WRITTEN BY: NATHAN SCHARN | CONTRIBUTOR
I’m glad the student press is taking on difficult issues, but it should approach stories on difficult issues thoughtfully, recognizing what analysis is outside of the reporter’s analytical expertise and making greater efforts to get both sides of the story.
The April 18, 2016 article headlined, “PLNU in violation of Title IX Legal Experts Say,” caught my attention for several reasons. First, I used to be the editor-in-chief of The Point (it was called The Point Weekly then) and I worked in journalism for a couple of years as a junior-level reporter at the Union-Tribune; second, I’m currently an attorney; and, third, Dane Cardiel—the alumnus who filed WASC comment— was my roommate my junior year at PLNU.
I appreciate that Loma Beat is writing this story. It’s important not to shy away from controversial topics, and as one of my old journalism professors used to say, the student press is the way the campus community has a conversation with itself.
The problem is that the author, perhaps without realizing it, draws a legal conclusion on a complex legal issue. As a former editor of The Point and current attorney, I think I can comfortably say that the paper and its reporters are not qualified to conclude for themselves that PLNU is violating the law. Nonetheless, the article, without attribution, says “PLNU has not filed for a waiver . . . , which would put the university in violation of the Title IX amendment.”
This issue could have been explored more completely without the paper drawing its own legal conclusions. As written, it’s a couple of attorneys’ words against non-lawyer university administrators’. I guess you can call any attorney specializing in a particular area of law a “legal expert,” to some extent. But I’m left wondering why there are no quotes from a legal expert who has a different opinion on this issue.
It could be that this area of law is clear cut—although you don’t see a lot of areas like that—and any attorney worth his or her salt specializing in this field would agree that PLNU is violating Title IX. But in my limited experience, having a couple of lawyers who say someone or something is violating a law doesn’t make it so. That’s where judges and juries come in.
It might help to understand the hierarchy of federal laws—cue yawns. At the top, we have the U.S. Constitution, which guarantees the free exercise of religion—of course it’s a lot more complicated than that—followed by congressionally enacted super statutes, such as Religious Freedom Restoration Act, or RFRA, which trump other statutes.
Next are regular old congressionally enacted statutes like Title IX. Last, and consequently least, are federal regulations, which are thought up and published (“promulgated” in legalese) by government agencies.
To break that down again, if there is conflict between these laws, Constitutional free exercise beats RFRA, RFRA beats Title IX, and Title IX beats federal regulations. The piece of federal law this article quotes in concluding PLNU violates the law is a federal regulation, 34 CFR § 106.12 so far as I can tell from a few seconds of Googling. Very few courts have interpreted this regulation, and one of the few that discussed it was a federal court in the Eastern District of Tennessee writing two decades ago in a case called Hall v. Lee College. District Judge Curtis Lynn Collier—interpreting the statute, rather than the regulation—wrote, “It may very well be that to claim the exemption found in the statute, an educational institution need do nothing more than just raise the exemption,” as opposed to filing a formal waiver. Hall v. Lee College, Inc., 932 F. Supp. 1027, 1033 (E.D. Tenn. 1996). Simply raising that exemption if it is required to do so may be PLNU’s plan. That is not to say that is the right or wrong thing to do, without really researching this, I honestly have no idea. But this is my pitch for the student press not to draw its own legal conclusions, to use a less sexy (or more “balanced,” if you prefer) headline than “PLNU in violation of Title IX Legal Experts Say,” and a perhaps to seek a countervailing “expert” view. (In any case, given the choice between a federal court opinion and a couple of lawyers’ say so, I’d go with the former.)
These suggestions are not meant to discourage The Point from taking on difficult issues. They’re just my two cents now that I’m six years removed. When I was working at The Point, we had our fair share of Title IX coverage. I’m sure that if I reread those stories today, I would have plenty of critiques.
It is certainly interesting that Northwestern Nazarene University and Southern Nazarene University have applied for waivers, I’m glad that is included in the story. But obviously those schools’ precautions don’t create legal obligations for PLNU.
Nathan Scharn is a 2010 PLNU alum and former Editor-in-Chief of The Point.
PHOTO BY JONATHAN SOCH
Grace Gaines