The religion clauses of the First Amendment prohibit the government from establishing religion or prohibiting its free exercise. Is this a mere non-discrimination provision that doesn’t apply when state action affects the religious and irreligious alike? 

The Department of Education thinks so, but RFI disagrees. 

In recent years, public universities began “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.

In 2010, a sharply-divided Supreme Court held in Christian Legal Society v. Martinez that this practice does not violate the Free Exercise Clause so long as universities apply their non-discrimination policy to secular student groups as well as religious student groups; for example, by requiring a Republican student group to allow Democrats as members and leaders. The Court’s decision was based in part on its 1990 holding in Employment Division v. Smith, which held that the government need not have a compelling interest when it imposes “generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice.” 

The effect of Smith was, in Justice Alito’s words, to turn the Free Exercise Clause into “essentially an anti-discrimination provision: It means that the Federal Government and the States cannot restrict conduct that constitutes a religious practice for some people unless it imposes the same restriction on everyone else who engages in the same conduct.” That is, Smith eviscerated the original intent of the Free Exercise Clause, which was to prevent state suppression of religion regardless of whether its action is “religion-neutral” in its intent.   

In 2020, in order to protect religious student groups from such interference, the Department of Education (DOE) promulgated an administrative regulation, 34 CFR 76.500(d), that required public universities to permit religious student groups to restrict leadership roles to co-religionists. Now, however, DOE wants to rescind the regulation. It argues that the language “sweeps too broadly” and could be interpreted to permit religious student groups to limit leadership roles to coreligionists, even when the school’s policy prohibits secular student groups from restricting membership to those who share their views.

In a formal comment submitted to DOE as part of its rulemaking process, Ismail Royer, director of RFI’s Islam and Religious Freedom Action Team urged the agency not to rescind 34 CFR 76.500(d). To the extent that the language of the rule can be read narrowly as a mere non-discrimination provision, Royer argued, the rule serves a good if limited purpose. However, he wrote, to the extent that it can be read to exempt religious student groups from school policies prohibiting secular groups from requiring that their leaders share their views, he argued that this is precisely what the First Amendment requires. 

[A]s the Supreme Court put it in Hosanna Tabor, “the text of the First Amendment itself…gives special solicitude to the rights of religious organizations.” Hence, to the extent that “[s]ome faith-based and civil rights organizations raised concerns” with the agency that § 76.500(d) “could be interpreted to…allow religious student groups to discriminate” against those who are not co-religionists, those organizations’ quibble is with the First Amendment itself, not with § 76.500(d). Therefore, the concern that the rule might allow “preferential treatment” for religious student organizations does not constitute a basis for rescinding it.

The crux of RFI’s message to DOE is that students on the campuses of America’s public universities should be free to appoint their own leaders in accord with the religious convictions that animate them. Surely common sense tells us that an organization cannot continue to be the kind of thing that it is without leadership committed to upholding its distinct identity and mission. This basic point is true of any organization but is especially the case for organizations grounded in religious faith.

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, RFI’s comment argues, “they open the door to the destruction of those organizations’ mission.” This cannot be justified, morally or constitutionally.

Read RFI’s formal comment submitted to the Department here.