The U.S. Department of Education (DOE) has announced that it is seeking public comments on a proposed rule that will rescind a 2020 DOE rule that gave enforcement teeth to the promise of free speech and religious freedom on college campuses. The current rule conditions federal grant funding on compliance with First Amendment protections for students and campus clubs.
DOE says the rule is unnecessary.
Nassar H. Paydar, DOE Assistant Secretary, Postsecondary Education announced the proposed rule in a blog post on DOE’s website:
After its thorough review, 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, it 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.
Let’s look at the claim that the current rule is “not necessary.”
Any Daily Citizen reader paying attention to our stories (see “Related” below for a sampling) over the last several years is familiar with the never-ending litany of public colleges and universities that have been guilty of creating unconstitutional restrictions on free speech or that have denied Christian clubs official recognition on campus because of ideological disagreements over the biblical positions they espouse.
The infringements have been so commonplace, in fact, that in 2019, then-President Donald Trump issued Executive Order 13864, titled “Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities” which ordered DOE and other federal agencies to come up with “appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations and policies.”
What DOE produced in 2020 to comply with the president’s Executive Order was a rule giving teeth to the First Amendment rights of college students and clubs. In essence, DOE said that if colleges and universities suppressed free speech or the freedom of religion, they ought not be entitled to federal grant money.
That enforcement mechanism is what the current DOE wants to rescind. It argues that the courts will adequately safeguard the rights of students and student organizations on campus. Assistant Secretary Paydar also attempts to persuade the public that the proposed rescission “does not alter the Department’s commitment to religious freedom.”
But colleges and universities have been slow to learn from court injunctions and the numerous lawsuits initiated by public interest law firms such as Alliance Defending Freedom on behalf of Christian students, teachers, and clubs over the years. The financial penalties created by the 2020 DOE rule helped ensure that institutions of higher learning start paying better attention to their constitutional responsibilities.
Taking away the 2020 rule’s financial incentive for colleges and universities to fully comply with the First Amendment only weakens protections for students and student organizations and is a step backwards in the effort to guarantee open discussion and religious freedom on campus.
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