DOE Proposes to Rescind Trump Administration Rules Shielding Student Religious Groups at Public Colleges

The Department of Education yesterday released a Notice of Proposed Rulemaking (full text) proposing to rescind two related rules adopted by the Trump Administration in September 2020. Those rules require that public colleges and universities which receive DOE grants (either direct grants or grants under state-administered formula grant programs) must not deny to religious student groups any of the rights, benefits, or privileges that other student groups enjoy because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely-held religious beliefs.

According to yesterday's Notice of Proposed Rulemaking:

Some faith-based and civil rights organizations ... worried that [these rules] could be interpreted to require IHEs [institutions of higher education] to go beyond what the First Amendment mandates and allow religious student groups to discriminate against vulnerable and marginalized students....

There is nothing in the regulatory text that clarifies or guarantees that an institution may insist that such religious organizations comply with the same neutral and generally-applicable practices, policies, and membership and leadership standards that apply equally to nonreligious student organizations, including but not limited to nondiscrimination requirements.

The disparity between the language of the regulatory text and the Department’s stated intent has engendered confusion and uncertainty about what institutions must do to avoid risking ineligibility for covered Department grants....

If IHEs do discriminate against religious student organizations on the basis of the organizations’ beliefs or character, such organizations can and do seek relief in Federal and State courts, which have longstanding expertise in and responsibility for protecting rights under the Free Speech and Free Exercise Clauses, including in cases where there are complex, fact-dependent disputes about whether a policy is neutral and generally-applicable.

Daily Citizen critiques the proposal.

The Department of Education yesterday also published a Request for Information on the effect of current free speech protections required of DOE grantees.

9th Circuit Hears Oral Arguments In Suit By Fellowship Of Christian Athletes On High School Rules

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in Fellowship of Christian Athletes v. San Jose Unified School District Board of Education. In the case, a California federal district court upheld a high school's non-discrimination policy for recognized student groups that precluded Fellowship of Christian Athletes from requiring its leaders to agree with and live in accordance with the group's Christian beliefs. (See prior posting.)

High School Rules Barring Religious Requirements For Christian Student Organization Leaders Is Upheld

In Fellowship of Christian Athletes v. San Jose Unified School District Board of Education, (ND CA, June 1, 2022), a California federal district court upheld a high school's non-discrimination policy for recognized student groups that precluded Fellowship of Christian Athletes from requiring its leaders to agree with and live in accordance with the group's Christian beliefs. In rejecting challenges to the policy, the court said in part:

[P]olicies meant “to ensure that the school’s resources are open to all interested students without regard to special protected classifications” are similar to the antidiscrimination laws intended to ensure equal access that the Supreme Court has concluded are viewpoint and content neutral.... The fact that the Policy allows clubs to set “non-discriminatory criteria” but not criteria based on religion, sexual orientation, or other protected classifications does not mean the Policy aims at the suppression of speech....

Plaintiffs have not shown that the Policy, as written, clearly violates their right to free exercise of their religion. The District’s Policy applies to all ASB student clubs. It does not “impose special disabilities” on Plaintiffs or other religious groups, but instead affects those groups in ways incidental to the general application of the Policy....

Christian Student Group Challenges University's Non-Discrimination Policy

Suit was filed this week in a Texas federal district court by a Christian student organization at the University of Houston challenging the University's non-discrimination policy that led to a denial of recognition of the group as a Registered Student Organization. The complaint (full text) in Ratio Christi at the University of Houston- Clear Lake v. Khator, (SD TX, filed 10/25/2021), contends that the University violated the 1st and 14th Amendments by:

a. Denying Ratio Christi registered status because it requires that its officers, who have religious responsibilities, share the organization’s religious beliefs and support its purposes;

b. Conditioning a student organization’s access to campus resources and student services fee funding on a system where UHCL officials have unbridled discretion... [and [c]] must consider multiple content- and viewpoint-based factors; and

d. Compelling Plaintiffs to pay student service fees into a system that is viewpoint discriminatory.

ADF issued a press release announcing the filing of the lawsuit.

UPDATE: ADF announced on Oct. 29 that the University has now recognized Ratio Christi as a Registered Student Organization.

