The U.S. Department of Education recently published a new proposed regulation that would end a Trump-Pence rule that added extra safeguards for the rights of faith-based campus
groups. The Trump-Pence rule required public universities and colleges to respect the First Amendment rights of faith-based campus groups in order to receive federal grant money. The new Biden rule would force some student groups to either fight in court for their right to meet or lose the right altogether.
The U.S. Department of Education must receive your comments RE: Docket ID ED–2022–OPE–0157 at https://www.regulations.gov/document/ED-2022-OPE-0157-0001 on or before March 24, 2023 for them to be considered and included in the record.
Fortunately, Advancing American Freedom, the action organization founded by former Vice President Mike Pence, is organizing opposition to this wrong-headed rule, and has drafted and submitted comments that might help you formulate your own comments.
Religious liberty dies on American college campuses if the Biden rule goes into effect, we urge you to submit your comments TODAY!
The comments submitted by Advancing American Freedom follow:
[Docket ID ED–2022–OPE–0157]
The “Free Inquiry Rule,” from the Trump-Pence administration, is a necessary and proper means of protecting the free speech and free exercise rights of religious student organizations and their members at public institutions of higher education (“IHEs”)—and therefore, the notice of proposed rulemaking (NPRM), titled “Direct Grant Programs, State-Administered Formula Grant Programs,” proposing to rescind provisions 34 C.F.R. §§ 75.500(d) and 76.500(d), should be rejected.
The U.S. Department of Education (“Department”) states that “these provisions’ costs outweigh any potential benefits.” 1 The Department cites three main reasons for this claim: (1) the provisions “are not necessary to protect the First Amendment right to free speech and free exercise of religion” of religious student organizations at IHEs; 2 (2) the provisions “create[] confusion among institutions;” 3 and (3) the provisions “prescribe an unduly burdensome role for the Department to investigate.” 4 However, none of these points justify the contention that the provisions in question’s “costs outweigh any potential benefits” 5 and therefore should be rescinded.
The provisions of the “Free Inquiry Rule” are necessary to protect the First Amendment right to free speech and free exercise of religion of faith-based student organizations at IHEs, because religious groups (particularly minority religions) are always at risk of having their First Amendment rights infringed upon. That is why, throughout this country’s history, special or added protections have been afforded to religious groups, in all three branches, at both the state and federal levels, so that they can believe, practice, and speak freely. The Religious Freedom Restoration Act, 6 the Respect for Religious Liberty section of the United States Attorneys’ Manual, 7 Marsh v. Alabama (1946), 8 and An Act to Provide Protections for the Exercise of Religious Freedom in South Dakota 9 are just a few examples. Further, because of the complexity and cost of bringing First Amendment claims in the courts, a difficulty the Department effectively acknowledges, 10 the relative ease of bringing a complaint before the Department provides significant and meaningful protection for the First Amendment rights of student organizations.
The provisions should not “create[] confusion among institutions” bound by them. The provisions in question state that a “religious student organization's beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs,” 11 may not be used as the basis to, deny to any student organization whose stated mission is religious in nature and that is at the public institution any right, benefit, or privilege that is otherwise afforded to other student organizations at the public institution (including but not limited to full access to the facilities of the public institution, distribution of student fee funds, and official recognition of the student organization by the public institution). 12 Put more concisely, an organization’s religious beliefs cannot be used to deny it benefits it would be entitled to, but-for its religious beliefs. The regulation’s requirements are straightforward and easy to follow. IHEs must not deny benefits to a student group on the basis of its religious beliefs.
Lastly, the Department claims that the provisions will require it to take an “unduly burdensome” 13 investigative role, despite the Department’s own admission that it “has not received any complaints regarding alleged violations of §§ 75.500(d) and 76.500(d) at the time of publishing” this NPRM. 14 Further, the Department attempts to justify its claim of undue burden by pointing to the complexity and fact-intensive nature of First Amendment law. 15 However, the Department need not engage in a comprehensive First Amendment analysis to determine the relevant question under the regulations it seeks to rescind: whether a religious student organization would have received the same benefits as other student organizations but for its religious beliefs. Therefore, because the Department can provide no evidence for its claim that investigation would be unduly burdensome and because the justification it does provide exaggerates the burden investigation would impose, the burden of investigation is insufficient to support the claim that the benefits of the existing regulations outweigh their costs.
For the foregoing reasons, Advancing American Freedom recommends that the NPRM, titled “Direct Grant Programs, State-Administered Formula Grant Programs,” proposing to rescind provisions 34 C.F.R. §§ 75.500(d), and 76.500(d), should be rejected by the Department and the “Free Inquiry Rule” preserved as is.
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1 Direct Grant Programs, State-Administered Formula Grant Programs, 88 Fed. Reg. 10857, 10863 (proposed Feb. 22, 2023).
2 Id. at 10857.
3 Id.
4 Id.
5 Id. at 10863.
6 42 U.S.C. §§ 2000bb-2000bb-4.
7 U.S. Dep’t of Just., U.S. Atty’s’ Manual § 1-15.000 (2018).
8 Marsh v. Alabama, 326 U.S. 501 (1946) (holding that governments cannot require permits for evangelizing, in public spaces, even where those spaces are privately owned.)
9 S.D. CODIFIED LAWS § 1-1A-4.
10 See supra, note 1 at 10861.
11 34 C.F.R. §§ 75.500(d) & 76.500(d).
12 Id.
13 Supra, note 1 at 10857.
14 Id. at 10863.
15 Id. at 10861.
Unduly burdensome
religious liberty
First Amendment
College Campuses
Trump/Pence rule
Free Inquiry Rule
U.S. Department of Education
public institutions of higher education
Direct Grant Programs
Advancing American Freedom
Mike Pence
faith-based campus groups
grant money