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The Story: The U.S. Department of Education has issued 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 and that private institutions adhere to their stated institutional policies regarding freedom of speech, including academic freedom.”

The Background: The new rule ensures the Department of Education is in compliance with the Supreme Court ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer (2017). In the Trinity Lutheran case, the Court reaffirmed that the government “cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving [public] benefits.”

The stated purpose of the rule is to restore religious liberty and prevent discrimination against faith-based organizations and to act in a manner consistent with the government’s obligation to be neutral in matters of religion. It removes and amends regulations that would impose burdens on faith-based organizations, provide special benefits to faith-based organizations, or treat faith-based organizations and religious individuals differently from other organizations or individuals.

Some of the effects of the proposed rule public colleges and universities are:

• Clarifies that faith-based organizations and subgrantees are eligible to receive a grant or subgrant under a program of the Department of Education on the same basis as any other private organization, ensures nondiscrimination against faith-based organizations, and strengthens religious freedom protections.

• Clarifies that a faith-based organizations at a school that participates in department-funded programs retains their autonomy, right of expression, religious character, and independence from federal, state, and local governments.

• Ensures that faith-based and non-faith-based organizations shall, on equal terms, be eligible to obtain, use, and keep grant funds.

• Requires public institutions that receive a direct grant or subgrant from a state-administered formula grant program of the Department of Education to comply with the First Amendment and with their stated institutional policies on freedom of speech, including academic freedom, and to not deny to a faith-based student organization any of the rights, benefits, or privileges that are otherwise afforded to non-faith-based student organizations, as a material condition of the grant.

• Clarifies how an institution may demonstrate that it is controlled by a religious organization for purposes of Title IX. (Federal law provides that Title IX “shall not apply” to educational institutions that are “controlled by a religious organization,” to the extent that application of Title IX would not be consistent with the religious tenets of such organization.) The rule includes a non-exhaustive list of some of the most common concrete factors that an institution may rely upon to demonstrate that it is “controlled by a religious organization” for Title IX purposes.

What It Means: The rule became necessary when college administrators decided that the advancement of “toleration” justified ignoring the First Amendment rights of religious students. A prime example came in 2018 when the University of Iowa chapter of Business Leaders in Christ (BLinC) told a homosexual student he ineligible to serve in a leadership position if he did not affirm the group’s commitment to Christian teaching on marriage. When the student complained, the University of Iowa deregistered BLinC for violating the school’s nondiscrimination policies. The school later deregistered 38 other organizations that refused to abandon their religious or ideological commitments, including Intervarsity Christian Fellowship, the Sikh Awareness Club, the Chinese Student Christian Fellowship, the Imam Mahdi Organization, and the Latter-day Saint Student Association.

“[M]any public colleges and universities, when they disagree with a particular viewpoint, are willing to run roughshod over the First Amendment’s protections that all Americans have to freely speak, associate with like-minded people, and peaceably assemble,” says Zack Pruitt, senior counsel for Alliance Defending Freedom. “Those freedoms belong to the very taxpayers who provide the money for public grants; therefore, the taxpayers have good reason to expect grant recipients to respect their rights and their children’s rights that are protected by the First Amendment.”

As the new rule reminds us, Christian student groups have the same right to associate on public university campuses as any other group. But Christian students should be aware of how to protect their freedoms.

In most circumstances, universities cannot expel religious groups from campus merely because the groups want their members or leaders to agree with the group’s religious beliefs. Overly broad “nondiscrimination” policies may violate student groups’ rights of association. But the Supreme Court has said a college may restrict students’ free association if it has an “all comers” policy, meaning that all students must be allowed to join and lead all groups.

According to Alliance Defending Freedom, a critical task for a new student group is to write a constitution and bylaws. These documents define, among other things, who can participate in the group, who can be a member, and who can be a leader. The purpose of placing limits on who is eligible to lead or vote is to preserve the character of the group. For example, some Christian groups ask their officers to lead Bible studies. Those groups require their officers to agree with a statement of faith or to demonstrate a commitment to the faith. Doing so helps ensure the officers will be good representatives of Christ and will be able to teach others in accordance with the beliefs of the group.

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