The Education Department wants to roll back part of the so-called free inquiry rule, which required public colleges and universities to uphold the First Amendment, among other provisions. However, the department says it isn’t changing the actual requirements of the First Amendment in higher education.
In particular, the department is proposing 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.
Critics have said that the regulations could be interpreted as requiring higher education institutions to allow religious student groups to discriminate against vulnerable and marginalized students, such as LGBTQ students, while proponents said the rule provides needed protections. The Trump administration, which issued the final rule in September 2020, said the rule would ensure that religious organizations as well as their student members fully retain their right to free exercise of religion.
After more than a year of reviewing the free inquiry rule, administration officials concluded that the student organization provision is “unduly burdensome” for the department, not necessary to protect First Amendment rights on college campuses, and has caused confusion for institutions.
“We have not seen evidence that the regulation has provided meaningfully increased protection for religious student organizations beyond the robust First Amendment protections that already exist, much less that it has been necessary to ensure they are able to organize and operate on campus,” officials wrote in a notice for proposed rule making that will accept comments through March 24.
Department officials repeatedly noted in the proposed regulations that rescinding the rule wouldn’t affect their commitment to religious freedom.
“Additionally, we continue to believe institutions generally make a good-faith effort to abide by the First Amendment irrespective of the implementation of the 2020 final rule, and we assume that compliance with the First Amendment has not generated additional burden for [institutions of higher education],” officials wrote.
The department also is seeking broader input on the 2020 rule. In a request for information released Wednesday, department officials said they want to hear about how the rule has affected free speech–related decisions at higher ed institutions—a move that some experts say could lead to scrapping the entire rule.
Joe Cohn, legislative and policy director at the Foundation for Individual Rights and Expression, said it’s too soon to gauge the impact on the new regulations.
“It would certainly be a mistake to judge a limited data set as proof of an effectiveness on this kind of timeline, especially when final court judgments are what trigger the department to take further action,” he said. “We all know the wheels of justice turn slowly.”
Americans United for Separation of Church and State, which sued the Trump administration on behalf of the Secular Student Alliance to challenge the rule, praised the decision to rescind part of the rule.
“Rescinding the harmful Trump rule means students won’t be forced to subsidize clubs that discriminate against them,” Americans United president Rachel Laser said in a statement. “It also means colleges won’t be forced to choose between protecting students and losing federal funding, or allowing discrimination against students in order to keep federal financial assistance.”
The organization’s lawsuit has been on hold while the Biden administration reviewed the rule, Americans United said in a news release.
Frederick Hess, director of education policy studies for the American Enterprise Institute, a right-leaning think tank, said it was a relief that the Biden administration didn’t rescind the entire rule.
“It is, however, disconcerting to see Biden officials rolling back protections for communities of faith just days after the president announced a governmentwide effort to promote diversity and inclusion,” he said. “As usual, it’s difficult to know precisely what this will mean until we see it applied in practice. But given the concerns about free inquiry on campus, and the frequency with which those relate to faith-related issues of gender and values, this seems a big step in the wrong direction.”
Ryan Jayne, senior policy counsel for the Freedom From Religion Foundation, said the current regulations force institutions to exempt religious student groups from nondiscrimination rules and other campus policies.
Religious student groups “should be required to follow the same rules as secular student groups, and this proposed rule attempts to restore that balance,” Jayne said. “Our only disappointment is that the administration took two years to issue this proposed rule.”
The Trump administration wrote the Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities regulations to in part protect the First Amendment rights of students and student organizations, officials said at the time. The regulations outlined how religious institutions could show that they’re exempt from Title IX of the Education Amendments of 1972’s rules against sex-based discrimination, and they also created the new conditions for grant funding.
The conditions included the religious student organization provision that the administration now wants to rescind. Public colleges and universities also would have to comply with the First Amendment, while private institutions would have to comply with their own policies on freedom of speech in order to remain eligible for department grant funding. The department would only find institutions in violation if a court found that they had violated the First Amendment or institutional policies, under the final rule.
While some of the grant conditions relied on a court judgment, determining whether a college violated the student group–related prohibition was left up to the department’s discretion. Officials concluded in 2020 that it was “a discrete issue that the department may easily investigate.” Biden administration officials disagreed with that conclusion in the notice.
“The First Amendment is a complex area of law with an intricate body of relevant case law,” officials wrote in the notice. “A proper review of an alleged violation could require the department to devote extensive resources to investigate the allegation given the nature of these cases.”
The department has not received any complaints alleging violations of the free inquiry rule as of Wednesday, according to the notice.
Officials did consider revising the regulations to clarify that applying nondiscrimination policies to religious student organizations would be allowed. However, that change still would’ve meant the department would have been responsible for investigating alleged violations, which could become “overly burdensome.”
“Instead, we believe the department should return to our historical role in which we have not adjudicated alleged violations of the First Amendment,” officials wrote. “Courts are better suited to handle such matters.”