The U.S. Department of Education is facing backlash against its plan to roll back Trump-era regulations aimed at protecting religious colleges, student groups and free speech on campus.
The Department of Education said the so-called free inquiry rule is redundant because public colleges are already required to comply with the First Amendment. And the rule requires the agency to investigate cases of possible mistreatment of religious groups, something he says he is ill-equipped to do so.
But several higher education groups as well as conservative lawmakers supported the rule in responses sent March 24 to the department’s request for feedback.
Potential loss of protection
It’s too early to know whether the free-to-interview rule, which was introduced in 2020, has had the intended effect, according to the Civil Liberties Watch Foundation for Individual Rights in a statement. The group argued that because noncompliance is determined by a court decision, it would be premature to determine the rule’s effectiveness — or call it a failure — after just two and a half years.
“However, in that short period of time, institutions have already made strides in protecting student and faculty free speech, and the regulations could be a key part of those improvements,” said FIRE Legislative and Policy Director Joseph Cohn and legislative counsel. Greg Gonzalez, said in his comments to the department.
It’s also an easy rule for colleges to meet, the organization said. According to FIRE, the financial burden is minimal and more than worth protecting free speech.
The American Council of Trustees and Alumni, a conservative higher education nonprofit, cited two recent lawsuits brought by Christian student groups — one against the University of Nebraska-Lincoln and others v. Georgia Institute of Technology — as examples of colleges that need additional oversight to protect students’ religious freedom.
“These stories clearly demonstrate the necessity of the regulations that the Department of Education is proposing to repeal,” wrote ACTA President Michael Poliakoff. in your comment. “All student organizations in both public and private colleges and universities should be afforded equal opportunities to advance their missions as long as their actions do not violate constitutional protections.”
Some conservationists also submitted comments criticizing the Ministry of Education’s plan.
A dozen House Republicans — all members of the House Education and Workforce Committee — called the proposed repeal of the rule harmful to religious freedom.
Institutions of higher education are merely begging for neutrality, said the group, led by committee chair Virginia Foxx, RN.Y.
“At the same time, religious student organizations face onerous restrictions and, in some cases, specific requirements for groups to fundamentally change the nature of their beliefs and student leadership in order to gain recognition by a college or university,” said their comment.
Ohio Attorney General Dave Yost, a Republican, argued that the free inquiry rule is not actually superfluous to the First Amendment and acts as an additional safeguard against “non-gendered administrators who all too often infringe on students’ right to the free exercise of their religion.”
“The religious practice of student groups and individuals is under tremendous fire on campuses,” Yost said in comments that were signed by 21 other Republican attorneys general. “They are owed the right to freely practice their religion, however in vogue with an increasingly anti-religious bureaucratic regime that might be.”
“Amazing within reach”
But college organizations generally did not support the free inquiry rule.
The American Council on Education supported the repeal, calling the rule troubling and problematic. The group argued that the free inquiry undermines free speech on campus, rather than protecting it, as supporters argue.
“The 2020 final rule actually limits these rights by making the loss of federal grant funding contingent upon a single ‘final, non-implicit judgment’ of a court against the institution or any of its employees,” stated in his feedback. “The concept is breathtaking in its scope, and its real-world application is chilling and could lead to a number of unintended consequences.”
Such consequences could include the college losing all federal funding because of one incident — a single court decision after a single campus decision, ACE said. The group also said the free inquiry rule, as written, falsely conflates academic freedom with free speech, further confusing an already complex issue.
Fourteen other college groups signed on to the ACE comment, including the Association of Catholic Colleges and Universities, the Council for Christian Colleges and Universities, and the Association of Jesuit Colleges and Universities.
The Association of Public and State Universities signed the ACE statement, but also supported the repeal of the regulation in its own separate comment.
He pointed out that under the policy, litigation becomes so important that public universities could be forced to fight every case “as if the world depended on the outcome.”
“The rule, as originally envisioned by the previous administration, appears to assume that a public university would lose a First Amendment case only if there was some serious act,” said Mark Becker, president of the APLU, stated in his comment.
In reality, he said, the law is rarely so cut and dry.
“An institution can defend itself in good faith on an issue of unsettled law and lose in split decisions as justices carve out new territory in First Amendment jurisprudence,” Becker said.
Because of this, he wrote, colleges may have been forced to devote a greater percentage of their resources to litigation at the expense of institutional goals.
