# Direct Grant Programs, State-Administered Formula Grant Programs, Non Discrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, Developing Hispanic-Serving Institutions Program, Strengthening Institutions Program, Strengthening Historically Black Colleges and Universities Program, and Strengthening Historically Black Graduate Institutions Program

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-20152

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** September 23, 2020
- **Citation:** 85 FR 59916

## Text

DEPARTMENT OF EDUCATION
Office of the Secretary
34 CFR Parts 75 and 76
Office for Civil Rights
34 CFR Part 106
Office of Postsecondary Education
34 CFR Parts 606, 607, 608, and 609
[Docket ID ED-2019-OPE-0080]
RIN 1840-AD45
Direct Grant Programs, State-Administered Formula Grant Programs, Non Discrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, Developing Hispanic-Serving Institutions Program, Strengthening Institutions Program, Strengthening Historically Black Colleges and Universities Program, and Strengthening Historically Black Graduate Institutions Program

AGENCY:

Office for Civil Rights, Office of Postsecondary Education, Department of Education.

ACTION:

Final rule.

SUMMARY:

In response to Executive Order 13864 (Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities), the Department of Education revises its current regulations to encourage institutions of higher education to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment to the U.S. Constitution for public institutions and compliance with stated institutional policies regarding freedom of speech, including academic freedom, for private institutions. These regulations also require a public institution to not deny a religious student organization any of the rights, benefits, or privileges that are otherwise afforded to other student organizations. In response to recent decisions from United States Supreme Court's decisions, the Department revises its current regulations regarding grant programs authorized under titles III and V of the Higher Education Act of 1965, as amended (HEA), and the eligibility of students to obtain certain benefits under those programs. The Department also revises its current regulations to clarify how educational institutions may demonstrate that they are controlled by a religious organization to qualify for the exemption provided under Title IX, 20 U.S.C. 1681(a)(3), to the extent Title IX or its implementing regulations would not be consistent with the religious tenets of such organization.

DATES:

This final rule is effective November 23, 2020.

FOR FURTHER INFORMATION CONTACT:

Sophia McArdle, U.S. Department of Education, 400 Maryland Avenue SW, Room 290-44, Washington, DC 20202. Telephone: 202-453-6318. Email:
Sophia.McArdle@ed.gov.

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Purpose of this Regulatory Action:
Through these final regulations, the Department reinforces First Amendment freedoms such as the freedom of speech and free exercise of religion. On March 21, 2019, President Trump signed Executive Order 13864, Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities.
1

In response to this Executive Order, as well as the First Amendment, and the Secretary's general authority under 20 U.S.C. 1221e-3, the Department endeavors to ensure that all institutions of higher education, as defined in 20 U.S.C. 1002(a), that receive Federal research or education grants
2

from the Department “promote free inquiry.”
3

Denying free inquiry is inherently harmful at any institution of higher education because students are denied the opportunity to learn and faculty members are denied the opportunity to freely engage in research and rigorous academic discourse.

1
84 FR 11402.

2
Exec. Order No. 13864, section 3(c) defines “federal research or education grants” as “all funding provided by a covered agency directly to an institution but do not include funding associated with Federal student aid programs that cover tuition, fees, or stipends.”

3

Id.
section 3(a).

Both Executive Order 13864 and these final regulations are intended to promote the First Amendment's guarantees of free expression and academic freedom, as the courts have construed them; to align with Federal statutes to protect free expression in schools;
4

and to protect free speech on campuses nationwide. Under the Supreme Court's First Amendment jurisprudence protecting the individual's right to his own ideas and beliefs, “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
5

As a result, officials at public institutions may not abridge their students' or employees' expressions, ideas, or thoughts.
6

4
20 U.S.C. 1011a; 20 U.S.C. 4071.

5

W. Va. State Bd. of Educ.
v.
Barnette,
319 U.S. 624, 642 (1943).

6

Tinker
v.
Des Moines Ind. Comm. Sch. Dist.,
393 U.S. 503, 505-07 (1969).

In a significant opinion,
Keyishian
v.
Board of Regents of the University of the State of New York,
the Supreme Court observed, “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”
7

Consequently, the First Amendment right of free expression means that public officials may not discriminate against students or employees based on their viewpoints.
8

For example, public institutions cannot charge groups excessive security costs “simply because [these groups and their speakers] might offend a hostile mob.”
9

In a landmark opinion,
Tinker
v.
Des Moines Independent Community School District,
the Supreme Court acknowledged more than half a century ago that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
10

These final regulations help ensure that students and teachers will retain their constitutional rights to freedom of speech at public institutions.

7
385 U.S. 589, 603 (1967).

8

See, e.g., Rosenberger
v.
Rector & Visitors of Univ. of Va.,
515 U.S. 819, 829-30 (1995).

9

Forsyth Cnty., Ga.
v.
Nationalist Mov't,
505 U.S. 123, 134-35 (1992);
see also College Republicans of the Univ. of Wash.
v.
Cauce,
No. C18-189-MJP, 2018 WL 804497 (W.D. Wash. Feb. 9, 2018) (holding University of Washington Security Fee Policy violates the students' First Amendment rights to freedom of speech and expression).

10
393 U.S. at 506.

Academic freedom is another aspect of freedom of speech, as “[f]reedom of speech secures freedom of thought and belief.”
11

Academic freedom is an indispensable aspect of the “freedom of thought and belief” to which individuals across educational institutions, including private ones, may enjoy.
12

It follows that academic freedom is intertwined with, and is a predicate to, freedom of speech itself; and injury to one is tantamount to

injury to both. Academic freedom's noble premise is that the vigilant protection of free speech unshackled from the demands and constraints of censorship will help generate new thoughts, ideas, knowledge, and even questions and doubts about previously undisputed ideas. Although academic freedom's value derives itself from the fact that its “results . . . are to the general benefit in the long run,” academic freedom is also inherently important in a free society.
13

11

Nat'l Inst. of Family and Life Advocates
v.
Becerra,
138 S. Ct. 2361, 2379 (2018) (
NIFLA
) (Kennedy, J., concurring).

12

Id.

13
Chairman's Letter to the Fellows of the Yale Corporation, Report of the Committee on Freedom of Expression at Yale, Yale University (Dec. 23, 1974) (Yale Report on Freedom of Expression).

Academic freedom, just like freedom of speech itself, is predicated on the principle that thoughts, arguments, and ideas should be expressed by individuals and assessed by listeners on their own merit, rather than the censor's coercion. Academic freedom insists on the freedom and power of speech so that the speaker has a fair opportunity to convince the listener of an idea and the listener a fair opportunity to be persuaded. The confluence of free speech and academic freedom is nothing new as far as the United States' educational institutions are concerned. As Yale University, a private American institution of higher learning, acknowledged almost half a century ago: Because “[t]he primary function of a university is to discover and disseminate knowledge by means of research and teaching,” “the university must do everything possible to ensure within it the fullest degree of
intellectual freedom.
”
14

Yale further deduced that “[t]he history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.”
15

When free speech is suppressed, academic freedom is the casualty many times over, “for whoever deprives another of the right to state unpopular views necessarily also deprives others of the right to listen to those views.”
16

Neither harm is tolerable, and these regulations endeavor to protect academic freedom, as a part of free speech, at institutions of higher education.

14
Yale Report on Freedom of Expression,
supra
(emphasis added).

15

Id.

16

Id.

