NAICU Washington Update

NAICU Submits Comments on Proposed Free Speech Regulations

February 27, 2020

Last week, NAICU submitted comments on proposed regulations that the Department of Education published in order to implement President Trump’s Executive Order (EO) addressing freedom of speech on college campuses.
Under the President’s EO, certain federal agencies, including the Department, are tasked with ensuring that private institutions of higher education that receive certain federal research and education grants abide by their stated policies regarding freedom of speech, including academic freedom. As defined in the EO, the federal student aid programs are not considered to be research or education grants.
The Department’s proposed regulations would fulfill the EO’s directive by requiring private institutions to certify that they have complied with their free expression policies as a material condition for receiving federal education or research grants. Specifically, the Department would deem private institutions to be in compliance with their stated institutional policies unless there is a final, non-default court judgment finding that the institution or its employees violated the institution’s policy regarding freedom of speech or academic freedom. Institutions that refuse to certify or that violate this condition would be subject to penalties for noncompliance.
Although at first blush the proposed regulations might appear reasonable, a closer look reveals potentially serious implications for private institutions of higher education. Key concerns include the following:
  • The proposed rules could encourage excessive and frivolous litigation, due to both the regulations themselves and to the potential for liability under the False Claims Act, and could undermine the goal of maintaining broad protections for campus speech.
  • Courts could reach different conclusions about whether an institution has violated its stated policies, leading to a loss of federal grants for some institutions but not others, even when the same or similar conduct is at issue.
  • Unique considerations in the freedom of speech context call for greater clarity in defining when the Department may terminate federal grant funding.
  • The proposed rules confuse the concepts of freedom of speech and academic freedom.
NAICU also participated in an effort led by the American Council on Education (ACE) to draft extensive higher education community comments on the proposed free speech rules. Because the ACE letter covers many areas unique to public colleges on which NAICU has not taken a position, NAICU’s separate comments briefly reference and endorse the portions of the ACE letter that address the concerns of private, nonprofit institutions.
In addition, the Association of American Universities (AAU) submitted comments on the distinctive risks that the proposed regulations would pose to private colleges under the False Claims Act. NAICU’s comments likewise endorsed the AAU letter.

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