The 2020 rule has two sets of provisions: one for public institutions that directly receive grants and one that governs states and subgrantees that are public institutions. The rule bars denying religious groups at these public institutions “any right, benefit, or privilege” that other student groups receive, including facility access, student group funding, and official institutional recognition, because of “the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs.”
“Thriving religious student organizations benefit not just those who choose to participate in their activities but their campus communities as a whole,” the bishops said in support of the current rule. “Religious student organizations offer spiritual nourishment, emotional encouragement, and friendship to all at a time when university communities are still recovering from the physical, emotional, and spiritual toll that the pandemic wrought.”
COVID-19 restrictions on in-person meetings made students struggle to keep their organizations going, and the current rules are “particularly critical” to their efforts to rebuild, the bishops said. Religious involvement has a relationship with improved ability to cope with stress, less depression, suicide, anxiety, and substance abuse, the letter said.
The Biden administration’s Feb. 21 proposal to rescind the rule said it is “not necessary to protect the First Amendment right to free speech and free exercise of religion.” It is “unduly burdensome” for the Department of Education to investigate alleged violations. The rule has “created confusion” among higher education institutions, some of which say the rule would require them to “allow religious student groups to discriminate against vulnerable and marginalized students.” This requirement, according to the rule proposal, would “go beyond what the First Amendment mandates.”
The bishops’ Office of Legal Counsel said the Biden administration’s proposal ignores concerns that the enforcement of “neutral, generally applicable” nondiscrimination law and policy do not always yield a “just result” and might not survive Supreme Court scrutiny.
Litigation is not an adequate solution for student groups, many of which lack funds for legal representation. Many student members will graduate by the time their rights are vindicated, and there will be a “chilling effect” given “the absence of clear, regulatory protections.”