8th Circuit: University of Iowa Discriminated Against Christian Student Group

In Intervarsity Christian Fellowship/ USA v. University of Iowa, (8th Cir., July 16, 2021), the U.S. 8th Circuit Court of Appeals held that the University of Iowa violated the 1st Amendment rights of Intervarsity Christian Fellowship when the University applied its Human Rights Policy against ICF in a discriminatory manner. ICF required students seeking leadership positions to affirm a statement of faith based on biblical Christianity-- including the belief that same-sex relationships were against the Bible. The court said in part:

For decades, the University permitted RSOs to base their membership and leadership on religious affirmations or other traits that are protected by the Human Rights Policy.... In fact, the University still permits this; but it didn’t for InterVarsity. The district court found that the defendants likely violated BLinC’s constitutional rights and ordered the University to apply the Human Rights Policy equally to all RSOs. But instead of doing that, the University started a compliance review that prioritized religious organizations. That review led to InterVarsity’s deregistration, along with other religious groups. The University’s fervor dissipated, however, once they finished with religious RSOs. Sororities and fraternities got exemptions from the Human Rights Policy. Other groups were permitted to base membership on sex, race, veteran status, and even some religious beliefs.

Take LoveWorks, for example. It was formed by the student who was denied a leadership role in BLinC. LoveWorks requires its members and leaders to sign a “gay-affirming statement of Christian faith.’” ... Despite that requirement—which violates the Human Rights Policy just as much as InterVarsity’s—the University did nothing. 

We are hard-pressed to find a clearer example of viewpoint discrimination.

Becket issued a press release announcing the decision.

Court Says Wayne State Also Violated State Constitution and 14th Amendment In Denying Recognition To Christian Group

In Intervarsity Christian Fellowship/USA v. Board of Governors of Wayne State University, (ED MI, June 1, 2021), a Michigan federal district court denied defendants' motion for reconsideration of the breadth of an injunction the court issued in April which prohibits Defendants from revoking the recognized student organization status of IVCF. (See prior posting.) Wayne State had claimed that IVCF violated the school's non-discrimination policy by insisting that its leaders agree with IVCF's  “Doctrine and Purpose Statements,” “exemplify Christ-like character, conduct and leadership,” and describe their Christian beliefs. The court's April decision found violations of the 1st Amendment. The current decision concludes that the school also violated the free speech provision of the Michigan Constitution and the equal protection clause of the 14th Amendment.

Christian Student Group Wins Suit Seeking To Limit Its Leadership To Believers

In Intervarsity Christian Fellowship/USA v. Board of Governors of Wayne State University, (ED MI, April 5, 2021), a Michigan federal district court held that Wayne State University violated the free exercise, free speech, association and assembly rights of a Christian student organization (IVCF) when the University suspended the group's status as a Recognized Student Organization.  The University took this action because IVCF violated the school's non-discrimination policy by insisting that its leaders agree with IVCF's  “Doctrine and Purpose Statements,” “exemplify Christ-like character, conduct and leadership,” and describe their Christian beliefs. In an 83-page opinion, the court said in part:

The First Amendment provides religious organizations the right to select their own ministers, and, under the First Amendment and §1983, organizations can sue the government for violating that right....

Plaintiffs also provide uncontradicted evidence that student leaders, called “Christian leaders,” qualify as ministers under the First Amendment....  In essence, Plaintiffs’ student leaders participate in proselytizing efforts and are Plaintiffs’ chosen spiritual resource for students at Wayne State....

No religious group can constitutionally be made an outsider, excluded from equal access to public or university life, simply because it insists on religious leaders who believe in its cause...

Defendants have barred Plaintiffs from selecting leaders that share its Christian views while allowing other groups to engage in similar form of leadership selection. This divergent treatment cannot withstand constitutional scrutiny....

The court awarded an injunction and nominal damages. Detroit News reports on the decision.

