The Department of Education released a new request for information as it considers revisions to Trump-era free inquiry regulations that affect private, nonprofit colleges and universities. The 2020 regulations, and the Biden Administration’s effort to revisit the regulations, reflect the continued political controversy over free speech on campus. 

In seeking more information about the impact of the regulation on campuses, the Department is attempting to understand the effect of the regulation over the past two years. In particular, the Department is seeking comments regarding a provision of the 2020 regulations that requires private, nonprofit institutions to certify that they have complied with their free expression policies as a material condition for receiving education grants under the Higher Education Act (HEA).

Because the 2020 regulations stated that a private, nonprofit institution would automatically violate conditions for institutional grants under the HEA – and be subject to monetary penalties for such violations – if a state or federal court issues a final, non-default judgment finding that the institution violated its stated free speech policies, many NAICU members were concerned that the regulation invited lawsuits by students, employees or outside entities. However, actual examples of lawsuits or changed institutional behavior because of the regulation have been hard to come by. 

Both the 2020 regulations and the Biden Administration’s request for information also impact public institutions. However, because public institutions are subject to First Amendment provisions related to free speech, the Trump regulations applied differently to those institutions. The recent announcement by the Biden Administration also rescinded a part of the 2020 regulation aiming to protect religious groups at public institutions.

Comments on the Request for Information are due by March 24, 2023 and can be submitted via the Federal eRulemaking Portal at www.regulations.gov. 

NAICU also is seeking  member feedback on the request for information to better inform the Association’s response. Share your comments with Director of Accountability and Regulatory Affairs Jody Feder at jody@naicu.edu.