Judge upholds Trump protections for religious student groups that Biden waited too long to reverse

The Biden administration had four full years to reverse its predecessor's rulemaking that tied federal education funding to giving religious student groups the same "rights, benefits, or privileges" as secular student groups – one of which waited until President Trump's last day in office to sue on the grounds that the "Free Inquiry" regulation authorized discrimination.

Unable to finish its own countervailing rulemaking as the Secular Student Alliance's patience grew thin in the long-paused case, and wary of kneecapping its ability to attach federal strings to funding, the Democratic Joe Biden's Education Department turned on its presumptive ally last spring, arguing the Trump administration's rule-making was valid.

U.S. District Judge Amy Berman Jackson gave the incoming administration a housewarming gift and the outgoing administration a bon-voyage present Wednesday, throwing out SSA's lawsuit and upholding the department's broad power to determine eligibility for funding.

The President Obama nominee also gave SSA a grammar lesson, noting a federal law it invoked against the rule did not include the mandate word "shall" but was rather a "sense of Congress" that no student "should" face discrimination "on the basis of participation in protected speech or protected association," which SSA claimed the rule impinged.

That was one of the final questions the parties addressed, according to a Dec. 31 "minute order" by Jackson that ordered briefing on whether the sense of Congress was a "limitation" on the department's rule-making power in Title 20 of the U.S. Code, which governs education.

Likewise, Jackson said her "opinion should not be read to express any view as to the wisdom of the Rule or whether it would survive scrutiny under the APA" – Administrative Procedure Act – the basis for SSA claims that had not been "fully briefed."

"Whether the Rule is arbitrary and capricious, an abuse of the agency discretion, or otherwise not in accordance with law is a question for another day," she said.

SSA Executive Director Kevin Bolling emphasized to Just the News that Jackson "did not address or issue a ruling concerning whether the conditions were legal or constitutional."

He said SSA only challenged Christian students' receipt of student activities fees when they "openly discriminate against other students who are in the LGBTQ+ community, nonreligious or non-Christian, people of color, women, or a marginalized group."

While the Biden administration "all but completed the process of issuing the revised recommendations," Bolling called it "disappointing" the department "did not do this job to protect students in public colleges and universities from discrimination from other students."

American Atheists legal director Geoffrey Blackwell, who is representing SSA along with Americans United for the Separation of Church and State, told Just the News they were "reviewing the decision and assessing the next steps."

It's a big win for religious student groups, one of which quickly filed to intervene in the suit before its three-year pause, but also suggests the Biden administration bit off more than it could chew on issues involving education and culture.

Last week a federal judge issued a nationwide ruling against the lame duck's Title IX regulation redefining "sex" to include gender identity, which allegedly erased sex-based protections in locker rooms, restrooms and sports, after blocking them in six states last summer. 

It was already blocked in more than half the states and thousands of educational institutions associated with plaintiffs due to multiple court rulings. Even Biden's nominees joined in. 

"As far as this Court is aware, every court presented with a challenge to the Final Rule has indicated that it is unlawful," Judge Danny Reeves wrote in the Jan. 9 nationwide ruling, striking down the full regulation because "the three challenged provisions fatally taint the entire rule."

SSA sued as it was recovering from years of declining revenue and internal strife, some related to sexual harassment allegations against an allied activist who helped popularize the social justice-focused "intersectional atheism."

The regulation, which implements a Trump executive order on "foster[ing] environments that promote open, intellectually engaging, and diverse debate," actually forces students to subsidize discrimination in "membership or leadership positions" based on protected characteristics including sex and gender identity, American Atheists said in its lawsuit press release.

It was intended to "pander to Christian nationalists," Vice President Alison Gill said.

"Congress has never delegated to the Secretary any power to enforce the First Amendment," which the Department of Education "expressly recognized" repeatedly, or condition funding on compliance with the "Secretary’s incorrect interpretation," the 2021 suit states.

Three days before the Biden administration's response was due in April 2021, the parties agreed to stay the litigation to give the feds time to "consider regulatory options," and for the next three years they filed joint status reports every 60 days with Jackson.

The new administration waited seven months to start a review of the regulation, however, and another 18 months to issue a notice of proposed rule-making to rescind the portion on religious student groups, receiving 58,000 public comments.

SSA got tired of waiting for a regulatory solution by last spring. The department's April 12 supplement blames "capacity constraints" for its inability to finish the rule-making and agrees to unpause the litigation, upon which each party filed for summary judgment.

The Alliance Defending Freedom filed a friend-of-the-court brief on behalf of Christian apologetics club Ratio Christi, whose chapters have secured at least two cash settlements in viewpoint-discrimination suits, after the case resumed.

The ministry has "needed to go to court at least twice to persuade college administrators to respect its First Amendment freedoms" to require leaders to "share its theological beliefs," and the Trump administration properly "sought to redress exactly this sort of exclusionary treatment" so they wouldn't have to sue, the filing said.

Not only has SSA "suffered no injury" from the department allegedly exceeding its authority, which justifies denying summary judgment "for this reason alone," but the regulation did nothing more than reaffirm the Constitution and federal law, ADF said.

The Biden administration's same-day motion for summary judgment, after it determined it couldn't hold off SSA any longer, said the student group's position would force the department to ignore federal law and erode its statutory authority.

The department noted the D.C. District Court said the provisions it relies on create "an awfully big umbrella," and while it's faced few pertinent legal challenges, "courts routinely acknowledge the agency’s authority to issue regulations to implement programs for which the Secretary has administrative responsibility," such as the Higher Education Act.

SSA starts from a "false premise" that the department's Office for Civil Rights "and the limits of OCR’s jurisdiction have anything at all to do" with the regulation, when OCR is not involved in such enforcement and reporting a violation "does not trigger an OCR investigation," it said.

"Indeed, the student organization provisions are not the first grant condition related to the First Amendment promulgated by the Secretary," which already prohibit grantees from using federal money for "religious worship, instructions, or proselytization," the filing says.

Jackson's Wednesday ruling largely portrays the legal questions as uncomplicated while pushing back on the department's claim it does not need a "more specific delegation of authority" to issue rules under Section 1221e-3.

The department "issued the Rule to carry out its statutory function of administering grant programs" under 1221e-3, and no legal provision limited it, so Jackson need not consider the scope of authority under "broadly worded" Section 3474. She acknowledged the scope of authority "has yet to be discussed in detail by any circuit court."

Regarding SSA's argument that the department never had authority to enforce First Amendment compliance on grantees, "defining the issue in that narrow manner ignores the Secretary’s general authority to administer grant funding under the HEA," the judge said.