8th Circuit: No Qualified Immunity On Christian Student Group's Free Speech Claim

In Business Leaders In Christ v. University of Iowa, (8th Circuit, March 22, 2021), the U.S. 8th Circuit Court of Appeals held that the district court erred in granting qualified immunity to the individual defendants on plaintiff's free speech and expressive association claims. Plaintiff claims that the University selectively applied its human rights policy to prevent it from becoming a recognized student organization because the organization required its leaders to sign a statement of faith that would disqualify individuals on the basis of sexual orientation and gender identity. The court held that it is clearly established that a nondiscrimination policy neutral on its face violates a student group’s rights to free speech and expressive association if not applied in a viewpoint-neutral manner. Two judges held, however, that the district court correctly granted qualified immunity on plaintiff's free-exercise claim.

Judge Kobes dissented in part, contending that University officials should also not be granted qualified immunity on the free-exercise claim, saying in part:

[S]tate organizations may not target religious groups for differential treatment or withhold an otherwise available benefit solely because they are religious. That is what happened here. The individual defendants may pick their poison: they are either plainly incompetent or they knowingly violated the Constitution. Either way, they should not get qualified immunity.

Courthouse News Service reports on the decision.

Christian Student Group May Move Ahead With Damage Claim For School's Derecognition

In Roe v. San Jose Unified School District Board, 2021 U.S. Dist. LEXIS 16633 (ND CA, Jan. 28, 2021), a California federal district court, while dismissing a number of plaintiffs' claims, permitted the Fellowship of Christian Athletes (FCA) to move ahead on an "as applied" challenge to the school district's nondiscrimination policies. Plaintiffs allege that schools used those policies as a pretext to revoke recognition of student FCA chapters because of their religious beliefs and their speech. At issue is FCA's Sexual Purity Policy that requires FCA leaders to resign their positions if they engage in extramarital sex or homosexual acts. The court held that claims of the individual plaintiffs should be dismissed because they cannot proceed under pseudonyms. It held that individual plaintiffs' claims for prospective relief are moot because they have graduated, and that FCA failed to plead organizational standing for prospective relief. It concluded, however, that claims for damages against defendants in their personal capacities (but not their official capacities) survive a motion to dismiss.

Suit Challenges DOE's Conditioning of Federal Grants To Colleges On Free Exercise For Student Religious Groups

Suit was filed earlier this week in the D.C. federal district court challenging recent changes to Department of Education rules (see prior posting) on protection of free speech and religious freedom by colleges and universities receiving federal grants. The complaint (full text) in Secular Student Alliance v. U.S. Department of Education, (D DC, filed 1/19/2021) challenges this addition to DOE rules:

As a material condition of the Department’s grant, each State or subgrantee that is a public institution shall not deny to any student organization whose stated mission is religious in nature and that is at the public institution any right, benefit, or privilege that is otherwise afforded to other student organizations at the public institution (including but not limited to full access to the facilities of the public institution, distribution of student fee funds, and official recognition of the student organization by the public institution) because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs.

The complaint contends:

Under the guise of enforcing the First Amendment, the Rule bars public colleges and universities from requiring religious student organizations to comply with nondiscrimination requirements, including university rules and state laws specifying that university-recognized, university-funded student organizations may not bar students from club membership or leadership on the basis of characteristics such as race, religion, sex, sexual orientation, gender identity, disability status, or status as a veteran.

American Atheists issued a press release announcing the filing of the lawsuit.

8th Circuit Hears Arguments In College's Deregistration of Christian Student Group

The U.S. 8th Circuit Court of Appeals yesterday heard oral arguments in InterVarsity Christian Fellowship USA v. University of Iowa. (Audio of full oral arguments.)  In the case,  an Iowa federal district court held that the University of Iowa and three of its administrators violated the free speech and free exercise rights of a Christian student organization when it revoked its registered student organization status. The University's action was taken because Intervarsity Christian Fellowship required its leaders to affirm the group's Christian statement of faith. The court also denied defendants' claim of qualified immunity. (See prior posting.) Becket Law has a press release with links to some of the documents in the case.

8th Circuit Hears Oral Arguments On Qualified Immunity In Suit By Christian Student Group

 The U.S. 8sth Circuit Court of Appeals yesterday heard oral arguments in Business Leaders in Christ v. University of Iowa. (Audio of full oral arguments.) In the case, an Iowa federal district court granted a permanent injunction to a Christian student group that was denied Registered Student Organization status. The denial was based on the University's Human Rights Policy that prohibits discrimination, among other things, on the basis of sexual orientation. The court concluded that this violated plaintiff's free expression rights. However the court held that individual defendants in the case had qualified immunity in an action for damages against them because "the Court cannot say the constitutional issues were established 'beyond debate.'." (See prior related posting.)