Executive Order 13864 and the final regulations also align with Federal statutes to protect free inquiry. Congress has expressed that “no student attending an institution of higher education . . . should, on the basis of participation in protected speech or protected association, be excluded from participation in, be denied the benefits of, or be subjected to discrimination or official sanction under [numerous] education program[s], activit[ies], or division[s] of the institution[s] directly or indirectly receiving financial assistance.”
17

Congress has also articulated that “an institution of higher education should facilitate the free and open exchange of ideas,” and “students should not be intimidated, harassed, discouraged from speaking out, or discriminated against” on account of their speech, ideas or expression.
18

And since 1871, Congress has made actionable violations of the First Amendment by those acting in an official government capacity, whether on campuses or elsewhere.
19

Congress, thus, disapproves of the suppression of or discrimination against ideas in the academic setting.

17
20 U.S.C. 1011a. In the same section, Congress has defined “protected speech” as “speech that is protected under the first and 14th amendments to the Constitution, or would be protected if the institution of higher education involved were subject to those amendments,” 20 U.S.C. 1011a(c)(3); and has defined “protected association” as “the joining, assembling, and residing with others that is protected under the first and 14th amendments to the Constitution, or would be protected if the institution of higher education involved were subject to those amendments,” 20 U.S.C. 1011a(c)(2).

18
20 U.S.C. 1011a(2)(C)-(D).

19
42 U.S.C. 1983.

To be certain, the Department will honor the institutional mission of private institutions, including their religious mission. To this end, the final regulations do not require a private institution to ensure freedom of speech, including academic freedom, unless it chooses to do so through its own stated institutional policies. Private institutions, however, cannot promise students, faculty, and others opportunities to engage in free speech, including academic freedom, in stated institutional policies without delivering on this promise. These private institutions must comply with whatever stated institutional policies regarding freedom of speech, including academic freedom, that they choose to adopt. Religiously affiliated institutions, in freely exercising their faith, may define their free speech policies as they choose in a manner consistent with their mission. The final regulations do not mandate that religiously affiliated institutions adopt any particular policies in order to participate in the Department's grants and programs. In other words, the final regulations do not require any private institution to adopt a campus free speech policy that complies with the First Amendment, and the Department cannot force any religiously affiliated school to compromise the free exercise of its religion.

Indeed, these final regulations help protect the right to free exercise of religion for both institutions and students. Generally, the government may not force institutions and students to choose between exercising their religion or participating in a publicly available government benefit program.
20

In accordance with this principle, no religious student organization should be forced to choose between their religion and receiving the benefits, rights, and privileges that other student organizations receive from a public institution. Religious student organizations should be able to enjoy the benefits, rights, and privileges afforded to other student organizations at a public institution. Similarly, institutions that participate in Federal programs under Title III and Title V of the HEA and their students should be able to freely exercise their religion in accordance with the First Amendment and RFRA.
21

Laws and policies which provide public benefits in a way that is “neutral and generally applicable without regard to religion” do not ordinarily offend the First Amendment, but policies that “single out the religious for disfavored treatment” violate the Free Exercise Clause.
22

The Free Exercise Clause “ `protect[s] religious observers against unequal treatment' ”
23

and “guard[s] against the government's imposition of `special disabilities on the basis of religious views or religious status.' ”
24

Accordingly, public institutions cannot exclude religious student organizations from receiving neutral and generally available government benefits.
25

These final regulations help ensure that religious institutions as well as their students fully retain their right to free

exercise of religion with respect to the Department's programs under Title III and V of the HEA.

20

Trinity Lutheran,
137 S. Ct. at 2024.

21

Little Sisters of the Poor Saints Peter and Paul Home
v.
Pennsylvania,
140 S. Ct. 2367 (2020);
Espinoza
v.
Montana Department of Revenue,
140 S. Ct. 2246 (2020);
Trinity Lutheran Church of Columbia, Inc.
v.
Comer,
137 S. Ct. 2012 (2017). The Department also considered the Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb,
et seq.,
the United States Attorney General's October 6, 2017 Memorandum on Federal Law Protections for Religious Liberty, Executive Order 13798 (Promoting Free Speech and Religious Liberty), and Executive Order 13831 (Establishment of a White House Faith and Opportunity Initiative).

22

Trinity Lutheran,
137 S. Ct. at 2020.

23

Id.
at 2019 (quoting
Church of Lukumi Babalu Aye, Inc.
v.
City of Hialeah,
508 U.S. 520, 533 (1993)).

24

Id.
at 2021 (quoting
Emp't Div., Dep't of Human Res. of Ore.
v.
Smith,
494 U.S. 872, 877 (1990)).

25

Id.
at 2024-25.

Finally, Title IX provides that it shall not apply to an educational institution which is controlled by a religious organization if the application of Title IX or its implementing regulations would not be consistent with the religious tenets of such organization but does not directly address how educational institutions demonstrate whether they are controlled by a religious organization.
26

Nor does the statute provide necessary clarity that a recipient can itself be a religious organization that controls its own operations, curriculum, or other features. These final regulations codify existing factors that the Assistant Secretary for Civil Rights uses when evaluating a request for a religious exemption assurance from the Office for Civil Rights and also address concerns that there may be other means of establishing the requisite control. Many of these factors that the Assistant Secretary considers, however, have been included in non-binding guidance dating back more than 30 years. Accordingly, the Department provides clear terms in these final regulations to provide recipients and other stakeholders with clarity regarding what it means to be “controlled by a religious organization.” This clarity will create more predictability, consistency in enforcement, and confidence for educational institutions asserting the exemption.

26
20 U.S.C. 1681(a)(3).

The Department recognizes that religious organizations are organized in widely different ways that reflect their respective theologies. Some educational institutions are controlled by a board of trustees that includes ecclesiastical leaders from a particular religion or religious organization who have ultimate decision-making authority for the educational institutions. Other educational institutions are effectively controlled by religious organizations that have a non-hierarchical structure, such as a congregational structure. The Department does not discriminate against educational institutions that are controlled by religious organizations with different types of structures. Indeed, the Department has long recognized exemptions for educational institutions that are controlled by religious organizations with hierarchical and non-hierarchical structures.

The Department is constitutionally obligated to broadly interpret “controlled by a religious organization” to avoid religious discrimination among institutions of varying denominations.
27

The Department also must take into account RFRA in promulgating its regulations and must not substantially burden a person's exercise of religion through its regulations.
28

The Department's non-exclusive list of criteria for an institution to demonstrate that it is controlled by a religious organization reflect some methods that its Office for Civil Rights has used to evaluate and respond to a recipient's assertion of a religious exemption under Title IX. The final regulations, thus, offer educational institutions different methods to demonstrate that they are eligible to assert an exemption to the extent application of Title IX and its implementing regulations would not be consistent with the institutions' religious tenets or practices.

27

Larson
v.
Valente,
456 U.S. 228, 244 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”);
see also Hosanna-Tabor Evangelical Lutheran Church & Sch.
v.
EEOC,
565 U.S. 171, 202 (2012) (Alito, J., concurring; joined by Kagan, J.) (arguing that a broad, functionalist interpretation of religious teachers for purposes of the ministerial exception is necessary to be inclusive of faiths like Islam and Jehovah's Witnesses).

28

Little Sisters of the Poor Saints Peter and Paul Home,
140 S. Ct. 2367, 2384 (2020) (stating that a federal agency would be susceptible to claims that a rule was arbitrary and capricious if it did not consider the requirements of RFRA in formulating administrative solutions, and further, that it is not error for a federal agency to look to RFRA as a guide when framing a religious exemption).

