Andrew Hartzler Wasn’t Allowed To Be Gay on Campus. So He’s Suing.

The Department of Education has never imposed Title IX’s most onerous penalty on any college or university, secular or religious: ending federal funding in the form of student loans and grants, federal research money through the military and the Department of Health and Human Services, GI benefits, and other federal contracts. If the REAP lawsuit were to succeed, universities with the religious exemption could face the same consequences as secular schools for anti-LGBTQ discrimination. (In the meantime, the Department of Education’s Office of Civil Rights has opened six investigations into the discrimination claims of REAP clients at Christian colleges and universities.) If Christian schools refuse to comply with Title IX, it could force the government to choose between enforcing the law and ensuring that taxpayer dollars do not fund unlawful discrimination, or letting LGBTQ students’ rights go unprotected, lending implicit government support to a religious view that contravenes established public policy.

Hartzler first learned of the religious exemptions after he graduated. “It didn’t make sense to me because the federal government protects us,” he said. “In my mind, where federal money is used, [the] law should be followed.”

The original battleground for Christian schools was not abortion or gay rights. It was race.

In 1976, when the Internal Revenue Service revoked the tax-exempt status of Bob Jones University because of the fundamentalist South Carolina school’s ban on interracial dating, it set off a firestorm that has defined the modern religious right.

The government, the school and its defenders argued, had no place interfering in the institution’s core biblical beliefs. Together with the IRS’s efforts to desegregate private Christian K-12 schools, by revoking the tax-exempt status of explicitly segregationist schools, and by proposing regulations to diversify others, the Bob Jones case — not abortion — was the key inflection point for the political advocacy and organizing of evangelicals into national politics and their enduring alliance with the Republican Party. (Unlike Bob Jones, ORU did not have racially discriminatory policies.)

Through the 1970s, the nascent religious right assailed the IRS’s actions as an existential threat to Christian education that would have catastrophic consequences. The Rev. Robert Billings, a graduate of Bob Jones who would go on to become the first executive director of the Moral Majority, a religious liaison for Ronald Reagan’s successful 1980 presidential campaign, and a political appointee in Reagan’s Department of Education, spearheaded the successful effort to stop the IRS from regulating private Christian K-12 schools’ policies relating to race. The IRS’s actions, Billings warned at a 1978 press conference outside the agency’s Washington, D.C. headquarters, could lead to “nothing less than the destruction of religious freedom in the United States.”

Decades later, the Bob Jones University case serves as a potent shorthand for what the religious right portrays as the government’s heavy hand when it comes to matters of faith. In 1983, after a protracted battle, the Supreme Court held the IRS could legally revoke the school’s tax exemption when its policies are “contrary to established public policy” — in that case, ending race discrimination in education. The logic of the Bob Jones decision was that taxpayers should not have to subsidize discrimination that the courts have determined is unlawful. When the Supreme Court heard arguments in the landmark marriage equality case, Obergefell v. Hodges, in 2015, Supreme Court Justice Samuel Alito, an enthusiast of the Christian right’s religious freedom arguments, invoked the specter of Bob Jones. He noted the court had held the school was not entitled to a religious exemption owing to its opposition to interracial dating, and asked: “Would the same apply to a university or college if it opposed same-sex marriage?” Even before the court issued its decision in Obergefell, religious right activists and leaders of Christian colleges and universities preemptively protested, asserting in a letter to Republican Congressional leaders that “schools adhering to traditional religious and moral values” could be in danger of losing their exemptions, which could cause “severe financial distress for those institutions and their millions of students.”

The government has taken no such actions in the seven years since marriage equality became the law of the land. Despite the anxiety triggered by Alito’s question, the Obama administration did not signal any political appetite for such a fight. And although educational institutions are subject to another federal enforcement mechanism — Title IX — they had a ready counterweight at hand in its permissive religious exemption. The right to an exemption is written into the statute itself, and the history of its accompanying regulations points to the clout religious colleges and universities have wielded for decades to shield themselves from the law’s requirements.

The American Association of Presidents of Independent Colleges and Universities, a body formed in 1968 because they were “[b]eset by government encroachment, intensifying competition by public universities, and an atmosphere of student rebellion” on college campuses, led the charge. The Department of Health, Education and Welfare (the predecessor agency to the Department of Education) proposed regulations containing language that would have given government officials the power to decide whether a school was entitled to the religious exemption. According to the legislative history unearthed by legal scholar Kif Augustine-Adams, the AAPICU objected, calling the provision “an outrageous and flagrant violation of academic and religious freedom.” As a result, the final 1975 regulations adopted a policy, still in place today, that the university’s highest-ranking official need only submit a letter identifying which parts of the statute are in conflict with the organization’s religious tenets, after which the exemption will be granted.

Schools made liberal use of the exemptions to shield themselves from cultural and legal changes they claimed were unbiblical.

A first round of exemptions, granted by the Department of Education in the 1980s, “[was] made to allow discrimination against women in hiring, discrimination against women who are unmarried and were pregnant or terminated their pregnancy … or engaged in premarital sex,” said Shiwali Patel, senior counsel for the National Women’s Law Center. Universities also sought to “discriminate more broadly against women,” she said, including denying them scholarships and admission.

