Republicans Stuff Education Bill With Conservative Social Agenda


Religious colleges would be able to bar openly same-sex relationships without fear of repercussions.

Religious student groups could block people who do not share their faith from becoming members.

Controversial speakers would have more leverage when they want to appear at colleges.

A 590-page higher-education bill working its way through Congress is a wish list for a wide range of people, groups and colleges saying that their First Amendment rights — freedom of speech, religion or assembly — are being trampled. Many of them are religious, right-leaning or both, and the Republicans behind the bill have eagerly taken up the cause, correcting what they see as antipathy toward conservative beliefs on American campuses.

“Colleges and universities, both public and private, have long been considered environments that support robust debate and freedom, and Republican members of Congress share that belief and are sending a message to the higher education community that these important issues cannot be ignored,” Michael Woeste, a spokesman for Representative Virginia Foxx of North Carolina, the chairwoman of the House education committee, said in a statement.

The bill’s religious elements reflect the continuing national debate over whether the First Amendment covers actions that might otherwise be called discriminatory. That very question is before the Supreme Court in the case of a Colorado baker, Jack Phillips, who said that being forced to make a wedding cake for a gay couple would violate his religious freedom.

Last month the Trump administration expanded protections for health care workers who object to performing procedures like abortion and gender reassignment surgery, one of President Trump’s “historic actions to protect religious liberty” that he heralded during the State of the Union address on Tuesday.

The various groups that would benefit from the bill have found an opening through a stroke of timing, as the Higher Education Act, first passed in 1965 as part of President Lyndon Johnson’s Great Society agenda, comes up for renewal. The act governs federal aid to students and colleges, and the bill would let the government withhold that aid from colleges that violate the new provisions.

The Obama administration used a similar pressure tactic when it imposed new policies, which were rescinded in September, on how colleges should handle sexual assault.

The bill passed the education committee on a party-line vote of 23 to 17 in December, giving it a good chance of passing the full House, though its prospects in the Senate, where it would need some Democratic converts, are unclear. Lobbyists for advocacy groups supporting and opposing the measures said it was possible some would be stricken or watered down to “statements of principle” with less legal force.

Harvard’s new policy discouraging membership in all-male final clubs, like The Owl Club, pictured, inspired a measure in the bill that would prevent other colleges from doing likewise. Credit Katherine Taylor for The New York Times

Even so, the momentum behind the ideas has drawn a sharp response from college administrators who fear a pre-emption of their authority over their own campuses, and from gay and transgender rights groups who see the bill as a license to discriminate.

“Here is this legislature in this anti-regulatory mode that purports to want to liberate institutions from the overreach by the federal government, and here we are with essentially non-germane stuff,” said Barmak Nassirian, director of policy analysis for the American Association of State Colleges and Universities. “What does this have to do with people going to college and receiving aid?”

The implications could be far-reaching, said David Stacy, the government affairs director of the Human Rights Campaign, a gay rights group.

The provision that particularly worries Mr. Stacy prohibits the government from taking action against colleges — such as revoking their tax-exempt status or disqualifying their students from federal loans — for policies related to their religious mission or affiliation.

And if such a college loses its accreditation, which would typically render it ineligible for federal loan programs, the proposed law lays out a process for the college to appeal to the education secretary to maintain its eligibility.

The bill does not mention sexual orientation or gender, but its intent is clear. At some Christian colleges, gay dating or marriage is forbidden, and same-sex couples are not permitted to live together in married-student housing.

So far, attempts to withdraw accreditation over the same-sex marriage issue have been extremely rare. In 2015, the New England Association of Schools and Colleges raised questions about a student code forbidding “homosexual practice” at Gordon College, a Christian school near Boston. But the association let Gordon College keep its accreditation after it agreed to expand its support to gay, lesbian and transgender students.

Barbara E. Brittingham, president of the commission that oversees higher education for the association, said the agency tried to ensure that one group of students was not treated differently from another. “There are many things in motion about American higher education,” she said, “and with that comes the obligation to make sure they are treating all students in a way that supports the students personally and academically.”

Gordon College, a Christian school near Boston, was threatened with the loss of accreditation over its student code banning “homosexual practice.” Credit Elise Amendola/Associated Press

But Everett Piper, the president of Oklahoma Wesleyan University, said it was unfair to equate religious belief with discrimination. His college’s handbook forbids behavior that promotes a “sexual identity outside of the scriptural expectation,” such as “homosexual P.D.A.,” or public displays of affection, part of a catalog of sexual behavior that may result in suspension or dismissal.

“There’s a huge difference between discriminating against behavior and discriminating against a person,” Mr. Piper said.

It would counteract a Supreme Court decision in 2010 that allowed the University of California Hastings College of the Law to withhold recognition from a student group, the Christian Legal Society, because it blocked gay students from having voting privileges or leadership roles.

Another provision is aimed at universities where controversial, or sometimes merely conservative, speakers have sought to appear. Schools have denied speaking slots or put restrictions on them after some protests against the speakers have become unruly. After violent protests last February, the University of California, Berkeley, canceled an appearance by the conservative provocateur Milo Yiannopoulos, leading Mr. Trump to take to Twitter to threaten to withhold federal funds from the university. Several universities have turned down speaking requests from Richard Spencer, the white supremacist, citing the potential for violence.

The bill criticizes the use of campus “free speech zones” where such speakers are sometimes asked to stay within, but it would not bar the zones or stop colleges from setting rules. It would force colleges to publicly declare their speech policies, so if they tried to change the rules ad hoc, depending on who was speaking, they would be vulnerable to free-speech lawsuits.

Though Republicans had been energized by attempts by students or colleges to mute conservative ideas, speakers of all political stripes would stand to benefit from the law, said Joe Cohn, the legislative and policy director for the Foundation for Individual Rights in Education, a free-speech advocacy group.

“People are censored by who they disagree with,” Mr. Cohn said. “Students are censored from all parts of the political spectrum for a variety of motives.”

In a broad freedom of association provision, the bill would prevent colleges and universities from disciplining students based on their membership in a single-sex student organization, including fraternities and sororities. Republican congressional aides said this provision was inspired by Harvard’s new policy of denying certain privileges — like leadership positions and recommendations for fellowships — to members of single-sex social clubs. Harvard officials have said the organizations are anti-egalitarian and foster an atmosphere of sexual harassment, while club members say they should be allowed to associate with whomever they wish.

In a twist, though, the bill, as currently written, apparently would not apply to Harvard: It would affect only colleges that recognize such clubs, and Harvard stopped recognizing its all-male final clubs about 30 years ago. And some officials of other universities fear the impact could become quite broad, restricting their ability to combat the perennial problem of hazing and binge drinking at fraternities. But other administrators said they did not believe the authors of the bill intended for it to go that far.

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