By Ismail Royer

The Biden Administration’s Department of Education (DOE) revealed to a federal court last week that it has no hope of succeeding in its years-long effort to repeal a Trump-era regulation prohibiting public institutions of higher learning from dictating who religious student groups can choose as their leaders.

The story begins in September 2020 when the outgoing Trump administration promulgated a regulation requiring colleges and universities that receive public funds to allow religious student groups to limit leadership roles to students who share their faith. This regulation is commonly known as the “Free Inquiry Rule.” Jennie Bradley Lichter explains that this rule “prohibits public institutions from denying a religious student organization any right, benefit, or privilege on the basis of the organization’s beliefs, practices, policies, membership standards, or leadership standards, if informed by sincerely held religious beliefs.”

The enactment of the Free Inquiry Rule followed years of public universities “delisting” religious student groups that restricted leadership roles to members of their religion, on the grounds that doing so violated the schools’ non-discrimination policies. This action prevented them from, among other things, reserving meeting spaces on campus, setting up tables to recruit new members, and applying for funding from the school. 

Hence, at one point the University of Iowa delisted dozens of religious student groups, including Business Leaders for Christ, Hillel, Chabad, the Latter-day Saint Student Association, the Muslim Students Association, and the Imam Mahdi Organization (representing Shia Muslims). With the new rule, public universities were now prohibited from penalizing religious student groups for limiting leadership to coreligionists. 

In January 2021, a group called the Secular Student Alliance (SSA) sued the DOE, arguing that in protecting the right of religious student groups to choose leaders who share their beliefs, the Free Inquiry Rule “bars public colleges and universities from requiring religious student organizations to comply with nondiscrimination requirements.”

Partially in response to this litigation, the Biden Administration announced plans in August 2021 to rescind the Free Inquiry Rule. It expressed the view that public universities should be able to prohibit religious student groups from limiting leadership to those who share their views, so long as they also prohibit secular student groups from doing so. On the theory that DOE’s repeal of the regulation might render the Secular Students’ legal challenge moot, the court put the lawsuit on hold until the agency could finalize its new regulation.

In 2023, DOE formally issued a proposed regulation that would repeal the Trump-era rule. The trouble with the current one, it said, is that it might “allow religious student groups to discriminate against vulnerable and marginalized students.” It proposed to adopt a new rule that 

guarantees that an institution may insist that such religious organizations comply with the same neutral and generally-applicable practices, policies, and membership and leadership standards that apply equally to nonreligious student organizations, including but not limited to nondiscrimination requirements.

When federal agencies propose regulatory changes such as this one, they must follow the process set forth in the Administrative Procedure Act (APA). That law requires agencies to publish notices of proposed rules, and to provide an opportunity for the public “to participate in the rule making through submission of written data, views, or arguments.” Courts require agencies to give meaningful consideration to such comments or face consequences, including vacatur of the rule.

In response to DOE’s proposal to rescind the rule, I submitted a comment on behalf of RFI arguing that students at public universities should be free to appoint their own leaders in accord with their religious convictions. When public universities insist that leadership offices of religious student groups be open to those who do not hold to the group’s religious tenets, we argued, “they open the door to the destruction of those organizations’ mission.” 

The DOE’s proposed regulatory change received more than 58,000 public comments by the time the comment period closed, a large number of them apparently opposed to scrapping the rule. The agency was required by law to consider each of them in a meaningful way.

Then, in October 2023, the agency’s attempt to revoke the Free Inquiry Rule ran into another setback. The U.S. Court of Appeals for the Ninth Circuit, sitting en banc, ruled that religious student groups have a First Amendment right to require that their leaders affirm the group’s religious beliefs and standards of conduct. RFI joined a multifaith letter led by the Christian Legal Society to the DOE, urging it to abandon its effort to repeal the Free Inquiry Rule in light of the Ninth Circuit’s holding.

As the years went by, DOE’s proposed repeal of the Free Inquiry Rule remained mired in the processes required by the APA. In the summer of 2023, the agency reported to the court in the SSA lawsuit that it was still “working through its review of the substantial volume of public comments,” but that it anticipated publishing the final rule by December of that year. That date came and went, and still no final rule was published.

Confirmation that the future was not bright for DOE’s plans to scrap the rule came in February 2024 when it told the court that it had “continued to diligently work towards issuance of a final rule, but are facing capacity constraints and therefore have not been able to complete the rulemaking to date, despite [our] continued efforts and desire to issue a final rule.” This despite the agency’s success in promulgating other, considerably more controversial regulations over the same time period.

Finally, DOE now all but admits that it has abandoned its effort to scrap the Free Inquiry Rule. Our friends at the Ethics and Public Policy Center have brought to our attention a court filing last week in which the agency says that “in light of other regulatory packages and limited resources,” it has no plans for “publication of a final rule prior to the change in presidential administration on January 20, 2025.” 

That means of course that the proposed repeal of the Free Inquiry Rule is effectively dead. As the SSA’s attorney said in response to DOE’s admission, given that the Free Inquiry Rule was instituted in the first Trump Administration, “there is no reason to expect the incoming administration to advance the [repeal] any further” once Trump again takes the helm of the agency in January 2025.

This outcome is a testimony to the efforts of organizations fighting to preserve the religious freedom of students and institutions. It’s also a testimony to the effectiveness of using opportunities the APA affords to the public to promote good and prevent harm by administrative agencies. 

Ultimately, the upshot in this case is that students at public institutions of higher education who are members of religious student groups will be free to select their own leaders. And that’s a good thing.

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Ismail Royer is RFI’s Director of Islam and Religious Freedom.