The U.S. Department of Education announced Aug. 19 that it anticipates rescinding parts of a rule enacted by the Trump administration that forces universities to financially support religious student groups that discriminate.
This November 2020 reinterpretation of the Free Inquiry Rule has been challenged in court by Americans United for Separation of Church and State and American Atheists, on behalf of the Secular Student Alliance and a California university student.
The legal challenge, Secular Student Alliance v. U.S. Department of Education, was filed on Jan. 19, 2021, the final day of the Trump administration.
According to the Trump administration change, public colleges and universities are required to exempt religious student clubs from nondiscrimination requirements that apply to all other student clubs officially recognized by the schools and funded by activity fees paid by all students. The rule gives student clubs the right to use religion to discriminate while still receiving official university recognition and funding.
The rule gives student clubs the right to use religion to discriminate while still receiving official university recognition and funding.
Often, this discrimination targets students who are LGBTQ, differently abled, religious minorities or nonreligious. Already, faith-based schools are allowed to apply to the Department of Education for exemptions to federal anti-discrimination laws and that, too, is being challenged in court by another class-action lawsuit.
The lawsuit regarding the Free Inquiry Rule argues that former Secretary of Education Betsy DeVos did not have authority to issue the new interpretation, ignored the harms that the rule will cause to students and their schools, and imposed requirements that directly conflict with the U.S. Constitution as well as statutory nondiscrimination laws.
In announcing the review and likely reversal of the Trump administration rule, Michelle Asha Cooper, acting assistant secretary for the Office of Postsecondary Education, said, “all institutions of higher education receiving Federal financial assistance must comply with applicable federal statutes and regulations that prohibit discrimination.”
While review the last-minute Trump regulations, the current Department of Education staff will keep in mind the importance of First Amendment protections, nondiscrimination requirements and the promotion of inclusive learning environments for all students, she said. “Following completion of our review, we anticipate publishing a notice of proposed rulemaking in the Federal Register to propose rescinding parts of the Free Inquiry Rule.”
“Compliance with nondiscrimination requirements must be in a manner consistent with the First Amendment.”
That would, in turn, open a period of public comment before the changes could be finalized.
But Cooper asserted: “Throughout this process and beyond, public colleges and universities must ensure protection of First Amendment freedoms, including religious freedom and freedom of association, which long predate the Free Inquiry Rule. Compliance with nondiscrimination requirements must be in a manner consistent with the First Amendment.”
Americans United and the other advocates in the lawsuit welcomed this news and said they will ask the U.S. District Court for the District of Columbia to stay the lawsuit to give the department time to rescind its regulation.
“We applaud the Department of Education for its willingness to reconsider this harmful regulation, and for sending the message to colleges, universities and their students that this wrong may soon be righted,” said Richard Katskee, vice president and legal director of Americans United. “We anticipate that the Biden administration will agree with us that discrimination has no place in our public colleges and universities — even if religion is used to justify it.”