biological sex, not their gender identity, in line with the institution’s religious teachings.
The school sued the administration in April 2021 over the interpretation, but a trial judge and a divided appeals court panel found the college did not have legal standing because the school had not shown a concrete injury. The college then appealed to the justices, contending the administration had denied the school a procedural right to comment on the proposal before implementing it. Lower courts had rejected that argument, noting that the school faced no imminent risk of enforcement.
“That result has mammoth implications,” the school’s attorneys wrote in court filings. “If HUD gets away with rewriting the FHA via the directive, it has no incentive to ever go through the rulemaking process. That eliminates judicial review until after an enforcement proceeding is complete and the regulated entity has already been harmed.”
The College of Ozarks could start a new case against the government if the Biden administration takes enforcement action against the college for not allowing transgender students into the dorms they want. But in court filings, the Justice Department said its interpretation of the housing law left unaddressed how it interacts with Title IX’s religious exemption, which the school possesses. Because College of the Ozarks has a religious exemption, the Justice Department argued, it is not likely to be enforced.
Alan Goforth | Metro Voice