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Suit filed by Christian college aimed at HUD policies undermining sexual distinctions

Officials of the College of the Ozarks, a small faith-based institution of about 1,600 students in Missouri, are challenging the HUD’s interpretation of the Fair Housing Act (FHA).

Aerial photograph of College of the Ozarks, located in Point Lookout, Missouri. (Image: Wikipedia)

The Biden administration, through the Department of Housing and Urban Development (HUD), has announced rules in the form of a Directive that may threaten the College of the Ozarks in Missouri and other institutions grounded in biblical beliefs about the differences between women and men.

This directive comes after the Biden administration has already proposed a regulation to restrict Christian speech on the campus of public institutions of higher education while limiting the conscience rights of medical personnel whose beliefs prevent them from participating in abortions and gender transition procedures,

Officials of the College of the Ozarks, a small faith-based institution of about 1,600 students in Missouri founded by Presbyterian minister in 1906, are challenging the HUD’s interpretation of the Fair Housing Act (FHA). Under the theoretically non-binding policy Directive or memorandum that HUD officials released, officials at the College of the Ozarks, and other faith-based institutions, may be required to open their women’s dormitories, including showers and all other facilities, to men who identify as women.

HUD released its far-reaching Directive in response to the Executive Order of January 20, 2021, that President Biden signed shortly after taking office, supplemented two years later in Executive Order 13998 on February 16, 2023. The original Executive Order redefined the terms “sex,” “sexual orientation” and “gender identity,” entitling them to protection from discrimination.

Three weeks after the initial order was promulgated, on February 11, 2021, HUD’s Directive set forth rules implementing Biden’s Executive Order. This Directive obligates educational institutions, regardless of their religious beliefs, to comply, calling for “full enforcement” with Biden characterizing the memorandum as a “rule change” that “finally” enforced the FHA. Yet, in announcing these changes, the administration failed to comply with the requisite notice-and-comment process of both the FHA and the Administrative Procedure Act (APA), which would have afforded interested parties opportunities to weigh in on the proposed changes to voice their concern, or support, even if their doing so likely would have been fruitless under the circumstances that these would be adopted regardless.

Officials at the College of the Ozarks unsuccessfully brought a pre-enforcement action under the First Amendment and Religious Freedom Restoration Act at a federal trial court in Missouri. The Eighth Circuit rejected their attempt to enjoin the HUD Directive because federal officials have yet to act to enforce the new rules. Officials filed suit because of concerns that the Directive would violate their rights to freedom of speech and religion by imposing an impermissible burden on the exercise of their moral and faith-based principles while simultaneously intruding on the privacy of the College’s female students in particular.

More specifically, the Directive would even forbid College officials from communicating its policies to others if they disagree with the new HUD. College officials pointed out that HUD, in its apparent haste to issue the Directive, had ignored the notice-and-comment process of both the FHA and the APA.

In the first of their three claims, College officials posited that the historical understanding of the FHA, which interpreted “sex” as biological sex, did not extend to men who identified as women. Second, they pointed out that the initial executive order violated their right to operate consistently with their religious beliefs “that sex as determined at birth is a person’s “God-given, objective gender, whether or not it differs from their internal sense of “gender identity,” and it bases this teaching on such passages as Genesis 1:27 and Matthew 19:4, among others. Third, officials maintained that before the Biden Administration could impose such a dramatic new interpretation of the meaning of sex on an array of institutions, it should have complied with the statutory public notice and comment period.

A divided Eighth Circuit, in a two-to-one expedited appeal, in which the attorneys general of fourteen states and others filed briefs supporting the College, affirmed a federal trial court’s dismissal of officials’ motion for a temporary restraining order and a preliminary injunction as lacking merit, most notably on the ground that officials misunderstood the HUD’s Directive. The trial court had been of the opinion that college officials acted based on a misunderstanding of the memorandum, adding that they “lacked standing,” meaning that because they failed to achieve the constitutional requirement of establishing that a real case or controversy, existed, they could not file suit.

In its analysis, the Eighth Circuit agreed that the claim lacked merit because the disputed Directive “does not impose any restrictions on, or create any penalties against, entities subject to the Fair Housing Act.” As part of its judgment, the Eighth Circuit refused officials’ request for a hearing en banc, meaning a hearing before all active judges in the circuit. Consequently, officials are awaiting word on whether the Supreme Court will grant their request for further review.

The dissenting member of the Eighth Circuit panel acknowledged the worthwhile point that although the HUD had yet to act against the College of the Ozarks, and perhaps other institutions, all such schools operate in a kind of limbo, “under a sword of Damocles but are denied access to the courts because the sword has not yet fallen.” As such, the dissent would have heard the case on its merits, a position that may resonate with the Supreme Court.

