A Seminary, Same-Sex Marriage and Student Privacy

A former student filed suit against Fuller Theological Seminary, claiming that it had expelled her because she was in a same-sex marriage. The complaint filed by the former student, Joanna Maxon, says disciplinary proceedings were initiated against her after the financial aid office flagged information from her tax returns -- which she had authorized be shared with the seminary for financial aid purposes -- showing she had filed her taxes jointly with a same-sex spouse.

Maxon’s lawsuit alleges that Fuller, a nondenominational, evangelical Christian seminary located in Pasadena, Calif., violated Title IX of the Education Amendments of 1972, the federal law that prohibits discrimination on the basis of sex, as well as California civil rights code barring discrimination on the basis of sex and sexual orientation.

The lawsuit raises questions about the rights of religious institutions to treat students differently based on their religious views on same-sex relationships, as well as issues related to student privacy. Paul C. Southwick, Maxon’s lawyer, said the complaint does not allege breach of privacy because students have no private right of action under the Family Educational Rights and Privacy Act. But he argued that Fuller had used her tax records improperly and pointed to provisions of FERPA that prohibit college officials from sharing a student's educational records without consent even internally except to individuals that have "legitimate educational interests" in those records.

​“That information on tax returns is protected by FERPA, and it can only be used for what the student authorizes it to be used for,” Southwick said. “There does appear to be an exception for educational purposes, if it’s necessary for some kind of educational purpose beyond financial aid, but otherwise it can’t be disclosed even internally to the institution. For example, you wouldn’t want the financial aid office emailing your tax returns to professors or other administrators.”

Karen McCarthy, the director of policy analysis at the National Association for Student Financial Aid Administrators, said the relevant question under FERPA would be whether there was a legitimate educational interest to share tax information internally. Fuller's FERPA policy states that "[a] school official has a legitimate educational interest [in a student's educational record] if the official needs to review an education record in order to fulfill his or her professional responsibilities for the seminary."

Apart from FERPA, McCarthy said the Higher Education Act prohibits the sharing of Free Application for Federal Student Aid data for any purpose other than applications for, awarding of or administration of aid programs. She said the relevant question under the HEA would be whether the gender of a spouse would qualify as FAFSA data: McCarthy said the only data on marital status that be routinely transmitted from the Internal Revenue Service to the institution as part of the FAFSA process would be the student’s tax filing status (e.g. married, filed jointly) -- not the gender of the spouse. However, she said if the student is selected for verification, the institution could receive a copy of the student’s tax return or tax transcripts form the IRS, both of which would include the name of a spouse.

Fuller said in a statement that the institution "is aware of, considers, and complies with the various student privacy and confidentiality laws that apply to its administration."

The issue of privacy of student financial aid information aside, the lawsuit against Fuller speaks to long-standing tensions about religious colleges' policies toward gay students and faculty.

According to the lawsuit, filed Thursday in U.S. District Court for the Central District of California, Maxon enrolled at Fuller in 2015. She married her wife in 2016, after the legalization of same-sex marriage nationwide. She discussed her same-sex marriage with fellow students and with faculty at Fuller, with no issues.

“They continued to be supportive of affirming of her and her family,” the complaint filed by Maxon states.

However, the complaint asserts that in August 2018 the financial aid office submitted a complaint against her. According to a complaint resolution report attached as an exhibit to the lawsuit -- Maxon claims never to have received a copy of the actual complaint -- "The Office of Student Financial Services (OSFS) alerted the Office of Student Concerns (OSC) about a potential violation of Fuller's Community Standard: Sexual Standards. As part of the financial aid process, OSFS received a copy of Joanna's 2016 income tax return and an amended return. The tax return lists Joanna as married, filing jointly with another female."

The complaint seemingly triggered an investigation of whether Maxon had violated a community standard at Fuller prohibiting “homosexual forms of explicit sexual conduct." She was expelled in October 2018. According to the lawsuit, she had only a few classes remaining.

Fuller’s community standard relating to same-sex sexual conduct cites a religious reason for the prohibition: “Fuller Theological Seminary believes that sexual union must be reserved for marriage, which is the covenant union between one man and one woman, and that sexual abstinence is required for the unmarried. The seminary believes premarital, extramarital, and homosexual forms of explicit sexual conduct to be inconsistent with the teaching of Scripture,” states the current version of the policy, available on the seminary’s website. “Consequently, the seminary expects all members of its community -- students, faculty, administrators/managers, staff, and trustees -- to abstain from what it holds to be unbiblical sexual practices.”

The lawsuit argues that Fuller never actually proved that Maxon engaged in prohibited sexual conduct, just that she was married to another woman. Even if it could prove the conduct, Southwick said, it had no right to discriminate against her under Title IV: while certain religious colleges are eligible to apply for exemptions from Title IV, he said Fuller has not received such an exemption. (There is no record in a U.S. Department of Education database of Fuller having received such an exemption, and the seminary did not respond to a request to confirm that it did not have one).

“Let’s assume that the university had discovered information demonstrating that Joanna had engaged in what they call ‘explicit forms of homosexual conduct’: then under their policies they would have had a right to expel her,” Southwick said. “However, under Title IV, they would not be allowed to expel her, because she is married and students who are in heterosexual marriages are not expelled for engaging in sexual conduct with their spouses, but students in same-sex marriages would be subject to expulsion because of having sex with their spouses.”

“This case matters because now there are approximately one million Americans in same-sex relationships [or, more specifically, in same-sex households] -- not all of those are marriages but a large number of those are -- and people who are in same-sex relationships, like everyone else, want to attend graduate programs and other educational opportunities,” Southwick said. “There are hundreds of religiously affiliated colleges and universities throughout the United states that have codes of conduct that would either prohibit an applicant or result in an expulsion of a current student for either marrying their same-sex partner or engaging in a variety of what are called homosexual conduct violations.”

Fuller said it could not comment on specifics regarding a student.

“As a historically multi-denominational seminary and a convening place for civil dialogue -- with a commitment to academic freedom -- we strive to serve the global Christian church in its various perspectives,” Fuller said in a written statement. “We remain committed to these relationships in all their complexities while maintaining community standards and a statement of faith that apply to various areas of beliefs and behavior. Students are informed of and explicitly agree to abide by these standards when applying to the institution.”