Doug Mills / The New York Times

The Biden Administration stated the portion of the Free Inquiry Rule regarding religious student groups on college campuses was unnecessary to protect the right to free speech and freedom of religion.

April 11, 2023

Biden-Harris Reversal of Trump Free Inquiry Rule Evokes Mixed Emotions Among Professors, Students

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Home to numerous faith-based organizations and students from diverse religious backgrounds, Cornell recognizes and supports religious student organizations — including the Hindu Student Council, Muslim Education and Cultural Association, Cornell Hillel and more. But the rescission of a federal rule could change the way that universities across the country interact with faith-based student groups.

First implemented by former President Donald Trump’s administration in March 2019, Executive Order 13864, titled “Improving Free Inquiry, Transparency and Accountability at Colleges and Universities” and known also as the “Free Inquiry Rule,” aimed to promote open debate on college and university campuses. With the goal of protecting First Amendment rights, the Free Inquiry Rule strived to protect free speech and academic freedom. 

“The Department of Education revises its current regulations to encourage institutions of higher education to foster environments that promote open, intellectually engaging and diverse debate,” stated the Department of Education document from the Federal Register.

Particularly, a section of the rule required public institutions to not deny religious student organizations the rights, benefits and privileges afforded to non-religious groups. 

In 2021, the Department of Education began a review of the rule’s impact, acquiring input from key stakeholders within higher education. 

In February 2023, President Joe Biden’s Administration issued a Notice of Proposed Rulemaking indicating intent to rescind the portion of the regulation related to religious student organizations. The Administration stated the rule is unnecessary to protect the First Amendment right to free speech and freedom of religion, has caused confusion about schools’ non-discrimination requirements and has created an additional burden for the Department of Education, who must investigate cases of non-compliance.

To inform its review of current regulations and further action, the Biden-Harris Administration published a request for information from the public on Feb. 22. Acceptance of comments closed on March 24.

Members of Cornell’s community expressed a variety of opinions regarding the rescission, but their viewpoints are generally united by a sense of uncertainty for how its consequences will manifest.

Prof. Nelson Tebbe, law, and Prof. Alexandra Blackman, government, analyzed the situation through the lenses of their backgrounds in constitutional law and the intersection of religion and politics, respectively.

Tebbe, who is the Jane M.G. Foster Professor of Law, pointed to Christian Legal Society v. Martinez, a 2010 case in which the CLS chapter at University of California, Hastings College of the Law sued the school for violating its First Amendment rights. The CLS chapter required members to attest their religious beliefs in writing before they were granted entry into the group. 

Hastings refused to recognize the CLS as a campus organization, as the group’s exclusionary behavior challenged the school’s non-discrimination policy. Hastings had implemented an all-comer policy, meaning that student groups had to allow any student to participate, regardless of their identity or beliefs.

Tebbe noted that the dispute eventually reached the Supreme Court, with Justice Ruth Bader Ginsburg ’54 writing the majority opinion. Ginsburg held that Hastings could apply its all-comer policy to a religious organization, as student groups could still convene without registering with the university. 

“Student groups could exist without registering, they could even have access to spaces in the building and they have a variety of other benefits but they wouldn’t get funding from the school,” Tebbe said. “That doesn’t really restrict their ability to form an organization according to their beliefs — it just makes it more expensive. And the government doesn’t have to subsidize their organization in ways that the government believes are discriminatory.”

Though the CLS v. Martinez case was argued six years before Trump took office, Tebbe said the administration’s Free Inquiry Rule worked to undo the Court’s decision.

“It wasn’t all that surprising to see the Trump Administration promulgate a rule that sought to basically reverse CLS against Martinez,” Tebbe said. “The way the Trump Administration rule did that was to condition federal funding on universities’ not doing what the Supreme Court said that Hastings Law School could do constitutionally.”

Blackman noted that the Free Inquiry Rule reflects the larger national debate surrounding the interaction between religion and the state.

“Where all the debates in our society are right now around freedom of religion — they’re all around: how does freedom of religion interact with non-discrimination and equal protection? And the rule doesn’t really answer that question,” Blackman said. “It raises more questions than answers, I think, and puts a lot of the burden of answering that question on universities and on the Department of Education.” 

At Cornell, Blackman said she has observed an inclusionary approach to religion, as the University houses many faith-based organizations that represent a diverse array of beliefs. She added, however, that Cornell had cultivated this inclusionary environment prior to the implementation of the Free Inquiry Rule.

“I think the Cornell approach has been one of trying to include various religious organizations as much as possible. … I think that’s a really useful way of [managing religion],” Blackman said. “But, I don’t think that [inclusion] has anything to do with this rule. That was already in place before the rule was in place.”

