NAICU Washington Update

Final Rules on Free Speech Issued

September 11, 2020

The Department of Education has published final 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). The final rules, which are substantially similar to the proposed regulations, will become effective 60 days after the official version is published in the Federal Register.
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. As defined in the EO, the federal student aid programs are not considered to be research or education grants.
The Department’s final regulations fulfills 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 violate this condition would be subject to penalties for noncompliance.
Despite significant areas of concern that were raised by NAICU and others in the higher education community, the final rules do not appear to deviate significantly from proposed regulations issued earlier this year. Key concerns about the regulations’ potentially serious implications for private institutions of higher education include the following:
  • The rules may 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 may 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 rules confuse the concepts of freedom of speech and academic freedom. 
Based on these concerns, NAICU submitted comments on the proposed rules. 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. The final rules do not appear to incorporate any of the concerns raised in these community letters.
Faith-Based Institutions
The final regulations 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 do not apply to Title IV, a different set of regulations that were published earlier this year similarly expand access for faith-based institutions under this section of the law.
According to the Department, the faith-based portion of the regulations are intended to protect the right to free exercise of religion for both institutions and students and to ensure that faith-based institutions are able to carry out their missions consistent with religious protections in federal law. For example, the regulations 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 regulations 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 regulations 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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