Campus student groups face renewed threat

The Biden administration last week proposed ending a regulation that added extra safeguards for the rights of religious student groups. If the rule takes effect, it would force some student groups to make a hard choice: Fight the school in court, or lose the right to meet on campus.

The proposed regulation would rescind a 2020 Trump-era rule that tied federal grant money to public universities and colleges’ respect for the First Amendment rights of student groups like InterVarsity Christian Fellowship and Cru. The First Amendment already protects those groups’ right to select leaders who agree with their beliefs, but the current rule backs it up by adding that schools can lose funds if they do not comply.

That matters, said Kim Colby, an attorney for the Christian Legal Society’s Center for Law and Religious Freedom. She said the current rule has proven an effective means of encouraging college administrators to respect the rights of campus religious groups that have been under pressure by some colleges for 40 years or more. She made clear that student groups welcome all students as members but seek to preserve their mission by limiting leadership to those who believe in what the group stands for.

While some schools have respected student religious groups, others have put pressure on them, Colby said. Initially, schools cited concerns that allowing such groups on campus would violate the First Amendment provision that the government may not establish a religion. Beginning in the mid-1990s, after courts settled the establishment clause issue, Colby said schools began claiming that religious groups’ refusal to open their leadership to all students violated school anti-discrimination policies.

“I think there are just some administrators that don’t like religion,” Colby said, adding that “basically they feel like, if we put a little pressure on you, you’ll change your religious beliefs.” Yet that hasn’t happened, she said.

In 2021, InterVarsity prevailed in a court challenge to a University of Iowa nondiscrimination requirement, following a similar ruling in favor of Business Leaders in Christ. Both student groups—and pro bono law firms like Becket Law and Alliance Defending Freedom—faced years of litigation before victory.

Johnny Evans, who has been area director for the Fellowship of Christian Athletes in eastern North Carolina for 29 years, says pressure on student-led FCA “huddles” would likely lead some groups to “go underground.” That means finding space to meet off campus, he explained, as loss of official recognition by the school would mean loss of campus meeting space, student activity funds, and means of communication open to recognized student groups.

In its rationale for the new rule, the U.S. Department of Education said the First Amendment alone provides adequate protection to student groups and the agency has not received any violation complaints. It also said the rule confused school administrators about nondiscrimination requirements. Colby called those reasons “flimsy and self-contradictory.”

“The Office for Civil Rights within the Department of Education has a budget of $131 million,” she said. “It has 500 full time employees. This is crazy, you know, to claim that this little regulation that they’ve had no complaints from is burdensome. I also think it’s crazy to say that it’s confusing university administrators, because it’s so clear.”

Colby encouraged individuals and organizations to comment on the proposed rule before the March 24 deadline. Once it receives and reviews comments, the agency is required to address them. The department may take as long as a year to issue a final rule, which could be identical to the proposed rule, a revised form of the proposed rule, or dropped altogether.

“What’s important is that they hear from the public,” Colby said. “If you’ve seen the benefits of religious groups—if you’ve been part of one, your children have been part of one, or you’re currently part of one—just say that.”