The Department of Education on Tuesday proposed to eliminate a rule that requires officials to withdraw federal support for colleges and universities that restrict the activities of religious organizations on campus, calling it ineffective and "unduly burdensome."
That rule was the result of a 2019 executive order from then-President Trump, "Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities." It was developed under Trump’s Department of Education and took effect in November 2020.
Among other things, it set up a system allowing the federal government to deny grants to institutions of higher education (IHEs) if they put limits on the activities of religious student organizations.
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Soon after the Biden administration took office, the department said it was reviewing this rule. On Tuesday the department announced it wants to rescind language related to religious freedom. Biden’s Department of Education decided this section of the rule is not necessary to protect religious activities since the rule already broadly protects First Amendment activities.
"The Department today issued a Notice of Proposed Rulemaking proposing to rescind a portion of the regulation related to religious student organizations because the Department believes it is not necessary in order to protect the First Amendment right to free speech and free exercise of religion given existing legal protections," Assistant Secretary for Postsecondary Education Nassar Paydar said in a post on the department’s website.
Paydar also said the current rule has "caused confusion about schools’ nondiscrimination requirements," and created an "unduly burdensome role" for the department, as it required officials to investigate schools’ treatment of religious student organizations.
At the same time, Paydar said religious organizations on campus should already have enough protection from rules requiring IHEs to respect First Amendment rights to free speech.
"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," he said.
Under the proposed rule change, the Department of Education would do nothing if a school is found to be limiting the speech or activities of religious groups and would instead direct these groups to take their complaints to court.
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"The Department is proposing to return to this longstanding practice of deferring to courts," Paydar said. "While the Department certainly shares the view that public institutions should not treat religious student organizations less favorably than other student organizations, we do not, at this time, believe that a threat of remedial action with respect to the Department’s grants helps achieve this goal."
The Department of Education is inviting public comment on the proposed rule, which it will accept up to 30 days after the rule is published on Wednesday.