Based on the dissent’s comments, combined with the strength of College of the Ozark’s legal objections, the Supreme Court should, at the very least, vacate the earlier judgments while ordering full proceedings on the merits of the claims that HUD not only violated the statutory notice and comment requirements, but also its protected First Amendment rights to freedom of speech and religion.

At the outset of their petition to the Supreme Court seeking certiorari, the Alliance Defending Freedom, a religious freedom public interest law firm representing the College, indicated that because the trial court’s rejection of the underlying claim as lacking standing conflicts with decisions of five circuits as well as Supreme Court precedents, the matter warrants review. More specifically, the brief acknowledged that the Fifth, Sixth, Ninth, District of Columbia Circuit, and Federal Circuits all agreed that being deprived of notice and comment when federal agencies issue new rules constitutes a concrete injury sufficient for Article III standing.

As of March 31, 2023, nineteen states and array of Christian institutions of higher education as well as other advocacy groups filed amicus curiae, or friend of the court, briefs in support of the College of the Ozarks because they have significant interests in the outcome of the dispute.

The brief on behalf of the College of the Ozarks specified that college officials met the requirements for standing to file suit because they demonstrated that they might suffer, that there was a causal connection between the injury the College might suffer and the Directive, and that a favorable judicial order in their favor is decision is likely to redress its possible injury. The brief also explained that having to comply and then file a complaint would place officials on the horns of a tripartite dilemma, all of which would have caused it injury. By complying with government qua HUD’s Directive, the College would have faced the draconian options of having to abandon its religious policies and speech by allowing men who identify as women use facilities reserved for the latter, refusing to cooperate and risk being subject to burdensome investigations as well as potentially accompanying penalties, or discontinue offering student housing.

Larger questions also come into play. For instance, it is unclear why Biden who, in his own words as well as those of his office, describe him as a devout Catholic, would attempt to force others to violate their sincerely held religious beliefs by ignoring distinctions between women and men, especially when it might include requiring individuals of both sexes to shower in the same facilities. And in light of the Constitutional right to the free exercise of religion, why would the Biden administration seek to force people of faith to violate their sincerely held religious beliefs on such a fundamental issue.

The approach taken by the Administration and HUD Directive blatantly stand the First Amendment’s declaration that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” on its ear. Simply put, it is inconceivable that the government might treat people of faith who are remaining true to the millennia old beliefs as being at risk of being charged with discrimination for violating federal law, or being subjected to accusations of bigotry, by maintaining their sincere religious beliefs that object to housing men who identify as women in female-only dormitories.

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About Charles J. Russo 19 Articles
Charles J. Russo, M.Div., J.D., Ed.D., Joseph Panzer Chair of Education in the School of Education and Health Sciences (SEHS), Director of SEHS’s Ph.D. Program in Educational Leadership, and Research Professor of Law in the School of Law at the University of Dayton, OH, specializes in issues involving education and the law with a special focus on religious freedom. He is also an Adjunct Professor at Notre Dame University of Australia School of Law, Sydney Campus. He can be reached at


  1. We supposedly have about two hundred Catholic colleges in the United States. Where are they? A whole bunch of them filed multiple amici curiae briefs in defense of affirmative action before the Supreme Court. It took the “College of the Ozarks” to challenge this? How about the University of St. Thomas in Minnesota challenging it? Oh, yeh ….

  2. Mr. Olson;

    A favor – in all future CWR stories including President Biden, could you please use a small c in referring to his ‘faith’?

    Surely that is not asking too much.

      • Thanks so much. Two of my children attended colleges that also didn’t accept federal funds so that’s why it occurred to me.
        It’s pretty hard to pay for tuition without Pell Grants, etc. but when these sorts of things come up you can see the wisdom of that policy.

  3. This is a Catholic website. Let’s have the names of all the Catholic colleges that filed an amicus curiae in support this lawsuit. Let’s remember that we are all going to fight Satan in Christ’s name together with all other Christians or singly we’ll all go down the tube.

  4. No one can feign piety without the hand of God intervening, impossible. Love of God must be accompanied by fear of God. Mr. Biden may be defiantly walking around in a light shower with a metal pole he calls justice but sooner or later the light shower will turn into a thunderstorm if it hasn’t started already.

  5. It’s a scandal that Catholic colleges are where in this struggle? They should be in the lead. Shame on them. And what about bishops? For crying out loud, how much longer are they going to play footsie with this sinister administration? It’s time to be Catholic or leave the Church. Yes, that includes bishops and cardinals.

  6. About the First Amendment….the national religion of Secular Humanism is now established (!) not by the Congress, but by the United States Supreme Court (though partly reversed by Obergefell v. Hodges) and by the overlords of the Executive Branch. The First Amendment restrains only Congress from establishing a national religion—and the Founding Fathers never guessed at the need to restrain the other two branches of government.

