House Republicans say that a Biden administration plan to rescind part of a Trump-era rule that required public colleges and universities to give faith-based student organizations the same resources as secular groups is “wholly unwarranted.”
“The proposed rollback of these protections lacks any compelling rationale, and sends a dangerous message to students and university administrators that religious liberty is not a priority,” Republicans on the House Committee for Education and the Workforce wrote in a comment on the proposal.
The Education Department received more than 58,000 comments on the proposed rule, which was announced last month. Not all of the comments were publicly available by Tuesday afternoon, but many of those posted were opposed to the department’s plan. Students who belong to faith-based organizations such as the Christian Legal Society weighed in, urging the department to reverse course. More than 9,500 of the posted comments mirrored a sample comment provided by the American Family Association, which sent an action alert urging individuals to tell the department not to rescind the rule.
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“There is no question that public colleges and universities have repeatedly and effectively engaged in discrimination against religious organizations by excluding them from accessing the same funding, using the same school facilities, or communicating with students via the same school email, websites, or events used by nonreligious groups,” the association’s sample comment says.
Department officials will have to review and respond to the comments before issuing a final rule.
The department began reviewing the 2020 free inquiry rule in 2021 and announced in late February that it planned to eliminate the section that barred higher education institutions from denying faith-based student organizations any rights, benefits and privileges afforded to nonreligious student groups because of their “beliefs, practices, policies, speech, membership standards or leadership standards.” Colleges found in violation of that prohibition would lose access to grant programs administered directly by the department and indirectly through the states—but not federal financial aid.
The Trump administration had said the rule would ensure that religious organizations as well as their student members fully retain their right to free exercise of religion, though critics argued the regulations allowed religious student groups to discriminate against vulnerable and marginalized individuals, such as LGBTQ students.
Ultimately, the department said the student organization provision was “unduly burdensome” for the department, not necessary to protect First Amendment rights on college campuses and has caused confusion for institutions.
“Though the so-called ‘confusion’ from the free inquiry rule is speculative, the challenges religious student organizations face are real,” House Republicans wrote in their letter. “[Institutions of higher education] pay lip service to neutrality; yet, at the same time, religious student organizations face burdensome restrictions, and in some cases, specific demands for groups to fundamentally change the nature of their beliefs and student leadership to receive recognition by a college or university.”
Democrats on the House education committee did not submit comments on this revision; they did not support the 2020 rule.
Payton Saunders, president of the Christian Legal Society at Texas Tech University School of Law, wrote in a comment that the university has been supportive of her organization, but that’s not the case at other institutions.
“I have friends across the nation who attend schools with both students and administration that are blatantly hostile towards religious beliefs,” Saunders wrote. “I have friends who are scared to even say they are Christian, let alone join any sort of student group. The current regulations benefit college administrators and students and should not be rescinded. Religious student organizations should be protected from government interference.”
In a separate request for information, the department sought feedback on how the overall rule has affected free speech–related decisions at colleges and universities.
The American Council on Education and other higher education groups urged the department to fully repeal the regulation.
“We have previously expressed grave concerns regarding the 2020 final rule, as it was proposed and later finalized, and those concerns have not abated,” ACE president Ted Mitchell wrote in a comment. “Of fundamental concern is the fact that these regulations undermine rather than support institutional efforts to foster environments that promote open, intellectually engaging debate on diverse topics on campus.”
Mitchell said that ACE also supports the proposed rule change. The current regulations, he said, interfere with public colleges and universities’ decision-making and force administrators to choose between following state and local nondiscrimination laws and maintaining eligibility for federal grant funding.
“Public colleges and universities are deeply committed to upholding their obligations under the First Amendment, and this includes all First Amendment guarantees, including the free exercise of religion,” he wrote. “Nothing in the department’s proposed rule rescinding these regulations diminishes those guarantees.”
Other commenters argued the overall free inquiry rule was necessary to ensure that colleges and universities uphold free speech.
The Foundation for Individual Rights and Expression wrote in a comment that more time is needed to assess the effect of the regulations and the department should conclude that there’s not enough data to justify a repeal.
“Put simply, these regulations require public institutions of higher education to protect the First Amendment rights of their students—a responsibility they are already required to uphold, but too often fail to meet,” the organization’s comment states. “Further, the regulations require of private institutions what many courts already demand of them: that they live up to the promises made in their published institutional policies.”
On the student organization provision, FIRE said a repeal would send the message that the department would “abandon campus civil liberties in order to ease the burden on powerful institutions.”
FIRE recommended that the department broaden the rule to include all belief-based or ideological student organizations, such as campus political groups.
“This modest revision … would help ensure that all belief-based student organizations, including secular belief-based organizations, may be active in their campus communities without sacrificing their values and their purpose for existing in the first place,” FIRE’s comment says.
Americans United for Separation of Church and State, which challenged the 2020 rule in federal court, praised the proposed rollback, saying it will ensure equity and fairness.
“The proposed rule would enable universities to return to encouraging and enabling all students to enjoy the benefits of participating in student groups while declining to subsidize discrimination with taxpayer dollars and student activity fees,” the organization wrote. “By ending favorable treatment for certain groups, all will play by the same rules. Groups that want to discriminate can still do so, but without school support.”