ACLJ Files Formal Public Comments To Defend Religious Liberty on Campus Against Biden’s Attempt To Water Down First Amendment Protections

This week, the ACLJ submitted a formal public comment and legal analysis in opposition to the rule changes proposed by the Department of Education (ED) that threaten to remove safeguards protecting the constitutional rights of religiously affiliated student groups on college campuses.

This continues our longstanding commitment to fighting discrimination against religious educational bodies, for example, as in a recent series of cases in which the ACLJ filed amicus briefs supporting claims under the Free Exercise Clause of the First Amendment (namely, Trinity Lutheran Church v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin).

On February 21, 2023, ED proposed to rescind a Trump policy that protected the First Amendment rights of college student groups. The current policy allows ED to remove education grants from public universities that discriminate against religious student organizations. These are very reasonable protections for organizations that have faced constant harassment from university administrators in recent years; yet under the Biden Administration, ED has decided that these protections are not necessary. Biden’s ED suggested that it need not provide protections for religious student orgs because they are able to sue universities if their rights are violated. However, lawsuits are costly, and students considering suing universities are at a huge financial disadvantage and risk retaliation. Clearly, university administrators are not scared by the threat of lawsuits, as evidenced by the harassment religious groups have faced recently. Thus, universities need to be heavily incentivized to respect the First Amendment rights of religious student orgs.

Our comment opposes this rollback of protections because (a) college administrators have become increasingly hostile to religious organizations and need every incentive to stop discriminating on the basis of religion, and (b) the federal government should not be funding entities that violate the First Amendment.  Our comment lays out the protections the First Amendment provides for religious organizations:

The Free Exercise Clause “protect[s] religious observers against unequal treatment. . . .” The Supreme Court has generally ruled it unconstitutional to discriminate against a religious organization based solely on its religious affiliation.  The Court has also made clear that “the Constitution [does not] require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.”

Most recently, the Supreme Court held that the exclusion of an otherwise eligible recipient from a government grant program solely because that entity is religious in nature violates the Free Exercise Clause.  The Court has also held that the Equal Protection Clause commands that “all persons similarly situated should be treated alike,” and that discrimination triggered by the exercise of a fundamental right – here, faith-based organizations participating in Department programs – triggers strict scrutiny under the Equal Protection Clause.  Clearly, government must protect religious exercise by essentially being “hands off,” with respect to faith-based organizations that are similar to secular counterparts in all other relevant respects.

We then cite numerous instances of university discrimination against religious student orgs over the past several decades, including the University of Virginia discriminating against the student publication Wide Awake; Vanderbilt University demanding Christian student orgs renounce their sincerely held, traditional Christian beliefs in order to remain on campus; and the recent rash of discrimination by multiple colleges and universities against Christian orgs such as InterVarsity Christian Fellowship.

After the comment period has ended, ED will review the public comments in support of or opposition to the rule. Individuals play a critical role in helping drive changes to regulations and can influence the final language and outcome of a rule. This is one of the reasons why the ACLJ is so actively engaged on this issue and why it is imperative that you make your opposition to this rule change known.

Our sister organization, ACLJ Action, has also engaged with their members and supporters submitting over 10,000 comments challenging the new rule. You can take action today to stop Biden’s plans by using ACLJ Action’s secure portal to submit your own challenge to his rule. The deadline is March 24, 2023. The Feds will need to address each unique comment, so every submission matters.

Our tax dollars should not be going to fund universities that are free to discriminate, without consequences, against students and their organizations on the basis of their religion.