The Biden administration’s plan to repeal a key religious liberties protection for college students could launch an epic struggle aimed at the Supreme Court over whether religious groups on campus can restrict leadership positions to students who follow the groups’ religious tenets.

At issue is an effort to force student religious groups to open leadership positions to “all-comers” — say, an abortion-rights activist as leader of a Catholic student group or a polytheist as leader of an Orthodox Jewish club. The Biden administration wants to appeal protections, known as the “Religious Liberty and Free Inquiry Rule,” established by the Trump administration in 2020.

The question of First Amendment protections for religious student groups first came to a head in 2010, when the Supreme Court ruled in favor of “all-comers” in a case out of the Hastings School of Law in California. The vote, though, was five to four, with Chief Justice Roberts and Justices Samuel Alito, Clarence Thomas, and Antonin Scalia dissenting in favor of religious students. 

The Nine ruled that the university had the right to deny student organization status and privileges to a Christian group. 

Since then, though, the makeup of the Supreme Court has changed dramatically, with a six-to-three majority that favors stronger religious freedom rights. 

In Christian Legal Society v. Martinez, UC Hastings said it had an “all-comers” policy that required all official student groups to accept any willing participant as a member or leader.

UC Hastings said the legal society was ineligible for official school sanction because its statement of faith — required for all members to affirm — upheld traditional Christian teachings on marriage and sexuality, which the school said violated its non-discrimination policy.

In the majority opinion, Justice Ruth Bader Ginsburg wrote that the school’s “all-comers” policy was “a reasonable, viewpoint neutral condition” that did not violate the First Amendment. The Christian Legal Society could exist as an unofficial group on campus, the court ruled, but the school was within its rights to deny its status as a registered student organization.

In 2020, the Trump administration sought to bolster federal support for religious student groups facing similar pressures through the Free Inquiry Rule, tying federal funding to protections for religious student groups.

According to these regulations, “students are allowed to say that they only want to have leaders of their student groups who are practicing members of their faith on campus,” the general counsel for the Jewish Coalition on Religious Liberties, Howard Slugh, says.

“Religious student organizations should be able to enjoy the benefits, rights, and privileges afforded to other student organizations at a public institution,” the Trump-era regulations say. “Accordingly, public institutions cannot exclude religious student organizations from receiving neutral and generally available government benefits.”

The Free Inquiry rule in its current iteration allows schools to maintain all-comers policies but notes that schools “may not selectively enforce” policies to target religious student organizations. Political groups would need to accept students who may not align with their missions.

“With respect to a true all-comers policy, pro-choice groups could not bar leader positions from pro-life individuals,” the final rule said, raising the question whether a true all-comers policy is possible. Mission-driven organizations are likely always to select mission-aligned leaders.

On Tuesday, though, the Department of Education announced its intention to open comments on a proposed amendment to the regulation, one that would strip its power to condition funds on the basis of protections for religious student groups. 

The Biden administration says these rules are “not necessary” for the protection of First Amendment rights and have “caused confusion” for schools — particularly at the intersection of religious liberties protections and anti-discrimination policy.

The administration noted concerns that the Free Inquiry Rule could mandate “preferential treatment to religious student groups” and “allow religious student groups to discriminate against vulnerable and marginalized students.”

The Department of Education said it was “unduly burdensome” to be involved in investigations about the treatment of religious student organizations and wants to hand these cases back over to the judicial branch.

“Where complex questions over the First Amendment arise, Federal and State courts are best equipped to resolve these matters,” the administration said in its announcement. “In its proposed rule, the Department is proposing to return to this longstanding practice of deferring to courts.”

Should the question reach Supreme Court again, the nation could see the precedent established by Christian Legal Society overturned, given the court’s more conservative leanings — especially at the intersection of religious liberty and education.

The move to overturn protections for religious student groups in higher education comes as the United States Court of Appeals for the Ninth Circuit prepares to hear a case en banc on the topic at the high school level, Fellowship of Christian Athletes v. San Jose Unified School District. 

At a California public school, a Christian athletic group was stripped of its official club status because its student leaders were required to affirm certain principles of faith — including traditional Christian teachings on marriage and sexuality. The case represents an opportunity to relitigate nearly the same principles at stake in Christian Legal Society.

Oral arguments will take place next month.