Education Department rule insulates faith-based student groups at public universities from nondiscrimination requirements

by | Sep 15, 2020

Education Secretary Betsy DeVos last week issued a final rule that, among other things, bars public universities from denying organizational privileges to faith-based student groups that have discriminatory membership or leadership restrictions. According to a Department of Education Fact Sheet, the rule is designed to “ensure that public institutions of higher education uphold fundamental rights guaranteed in the First Amendment to the U.S. Constitution, including protections for freedom of speech, association, press, religion, assembly, petition, and academic freedom.”

In a press release explaining the Final Rule, Secretary DeVos said, “[s]tudents should not be forced to choose between their faith and their education, and an institution controlled by a religious organization should not have to sacrifice its religious beliefs to participate in Department grants and programs.”

AU’s Dena Sher, however, countered that the policy “creates troubling exemptions for religious clubs at public colleges and universities, and the result is discrimination underwritten by tax dollars and tuition fees,” 

The final rule also clarifies the standard for determining whether an institution is exempt from the requirements of Title IX because it is controlled by a religious organization.

And, finally, the final rule authorizes the department to withhold federal grants to public universities that have been found by a state or federal court to have violated the First Amendment rights of a faith-based student organization. It also applies to private colleges and universities by conditioning federal grants on their abiding by their own institutional policies regarding academic freedom and freedom of speech.