Many public colleges and universities (and many private ones also) have nondiscrimination requirements that apply to student clubs. These nondiscrimination requirements often specify that if the clubs want to be officially recognized and receive funding from the school, the clubs must allow any interested students to participate, regardless of race, religion, sexual orientation, gender identity, disability, or other protected characteristics. Students can always form unofficial clubs and apply any membership criteria they like; the nondiscrimination requirements apply only if the clubs want official recognition and funding.
In 2020, the Trump administration’s Secretary of Education, Betsy DeVos, issued a new regulation that requires public colleges and universities to exempt religious student organizations from campus nondiscrimination requirements, on pain of losing federal funding. The rule thus undermines the schools’ nondiscrimination policies. And because most colleges and universities provide official funding out of mandatory student activity fees that every student must pay, the rule forces students to fund clubs that discriminate against and exclude them.
In early 2021, Americans United for Separation of Church and State and American Atheists, on behalf of the Secular Student Alliance and a university student in California, filed a lawsuit against the Trump administration’s Department of Education to challenge the rule. The lawsuit claims that former Secretary of Education Betsy DeVos had no authority to issue the rule, ignored the harms that the rule will inflict on students and their colleges and universities, and imposed requirements that directly conflict with the U.S. Constitution. The lawsuit asked the U.S. District Court for the District of Columbia to invalidate the rule, which went into effect on Nov. 23, 2020.
On August 19, 2021, the Biden administration announced that it is reviewing and anticipates rescinding parts of the rule that we challenged. Accordingly, we agreed to a temporary pause in the litigation. On February 22, 2023, the Biden administration published a notice announcing that it plans to repeal the regulation that we challenged and asked for public comments on that plan.