DOE Issues Final Rule On College Free Speech and Equal Treatment of Student Religious Groups

Yesterday, the U.S. Department of Education announced the release of its Final Rule (full text) conditioning government grants on protections of free speech rights and equal treatment of religious organizations. Summarizing the 246-page Release, DOE said in part:

[P]ublic colleges and universities must comply with the First Amendment as a requirement to receive Department grants. Private institutions of higher education must comply with their own stated institutional policies regarding freedom of speech, including academic freedom, as a requirement of Department grants.... 

Second, the rule clarifies how an institution may demonstrate that it is controlled by a religious organization for purposes of Title IX. Federal law provides that Title IX “shall not apply” to educational institutions that are “controlled by a religious organization,” to the extent that application of Title IX would not be consistent with the religious tenets of such organization....

Third, the rule ensures equal treatment of religious student organizations at public colleges and universities. As a requirement of the Department’s grants, public colleges and universities must not deny to a religious student group any of the rights, benefits, or privileges that other student groups enjoy. For example, a religious student group must have the same rights as other student groups at the public institution to receive official recognition, to use the institution’s facilities, and to receive student fee funds. Equal treatment of religious student groups is now a material condition of the Department’s grants.  

Fourth, the rule revises regulations governing some discretionary grant programs under Titles III and V of the Higher Education Act.... Current regulations could prohibit a school from using such a grant for even secular activities or services such as teaching a course about world religions. The rule more narrowly tailors the prohibition on the use of these grants to religious instruction, religious worship, or proselytization. The rule also ... clarif[ies] that institutions are not prohibited from using grants for a secular department of religion.

Education Dive reports on the new Rule.

Ohio Passes Student Religious Liberties Act

The Ohio legislature yesterday gave final passage to the Student Religious Liberties Act (HB 164) (full text).  The bill now goes to the governor for his signature. The bill provides in part:

Sec. 3320.02. (A) A student enrolled in a public school may engage in religious expression before, during, and after school hours in the same manner and to the same extent that a student is permitted to engage in secular activities or expression before, during, and after school hours.

(B) A school district ... shall give the same access to school facilities to students who wish to conduct a meeting for the purpose of engaging in religious expression as is given to secular student groups, without regard to the content of a student's or group's expression.

Sec. 3320.03. No school district ... shall prohibit a student from engaging in religious expression in the completion of homework, artwork, or other written or oral assignments. Assignment grades and scores shall be calculated using ordinary academic standards of substance and relevance, including any legitimate pedagogical concerns, and shall not penalize or reward a student based on the religious content of a student's work.

Cleveland.com and BJC (Don Byrd) report on the legislature's action.

UPDATE: Governor DeWine signed the bill on June 19. (AP)

Christian Student Group Can Retain Selective Leadership Requirements

In Intervarsity Christian Fellowship USA v. University of Iowa, (SD IA, Sept. 27, 2019), an Iowa federal district court held that the University of Iowa and three of its administrators violated the free speech and free exercise rights of a Christian student organization when it revoked its registered student organization status. The University's action was taken because Intervarsity Christian Fellowship required its leaders to affirm the groups Christian statement of faith. The court said in part:

by granting the exceptions it has to the Human Rights Policy and refusing to make a similar exception for InterVarsity, the University has made a value judgment that its secular reasons for deviating from the Human Rights Policy are more important than InterVarsity’s religious reasons for the deviation it seeks. Because this reflects an impermissible “value judgment in favor of secular motivations,” ... the University’s decision to deregister InterVarsity is subject to strict scrutiny.

Becket issued a press release announcing the decision.

Settlement Reached In Student Group's Challenge To Denial of Registered Status

A Settlement Agreement (full text) has been reached in Ratio Christi at the University of Colorado, Colorado Springs v. Sharkey, according to a press release today from ADF.  The  Christian group, Ratio Christi sued last year in a Colorado federal district court challenging the University of Colorado's denial to it of registered status. The University objected to the group's policies requiring its officers to personally hold Christian beliefs, and requiring prospective members to agree with and promote the organization's purposes. (See prior posting.)  Under the Settlement Agreement, the University will change its non-discrimination policy to provide:

All student clubs are permitted to require their leadership to promote the purposes of the club, to ascribe to sincerely held beliefs of the club, and/or to act in accordance with club standards.

