Department of Education Policies Could Harm Religious Freedom

May 26, 2023
New Department of Ed Policies | First Liberty Institute

by Jorge Gomez • 7 min read

First Liberty Institute submitted public comments concerning a proposed rule change by the Biden administration that disregards traditional religious beliefs.

The U.S. Department of Education is proposing changes to Title IX of the Education Amendments of 1972. This federal civil rights law protects students from discrimination based on sex in education programs or activities that receive federal financial assistance. It was signed into law to give female athletes equal opportunity and treatment in sports, from elementary schools to colleges.

The Department’s proposed rule, however, distorts the original text and intent of that law. It says that no school or college that receives federal funding would be allowed to impose a policy that bans boys from competing against girls.

We filed our comment on behalf of Houston Christian University. Our attorneys argue this rule change disproportionately burdens religious schools, due to their religious beliefs and practices. First Liberty attorney Keisha Russell explains:

“Schools like Houston Christian University that hold traditional religious beliefs about sexuality are spiritually motivated to ensure that its female athletes have access to equal and fair opportunities in athletics. This language is an underhanded attempt to eradicate sex-separated teams. Houston Christian University and other schools cannot meet the requirements of the rule and remain consistent with their religious beliefs.”

We also point out that the proposed rule would force schools “to do away with their athletics programs or create new religious sports associations.” This would negatively affect countless Americans of various faith traditions who “believe in the differences between males and females and the value of sex-separated activities, including athletic competitions.”

This is not the first time the administration has used the Department of Education to mandate polices harmful to religious freedom. Last September, First Liberty submitted a public comment on a proposed rule to include sexual orientation and gender identity as part of Title IX.

Our comment opposed changes that would redefine sexual harassment so broadly as to include religious exercise and speech. This, in effect, would encourage attacks on people of faith, particularly in public schools. Students, instructors or administrators could face increased discrimination or punishment because of their religious beliefs. Our attorneys explained that it “gives federal bureaucrats broad powers to bully and exclude students and teachers who don’t share the government’s beliefs about marriage and human sexuality.”

Updated Guidance on Religious Expression in Public Schools

The Department of Education also announced updated guidance regarding prayer and religious expression in public schools. The guidance follows First Liberty’s landmark victory at the U.S. Supreme Court in our Coach Kennedy case. In Kennedy v. Bremerton, the Court held that the government cannot censor private religious speech and set a precedent that public school employees may engage in religious expression and exercise.

The guidance clarifies the rights of students, stating they can “read from religious materials; say a prayer or blessing before meals; and engage in worship or study religious materials with fellow students during non-instructional time (such as recess or the lunch hour) to the same extent that they may engage in nonreligious activities.”

It also states that “students may organize prayer groups and religious clubs to the same extent that students are permitted to organize other noncurricular student activity groups.” There’s even a provision making it clear that schools “may not target religious literature for more permissive or more restrictive regulation.”

Although many parts are positive, some do not appear to properly reflect and comply with the Supreme Court’s direction set forth in Kennedy.

In a recent interview with The Christian Post, Russell explained: “We respect that the Biden administration acknowledges the important religious liberty rights of public school employees as the Supreme Court declared in its Kennedy decision last year.”

Russell, however, warns “the administration’s new guidance relies on old propositions derived from the overturned Lemon decision.” Recall that in Kennedy, the Supreme Court overruled bad Establishment Clause precedent known as the Lemon test, which harmed religious freedom for more than 50 years. She reiterated the importance of following the Court’s recent ruling and making sure that “any restriction placed on religious freedom by those outdated cases is restored to the fullest extent required by the First Amendment.”

Our friends at Alliance Defending Freedom agree. They say the new guidance appears to suggest that “schools have to purge religious messages from any student speech if the school in any way controls the student’s speech.” Their attorneys also noted, “the guidance also removes another section that ensured that student groups could choose group leaders that agree with the groups’ mission. This could lead to more violations of students and teachers’ right to association.”

People of faith need to remain vigilant. The Biden administration has shown a particular disdain for beliefs of religious Americans and has repeatedly used the alphabet soup of federal agencies to target and harass them. It often claims that proposed regulations and guidance are about promoting equality before the law or stopping discrimination. But record shows many of its policies are really about forcing people of faith to violate their religious convictions and making them conform to a radical ideology.

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