Summary of the Major Provisions of this Regulatory Action:
The Department promulgates these final regulations to:

• Require public institutions of higher education that receive a Direct Grant or subgrant from a State-Administered Formula grant program of the Department to comply with the First Amendment, as a material condition of the grant;

• Require private institutions that receive a Direct Grant or subgrant from a State-Administered Formula Grant program of the Department to comply with their stated institutional policies on freedom of speech, including academic freedom, as a material condition of the grant;

• Require that a public institution receiving a Direct Grant or subgrant from a State-Administered Formula Grant program of the Department not deny to a faith-based student organization any of the rights, benefits, or privileges that are otherwise afforded to non-faith-based student organizations, as a material condition of the grant;

• Add a non-exhaustive list of criteria that offers educational institutions different methods to demonstrate that they are controlled by a religious organization and, thus, eligible to claim an exemption to the application of Title IX and its implementing regulations to the extent Title IX and its implementing regulations would not be consistent with the institutions' religious tenets or practices; and

• Amend regulations governing the Developing Hispanic-Serving Institutions Program, Strengthening Institutions Program, Strengthening Historically Black Colleges and Universities Program, and Strengthening Historically Black Graduate Institutions Program by defining “school or department of divinity” to be more consistent with the First Amendment and other Federal laws and by removing language that prohibits use of funds for otherwise allowable activities if they merely relate to “religious worship” and “theological subjects” and replace it with language that more narrowly defines the limitations in a manner consistent with the First Amendment and other Federal laws.

Costs and Benefits:
The Department estimates that these final regulations would result in one-time costs of approximately $297,770 and would benefit the general public and grantees by improving the clarity of the regulations.

Timing, Comments, and Changes

On January 17, 2020, the Secretary published a notice of proposed rulemaking (NPRM) for these parts in the
Federal Register
.
29

The NPRM included proposed regulations that were the same as or substantially similar to regulations that other agencies proposed about the rights and obligations of faith-based organizations with respect to grants.
30

The NPRM also included proposed regulations that other agencies did not include and that were specific to the Department of Education such as regulations regarding free inquiry, Title IX of the Education Amendments Act of 1972, and various programs such as the Developing Hispanic-Serving Institutions Program, Strengthening Institutions Program, Strengthening

Historically Black Colleges and Universities Program, and Strengthening Historically Black Graduate Institutions Program. This Final Rule consists of the regulations that are unique to the Department of Education. The remainder of the proposed regulations in the NPRM, including proposed changes to 2 CFR 3474.15, 34 CFR 75.51, 34 CFR 75.52, 34 CFR 75.712, 34 CFR 75.713, 34 CFR 75.714, Appendix A to Part 75, Appendix B to Part 75, 34 CFR 76.52, 34 CFR 76.712, 34 CFR 76.713, and 34 CFR 76.714, as well as the addition of a severability clause in 34 CFR 3474.21, 34 CFR 75.63, and 34 CFR 76.53, will be promulgated through a subsequent final rule. Consequently, there is a new Regulation Identification Number (RIN) for this rule (1840-AD45). Where a severability clause is being added to a subpart for which regulations are included in both final rules, the severability clause is included in only one of the two regulatory packages. However, the severability clauses will apply to all applicable rules, when published, and our explanation of the reasoning for the addition of these clauses in the NPRM continues to apply. This final rule contains changes from the NRPM, which are fully explained in the
Analysis of Comments and Changes
section of this document.

29
Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Direct Grant Programs, State-Administered Formula Grant Programs, Developing Hispanic-Serving Institutions Program, and Strengthening Institutions Program, 85 FR 3190 (proposed Jan. 17, 2020).

30

Compare
85 FR 3190,
with
85 FR 2889 (Department of Homeland Security), 85 FR 2897 (Department of Agriculture), 85 FR 2916 (U.S. Agency for International Development), 85 FR 2921 (Department of Justice), 85 FR 2929 (Department of Labor), 85 FR 2938 (Department of Veterans Affairs), 85 FR 2974 (Department of Health and Human Services),
and
85 FR 8215 (Department of Housing and Urban Development).

Public Comment

In response to our invitation in the NPRM, we received more than 17,000 comments on the proposed regulations. We discuss substantive issues under topical headings, and by the sections of the final regulations to which they pertain.

Analysis of Comments and Changes

An analysis of the public comments and a discussion of changes made following publication of the NPRM follow below.

34 CFR 75.500(b)-(c) and 34 CFR 76.500(b)-(c)—Free Inquiry

General Support

Comments:
Several commenters expressed general support for the proposed rule's free inquiry provisions in 34 CFR 75.500 and 34 CFR 76.500. Commenters stated that students should not be shielded from ideas that might offend them because that may leave them ill-prepared to compete in the global marketplace of ideas. These commenters expressed concern that policies that insulate students from different perspectives would undermine their ability to think critically. Some commenters stated that the proposed rule would produce beneficial effects because it would promote intellectually vibrant and ideologically diverse educational communities. Commenters commended the Department for recognizing that the First Amendment applies to public institutions of higher education but not to private institutions of higher education. One commenter emphasized the importance of the Department respecting the role of the courts in assessing the constitutionality of institutional policies and practices that may violate the First Amendment and asserted that the proposed rule appropriately leaves these determinations to the courts. The commenter also expressed support for the Department in leaving private institutions with the choice of whether to extend free speech protections to their students and faculty. This commenter suggested that for the Department to impose First Amendment obligations on private institutions could potentially violate their own First Amendment rights. One commenter expressed concerns regarding the rise of “free speech zone” policies that limit the physical areas where students may engage in demonstrations and other expressive activities, burdensome and potentially biased permitting processes, and overbroad discriminatory harassment policies that may have the effect of stifling free speech on college campuses and violating the First Amendment at public institutions. This commenter expressed some optimism that the proposed rule would alter institutions' risk-benefit analysis when setting and defending their policies and actions, which may result in a significant decrease in restrictive speech codes. Another commenter specifically supported the inclusion of language clarifying that private institutions are free to honor their institutional policies and stated missions, specifically religious missions, particularly as they relate to freedom of speech and academic freedom. They stated that recognizing the autonomy of private institutions in this way respects the freedom that allows for an array of rich, diverse educational options.

Discussion:
The Department appreciates the general support from commenters for the free inquiry provisions contained in § 75.500(b) and (c), which apply to Direct Grant Programs, and § 76.500(b) and (c), which apply to State-Administered Formula Grant Programs. The Department acknowledges the beneficial effects of requiring public institutions to comply with the First Amendment to the U.S. Constitution as a material condition for receiving grants from the Department and of requiring private institutions to comply with their own stated institutional policies regarding freedom of speech, including academic freedom, as a material condition for receiving grants from the Department. The beneficial effects may include encouraging both public and private institutions to foster environments that promote open, intellectually engaging, and diverse debate. Free inquiry is an essential feature of our Nation's democracy, and it promotes learning, scientific discovery, and economic prosperity. Indeed, the proposed regulations are intended to promote the First Amendment's guarantees of free expression and academic freedom, as the courts have construed them; to align with Federal statutes to protect free expression in schools; and to protect free speech on campuses nationwide. As one commenter observed, reinforcing intellectual diversity and freedom of speech on college campuses may be especially necessary, given the speech-restrictive policies and actions some institutions have taken in recent years.
31

Furthermore, we agree with commenters who noted it is appropriate for the Department to rely on the judiciary as the primary arbiter of alleged violations of First Amendment freedoms concerning public institutions and alleged violations of free speech protections in stated institutional policies of private institutions. The courts have cultivated a well-developed and intricate body of relevant case law

and may serve as the primary decision-making body with respect to free speech matters under the final rule. As noted by commenters, the final regulations also accurately recognize that the First Amendment applies to public institutions and not private institutions, and that private institutions may choose stated institutional policies regarding freedom of speech that reflect their values. As explained later in this preamble, only public institutions that are legally required to abide by the First Amendment must do so as a material condition of a grant.

