Better in their words…

In 2011 the Obama administration turned Title IX into a sword in the armory of federal civil-rights law. On pain of losing federal money, including student financial aid, the Education Department compelled schools to adopt rules that deprived those accused of sexual misconduct of basic due-process protections. The Trump administration undid those rules, and the Biden administration is working to reinstate them. The problem with invoking Title IX against Hillsdale, however, is that the college takes no money from the government. “Not a cent,” says its president, Larry P. Arnn, which means that Hillsdale isn’t bound by Title IX.

In their lawsuit, filed on Sept. 25 in federal court, the plaintiffs assert that Hillsdale “does not accept government funding in a misguided and ineffective attempt to avoid its obligations under Title IX.” Mr. Arnn calls that claim “insidious and baseless.” Robert Norton, Hillsdale’s general counsel, says the college’s process for investigating and resolving allegations of sexual assault are “stronger, quicker, and more confidential” than the Education Department’s Title IX standards. He also says the college found the two male students had engaged in “conduct unbecoming,” even though no criminal charges were brought after the accusers filed complaints with the local police.

The lawsuit seeks to impose Title IX’s strictures on Hillsdale, arguing that the college’s tax-exempt status under Section 501(c)(3) of the Tax Code “operates as a subsidy, which is a form of federal financial assistance.”

Mr. Arnn sees a darker ideological intent in this claim. “This is about the kind of society some people want us to have,” he says. “The principle that because you have a tax deduction you’re spending government money can’t mean anything other than that all money, in principle, belongs to the government.” This “tax-deduction thing,” as he calls the argument, “would be a massive expansion of government authority in one go. And of course, there are many people who seek that in America.”

Such a ruling would “sweep into the government’s net hundreds of thousands of American institutions that have sought to stay out of it,” Mr. Arnn says. The argument has won favor recently in two district courts, in California and Maryland. The latter case, Buettner-Hartsoe v. Baltimore Lutheran High School Association, has been accepted for interlocutory appeal by the Fourth U.S. Circuit Court of Appeals. A friend-of-the-court brief filed there by the Napa Institute, a Catholic nonprofit, argues that the ordinary meaning of “federal financial assistance” in Title IX refers to “funding or active support affirmatively provided by the federal government—not to an entity’s tax-exempt status.” Congress couldn’t have intended to alter the fundamental details of a regulatory scheme in vague terms, to “hide elephants in molehills,” the brief says, invoking a metaphor Justice Antonin Scalia favored.

Mr. Norton, the general counsel, tells me that Hillsdale will “fight the point vigorously,” but prefers not to expose his argument, at this stage, to the other side. Walter Olson, a senior fellow at the libertarian Cato Institute, says: “The proposition that nonprofit tax status should subject private institutions to the regulations applied to government grantees would be a radical departure from longstanding tax and legal principles and would put at risk the fundamental independence of America’s private charitable and educational sectors, to say nothing of its religious institutions.”

Treating a private institution as “philanthropic, charitable or not intended for profit can amount to a simple recognition of its structure and purpose,” Mr. Olson continues, “not some sort of seal of approval, let alone subsidy.” Neither Mr. Olson nor Mr. Norton—and certainly not Mr. Arnn—believes the Supreme Court would go along with this evisceration of America’s nonprofits. But until the argument is put to rest, Hillsdale will have to fight this assault on its character.

Mr. Varadarajan, a Journal contributor, is a fellow at the American Enterprise Institute and at New York University Law School’s Classical Liberal Institute.