Reversal of Free Inquiry Provokes Varying Responses

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.