31

See In re Awad
v.
Fordham Univ.,
2019 N.Y. Slip Op. 51418(U) (N.Y. Sup. Ct. Jul. 29, 2019) (holding private university's refusal to recognize a chapter of Students for Justice in Palestine was contrary to the university's mission statement guaranteeing freedom of inquiry);
McAdams
v.
Marquette Univ.,
914 NW2d 708, 737 (Wis. 2018) (holding private university breached its contract with a professor over a personal blog post because, by virtue of its adoption of the 1940 American Association of University Professors (AAUP) Statement of Principles on Academic Freedom, the post was “a contractually-disqualified basis for discipline”);
Young America's Found.
v.
Napolitano,
Case No. 3:17-cv-02255 (N.D. Cal. Nov. 10, 2017) (Amended Complaint);
id.
(Doc. No. 44) (Statement of Interest by the U.S. Department of Justice, stating that the University of California at Berkeley policies violated the First Amendment);
Shaw
v.
Burke,
Case No. 2:17-cv-02386 (C.D. Cal. Mar. 28, 2017) (Complaint);
id.
(Doc. No. 39) (Statement of Interest by the U.S. Department of Justice, stating that Pierce Community College's policies violated the First Amendment);
see also Community College Agrees to Resolve Free Speech Lawsuit,
Associated Press (Jan. 23, 2018, 11:43 a.m.),
https://www.detroitnews.com/story/news/local/michigan/2018/01/23/constitution-arrest-battle-creek-community-college/109735506/;
Tal Kopan,
Student stopped from handing out Constitutions on Constitution Day sues,
Politico: Under the Radar (Oct. 10, 2013, 2:47 p.m.),
https://www.politico.com/blogs/under-the-radar/2013/10/student-stopped-from-handing-out-constitutions-on-constitution-day-sues-174792.

Changes:
None.

General Litigation Concerns

Comments:
Many commenters expressed concern that the proposed rule would encourage excessive and frivolous litigation that may have harmful effects on institutions of higher education and students. One commenter noted that litigation may not be the ideal way to resolve free speech issues and suggested that other forms of dispute resolution in the educational context may be more immediate and effective. Commenters argued that the proposed rule would result in an increasing number and frequency of speech-related litigation against both public and private institutions, and that this would only increase college and university costs for students. Institutions would have to devote more resources to lawyers and litigation personnel instead of on core educational functions of teaching, research, and service, which would ultimately harm students. One commenter asserted that by tying Federal grant money to the outcome of speech-related disputes, the proposed rule will incentivize plaintiffs' attorneys to add frivolous free speech claims to every lawsuit to pressure institutions to settle. This commenter reasoned that the proposed rule would undermine the Department's free speech goals by discouraging responsive and immediate resolution of free speech claims because institutions would have an incentive to appeal adverse court judgments instead of reaching a post-trial and pre-appeal resolution with plaintiffs. This commenter also suggested that by exposing institutions to the risk of being deemed in violation of a material condition of their grant, the proposed rule would add more pressure on institutions to avoid final adverse judgments by either settling before trial or by appealing the judgment. The commenter expressed concern that the proposed rule may perversely encourage private institutions to eliminate or otherwise limit their stated institutional policies regarding free speech to make it easier to achieve compliance and reduce the risk of potentially losing Federal funding, and stated that this would have the effect of undermining the Department's goal of protecting free speech. One commenter argued that plaintiffs' attorneys could effectively threaten public institutions with potential loss of Federal funding if they do not agree to their demands, which may undermine the constitutional State sovereign immunity doctrine that is designed to protect States.

Another commenter suggested that by raising the stakes of free speech litigation for institutions, the final regulations may have the unintended effect of pressuring courts not to find such violations. To avoid this potential problem, the commenter suggested an alternative framework where the Department would codify well-established First Amendment standards as set forth by the Supreme Court into the final regulations instead of tying the analysis to the outcome of litigation. This commenter argued that adopting this approach through a formal notice-and-comment regulation would have the added benefit of depoliticizing the enforcement of these rights without the possibility of adverse effects on litigation.

Discussion:
It is not the intent of the Department to subject public and private institutions to excessive and frivolous litigation, unfairly pressure institutions to change their litigation strategies to avoid unfavorable court judgments, discourage institutions from adopting alternative dispute resolution processes, discourage private institutions from adopting stated institutional policies regarding free speech, increase the costs of higher education and exacerbate affordability issues, distract institutions from their core educational functions, or to otherwise harm students. The Department disagrees that the proposed or final regulations encourage frivolous litigation. Institutions are not required to report any lawsuit against a public institution alleging a violation of First Amendment rights or any lawsuit against a private institution alleging a violation of stated institutional policies regarding freedom of speech, including academic freedom. Additionally, frivolous litigation does not result in a final, non-default judgment against the institution, and an institution's grant from the Department may only be in jeopardy under these final regulations if there is a final, non-default judgment against the institution or an employee acting on behalf of the institution. These final regulations clearly state in §§ 75.500(b)(1) and 76.500(b)(1): “Absent such a final, non-default judgment, the Department will deem the public institution to be in compliance with the First Amendment.” Similarly, these final regulations clearly state in §§ 75.500(c)(1) and 76.500(c)(1): “Absent such a final, non-default judgment, the Department will deem the private institution to be in compliance with its stated institutional policies.” Rather than expose institutions to liability from frivolous litigation, the Department anticipates that State and Federal courts will continue to recognize and dismiss any frivolous claims and adjudicate meritorious claims to appropriately vindicate the free speech rights of students, faculty, administrators, and other stakeholders. Nothing in the final regulations prohibits institutions from adopting alternative dispute resolution processes to resolve claims. We acknowledge that some grantees may, in the event that they face a lawsuit alleging violations of the First Amendment or institutional policies regarding freedom of speech, shift their litigation strategies to avoid a final, non-default judgment by a Federal or State court against them. To the extent that they do so, such actions could result in additional costs to grantees that they would not incur in the absence of the rule. However, institutions may shift litigation strategies for other reasons, such as to conserve resources through settlement rather than seeking to prevail in court, or for public relations and reputational purposes. Such violations of the First Amendment or stated institutional policies ultimately result in harm to students with respect to the functions of teaching, research, and service because they will not be exposed to the marketplace of ideas that is essential to learning and education. With respect to any potential costs for failing to comply with the First Amendment or stated institutional policies, the Department does not terminate an institution's grant as a first resort. The Department has not historically suspended or terminated a Federal award or debarred a grantee as the first measure in addressing a violation and instead first attempts to secure voluntary compliance from the grantee. Indeed, the Department's regulations provide that the Department may suspend or terminate a Federal award or debar a grantee, if there is a continued lack of compliance and if imposing additional, specific conditions is not successful.
32

We do not believe it

is likely that such violations, if they do occur, would result in a substantial number of grants being terminated unless the institution refuses after a final, non-default judgment to voluntarily comply with the First Amendment or its own stated institutional policies regarding freedom of speech, including academic freedom, or any special conditions that the Department may impose to achieve such compliance. Accordingly, we believe any effect on the litigation strategy of grantees is difficult to predict and would be contingent on the unique facts and circumstances of each case. The Department also wishes to emphasize that courts repeatedly have been called upon to vindicate the free speech rights of students, faculty, and other stakeholders on college campuses. The Department believes that State and Federal courts are appropriate adjudicators of free speech violations under the final rule, and we believe they adjudicate such matters fairly and dispassionately. The Department is the arbiter of the proper penalty, if any, with respect to a public institution that violates the First Amendment or a private institution that violates its own stated institutional policies regarding freedom of speech, including academic freedom. We note that one commenter who raised the issue of State sovereign immunity did not appear to explain exactly how that doctrine would be implicated by potentially withholding grant funds from public institutions for violating First Amendment rights, as determined in a final court judgment issued by a State or Federal court. States are subject to the First Amendment through the Fourteenth Amendment,
33

and Congress may abrogate State sovereign immunity for violations of the First Amendment through legislation under section 5 of the Fourteenth Amendment. The Department's final regulations recognize that Congress provided a right of action in 42 U.S.C. 1983 for violations of the First Amendment by those acting in an official government capacity, whether on campuses or elsewhere.
34

These final regulations do not in any way abrogate sovereign immunity and instead recognize that employees acting on behalf of a public institution are prone to be sued under 42 U.S.C. 1983, if they violate the First Amendment.

