The U.S. Department of Education is receiving pushback against its plan to rescind a Trump-era regulation aimed at protecting religious colleges, student groups, and free speech on campus. 

The Education Department has said the so-called free inquiry rule is redundant, as public colleges are already required to uphold the First Amendment. And the rule puts the onus on the agency to investigate incidences of potential mistreatment of religious groups, something it says it’s poorly equipped to do.

But several higher education groups as well as conservative lawmakers have come out in support of the rule, in responses sent March 24 to the department’s request for feedback.

A potential loss of protection

It’s too soon to know if the free inquiry rule, which was instituted in 2020, had its intended effect, according to the Foundation for Individual Rights in Expression, a civil liberties watchdog. The group argued that since noncompliance is determined with a court ruling, it would be premature to determine the rule’s efficacy — or label it a failure — after only two and a half years.

“Nevertheless, in that short time, institutions have already made strides in protecting the free speech of students and faculty, and the regulations may have been a key part of those improvements,” FIRE’s legislative and policy director, Joseph Cohn, and legislative counsel, Greg Gonzalez, said in its comment to the department.

It’s also an easy rule for colleges to meet, the organization said. The financial burden is minimal, according to FIRE, and more than worth it to protect free speech.

The American Council of Trustees and Alumni, a conservative higher ed nonprofit, cited two recent lawsuits brought by Christian student groups — one against the University of Nebraska-Lincoln and the other against Georgia Institute of Technology — as examples of colleges needing additional oversight to protect students’ religious freedom.

“These stories clearly demonstrate the necessity of the regulations that the Department of Education is proposing to rescind,” ACTA President Michael Poliakoff wrote in its comment. “All student organizations at both public and private colleges and universities should be afforded equal opportunities to advance their missions so long as their actions do not conflict with constitutional protections.”

Some conservation politicians also have submitted comments lambasting the Education Department’s plan.

A dozen House Republicans — all members of the House Education and the Workforce Committee — called the proposed rescission of the rule detrimental to religious freedom.

Higher education institutions only pay lip service to neutrality, said the group, which was led by committee Chair Virginia Foxx, R-N.Y.

“At the same time, religious student organizations face burdensome restrictions, and in some cases, specific demands for groups to fundamentally change the nature of their beliefs and student leadership to receive recognition by a college or university,” their comment said

Ohio’s attorney general Dave Yost, a Republican, argued the free inquiry rule is not in fact redundant to the First Amendment and acts as an additional safeguard against “wayward administrators who, all too frequently, trample students’ right to freely exercise their religion.”

“The religious practice of student groups and individuals is under immense fire at universities,” Yost said in a comment cosigned by 21 other Republican attorneys general. “They are owed the right to freely exercise their religion, however out of fashion with an increasingly anti-religious bureaucratic regime that might be.”

‘Breathtaking in its reach’

But higher education organizations did not universally support the free inquiry rule.

The American Council on Education backed repeal, calling the rule troubling and problematic. The group argued free inquiry weakens free speech on campus, rather than safeguarding it as supporters claim.

“The 2020 final rule actually diminishes these rights by conditioning of a loss of federal grant funding on a single ‘final, non-default judgement’ by a court against an institution or any of its employees,” it said in its feedback. “The concept is breathtaking in its reach, and its real-world application is chilling and could lead to a variety of unintended consequences.”

Such consequences could include a college losing all federal funding over one incident — a single court ruling following one campus decision, ACE said. The group also said the free inquiry rule as written falsely conflates academic freedom with free speech, further muddling an already complex issue.

Fourteen other higher education groups cosigned ACE’s comment including the Association of Catholic Colleges and Universities, the Council for Christian Colleges & Universities, and the Association of Jesuit Colleges and Universities.

The Association of Public and Land-grant Universities signed onto the ACE statement but also supported the repeal of the regulation in its own separate comment.

It stressed that under the policy, litigation becomes so important that public universities could be forced to fight every case “as if the world depends on the outcome.” 

“The rule as initially envisioned by the prior administration appears to presume that a public university would only lose a First Amendment case if some egregious action was committed,” Mark Becker, president of APLU, said in its comment

In fact, he said, the law is rarely so cut and dry.

“An institution can, in good faith, defend itself in a matter of unsettled law and lose in split decisions as judges chart new territory in First Amendment jurisprudence,” Becker said.

Because of this, he wrote, colleges could be forced to allocate a greater percentage of their resources to litigation, to the detriment of institutional goals.