Biden Moves To Reverse Campus Religious Freedom Rule
By Ben Johnson/The Washington StandMarch 20, 2023
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The Biden administration is days away from revoking a federal regulation defending religious liberty on campus, even though critics say the president has offered "no evidence" that religious student groups may not lose their First Amendment rights as a result.
The Religious Liberty and Free Inquiry Final Rule, written in 2019 by the Trump administration, allows the federal government to withhold some, or all, federal aid to any college that does not give religious students' groups the same accommodations as other student organizations strictly because of their faith.
The Department of Education may also punish universities that violate their own policies to uphold academic freedom or free speech. Trump administration officials believed they needed the leverage of defunding academic institutions to help ensure that public institutions "uphold fundamental rights" guaranteed by the Constitution.
But the Biden administration's Education Department announced its intention to wipe the religious freedom protection off the books in a Notice of Proposed Rulemaking (NPRM) issued on February 21. Democratic regulators say the rule is "not necessary" to protect the First Amendment, because students may sue universities in court. They also say the rule caused "confusion" for college administrators and created "a novel and unduly burdensome role for" the Department of Education.
Not so, says the man who helped institute the rule -- and thousands more people of faith from coast to coast.
"The 'Free Inquiry Rule,' from the Trump-Pence administration, is a necessary and proper means of protecting the free speech and free exercise rights of religious student organizations and their members at public institutions of higher education ('IHEs')," says a public comment on the regulation from the nonprofit organization founded by former Vice President Mike Pence, Advancing American Freedom (AAF). Pence's group says the rule reflects the historical reality that "religious groups (particularly minority religions) are always at risk of having their First Amendment rights infringed."
AAF also denies that the regulation's wording should confuse academic administrators, many of whom have advanced degrees. "The regulation's requirements are straightforward and easy to follow," that college and universities "must not deny benefits to a student group on the basis of its religious beliefs."
While the Biden administration claims the free-speech protection creates an undue burden based on the complexity of First Amendment jurisprudence, AAF notes that the government need only determine "the relevant question under the regulations it seeks to rescind: whether a religious student organization would have received the same benefits as other student organizations but for its religious beliefs." In fact, the federal code currently specifies the Education Department "will rely upon a final, non-default judgment by a state or federal court," allowing it to avoid First Amendment jurisprudence altogether.
The pro-life nonprofit's analysis came as part of the public comment period allowed for most proposed federal regulations; any citizen may comment on Biden's proposed religious liberty reversal until next Friday, March 24.
"With free speech and religious freedom under attack on college campuses across America, we need the protections provided by the 'Free Inquiry Rule' now more than ever," says the proposed message FRC Action asks grassroots advocates to send Education Secretary Miguel Cardona. "Religious student groups on university campuses, including religious minorities, too often face the risk of being shut down or 'canceled' by fellow students or school officials for expressing sincerely held beliefs perceived to be controversial."
Examples of suppressing the free speech rights of Christian or conservative student groups have multiplied over the years. At elite Stanford University last Thursday, left-wing students shouted down Judge Kyle Duncan because of his work defending religious liberty in the courts -- with the support of the university's associate dean for diversity, equity, and inclusion (DEI).
Duncan served as general counsel of the Becket Fund for Religious Liberty and a guest lecturer at Regent University before President Donald Trump appointed him to the Fifth Circuit Court of Appeals. In 2017, Georgetown University -- the nation's oldest Roman Catholic college -- tried to deny a conservative Christian group named Love Saxa its meager $250 stipend because the organization defended biblical sexual morality. The attempt ultimately failed.
Multiple Supreme Court cases already mandate that religious organizations receive equal access to publicly funded goods and services the government provides to the general public. Trinity Lutheran v. Comer (2017) and Espinoza v. Montana (2020) are just two of the most recent rulings holding that government officials cannot deny public goods to faith-based organizations.
As of this writing, 9,242 people have joined AAF in commenting on the proposed rule rescission, many of them expressing gratitude that student organizations proclaimed the gospel during their pivotal years of young adulthood. "I was part of 'Cal Christian Fellowship' at the University of California Berkeley back from 1981 to 1986," recalls one commenter, who went on to serve as a campus chaplain for decades. "My faith community provided me with significant friendships that continue to sustain me now" and even "helped me actually do better in my invertebrate zoology courses," as well as "navigate some of the complexities of college life (dating/relationships, drinking, etc)."
Another former campus ministry member recounts, "While in school, I benefited greatly from the personal relationships and community fostered by religious organizations. They also taught me to positively impact society by serving others, the campus, and helping the less fortunate." Christian organizations also advance "diversity of thought on campus, which is protected by the First Amendment."
A 2020 study from the National Association of Scholars found that college professors' campaign donations to Democrats outnumber those to Republicans 95-to-1. More than 80% of Harvard University faculty of arts and sciences described themselves as "liberal" or "very liberal" last summer.
A current student, who describes herself as a member of the North Carolina State University chapter of Cru, says faith-based student groups are doing jobs the university fails to do. "Religious communities add so much to campus culture and student life, and as a student I know that they can even fill in gaps for student resources where the university doesn't provide them," she writes.
In light of so many positive experiences, and since the Biden administration's educational bureaucracy "can provide no evidence for its claim that investigation would be unduly burdensome," Pence's organization observes, its reasoning remains "insufficient to support the claim that the benefits of the existing regulations outweigh their costs."
Despite the universities' overwhelmingly left-wing views on social issues, professors say they are not without their own religion. "Contrary to what you might think, many secular institutions now require faith statements, too. They go by the name diversity statements, but they function in the same ways as faith statements at religious institutions," wrote philosophy professor Justin McBrayer.
"Sadly, universities are increasingly becoming hostile places to express your beliefs, especially those that are informed by a biblical worldview," says the FRC Action petition. "It is vital that we show the Biden administration that we will not accept religious discrimination in higher education."