Education Department Issues Final Rule Focusing on Free Speech on Campus and Equal Treatment of Faith-Based Institutions
On September 9, 2020, after receiving more than 17,000 public comments to its notice of proposed rulemaking (the “NPRM”), the United States Department of Education (the “Department”) published the Religious Liberty and Free Inquiry Final Rule (the “Final Rule”). The Department describes the Final Rule as reinforcing First Amendment freedoms and equal treatment of religious student organizations at public institutions and ensuring that private institutions adhere to their stated institutional policies regarding free speech and academic freedom. The Final Rule also purports to provide clarity to faith-based institutions as to their duties under Title IX and revises certain definitions that affect an institution’s ability to receive grants under Titles II and IV. The Final Rule, effective November 8, 2020, largely models the NPRM, which the authors previously analyzed here. This alert summarizes the Final Rule and highlights distinctions between the NPRM and Final Rule.
Free Inquiry: Implementing Executive Order 13864
As explained in the NPRM, the Final Rule seeks to effectuate Executive Order 13864: Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities. The Final Rule requires that public institutions continue to comply with the First Amendment – including by protecting free speech, association, press, religion, assembly, petition, and academic freedom – as a material condition to receiving Department grants. See 34 CFR 76.500(b)(1). Conversely, private institutions must comply with their own voluntarily-undertaken institutional policies concerning speech, expression, association, and so on, as a condition to receiving certain Department grants. See 34 CFR 76.500(c)(1). Consistent with Executive Order 13864, public and private institutions risk losing direct grants under 34 CFR Part 75 or subgrants from a state‑administered formula grant program under 34 CFR Part 76, but not Title IV student aid funding.
With respect to enforcement of this portion of the Final Rule, the Department will rely on final, non-default judgments by a state or federal court to determine whether the First Amendment (as to public institutions) or stated institutional policies (as to private institutions) were violated. A judgment is final if an institution chooses not to appeal it, or if the judgment is not subject to further appeal. While the NPRM required that institutions provide a copy of such judgments to the Department no more than 30 days after such judgment is entered, the Final Rule extended the deadline to 45 days to help ensure that institutions have adequate time to decide whether to appeal the judgment.
The Final Rule includes a broad range of potential remedial actions the Department may take, including imposing special conditions on grants, temporarily withholding cash payments pending correction of the deficiency, suspension or termination of a Federal award, and potentially debarment upon noncompliance.
In light of this new set of regulations and their implications, private institutions may wish to undertake a review of their student, employee, and faculty handbooks with respect to their policies on speech and expression.
Equal Treatment of Religious Student Organizations at Public Institutions
In the preamble to the Final Rule, the Department discusses the anecdotal comments it received relating to discrimination against religious organizations, recounting numerous comments regarding instances where organizations were deprived of recognition, funding, facilities, or other benefits, due to their religious status or character. As a result, the Department determined that a Final Rule is necessary to ensure that a public institution shall not deny any right, benefit, or privilege to a student organization whose stated mission is religious in nature, when such right is otherwise afforded to student organizations. See 34 CFR 75.500(d) and 76.500(d). Following the publication of the NPRM, the Department revised this section in an attempt to clarify which organizations may be considered religious by noting that the prohibition includes any student organization “whose stated missions is religious in nature.” This section of the Final Rule prohibits discrimination against religious student organizations based on the group’s beliefs, practices, policies, speech, membership standards, or leadership standards when informed by “sincerely held religious beliefs.”
In light of this rule, institutions may wish to review policies limiting recognition of student groups that exclude other students from participating because of the groups’ “sincerely held religious beliefs,” particularly student groups that exclude others on the basis of sexual orientation, gender expression, or any other sex-based status or characteristic.
The Final Rule also includes the following non-exhaustive list of rights, benefits, or privileges that must be provided to religious organizations: 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. Similar to the First Amendment compliance noted above, compliance with these sections is a material condition for direct grants under 34 CFR Part 75 or subgrants from a state-administered formula grant program under 34 CFR Part 76.
Grant Programs Under Titles II and V of the Higher Education Act
In the NPRM, the Department stated that, under current regulations, recipients of Title II and V development grants may not use this money for activities or services that relate to “sectarian instruction” or “religious worship,” and noted that these definitions were too broad. In an attempt to address the Department’s concerns with the current regulations, the Final Rule narrows the types of services that fall within the prohibition. Specifically, the Final Rule prohibits use of such grants for “activities or services that constitute religious instruction, religious worship, or proselytization.” See 34 CFR 606.10(c)(3).
Current regulations also prohibit an institution from using a development grant for activities provided by a “school of divinity,” and the Department had concern that this definition was so vague as to include departments with Ph.D. programs in religious studies. Accordingly, the Final Rule amends the definition of a “school or department of divinity” to mean “an institution, or a department of an institution, whose program is solely to prepare students to become ministers of religion or to enter into some other religious vocation.” 34 CFR 606.10(c)(4). The Department views this definition, which clarifies that institutions are not prohibited from using grants for secular departments of religion, as being more consistent with the First Amendment and other federal laws.
Clarity Regarding Control by Religious Origination: Title IX Religious Exemption
Finally, Title IX does not apply to educational institutions “controlled by a religious organization.” The Final Rule purports to clarify what this phrase means, because “controlled by a religious organization,” is not defined in Title IX or its implementing regulations. The Final Rule provides a non-exhaustive list of factors that an institution may use to satisfy the definition of “controlled by a religious organization.” See 34 CFR 106.12(c). In addition to codifying existing factors already in use by the Assistant Secretary for Civil Rights when evaluating requests for religious exemptions (see 34 CFR 106.12(c)(1)-(5)), the Final Rule, consistent with the NPRM, also provides a safe harbor provision, allowing institutions to submit “[o]ther evidence sufficient to establish that an educational institution is controlled by a religious organization.” Id. at (c)(6).
Saul Ewing Arnstein & Lehr attorneys regularly advise colleges and universities on legal and compliance issues, including with respect to policies and responses related to free-speech issues. If you have any questions regarding the Final Rule or any issue related to the handling of free speech issues, please contact the authors or the attorney at the Firm with whom you are regularly in contact.