- The Washington Times - Monday, March 27, 2023

A dozen House Republicans led by North Carolina’s Virginia Foxx on Friday blasted a Biden administration proposal the lawmakers said would gut protections for faith-based student groups.

Republican members of the House Committee on Education and the Workforce, chaired by Ms. Foxx, sent a letter to Education Secretary Miguel Cardona calling on him to drop the move, which would reverse protections put in place during the Trump administration. Supporters say the rule is designed to make sure religious student organizations receive even-handed treatment alongside secular student groups.

The 2020 rule established a hotline where free exercise violations could be reported and committed the department to act on complaints.

The hotline was quietly discontinued, observers say, and a blog post by Assistant Secretary Nasser H. Paydar says an 18-month investigation concluded the department doesn’t have to be involved in such issues.

Mr. Paydar said the existing provision, called the “Free Inquiry Rule,” “has caused confusion about schools’ nondiscriminatory requirements” and imposed “a novel and unduly burdensome [investigatory] role” for the Education Department. He insisted the agency had a “commitment to religious freedom” which the rule rollback wouldn’t change.

He wrote, “Where complex questions over the First Amendment arise, Federal and State courts are best equipped to resolve these matters. In its proposed rule, the Department is proposing to return to this longstanding practice of deferring to courts.”

The Paydar statement, released in February when the department filed its Notice of Proposed Rulemaking gave no substantiation for its claims. An Education Department spokeswoman did not immediately respond to a request for further details or to make Mr. Paydar available for an interview.

Rep. Foxx and her colleagues wrote to Mr. Cardona that the Education Department proposal “undermines the current even-handed treatment that the Free Inquiry rule ensures for religious student organizations. Students of all faiths should know that their rights to free speech  and free exercise of religion are protected.”

The House Republicans who signed the letter called the Education Department’s claim the Free Inquiry rule has not “meaningfully increased protections of First Amendment rights for religious student organizations” an “inaccurate” statement.

The letter said, “a religious student group at the University of Wisconsin-Madison specifically cited the Free Inquiry rule in response to an unwarranted campus denial of re-recognition.”

Other supporters of the current rules also filed objections with the Education Department. Christine Pratt, an attorney with public-interest law firm First Liberty Institute, said in an interview the Trump-era rules “simply ensured that public universities followed the First Amendment” and are “crucial” protections for faith-based student organizations.

Ms. Pratt said rolling back the protections would place “these student groups in peril. And it’s going to drive up litigation costs for students in groups and for these universities. It’s not necessary. It’s hurting students.”

She said the department’s claim that it is not hearing of large numbers of discrimination incidents might be due to the fact that it “quietly retired” the telephone hotline set up to receive such reports.

The Alliance Defending Freedom, a nonprofit legal organization that has also fielded cases involving religious-based student groups on college and university campuses, also filed a comment opposing the recision.

“Students should be free to speak freely and to form their own student groups, including by selecting their own leaders,” ADF senior counsel Julie Marie Blake said in an interview. “But the Biden administration is seeking to roll back protections for religious student groups in order to subject them potentially to discrimination by colleges and universities across the country.”

Ms. Blake said “the Biden administration should heed the evidence — and the only evidence here is the long-running institutional discrimination by public colleges and universities nationwide against religious student groups like the Christian Legal Society, and Ratio Christi,” both of which have won court victories through ADF.

GOP signers of the House committee letter in addition to Ms. Foxx include Reps. Tim Walberg and Lisa C. McClain of Michigan; Glenn Grothman of Wisconsin; Elise Stefanik of New York; Rick W. Allen of Georgia; Jim Banks and Erin Houchin of Indiana; Burgess Owens of Utah; Mary E. Miller of Illinois; Aaron Bean of Florida; and Nathaniel Moran of Texas.

• Mark A. Kellner can be reached at mkellner@washingtontimes.com.

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