32

See
34 CFR 75.901 (referencing 2 CFR 200.338); 2 CFR 200.338 (stating Federal awarding agency may suspend or terminate an award if

noncompliance cannot be remedied by imposing additional conditions); 34 CFR 76.401.

33

De Jonge
v.
Oregon,
299 U.S. 353, 364 (1937) (“Freedom of speech and of the press are fundamental rights which are safeguarded by the due process clause of the Fourteenth Amendment of the Federal Constitution. . . . The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”);
Cantwell
v.
Connecticut,
310 U.S. 296, 303-04 (1940);
Near
v.
Minnesota,
283 U.S. 697, 707 (1931).

34

See, e.g., Edelman
v.
Jordan,
415 U.S. 651 (1974);
Ex parte Young,
209 U.S. 123 (1908).

The Department agrees with the general assertion made by one commenter that the formal notice-and-comment rulemaking process may have the benefit of de-politicizing regulatory enforcement. We, however, respectfully disagree with the propositions that First Amendment case law should be codified in the final regulations and that the Department should have responsibility for adjudicating violations. The reality is that First Amendment law is subject to change over time. We considered the possibility that the Department itself should adjudicate claims alleging that a public institution violated the First Amendment or alleging that a private institution violated its stated institutional policies regarding freedom of speech, and the Department ultimately decided against this alternative as both State and Federal courts have a well-developed body of case law concerning First Amendment freedoms as well as breach of contract cases or other claims that may be brought with respect to stated institutional policies.

Changes:
None.

Potential False Claims Act (FCA) Liability

Comments:
Some commenters stated that the proposed rule would result in a flood of frivolous FCA claims against private institutions under 31 U.S.C. 3729,
et seq.
Commenters were concerned that inaccurate certifications of compliance submitted to the Secretary by private institutions may give rise to FCA liability. One commenter noted that FCA actions may result in treble damages plus sizable penalties, which could create a significant incentive for private individuals or organizations to file
qui tam
cases. Commenters asserted that frivolous FCA litigation would impose substantial costs and disruption on private institutions and result in less, not more, protection of free inquiry and expression. One commenter argued that the preamble wrongly suggested that the Department will treat final judgments of non-compliance with institutional policies on free inquiry and expression as
per se
FCA violations. This commenter suggested such legal reasoning is flawed because the FCA is a standalone statute with different elements that plaintiffs must satisfy by a preponderance of the evidence; these statutory requirements such as the defendant “knowingly” submitting a false or fraudulent claim for payment or making false statements material to a false or fraudulent claim, apply regardless of a separate court judgment finding non-compliance. The commenter also stated that the proposed rule purportedly linking FCA liability to private institutional policies on free inquiry and expression would create an uneven playing field because FCA liability is generally tied to fairly uniform regulations, statutes, and contractual provisions. And the commenter asserted that the proposed rule failed to provide guidance on what type of conduct would be imputed to a private institution. The commenter cited Supreme Court precedent for the proposition that the government merely claiming a condition is material, as the Department purportedly did in the proposed rule, does not by itself satisfy the materiality requirement under the FCA. Because of these concerns, the commenter recommended that the Department remove language from the preamble that would require private institutions to certify to the Secretary their compliance with institutional policies on free speech as a material condition of an award. Requiring such certification may increase potential FCA exposure, result in a flood of baseless
qui tam
cases, and impose a substantial burden on private institutions. The commenter stated that if the Department opts to retain the certification requirement then it should explicitly clarify that the FCA is an independent statute with standalone requirements that must be proven by a preponderance of the evidence for a court to find a violation.

Discussion:
The Department wishes to clarify that, and as one commenter correctly observed, the FCA is a separate statute with distinct elements that must be established to prove liability. Indeed, the Department never stated that a private institution's failure to comply with its own stated institutional policies is a
per se
violation of the FCA. Rather, and as the Department clearly noted in the preamble of its NPRM, the Department considers the condition that private institutions comply with their stated institutional policies regarding freedom of speech to be a material condition of the Department's grant. Similarly, the Department considers the condition that public institutions comply with the First Amendment to the U.S. Constitution to be a material condition of the Department's grant. The Department has revised §§ 75.500(b)-(c) and 76.500(b)-(c) to expressly state that such conditions are material conditions

of the Department's grant. The Department correctly noted in its NPRM and maintains its position that if private institutions fail to comply with their own stated institutional policies regarding freedom of speech, including academic freedom, then such noncompliance may satisfy the materiality requirement for FCA liability.
35

The Department also noted in its NPRM that there are no cases directly on point under the False Claims Act because the Department and other Federal agencies have not previously required compliance with stated institutional policies on freedom of speech, including academic freedom, as a material condition of a grant.
36

The Department clearly states that these conditions are material conditions in this final rule to place institutions on adequate notice of the Department's position. However, there are other elements that must be proven to establish FCA liability. A court, and not the Department, will ultimately be the arbiter of liability under the FCA.

35

See, e.g., Universal Health Servs., Inc.
v.
United States ex rel. Escobar,
136 S. Ct. 1989, 2002-04 (2016).

36
85 FR 3213 n.137.

The Department is not requiring a private institution to adopt any particular policy regarding freedom of speech, including academic freedom, and private institutions should comply with their stated institutional policies. Private institutions currently may face liability if they do not adhere to their own stated institutional policies.
37

Potential liability under the FCA is another strong incentive for private institutions to comply with their own stated institutional policies, and the gravity of any potential consequence under the FCA serves as an adequate deterrent to guard against institutions making empty promises to its students and faculty. Private institutions should accurately represent their stated institutional policies regarding freedom of speech and adhere to such policies. Freedom of speech, including academic freedom, is of the utmost importance for education and learning, and a private institution's stated institutional policies reflect the values of that institution. Students may select institutions based on values reflected in stated institutional policies, and students pay tuition and other fees in anticipation that the institution will comply with its stated institutional policies.

37

See Doe
v.
Univ. of the Sciences,
No. 19-2966 (3d Cir. May 29, 2020) (holding student sufficiently stated a breach of contract claim that the private institution failed to provide procedural fairness as promised in its policy);
McAdams,
914 N.W.2d at 737 (holding private university breached its contract with a professor over a personal blog post because, by virtue of its adoption of the 1940 AAUP Statement of Principles on Academic Freedom, the post was “a contractually-disqualified basis for discipline”). The Department also noted in its NPRM that “public and private institutions also may be held accountable to the Department for any substantial misrepresentation under the Department's borrower defense to repayment regulations. 34 CFR 668.71.” 85 FR 3213 n.137.

