March 2021 Church & State Magazine - March 2021

Course Correction: New AU Lawsuits Seek To Roll Back Harmful Trump-Era Discriminatory Rules

  Liz Hayes

Donald Trump may no longer be president, but many of the harmful policies his administration implemented remain in place.

That’s why Americans United and allies recently filed two federal lawsuits challenging Trump administration regulations – one created by the Department of Education that promotes religion-based discrimination on college campuses, and the other a multi-agency rule that strips religious freedom protections from vulnerable people who rely on taxpayer-funded social services.

The lawsuits were filed on Jan. 19 – the day the multi-agency rule went into effect, and the last day the Trump administration was in power.

Americans United is urging the Biden-Harris administration to rescind both rules, but because they were created through a formal notice-and-comment rulemaking process, fully reversing the rules would need regulatory action, which takes time. Meanwhile, AU and allies are asking the courts to block these rules so that no one is harmed while the rules are still on the books.

The lawsuit filed by Americans United and American Atheists against the Department of Education challenges a rule created under former secretary Betsy DeVos that requires public colleges and universities to exempt religious student clubs from nondiscrimination provisions that apply to all officially recognized or school-funded student clubs.

The rule undermines the nondiscrimination policies many colleges and universities have enacted to ensure that clubs don’t bar students from membership or leadership positions on the basis of race, religion, sex, sexual orientation, disability, gender identity or other protected characteristics. Colleges that continue enforcing their protective policies and ignore the new rule risk losing their federal funding.

Student clubs at public colleges are typically funded by activity fees paid by all students – so the rule demands that marginalized students pay for their own discrimination.

Declan Galli, an LGBTQ sophomore at California Polytechnic State University who is one of the plaintiffs in the lawsuit, said he fears for his safety and the safety and mental health of other students on campus if discriminatory clubs must be formally recognized by the university.

“If colleges now have to promote student organizations that discriminate, it’s hard to believe the campus can keep us safe,” Galli said.

Galli, an Episcopalian who is a member of the Cal Poly Transgender and Queer Student Union, recalled an incident last school year when a dozen students rallied on campus, shouting that being gay is a sin. Although he was reassured by the prompt steps the school took to address the incident, he explained that the “Department of Education regulation allows these same students to start a group that would discriminate against me while still receiving funding from the fees I’m required to pay.”

The Secular Student Alliance (SSA) is the other plaintiff in the lawsuit, Secular Student Alliance v. U.S. Department of Education. SSA is the country’s largest nonreligious student organization, with over 300 chapters in colleges and high schools.

“No students should ever be forced to subsidize clubs that discriminate against them,” said Kevin Bol­ling, SSA’s executive director. “Students who are LGBTQ, religious mi­n­or­ities, nonreligious, or otherwise marginalized will especially be harmed by this rule.”

Americans United and American Atheists attorneys note in the lawsuit that the rule disregards the 2010 U.S. Supreme Court decision in Christian Legal Society v. Martinez, which held that public colleges and universities can enact policies to protect students from discrimination by university-funded student organizations. The Supreme Court has also held that colleges must not give some student groups special treatment based on their views or beliefs – which is exactly what this new rule does.

The lawsuit notes that the rule is illegal because the Department of Education has only the authority that Congress has given it, and Congress has never given the department any authority to enforce the First Amendment. Congress certainly hasn’t given the department the authority to enforce DeVos’ warped interpretation of the First Amendment.

The rule also violates the Administrative Procedure Act because it ignores the harms it will cause to students and their colleges and uni­versities (harms that American Atheists, Americans United and many others addressed in public comments submitted to the department before this rule was issued and went into effect on Nov. 23, 2020).

“The Trump Administration is forcing colleges to choose between protecting students and losing federal funding, or allowing discrimination against students in order to keep federal financial assistance. That is unfair, unlawful, and just plain wrong. Discrimination has no place in our public colleges and universities,” said Richard B. Katskee, legal director at Americans United. “Discriminating against any students in the name of religion jeopardizes religious freedom for all students.”

“This unlawful rule was part of the Trump Administration’s campaign to pander to Christian nationalists and weaponize religious freedom to justify discrimination,” said Alison Gill, vice president for legal and policy at American Atheists. “Freedom of religion is a fundamental American value that protects everyone’s right to their beliefs, as long as they don’t harm others. It does not give people or organizations the right to ignore civil rights protections and discriminate.”

