In September 2020, the Trump-Pence administration implemented the “Free Inquiry Rule” for higher education. This rule, which is still in effect, is designed to “ensure that public institutions of higher education uphold fundamental rights guaranteed by the First Amendment to the U.S. Constitution and that private institutions of higher education adhere to their own policies regarding freedom of speech, including academic freedom.” Now, the Biden administration wants to rescind a key part of the Free Inquiry Rule, specifically the section stating that Institutes of Higher Education (IHE’s) “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…because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs.”

On March 22, 2023, the Equal Protection Project filed opposition to the Rule Proposal. EPP disagreed with each of the three reasons the DOE cited:

(1) “The provisions of the ‘Free Inquiry Rule’ are necessary to protect the First Amendment right to free speech and free exercise of religion of faith-based student organizations at [Institutes of Higher Education, or IHE], because religious groups (particularly minority religions) are always at risk of having their First Amendment rights infringed upon. That is why, throughout this country’s history, special or added protections have been afforded to religious groups, in all three branches, at both the state and federal levels, so that they can believe, practice, and speak freely.

(2) The rules facing rescission are not confusing. They simply “require that any IHE receiving federal grant funding ‘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.’ All these sections require is that religious groups be treated the same as secular groups or face the potential loss of federal funding; an important protection for campus religious groups who might otherwise be subject to discrimination.”

(3) The rules are not “unduly burdensome” as they simply require that the DOE determine “whether a religious student organization would have received the same benefits as other student organizations but for its religious beliefs. All the Department need do is compare the rights, benefits, or privileges allegedly denied to a religious group that are provided to non-religious groups and decide if the religious group was so denied such rights. Therefore, because the Department can provide no evidence for its claim that investigation would be unduly burdensome.”