by the Ethics & Public Policy Center

On Friday, March 24, 2023, EPPC scholars Rachel N. Morrison and Natalie Dodson submitted a public comment opposing the U.S. Department of Education (ED) proposed rule, “Direct Grant Programs, State Administered Formula Grant Programs,” which would rescind two provisions relating to First Amendment protections for religious student groups.

The two provisions require grantees, states, and subgrantees that are public institutions to provide equal campus access for religious student groups. The provisions were a response to the discrimination many religious student groups faced at public institutions of higher education. They explain the First Amendment protections for religious student groups and the constitutional obligations of the institutions, providing benefits to both students and college and university administrators. Yet, ED proposes rescinding those provisions.

The EPPC scholars explained in their comments,

The proposed rescission gratuitously targets religious student groups.… The Department claims it “has not observed that [the provisions] have meaningfully increased protections of First Amendment rights for religious student organizations,” yet it has failed to do its due diligence of researching and crediting the effectiveness of the provisions. ED provides unspecified claims that the provisions cause confusion, but fails to acknowledge that rescinding the provisions will actually cause confusion and harm religious student groups, colleges and universities, and campus communities. ED fails to explain why rescission is needed, making its proposal unreasonable, arbitrary, and capricious.

The scholars urged ED to withdraw the proposed rule and protect equal campus access for religious student groups of all faiths.

A diverse group of students, religious student group organizations, First Amendment scholars, and legal and policy experts also submitted comments responding to HHS’s proposal.

About the EPPC comment signers:

Rachel N. Morrison, J.D., is an EPPC Fellow, director of EPPC’s HHS Accountability Project, and former attorney at the Equal Employment Opportunity Commission.

Natalie Dodson is a Legislative and Regulatory Affairs Associate and member of EPPC’s HHS Accountability Project.

Other organizations submitting comments on the proposed rule include:

• 17 United States Senators, led by Senators James Lankford and Tim Scott
• Alliance Defending Freedom
• Americans for Prosperity
• Christian Legal Society
• Christian Legal Society, Cru, InterVarsity Christian Fellowship, The Church of Jesus Christ of Latter-Day Saints, Coptic Medical Association of North America (CMANA), Ratio Christi, ReJOYce In Jesus Campus Fellowship, The Navigators, Fellowship of Christian University Students (FOCUS), Sigma Alpha Omega Christian Sorority, Inc., Christian Medical & Dental Associations
• Christian Medical & Dental Associations
• Coalition for Jewish Values
• Concerned Women for America Legislative Action Committee
• Cru
• Defense of Freedom Institute
• Ethics and Religious Liberty Commission
• Family Policy Alliance
• Family Research Council
• First Liberty
• United States Conference of Catholic Bishops
• The Heritage Foundation Center for Education Policy Visiting Fellow
• The Heritage Foundation Center for Education Policy Will Skillman Senior Fellow in Education

Experts, including the following, also responded to ED’s request for information relating to First Amendment rights and free speech policies on campus for institutions of higher education:

• The Heritage Foundation Center for Education Policy Will Skillman Senior Fellow in Education
• The Heritage Foundation Center for Education Policy Visiting Fellow

Originally published in the Ethics & Public Policy Center

Photo Credit: Kenneth C. Zirkel on Wikipedia Commons