Last Wednesday, the U.S. Department of Education issued its final rule on religious liberty and free inquiry, which details protections for faith-based institutions and religious student groups at public universities and seeks to bolster campus free speech.
The rule reflects – and sometimes contradicts – a fraught, growing body of case law about religion and free speech in higher education.
The final rule, which came after 17,000 public comments, requires universities to give equal treatment to religious student groups, which means equal access to university facilities, recognition and funding from student fees, among other things. The rule also defines what it means to be a religious higher education institution so that these schools can continue to be officially exempted from adhering to Title IX where it conflicts with a religious creed. Plus, it reaffirms that these institutions can benefit from department grant programs, so long as the funding isn’t going to religious instruction, worship or proselytization.
Meanwhile, if a public university violates the First Amendment, that’s grounds for the department to withhold federal cash, but only if the university receives a judgement against it in a state or federal court. Private universities can face the same repercussions if they violate their own institutional policies on freedom of speech and academic freedom.
“This administration is committed to protecting the First Amendment rights of students, teachers, and faith-based institutions,” said U.S. Secretary of Education Betsy DeVos in a statement. “Students 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.”
To Dr. Martha McCarthy, presidential professor of educational leadership at Loyola Marymount University, the new rule falls in line with the recent trajectory of U.S. Supreme Court decisions, at least in terms of ensuring government funding can go to religious institutions.
She cited Trinity Lutheran Church of Columbia, Inc. v. Comer, which ruled in favor of a church pre-school receiving federal grant money in 2017, and the 2020 case Espinoza v. Montana Department of Revenue, which sided with parents who wanted to use Montana state government scholarships to send their children to religious schools.