We do not wish to eliminate language that would require private institutions to comply with their stated institutional policies as a material condition of a grant and explain the Department's authority to issue such regulations in the “Executive Orders and Other Requirements” section of this preamble. Freedom of speech, including academic freedom, is an integral part of learning and education. Expressly requiring private institutions to comply with their stated institutional policies on freedom of speech, including academic freedom, as a material condition of the Department's grant reinforces the importance of compliance and reminds private institutions of the promises they chose to make to their students, faculty, and other stakeholders.

Changes:
The Department has revised these final regulations to expressly state in §§ 75.500(b)-(c) and 76.500(b)-(c) that complying with the First Amendment is a material condition of the Department's grant for public institutions and that complying with stated institutional policies regarding freedom of speech, including academic freedom, is a material condition of the Department's grant for private institutions. The Department made a technical correction to § 76.500(b)(2) to state “State or subgrantee” instead of “grantee” to align with § 76.500(b)(1). The Department also made a technical correction to § 76.500(c)(2) to state “State or subgrantee” instead of “grantee” to align with § 76.500(c)(1). These technical corrections also align § 76.500(b)-(c) with the remainder of the regulations in Part 76 of Title 34 of the Code of Federal Regulations, as the regulations in that part refer to States or subgrantees.

Unequal Treatment Between Institutions

Comments:
A handful of commenters raised concerns that the proposed rule would result in unequal treatment of public and private institutions. One commenter asserted that to hold public institutions to the First Amendment while only holding private institutions to their own stated institutional policies is unfair and may raise constitutional concerns. This commenter suggested that application of the proposed rule could create an illogical scenario where a public institution would lose Federal funding for denying recognition to a student organization that promotes hate speech prohibited by the public institution's policies, but a private institution in the same situation would not.

Commenters also emphasized that tying Federal funding for public institutions to First Amendment compliance and funding for private institutions to compliance with stated institutional policies could result in unfair treatment because different courts and jurisdictions have different jurisprudence. For example, the Department would create an unequal playing field where an institution could lose funding for engaging in the same underlying misconduct as another institution, but the latter did not lose funding because it was in a different jurisdiction. Commenters noted that the First Amendment is a particularly complex area of law, and cases may be decided by sharply divided courts.

One commenter suggested it may be reasonable for public institutions to rely on dissenting First Amendment court opinions. This commenter argued that the Department is incorrectly assuming that First Amendment case law is obvious, that public institutions should anticipate potential developments, and that this unfairness is compounded by the fact that it can take years for appellate courts to resolve conflicting First Amendment jurisprudence.

One commenter asserted that the proposed rule would create an uneven playing field between private institutions. In particular, this commenter reasoned, courts in different jurisdictions could reach different conclusions about whether private institutions violated their stated policies. And courts may also differ on the question of whether institutional policies are legally binding contracts such that violations may or may not give rise to legal remedies. The commenter expressed concern that this potential inconsistency could result in some private institutions losing Federal grant funding but not other private institutions even where the underlying misconduct at issue is fundamentally the same.

Discussion:
The Department wishes to emphasize that, as a matter of law, public institutions are subject to the First Amendment, but private institutions are not. Public institutions that are legally required to abide by the First Amendment cannot as a matter of law promulgate policies that are in violation of the First Amendment. We also note that the commenter who suggested that holding public institutions to their First Amendment obligations while holding private

institutions to their stated institutional policies may raise constitutional concerns did not provide an explanation as to how constitutional concerns would be implicated. Nothing in this final rule requires private institutions to adopt a particular stated institutional policy regarding freedom of speech, including academic freedom, or to adopt a stated institutional policy regarding free speech at all. As such, it may be possible depending on the unique facts and circumstances of a given case that public institutions and private institutions are treated differently under the final rule even where the alleged violation at issue is the same. Nothing prohibits the Department from treating public institutions differently than private institutions in this regard. Indeed, the Department's policy position aligns with the different treatment between public and private institutions reflected in the law; the law subjects public institutions but not private institutions to the First Amendment through the Fourteenth Amendment, while private institutions are legally subject to their own stated institutional policies.

The Department agrees with commenters who noted that the First Amendment may be a particularly complex area of law. It is precisely for this reason, among others, that this regulation defers to courts as the adjudicators of free speech claims against public and private institutions. The Department believes our judicial system has the requisite expertise and impartiality to render such important decisions. We also acknowledge the reality raised by several commenters that different jurisdictions may have different interpretations of the First Amendment and different interpretations of private institutions' stated institutional policies. Accordingly, it is possible that courts may reach different conclusions with respect to institutions' free speech compliance even where the underlying alleged misconduct is fundamentally the same. Institutions, however, will be most familiar with the First Amendment jurisprudence as well as other case law in the Federal and State courts where they may be sued. Thus, it is fair to hold institutions accountable to the laws that already apply to them. The Department also wishes to remind commenters that nothing in the final rule would preclude the right of institutions to appeal adverse court judgments. This may be especially warranted and in the institution's best interests where, for example, the matter involves an especially complex area of First Amendment law or where there is a split among courts in the jurisdiction over how to interpret private institutions' stated institutional policies. Under the final rule, the Department cannot find an institution in violation unless and until a State or Federal court of law has rendered a final, non-default judgment against the institution. The final regulations in §§ 75.500(b)(1), (c)(1) and 76.500(b)(1), (c)(1) clearly state: “A final judgment is a judgment that the . . . institution chooses not to appeal or that is not subject to further appeal.”

Changes:
None.

The Department's Approach Is Unnecessarily Punitive

Comments:
Some commenters contended that conditioning Federal funding on compliance with the First Amendment and stated institutional policies is too extreme a punishment. Commenters expressed concern that the proposed rule is too broad because it covers not only final non-default court judgments against public institutions or private institutions but also against “any of its employees acting in their official capacity” for public institutions or “employees acting on behalf of the private institution.” Commenters asserted that this language could have the effect of potentially threatening institutional funding based on the conduct of a single rogue or unthinking employee, even where the institution terminated or otherwise disciplined the employee whose alleged misconduct resulted in an adverse court judgment. One commenter argued that because of this potential unfairness the Department should remove the phrase “or an employee of the private institution, acting on behalf of the private institution” from the final rule. Another commenter raised the example of millions of dollars of critical Federal funding being withheld from an institution because of a single employee's error or good-faith misinterpretation of institutional policy. This commenter emphasized the reality that an institution is comprised of many different individuals, including administrators, faculty, and employees, who may have different interpretations of the institution's values and principles, and that the
mens rea
requirement for institutional culpability under the proposed rule is far too low. The commenter reasoned that organizations cannot always prevent rogue employees from violating established policies and procedures.

Another commenter believed it is unfair and illogical to suspend, terminate, or disbar public institutions from Federal research grants where, for example, the grants are wholly unrelated to First Amendment matters. The commenter expressed concern that students, researchers, and society as a whole may suffer if research and campus programs are ended because of First Amendment litigation unrelated to that program. For example, the commenter noted, a final judgment in a close First Amendment case arising from an unrelated area could lead to the termination of a TRIO grant designed to help first-generation students graduate from college.

A few commenters expressed general concern that the proposed rule leaves the Department with too much latitude in determining how to punish institutions for noncompliance, which could include disbarment. One commenter suggested that the Department could reduce the risk of public backlash by ensuring the penalty for a violation is proportional to the offense, such as by setting the penalty on a sliding scale dependent on the number of full-time students enrolled at the institution.