ORU received its first exemption in 1985, after requesting it because compliance “could conflict with the Bible’s statements on illicit sexual activity, marriage and homosexuality.” At the time, Title IX did not prohibit discrimination based on sexual orientation, but the government granted the university an exemption from complying with the law’s ban on discrimination based on marital or parental status and pregnancy.

After that initial round, few requests were made for nearly three decades. That changed in 2013, when the Obama administration indicated it would consider discrimination based on gender identity a violation of Title IX. Through “the pronouncements, policy statements, enforcement by the Department of Education,” the Obama administration signaled it was going to enforce Title IX when schools discriminated against trans students, said Patel. “With that came more requests for religious exemptions from institutions who wanted to be able to discriminate against LGBTQI+ students.”

In 2016, Oral Roberts University requested such an additional exemption, citing its honor code and the religious belief of its controlling religious organization — its board of trustees. “We cannot support or encourage an individual to live in conflict with Biblical principles,” Wilson, the university’s president, wrote. He hinted at the university’s endorsement of the medically discredited idea that LGBTQ people can be “converted” or healed, quoting parts of the university’s Position Statement on Human Sexuality and Gender that “it is never our intent to shame persons who struggle with sexual issues. Instead, we wish to offer them supportive assistance in Christian love to live the godly lifestyle envisioned in the ORU Honor Code.” Still, though, Wilson made the most severe penalties clear. “Any individual who violates ORU’s Code of Honor is subject to discipline, including possible dismissal from the university.”

In many ways, the culture war ran right through Andrew Hartzler’s childhood bedroom.

When Hartzler was small, he was a fan of SpongeBob SquarePants, and he decorated his bedroom with images of the goofy yellow sea creature. As he remembers it now, Fox News ran a segment claiming that SpongeBob was gay, and his parents promptly emptied his room of all SpongeBob items. “That was not okay,” Hartzler recalled to me recently in his apartment in Tulsa, across the street from the ORU campus. “I wasn’t allowed to watch SpongeBob anymore.” (Hartzler’s parents declined to be interviewed, writing in an email, “We love our son, Andrew Douglas Hartzler unconditionally; we prefer to keep our thoughts private.”)

But over the next decade, much of the country would undergo a massive shift in attitudes — and laws — concerning gay rights. Hartzler, coming of age in the middle of the culture war over gay rights, felt keenly the push and pull between changing American cultural norms and the evangelical backlash to that evolution.

In 2004, when Hartzler was just five years old, his aunt, Vicky Hartzler, a former home economics teacher and state legislator, became the spokesperson for the Coalition to Protect Marriage in Missouri, which pushed for a constitutional amendment banning same-sex marriage in the state, even though a law banning it was already on the books. “The most fundamental cornerstone of civilized society — traditional marriage — is under attack,” she said in announcing the new initiative. “This unwelcome assault on our most basic values must be stopped.” Later that same year, Missouri voters made it the first state to pass such a constitutional ban, part of a wave of religious right organizing that propelled George W. Bush into a second term in the White House. (Vicky Hartzler did not respond to requests for comment, made through her Congressional office, about her nephew’s participation in the REAP lawsuit.)

Bill Clark/CQ Roll Call via AP Images

Rep. Vicky Hartzler (R-Mo.), Andrew’s aunt, arrives for a House GOP Conference meeting on the Capitol Hill in Sept. 2016. “The most fundamental cornerstone of civilized society — traditional marriage — is under attack,” she said while announcing the formation of the Coalition to Protect Marriage in Missouri in 2004.

Hartzler was unaware of his aunt’s advocacy, but he was acutely aware that he was different, and of the sting of his Christian school classmates’ bullying of him, calling him “gay” and “f–” as early as fourth grade. His parents pulled him out of that school — which had been founded by his grandmother — because of the bullying. “I think they were upset and afraid that I was going to start believing what those kids were saying because we didn’t talk about gay,” he said.

An opportunity in high school allowed Hartzler to see what life was like for teenagers outside his insular world. In the summer of 2014, he attended the student conference People to People at UCLA. “That was the first time that I’d ever really been around other people that weren’t Christian, because I lived in such a protected environment. I really came out of my shell there, completely came out of my shell,” he said, showing me photographs of his time there on his iPad.

But a few months later, his parents found a screenshot he had saved on his phone of a text in which he said another boy was sexy. The following year, in 2015, the very same summer the Supreme Court issued its landmark decision striking down bans on same-sex marriage, Hartzler’s parents sent him to a Christian summer camp in Tennessee that practiced conversion therapy. (Twenty states and the District of Columbia, along with dozens of municipalities around the country, have banned the practice because of its harmful effects.) “It wasn’t until after I got there and I met my roommate who was also gay and kept meeting all these gay people and I’m like, wait, this is weird, and it was literally like session, session, meal, there was worship three times a day,” he said. “I hated it. It was awful.”