Abu Bakr Siddique ’24, president of the Cornell Muslim Education and Cultural Association, expressed a similar sentiment, saying that he and past leaders of the organization have felt supported by the University.

“We had such a great relationship with the University already, even prior to the implementation of this rule,” Siddique said. “My predecessors [the former leaders of MECA], leading up to now, they’ve all told me that they’ve enjoyed a very, very good relationship with Cornell. But that doesn’t mean that things can’t change.” 

Shivani Singh ’24, president of the Cornell Hindu Student Council, also said she has had positive experiences working with University administration — specifically the Interfaith Council at Cornell, the HSC’s funding source. The ICC receives funding through the student activity fee, allocated to them by the Student Assembly’s byline funding process.

“It’s been really great working with [the ICC],” Singh said. “They’re also really great at answering questions and just want us to feel supported in any way — and we have.”

Singh explained that the HSC is currently raising money to hire a chaplain. Many campus religious organizations employ part- or full-time chaplains, who lead religious practices. Members of HSC, however, facilitate their organization’s religious services.

“Anything that HSC does — whether it’s Diwali Dhamaka in the fall or, in the spring, Holi, any ticket sales we have are going towards raising money to try to get a chaplain,” Singh said. “[When we] have a religious service, we, as students, will perform the rituals ourselves in the best way that we know how.”

Cornell historically has not provided financial support to religious organizations for the purpose of hiring chaplains. According to Singh, campus organizations often solicit donations from alumni, but the HSC has a smaller alumni network as a newer organization.

Similarly to how Siddique and Singh expressed that the University has supported their organizations, Joel Malina, vice president for University Relations, said that Cornell has seen student organizations respect the University’s non-discrimination rule. 

“Cornell University requires that all student groups comply with its non-discrimination policy in order to register their organizations. This policy continues to govern student activity,” Malina wrote in a statement to The Sun. “With their consistent compliance, student organizations at Cornell have demonstrated their strong commitment against discrimination based on people’s protected status.”

Because the Free Inquiry Rule is an executive order, it has direct implications for public universities or universities that receive federal funding. 

Although Cornell is a private institution, it still receives federal funding. Tebbe said that he believes the Free Inquiry Rule impacts all universities across the country, regardless of schools’ status as public or private institutions.

“Both public and private universities receive federal funding of certain types,” Tebbe said. “It just conditions funding on their adherence to the rule; namely, they can’t exclude religious groups, because of their discriminatory practices, from recognition. I do think that Cornell would be subject to the Trump rule, and it would also benefit from the Biden rule in the sense that the rescission by the Biden administration would give Cornell the latitude to make this decision itself.”

Students like Avery Bower ’23, president of Cornell Republicans, expressed worry regarding how the University would treat religious student groups following the rescission.

“I think [the rescission is] a serious problem for the First Amendment,” Bower said. “And I also think Cornell has a troubling track record when it comes to addressing students of all faiths and making sure that they feel that they’re getting equitable treatment. So I’m a bit concerned that there aren’t going to be federal protections for a lot of religious student groups.”

Bower cited the University’s handling of religious gatherings amid COVID-19 restrictions as a source of his concern. 

One of the masking and physical distancing policies that Cornell enforced during the 2020-2021 school year was that organizations had to limit gatherings to 10 or fewer people. Bower explained that, in the Jewish faith, a quorum of 10 people is needed for certain religious obligations — the University’s COVID-19 restriction hindered many Jewish students from practicing aspects of their religion.

“When it came to the ability for students to be spiritually supported, the University was not there,” Bower said. “I think, without an added push from the Department of Education — in the event that there is some other sort of earth-shattering crisis — I don’t think that the University has demonstrated that it’s going to be able to look out for its religious students and allow them to further practice their religion.”

Siddique echoed this sentiment, saying that the Free Inquiry Rule provides valuable protection for religions that may be marginalized within different campus communities across the country.

“Having this law, or act, in place kind of codifies our protection, that no matter what external voices or chatter there might be — or the current political temperature — that Muslims and their voices, their thoughts and their core beliefs and identities are protected,” Siddique said. “At least, it’s another layer of protection for us, especially as a minority and marginalized religion, from being bullied around by voices which may not be friendly here in America.”

Dani Smith ’24, co-president of the American Civil Liberties Union at Cornell, said she anticipates the rescission will open up larger conversations about the rights to freedom of religion. 

“My takeaway from the Free Inquiry Rule is that it’s a double-edged sword,” Smith said. “I think that it’s going to open up conversations about whether colleges have an interest in ensuring that student organizations are not being discriminatory in nature to other students. And, does the college have to support them and give them funding even if they do engage in that kind of discrimination?”