DOEd moves to scrap Trump-era rule protecting faith-based campus groups

The Department of Education (DOEd) has published a formal rule proposal to eliminate religious liberty provisions of the “Free Inquiry” rule for public colleges and universities, potentially putting religious student groups at risk.

President Donald Trump issued an executive order in March 2019 seeking “to promote free and open debate on college and university campuses” by tying federal educational and research grants to the institution’s protection of free speech and religious exercise. An official DOEd rule was published in November 2020, which specified protections for religious student groups.

Although private institutions are not bound by First Amendment restrictions, which only apply to government actors, this rule obligates them to uphold stated institutional policies on academic freedom, free speech, and free association.

The regulations specifically require colleges to recognize student religious organizations and “provide them the same benefits other student groups have,” according to the Christian Legal Society (CLS). Some of these protections include the ability to reserve a campus meeting space, being listed on the college website, and the ability to apply for event funding, including outside speakers.

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Now, the DOEd is seeking to scale back the religious liberty protections of the Free Inquiry Rule, citing implementation problems.

“The Department proposes to rescind the regulations because they are not necessary to protect the First Amendment right to free speech and free exercise of religion; have created confusion among institutions; and prescribe an unduly burdensome role for the Department to investigate allegations regarding IHE’s [institutions of higher education] treatment of religious student organizations,” according to the DOEd announcement in the Federal Register.

The DOEd in particular, cites public concerns that the Trump-era rule creates the potential for preferential treatment of religious student groups and prevents institutions from handling situations on a case-by-case basis, as summarized by the Federalist Society.

Assistant Education Secretary Nassar Paydar wrote in a February statement that the DOEd has “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.”

CLS, however, has evidence to the contrary.

CLS compiled a list of 94 instances of college or university harassment or discrimination against student religious groups that either would have benefited from firmer First Amendment protections or were actively thwarted after the passage of the Trump-era regulations.

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The DOEd contends that these types of disputes are best handled by the court system and that “threat of remedial action with respect to the Department’s grants” disincentivizes discrimination.

At the time of the Trump-era rule proposal, the Foundation for Individual Rights and Expression (FIRE) reasoned that although public institutions are required to follow First Amendment juris prudence, the rule could “still have a substantial impact on public campuses, as there will now be an additional significant consequence (beyond liability in a lawsuit) if an institution loses a First Amendment suit in court,” potentially changing “institutions’ risk-benefit analysis when setting and defending their policies and actions.”

FIRE Senior Legislative Counsel Tyler Coward told Campus Reform that they “will be submitting a comment to the Department of Education urging it to keep the current rules in place.”

Public comment on the DOEd’s proposal is open to the general public until March 24, 2023. CLS provides simplified instructions on how to submit a formal comment.

“The Department should not abandon its commitment to protecting civil liberties on campus,” Coward continued, “including freedom of association. The proposed rule does just that.”

CLS has not yet responded to Campus Reform’s request for comment. The Federalist Society denied Campus Reform’s request for comment. This story will be updated accordingly.

Follow Gabrielle M. Etzel on Twitter.