Published March 3, 2023
On February 22, 2023, the Department of Education (ED) published in the Federal Register a notice of proposed rulemaking (NPRM) and a request for information (RFI) relating to First Amendment religious exercise and free speech regulations for institutions of higher education. The 30-day window to provide comment for both the NPRM and RFI ends Friday, March 24.
The NPRM and RFI claim that the Biden administration and ED “deeply value” free speech and the free exercise of religion guaranteed in the First Amendment.
In 2020, ED issued the “Free Inquiry Rule” to add material conditions relating to First Amendment freedoms and free inquiry to Department grants for direct grant programs and state administered grant programs. As a material condition of receiving the grants, public institutions of higher education (IHEs) are required to comply with the First Amendment, and private institutions are required follow their stated institutional policies on freedom of speech, including academic freedom.
In August 2021, ED announced via blog post that it was conducting a review of the regulations and consulting with certain stakeholders.
NPRM Proposes Rescinding Religious Student Group Protections
The NPRM titled “Direct Grant Programs, State-Administered Formula Grant Programs” proposes rescinding two provisions (34 CFR § 75.500(d) and § 76.500(d)) related to religious student groups: one for public institution grantees and the other for states or subgrantees that are public institutions.
Both provisions require as a material condition of the Department’s grant that the grantee, state, or subgrantee “shall not deny to any student organization whose stated mission is religious in nature and that is at the public institution any right, benefit, or privilege that is otherwise afforded to other student organizations at the public institution (including but not limited to full access to the facilities of the public institution, distribution of student fee funds, and official recognition of the student organization by the public institution) because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs.”
ED believes the “provisions’ costs outweigh any potential benefits,” citing three main points.
First, according to the NPRM, the provisions do not add “material additional protections for student groups whose stated mission is religious in nature at public IHEs” and “are not necessary to protect the First Amendment right to free speech and free exercise of religion.”
Second, it says the provisions “created confusion among institutions.” Stakeholders told ED they were confused about the interplay between the provisions and other nondiscrimination requirements and whether they “allow religious student groups to discriminate against vulnerable and marginalized students.” The NPRM cites concerns raised by several commentors to the 2020 Rule that the provisions “could be read to require IHEs to afford preferential treatment to religious student groups and would prohibit IHEs from applying neutral, generally-applicable nondiscrimination policies that would otherwise be compliant with the First Amendment.” In response to the August 2021 outreach, several institutional stakeholders raised concerns that the provisions reduced institutions’ ability “to set individualized policies that protect First Amendment freedoms and reflect the diversity of institutional contexts and missions.” According to those stakeholders, “the appropriate level of decision-making should remain at the institutional level” because institutions are “best positioned to ensure respect for religious expression and exercise and protection against unlawful discrimination for students on campuses.”
In the NPRM, ED asserts that “institutions generally make a good-faith effort to abide by the First Amendment irrespective of the implementation of the 2020 final rule” and the “a threat of remedial action” is not necessary “to make the guarantees of the First Amendment, including the Free Exercise Clause, a reality at public institutions.” Regardless of this belief, ED promises it “will continue to encourage all IHEs to protect students’ opportunities to associate with fellow members of their religious communities, to share the tenets of their faith with others, and to express themselves on campus about religious and nonreligious matters alike.”
Third, even though ED “has not received any complaints regarding alleged violations,” the NPRM claims the provisions “prescribe an unduly burdensome role for the Department to investigate allegations regarding IHEs’ treatment of religious student organizations.” Instead, because the First Amendment is a “complex area of law,” courts are “better suited to handle such matters.”
In short, ED believes rescinding the provisions would “eliminate the confusion caused by the 2020 final rule and leave adjudication of these complex and important constitutional questions to the institutions themselves, their communities, and the judiciary.”
The NPRM concludes the provisions’ rescission “would not have costs for students or campus communities.
RFI Seeks Information Related to Campus Free Speech Regulations
ED issued the RFI to seek input from the public “on how regulations adding material conditions relating to First Amendment freedoms and free inquiry to Department grants have affected or are reasonably expected to affect decisions surrounding First Amendment and free speech-related litigation in Federal and State court and institutional policies on freedom of speech.”
The Department is encouraging comments from:
- impacted institutions of higher education;
- researchers, academics, policy experts, and other individuals familiar with First Amendment rights and institutional policies;
- organizations that work on First Amendment issues, including those that work directly with institutions and students;
- students; and
- other members of the public.
ED is seeking comments on “general concepts and topics identified as they relate to First Amendment rights and free speech policies on campus” and the following specific questions:
- Whether and how the current regulations have affected or are reasonably expected to affect decisions surrounding First Amendment and free speech-related litigation in Federal and State court;
- How these regulations have affected or are reasonably expected to affect public IHEs’ approach to designing institutional policies related to First Amendment protections, including on-campuses processes used to address alleged free speech and academic freedom violations;
- How these regulations have affected or are reasonably expected to affect private IHEs’ approach to designing institutional policies related to free speech and academic freedom, including on-campuses processes used to address alleged free speech and academic freedom violations;
- Whether and how these grant conditions have provided additional protections of First Amendment rights in the case of public colleges, or promotion of free speech and free inquiry policies in the case of private institutions;
- Whether these regulations affect or could be expected to affect how aggrieved campus community members seek resolution to alleged free speech and academic freedom policy violations;
- Whether these regulations have resulted in additional quantifiable costs beyond what was considered in the 2020 final rule;
- Any other information that the public believes would inform the Department’s understanding of the impact of these regulations.
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she works on EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.