However student clubs will not be permitted to limit membership on the basis of  "race, color, national origin, sex, pregnancy, age, disability, creed, political affiliation or philosophy, religion, sexual orientation, gender identity, gender expression, or veteran status." Ratio Christi will change its constitution to provide:

Students are not required to profess faith in, endorse, or adopt any religious beliefs to become members of the Chapter or participate in its activities. Any efforts to undermine or subvert the purposes enumerated in Article II will be addressed by the Chapter Officers in consultation with the Faculty Advisor and/or Chapter Director.

The University will also make a settlement payment to Ratio Christi of $20,574.

Christian Student Group Wins Injunction

In Business Leaders in Christ v. University of Iowa, (SD IA, Feb. 6, 2019), an Iowa federal district court granted a permanent injunction and awarded nominal damages to a Christian student group that was denied Registered Student Organization status. The denial was based on the University's Human Rights Policy that prohibits discrimination, among other things, on the basis of sexual orientation.  The student organization denied an executive committee spot to a gay student. In finding free speech and free exercise violations, the court said in part:

The Court suspects that some observers will portray this case as a fundamental conflict between nondiscrimination laws and religious liberty. Appealing as that may be, it overinflates the issues before the Court. The Human Rights Policy promotes valuable goals for both the University and society at large. There is no fault to be found with the policy itself. But the Constitution does not tolerate the way Defendants chose to enforce the Human Rights Policy.  Particularly when free speech is involved, the uneven application of any policy risks the most exacting standard of judicial scrutiny, which Defendants have failed to withstand.

Becket issued a press release announcing the decision.

Christian Student Group Sues University For Registration

A suit was filed in Colorado federal district court this week by a Christian student organization at the University of Colorado that was denied registered status because it requires its officers must share and personally hold its Christian beliefs. It also requires prospective members to agree with and promote the organization's purposes. Registered status gives an organization access to student activity fees. The complaint (full text) in Ratio Christi at the University of Colorado v. Sharkey, (D CO, filed 11/14/2018) alleges:

[The University] has promised to register Ratio Christi only if the group changes its leadership and membership criteria. That is, Plaintiffs must agree to abandon their rights to free speech, free association, free exercise of religion, freedom from unconstitutional conditions, due process, and equal protection to access campus resources available to all other student organization.

ADF issued a press release announcing the filing of the lawsuit.

Ball State Settles Suit By Pro-Life Student Group

The Muncie Star Press reported last week on the recent settlement of a lawsuit (see prior posting) against Ball State University by "Students for Life at BSU." The suit alleged viewpoint discrimination in distribution of student activity fees. The pro-life student group's request for $300 from student activity fees was denied, apparently under the Guideline excluding from funding "[a]ny Organization which engages in activities, advocacy, or speech in order to advance a particular political interest, religion, religious faith, or ideology." Under the Settlement Agreement (full text), the University will adopt new rules that require that student activity fees be allocated in a viewpoint-neutral manner The school will also pay $300 in damages to the student group and pay the group's $12,000 in attorneys' fees to Alliance Defending Freedom.

Christian Student Group Sues University of Iowa

A suit was filed yesterday in federal district court by two related Christian student organization against the University of Iowa. The complaint (full text) in InterVarsity Christian Fellowship/ USA v. University of Iowa, (SD IA, filed 8/6/2018), challenges the University's deregistration of IVCF as a recognized student organization because the group imposes a religious belief requirement on its student leaders.  Plaintiffs contend that the University has violated their 1st Amendment rights under the Free Exercise, Establishment and Speech clauses, as well as their rights under various provisions of the Iowa constitution and statutory law.  Becket Fund issued a press release announcing the filing of the lawsuit.

UPDATE: On Aug. 14, Becket Fund reported that an agreement has been reached with the University for it to reinstate, while litigation is pending, nearly 40 student groups that had been suspended under this university anti-discrimination policy.