    Butt, moving on: The Congress should issue a bipartisan vote of censure against the Secretary of HUD—that would “show’ er together” (!), or him or it, or whatever.

    And, while debates over the national debt are now deferred until after the next election, there’s nothing to stop the Republican party from including it their platform a plank requiring all domestic cabinet offices to “establish” (!) zero-based budgeting.

    At first blush, application of this policy would eliminate the proliferation from sea to shining sea of new offices of elastic “diversity, inclusivity, and equity.”
    “Don’t say ‘gay,’ and ‘never say DIE!'”

  7. I wish there were a way for ALL Christian colleges and universities to BAND TOGETHER and chanllenge this appalling direction of our Country through the Courts, as College of the Ozarks is doing. I would happily send money for the legal team. Has anyone contacted Landmark Legal Foundation? Let us know how we can help, please! And, where on earth are the CATHOLIC COLLEGES AND UNIVERSITIES?

  8. I just found the Alliance Defending Freedom site. Donating to such a worthy David who seems to fight Goliath and win so often!

  9. “No one can serve two masters: for either he will hate the one, and love the other; or else you will be devoted to the one and despise the other. You cannot serve God and mammon (money).” Matthew 6:24

    It seems clear that this Gospel message is being lived out in these wonderfully deluded times. It is no surprise that one of the many gods of this culture is money. And don’t think for a moment that this is not true for both sides of the political spectrum. Money is in the details on both sides of this mess. The government uses money as a form of life-or-death threat over the Catholic/Christian colleges and universities if they don’t go along with the currently fashionable pseudo-philosophies of the day. And too many of those Catholic/Christian colleges and universities kowtow to those government demands, or stretch, bend, or abandon their own ancient, tried and true moral, dogmatic identities, in order (using absurdly convoluted sophistries) to “survive” or to be able to “compete”.

    When food is compromised with poison, you get poison…when you compromise morals with money/averice, you get executive orders and threats to the 1st Amendment rights of freedom of religion…In other words, when religion is compromised with politics/money, you are left with nothing more noble than mere, petty politics. Our Catholic colleges and universities have too often sold their souls to the devil in order to “compete”, to be seen as being OF the world, rather than honoring their calling to challenge the world with a clear and desireable choice to counter the world’s noise and chaos.

    If you take government money, this kind of horror show is what you get for bowing before the government trough. Oh, how great it would be to see our Catholic colleges and universities standing up boldly for the Truth that really sets you free! The best way to challenge this intrusive and unjust attempt to destroy the integrity of our Catholic and faith based colleges and universities, they need to end their dependence on government lucre. Give to Ceasar what belongs to Ceasar, and to God what belongs to God. Mark 12:13-17 Be in the world, but not of it.

  10. This isn’t a Christian college, it is a Protestant college. Protestants aren’t Christians.

    After looking at those who filed the briefs, “Christian institutions of higher education” means evangelical Protestants and Baptists.

    The fact is that Protestants will band together.

    If there is any “coercion” with regards to a new law restricting speech at the federal level it would be that no Protestant institution or person will ever be permitted to fraudulently call itself or himself “Christian.”

    • Well, Shawn, your views about Protestants puts you in a strange position: you are a Catholic who rejects Catholic teaching. Not good. At all.

      The Church states, regarding Protestants:

      The Church recognizes that in many ways she is linked with those who, being baptized, are honored with the name of Christian, though they do not profess the faith in its entirety or do not preserve unity of communion with the successor of Peter. (14*) For there are many who honor Sacred Scripture, taking it as a norm of belief and a pattern of life, and who show a sincere zeal. They lovingly believe in God the Father Almighty and in Christ, the Son of God and Saviour. (15*) They are consecrated by baptism, in which they are united with Christ. They also recognize and accept other sacraments within their own Churches or ecclesiastical communities. Many of them rejoice in the episcopate, celebrate the Holy Eucharist and cultivate devotion toward the Virgin Mother of God.(16*) They also share with us in prayer and other spiritual benefits. Likewise we can say that in some real way they are joined with us in the Holy Spirit, for to them too He gives His gifts and graces whereby He is operative among them with His sanctifying power. Some indeed He has strengthened to the extent of the shedding of their blood. In all of Christ’s disciples the Spirit arouses the desire to be peacefully united, in the manner determined by Christ, as one flock under one shepherd, and He prompts them to pursue this end. (17*) Mother Church never ceases to pray, hope and work that this may come about. She exhorts her children to purification and renewal so that the sign of Christ may shine more brightly over the face of the earth. (Lumen Gentium, 15)

      Care to revise your assessment?

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