Biden Admin Reverses Trump’s Religious Freedom Protections on Campus

The Biden administration “is trying to cancel religious student groups” on campus by rescinding a Trump-era religious freedom protection holding universities responsible for violating the First Amendment rights of believing students, a religious liberty watchdog tells The Washington Stand.

The Department of Education seeks to delete a 2019 administrative regulation that allows the government to deny some or all federal funding to colleges and universities that have violated religious student organizations’ rights or “its own stated institutional policies regarding freedom of speech, including academic freedom.” The previous administration enacted the Religious Liberty and Free Inquiry Final Rule “to help ensure that public institutions uphold fundamental rights guaranteed by the First Amendment to the U.S. Constitution.”

But the Biden administration announced Tuesday the DOE believes punishing academic bad actors “is not necessary in order to protect the First Amendment right to free speech and free exercise of religion given existing legal protections.” Furthermore, the rule “has caused confusion about schools’ nondiscrimination requirements, and it prescribed a novel and unduly burdensome role for the Department in investigating allegations regarding public institutions’ treatment of religious student organizations,” wrote Nassar H. Paydar, DOE assistant secretary of postsecondary education. Paydar added that religious students should rely on “the robust First Amendment protections that already exist” by taking hostile universities to court.

It is unclear how the rule requires the Department of Education to initiate an unduly burdensome investigation, since the DOE can only withhold federal funds after a court decision. “[T]he Department will rely upon a final, non-default judgment by a state or federal court,” the rule states.

“The Biden administration once again demonstrates its hostility to people of faith by seeking to repeal a Trump-era Department of Education rule that protected the ability of religious student groups to meet on equal terms as all other student groups on campus,” Keisha Russell, counsel at First Liberty Institute, told The Washington Stand. “For decades, universities have invoked various discriminatory tactics to remove religious student groups from campus, because those groups require leaders to hold the same beliefs as the group. Now, the Biden administration is trying to cancel religious student groups it disfavors.”

Russell previously praised the rule as “necessary and important” to protect the unalienable rights of young adult believers against numerous documented forms of discrimination by college administrators. “[O]ver the past few decades, some public universities have effectively evicted religious organizations from campus by stripping these organizations of the right to communicate with students via college emails, websites, and campus-wide events, and deny them funding,” Russell wrote in 2020.

First Liberty regularly represents such students in court, but “this shouldn’t be a situation where we have to prove that we have the right to express our religious beliefs,” Meg Kilgannon, senior fellow for Education Studies at Family Research Council, told “Washington Watch with Tony Perkins” Thursday night. She added that allowing universities to create “an environment where they’re not going to defend the rights of religious people to talk about those ideas” creates “a chilling effect” on faith-based speech.

While the Biden administration claims to oppose unduly burdensome new regulations, it has issued new legal guidance asserting that Title IX, which protects female rights in education, applies to men who identify as transgender. That “expand[s] the power of Title IX Officers, granting them enormous enforcement and oversight powers in K-12 schools, colleges, and universities,” noted Kilgannon.

Similarly, the Biden administration’s “2022 Agency Equity Plan” requires “each applicant for [federal grant] assistance” to “describe in its application the steps the applicant proposes to … overcome barriers to equitable participation, including barriers based on gender, race, color, national origin, disability, and age.”

“Additionally,” the equity plan continues, “the Department plans to initiate a more active review of the forms and provide technical advice to applicants on how to develop specific and actionable steps.” The DOE may not have considered this “burdensome, as not all of the vetting would be handled by federal employees; the DOE stated it plans to “allow nonfederal peer reviewers to assess the way in which an applicant integrates equity into its proposed project.”

The DOE also promised last April to begin “sponsoring a new vision of college excellence that makes inclusivity a marker of prestige.”

The Biden administration also asked for Americans to provide information with the rule’s requirements that private institutions comply with the First Amendment over the next 30 days. 

“This is the hostility we’re seeing from the Left toward religious freedom, because it is a barrier to the power that they want over the minds and hearts of people, of students,” concluded Perkins.