Discussion:
The Department acknowledges the general concerns raised by commenters that conditioning grants on compliance with the First Amendment for public institutions and on compliance with stated institutional policies for private institutions may be unfair, excessively punitive, and harmful to society in some circumstances, and the more specific concerns raised by commenters regarding private institutional liability deriving from employee misconduct. With respect to concerns regarding holding institutions accountable for their employees' misconduct, the Department wishes to emphasize that, under the final regulations, State and Federal courts, and not the Department, will have primary responsibility for determining whether an employee acting in the employee's official capacity violated the First Amendment or whether an employee acting on behalf of a private institution violated its stated institutional policies. The reality is that institutions act through the people who work for them, and the final regulations make clear that institutions will only be held accountable for the actions taken by their employees if the employee was acting on behalf of the private institution. We therefore believe it is important and necessary to retain language in the final rule that would reflect that reality. These final regulations implicate employees that are acting on behalf of the private institution, and the private institution

always may argue that such an employee was not acting on their behalf in any litigation. Similarly, these regulations implicate employees that are acting in their official capacity for the public institution, and public institutions always may argue that such an employee was acting in the employee's personal or individual capacity and not in an official capacity in the litigation. Indeed, lawsuits under 42 U.S.C. 1983 must be against an employee and cannot be against a public institution because public institutions, which are state agencies, have immunity under the Eleventh Amendment.
38

Officials at public institutions may be sued in their official capacity for injunctive relief and not monetary relief,
39

and may be sued in their personal or individual capacity for monetary relief.
40

These regulations provide that public institutions will only be held to account for final judgments against the public institution or against an employee acting in the employee's official and not personal or individual capacity. Courts will consider and determine whether an employee was acting in the employee's official capacity or personal or individual capacity in determining whether a cause of action was properly stated under 42 U.S.C. 1983 and what type of relief is available. With respect to private institutions, factors courts may consider in tort or contract litigation could include whether the violations carried out by the institution's employees were intentional or merely a mistake made in good-faith, whether there was a pattern of misconduct or an isolated incident, whether any breach constitutes a material breach, or whether the institution took prompt and effective remedial action to address the misconduct. The courts' analysis in any final, non-default judgment, thus, will aid the Department in determining whether and how to remedy a violation of the First Amendment with respect to public institutions and a violation of stated institutional policies regarding freedom of speech, including academic freedom, with respect to private institutions. The Department also believes that our judicial system has the requisite expertise and impartiality to render sound judgments that consider all the relevant facts and circumstances of a given case.

38

Will
v.
Mich. Dep't of State Police,
491 U.S. 58, 65-66 (1989);
Pennhurst State Sch. & Hosp.
v.
Halderman,
465 U.S. 89, 97-99 (1984);
Ex Parte Young,
209 U.S. 123, 149 (1908);
Collin
v.
Rector & Bd. of Visitors of Univ. of Va.,
873 F. Supp. 1008, 1013 (W.D. Va. 1995).

39

Will,
491 U.S. at 70-71 & n.10;
Cobb
v.
The Rector and Visitors of the Univ. of Va.,
69 F. Supp. 2d 815, 823-24 (W.D. Va. 1999).

40

Kentucky
v.
Graham,
473 U.S. 159, 167-68 (1985);
Ridpath
v.
Bd. of Governors of Marshall Univ.,
447 F.3d 292, 306 (4th Cir. 2006).

We also wish to emphasize that an adverse court judgment against a public or private institution does not necessarily mean that the Department will implement a permanent or otherwise severe remedial action against the institution. As the proposed rule made clear, the Department has a broad range of remedial actions it may consider in the event a State or Federal court renders an adverse judgment against a public or private institution, and the remedies will be commensurate with the egregiousness of the violation. For example, the Department may impose special conditions aimed at remedying noncompliance, temporarily withhold cash payments pending correction of the institution's deficiency, suspend or otherwise terminate a Federal award, or potentially disbar the institution, as described in Subpart G of Part 75 and Subpart I of Part 76 of Title 34 of the Code of Federal Regulations.
41

It is certainly not the intent of the Department to impede important and beneficial research activities undertaken by public institutions. However, we disagree with the proposition that the First Amendment is not implicated in research grants. Ensuring that public institutions respect the First Amendment, which includes academic freedom, is essential to ensuring the integrity of academic research and the fulfillment of public institutions' educational mission. The First Amendment, which includes academic freedom, may prohibit a public institution from preventing a professor from conducting research on a particular topic or subject matter. As explained in more detail in the “Purpose of this Regulatory Action” section, denying free inquiry is inherently harmful at any institution of higher education because students are denied the opportunity to learn and faculty members are denied the opportunity to freely engage in research and rigorous academic discourse. Securing First Amendment rights for students and faculty is fundamental to education at public institutions.

41
34 CFR 75.901 (cross-referencing 2 CFR 200.338); 34 CFR 76.901; 2 CFR 180.800.

Moreover, these potential remedial actions are optional in nature. The Department is not legally required to implement any such remedial action; rather, the final rule merely clarifies that we have the legal authority to do so. Depending on the unique facts and circumstances of a given case, it is possible that the Department would conclude that no remedial action following a final, non-default adverse court judgment against the institution is warranted. Furthermore, we respectfully disagree with one commenter's assertion that the proposed rule leaves the Department with excessive discretion in determining an appropriate remedial action. The NPRM lists several concrete factors that Department officials may consider, such as the actual or potential harm or impact that results or may result from the institution's wrongdoing, the frequency of incidents and/or duration of the wrongdoing, whether there is a pattern or prior history of wrongdoing or whether it was more isolated in nature, the relative positions within the institution of the individuals involved in the wrongdoing, or whether the institution's principals and other supervisory officials tolerated the misconduct.
42

The list of factors debarring officials may consider is non-exhaustive and represents general factors relevant for officials to consider in tailoring potential remedial actions to the severity of an institution's misconduct.
43

The reality is that determining an appropriate remedial action for institutional misconduct is a highly fact-specific inquiry. The Department believes these factors provide adequate notice to institutions and other stakeholders about our decision-making process. It is certainly not the Department's intention to excessively punish institutions or to harm broader societal interests by conditioning grants on public institutions' compliance with the First Amendment and private institutions' compliance with their stated institutional policies.

42
85 FR 3213.

43

Id.; see also
2 CFR 180.860.

The Department appreciates the suggestion offered by one commenter to consider penalties on a sliding scale relative to the enrollment size of the institution. Nothing precludes the Department from considering such a factor, if this factor is relevant to a determination of the appropriate remedy. The relative enrollment size of the institution, however, may not be relevant in every situation especially as section 3(c) of Executive Order 13864 defines “Federal research or education grants” as including “all funding provided by a covered agency directly to an institution but do not include funding associated with Federal student aid programs that cover tuition, fees, or stipends.” Accordingly, the Federal research or education grants at issue do

not affect Federal student aid programs such as programs under Title IV of the HEA.

Changes:
None.

Proposed Modifications

Comments:
Commenters proposed several modifications to the proposed rule. One commenter contended that requiring institutions to submit complaints, as distinct from court judgments, is unnecessary because complaints may be unsubstantiated allegations that are irrelevant. This commenter suggested that requiring submission of complaints assumes a level of institutional
mens rea
and culpability that may be unfair.

This commenter also advised the Department to consider providing grants for security to institutions instead of conditioning Federal funding on compliance with the First Amendment or with stated institutional policies. The commenter reasoned that providing grants for security to institutions could effectively protect controversial and diverse speakers from being shut down by protesting students. According to this commenter, grants for security may be a more effective way to promote the Department's free speech goals because it is more narrowly focused on preserving the free speech rights of students and staff, as opposed to the proposed rule's disproportionately punitive approach.