Americans United and American Atheists also are part of a group of service and advocacy organizations involved in the second lawsuit filed against the Trump administration on Jan. 19, MAZON: A Jewish Response to Hunger v. U.S. Department of Health and Human Services. That case challenges the multi-agency rule that rolls back religious-freedom protections for recipients of taxpayer-funded social services.

The Trump rule eliminates safeguards that were adopted only recently, in 2016, by several federal agencies (the Departments of Agriculture, Education, Health and Human Services, Homeland Security, Housing and Urban Development, Justice, Labor, and Veterans     Af­fairs and the U.S. Agency for International Development). Those protections had been based on unanimous recommendations made by President Barack Obama’s Advisory Council on Faith-Based and Neighborhood Partnerships, which included a diverse group of faith and secular experts. Their recommendations were designed to improve the delivery of social services and strengthen religious freedom.

But in January 2020, the Trump administration announced plans to roll back many of those protections. Even though Americans United led many organizations and individuals in submitting public comments on how the new regulations would harm people and had no reasonable justification, and how the agencies failed to consider obvious alternatives, the Trump administration moved forward with them and announced they would go into effect on Jan. 19, 2021.

The new multi-agency rule eliminates a requirement that faith-based organizations inform recipients of tax-funded services of their religious freedom rights – including their right not to be discriminated against based on religion and their right not to be proselytized or required to participate in any religious activities.

It also eliminates a requirement that, if a service recipient objects to a social service provider’s religious character, the provider must make a reasonable effort to refer the objector to an alternative provider. Further removed was a requirement that pro­viders give service recipients notice of this referral right.

At the same time, the new rule elevates the interests of religiously affiliated government-funded social service providers ahead of the people who need those vital services, all under the guise of protecting pro­viders’ religious freedom. For example, the rule expands the ability of faith-based organizations to act religiously while using federal funds to provide social services.

“When providing social services, our federal government’s top priority should be to ensure that vulnerable people get the help they need without sacrificing their religious freedom or civil rights,” said Rachel Laser, president and CEO of Americans United. “The Trump administration’s unlawful rules do the opposite – they strip critical protections from people who rely on social services and force people to choose between obtaining services they desperately need and remaining true to their personal religi­­ous beliefs and identities.”

The seven organizations that are plaintiffs in the lawsuit explained that the Trump rule could lead to people – especially religious minorities and the nonreligious, women and LGBTQ people – not getting the services they need.

“Now, more than ever before, the millions of Americans facing hunger in the wake of COVID-19 must not be forced to withstand one more barrier to seeking the assistance they need to feed themselves and their families,” said Abby J. Leibman, president & CEO of MAZON: A Jewish Response to Hunger, which is the lead plaintiff.

Other plaintiffs in the suit include American Atheists; Ark of Freedom Alliance, which combats human trafficking and child exploitation; Freedom from Religion Foundation; the Hindu American Foundation and SAGE (Services & Advocacy for GLBT Elders). Americans United, Democracy Forward and Lambda Legal form the legal team representing the plaintiffs.

The organizations outlined some examples of how people could be harmed:

• A transgender teen experiencing homelessness might avoid a federally funded shelter associated with a religion that condemns LGBTQ people.

• A hungry family would have no reason to know they aren’t obligated to pray or say grace in order to receive food from a church program supported with tax dollars.

• A Hindu refugee would likely be unaware that they can turn down an invitation to join a Bible study group and still receive federally funded job training services. 

• Older Americans who don’t know their rights might participate in religious activities that are contrary to their own beliefs or disparage their LGBTQ identity because they fear they could lose access to federally funded, long-term care services if they do not.

• An LGBTQ adult trying to escape intimate-partner violence may not receive needed counseling if their first attempt is with an organization with a religious view that it is a sin to leave one’s spouse or that it is a sin to be in a same-sex relationship, and the survivor is not made aware that a referral may be available.

“Religious freedom should never be misused to permit discrimination or create barriers for people seeking taxpayer-funded services,” AU’s Laser said. “We urge the court to invalidate these rules, and the Biden-Harris administration to promptly revoke them.”                                                                       


Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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