Proposed Rules Address Freedom of Speech and Grant Eligibility for Faith-Based Institutions

January 17, 2020

The Department of Education has published proposed regulations that are designed to implement President Trump’s Executive Order (EO) addressing freedom of speech on college campuses, as well as to facilitate faith-based institutions’ eligibility to participate in various grant programs under the Higher Education Act (HEA). Public comments on the notice of proposed rulemaking (NPRM) are due on February 18, 2020, and can be submitted electronically via the Federal eRulemaking Portal.
Freedom of Speech
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.
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. Institutions that refuse to certify or that violate this condition would be subject to penalties for noncompliance. As defined in the EO, the federal student aid programs are not considered to be research or education grants.
Notably, the proposed regulations would not give the Department the authority to mandate the adoption of specific free speech policies nor to adjudicate claims alleging violations of such policies. Instead, private institutions of higher education would remain entitled to establish their own free speech policies, and the Department would rely on the judiciary to determine when institutions fail to abide by their own policies. 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.
Faith-Based Institutions
The proposed regulations would also revise current rules governing the eligibility of faith-based institutions to participate in the Department’s direct grant programs, formula grant programs, and discretionary grant programs authorized under Titles III and V of the HEA. Although these rules would not apply to Title IV, a different set of proposed regulations that emerged from last year’s negotiated rulemaking would similarly expand access for faith-based institutions under Title IV.
Key provisions of the proposed regulations would:
  • Ensure nondiscrimination against faith-based institutions by clarifying that such institutions are eligible to receive grants or subgrants on the same basis as other entities;
  • Remove requirements that faith-based institutions provide assurances or notices that are not required of other institutions;
  • Clarify that faith-based institutions are entitled to retain their independence from the government and their ability to carry out their missions consistent with religious protections in federal law; and
  • Remove language prohibiting institutions from using funds for otherwise allowable activities that relate to religious worship and theological subjects and replace it with narrower language. 
In addition, the proposed regulations would specify criteria regarding an institution’s eligibility to claim a Title IX exemption. Under Title IX, educational institutions that are controlled by a religious organization may seek an exemption. The statute, however, does not address how institutions can demonstrate whether they are controlled by a religious organization. The proposed regulations would therefore provide a non-exhaustive list of criteria that institutions may use as a safe harbor for purposes of demonstrating their eligibility for a Title IX religious exemption.  

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