Department of Education Reconsiders Oversight of Religious Student Organizations

• Currently, the Department of Education must investigate claims that an institution discriminated against a religious student organization.
• The department wants to shift that responsibility to the court system.
• Its proposal would revert the department to how it used to handle these issues pre-2020.

The Department of Education (ED) intends to change how it punishes colleges and universities over religious discrimination.

ED released a request for information regarding its policy on how it treats schools receiving federal grants that are accused of denying freedom of speech rights to religious student organizations. The department essentially wants to take a more hands-off approach in these situations moving forward.

The proposal mirrors how ED used to handle accusations before a 2020 executive action forced the department to investigate these issues.

According to the request for information, a religious student organization that feels it has not been afforded a similar "right, benefit, or privilege that is otherwise afforded to other student organizations" must work the issue out in state or federal courts. The 2020 rule change meant that if a court issued a judgment against the institution, ED must investigate the claim and decide whether to withhold federal grants.

ED clarified that it still feels institutions should continue to offer equal rights to all student organizations, regardless of religious affiliation or beliefs.

However, the department adds in its latest request for information that ED is not best equipped to investigate and punish schools for First Amendment violations. ED said the U.S. court system has a better handle on free speech thanks to a "well-developed body of case law concerning First Amendment freedoms."

ED proposed removing itself from the adjudication process to instead allow institutions and the judicial system to settle these matters.

"This rescission would not alter the department's commitment to religious freedom, which is enshrined in the First Amendment to the U.S. Constitution as a fundamental human right that contributes to the vibrancy, diversity, and strength of our nation," the request for information states.

Removing the department from the process would also clear up confusion about how this regulation interacts with other nondiscrimination rules for colleges and universities. According to the proposal, institutions told ED the 2020 rule created confusion as to what institutions must do to avoid risking a loss of grants.

Additionally, the department said there is no evidence the 2020 rule has meaningfully increased protections for religious student organizations.

The public has until March 24 to submit comments to the Department of Education regarding this proposed rule change.