Wall Street Journal Op-Ed:  Title IX and the Assault on Hillsdale College, by Tunku Varadarajan (Fellow, American Enterprise Institute & NYU Law School Classical Liberal Institute):

Embedded in a civil lawsuit against Hillsdale College is an assault on the fabric of this small, private Christian school founded in 1844. The lawsuit, brought by two undergraduate women who allege that they were raped two years ago by male Hillsdale students of their acquaintance, alleges not only that the college was negligent in handling their complaints, but also that it failed to afford them the protection to which they were entitled under Title IX of the Education Amendments of 1972. …

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. …

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.”

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