Another commenter urged the Department to avoid discouraging private institutions from adopting institutional policies on free speech by holding private institutions that promise free speech protections to the same standards that public institutions are held to under the First Amendment unless their application for Federal grants specifically explains how the private institutions' commitments to free speech deviate from First Amendment obligations. In short, this commenter believed the Department should require private institutions to clearly explain how and why they would like to be held to a lesser standard than public institutions under the First Amendment because that may discourage private institutions from watering down their free speech protections to avoid liability. The commenter argued that the Department should clarify in the final rule that a private institution's acceptance of Federal grant money constitutes a contract with the Department to honor commitments to free speech and academic freedom and specifically state that students and faculty, along with the Federal government, are the intended third-party beneficiaries of the institution's free speech contractual terms. This commenter reasoned such clarification would foreclose the argument in private lawsuits that an institution's general commitments to free speech and academic freedom are actually subject to undisclosed carve-outs that diverge from the principles of the First Amendment or the core tenets of academic freedom. The commenter also asserted that the Department should require private institutions to publish their certifications (and, if applicable, explain how their standards deviate from obligations imposed by the First Amendment) publicly and prominently on their websites where interested parties such as prospective students, current students, and faculty are likely to visit. According to the commenter, this certification disclosure requirement would have the benefit of enabling those interested parties to choose the school that best fits their values.

Discussion:
The Department appreciates the many suggested modifications to the final rule offered by commenters. We note that the final rule would not require institutions to submit complaints to the Department. Rather, institutions would have an affirmative obligation to submit only copies of any non-default, final judgment rendered against them in a State or Federal court that a public institution or an employee of the public institution, acting in his or her official capacity, violated the First Amendment or that a private institution or an employee of the private institution, acting in his or her official capacity, violated its stated institutional policy regarding freedom of speech, including academic freedom.

With respect to the suggestion offered by one commenter to provide grants for security as an alternative to the final rule, we acknowledge that such funds may be effective in safeguarding fair opportunities for controversial speakers to present their ideas and for listeners to consider them. However, the Department believes that grants for security without further action will not go far enough to address the problem of the denial of free speech rights across American college campuses. Such grants for security will not prevent public institutions from violating the First Amendment or prevent private institutions from violating their own stated institutional policies regarding freedom of speech, including academic freedom. Moreover, it is not our intention to discourage private institutions from adopting stated institutional policies regarding free speech, including academic freedom. We respect private institutional autonomy and believe such institutions should retain flexibility to craft policies that best fit the values of their unique educational communities. Imposing an affirmative obligation on private institutions to explain how their stated institutional policies deviate from First Amendment obligations would be intrusive because private institutions are not legally required to abide by the First Amendment. The Department also believes our judicial system is well-equipped to determine whether and in what way institutions' violations of their free speech obligations and commitments are legally actionable under the final regulations. As such, it would be improper for us to operate under the assumption that all commitments made by a private institution in connection with the Department's grants are only contractual in nature, and other laws such as State laws ultimately will determine whether any stated institutional policies constitute a contract. Even if the Department considered these stated institutional policies to constitute a contract, the governing State law or other laws may require a different result. We also note that a private institution's failure to adhere to its own institutional policies can be a contractual breach but it can also be a tort or more. Additionally, we do not wish to specify that only faculty and students are the intended third-party beneficiaries of a private institution's stated institutional policies regarding freedom of speech, including academic freedom. There may be other groups of people who also are third-party beneficiaries of a private institution's stated institutional policies regarding freedom of speech, including academic freedom, and the Department will defer to the State and Federal courts as well as the relevant case law to determine which groups of people are third-party beneficiaries of such stated institutional policies. We believe courts provide neutral, reasoned judgments, as they have long recognized contractual relationships between students and their institutions, and between employees and other stakeholders and their institutions.

The Department carefully considered the potential value to students, employees, and the general public by imposing a disclosure requirement on private institutions to make publicly available their stated institutional policies regarding free speech, including academic freedom. We acknowledge that such a requirement may enable stakeholders to make informed choices and compare institutions. In addition,

we note that the commenter did not suggest a similar disclosure requirement for public institutions, nor provide an explanation as to why such a requirement should not apply. However, we did not propose imposing such a burden on either public institutions or private institutions and do not wish to do so now. Requiring either public or private institutions to post all of their policies regarding the First Amendment or freedom of speech, including academic freedom, respectively, is an enormous undertaking as institutions may have various policies for faculty and students such as policies on curriculum, employee codes of conduct, chalking, posting on bulletin boards, protesting, etc., and each school or department may have their own policies on freedom of expression. To gather all such policies and publicly post them on websites is a burden that the Department does not currently wish to impose at this juncture, although such a burden may be appropriate if private institutions seek to hide or obscure their stated institutional policies in the future. The Department wishes to emphasize that nothing in the final rule would prevent private or public institutions from publicly and prominently disclosing their free speech policies, should they choose to do so. Some institutions may even be required to do so under State laws.
44

44

See, e.g.,
Va. Code section 23.1-401.1(B).

Changes:
None.

“Academic Freedom” Concerns

Comments:
One commenter contended that the Department should remove all reference to “academic freedom” from the final rule. The commenter noted that neither the President's Executive Order nor the Higher Education Act statutory provisions cited in the proposed rule explicitly referenced “academic freedom” or the concept of academic freedom, and argued that the Department appears to mistakenly assume that academic freedom and freedom of speech are coextensive. Academic freedom is a complex concept, and the commenter stated that the Department also failed to distinguish institutional academic freedom from individual academic freedom. For example, the commenter stated, institutions have their own academic freedom to hold their faculty accountable to certain professional standards and to require them to perform their duties with integrity. The commenter reasoned that purported violations of “academic freedom” are an inappropriate basis to withdraw grants. Instead, the commenter requested that the Department substitute the actual text of the Executive Order into the final rule's language or to otherwise make these changes through sub-regulatory guidance.

Discussion:
The Department respectfully disagrees with the assertion made by the commenter that all reference to “academic freedom” should be removed from the final regulations. Executive Order 13864 references “stated institutional policies regarding freedom of speech for private institutions,”
45

and academic freedom is derived from and squarely rooted in freedom of speech.
46

The Supreme Court of the United States has eloquently explained why respect for freedom of speech, which includes academic freedom, is so critical in higher education:

45
84 FR 11401.

46

See
85 FR 3196-99.

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.
47

47

Sweezy
v.
New Hampshire,
354 U.S. 234, 250 (1957).

As the Department explains in the “Background—Part 2 (Free Inquiry) section” of the NPRM,
48

the courts have consistently viewed academic freedom as an important and distinct interest with respect to freedom of speech.

48
85 FR 3196-99.

Faculty, staff, and other institutional stakeholders have academic freedom interests. This concept of academic freedom is widely recognized as a core value; for example, at least one commenter cited to the well-known and highly regarded American Association of University Professors (AAUP),
1940 Statement of Principles on Academic Freedom and Tenure with 1970 Interpretive Comments
(AAUP's
Statement of Principles on Academic Freedom
).
49

Indeed, courts have held private institutions accountable to the AAUP's
Statement of Principles on Academic Freedom
to the extent such a private school has adopted this statement.
50

Academic freedom is an indispensable aspect of the freedom of thought and belief to which individuals across educational institutions, including private ones, are entitled. It is intertwined with, and is a predicate to, freedom of speech itself. For example, academic freedom may include faculty rights to choose curriculum, coursework, and other subject matter materials, and to explore avenues of thought in and out of the classroom. Academic freedom may also encompass students' right to pursue truth and knowledge relevant to their fields of study. The rigorous pursuit of truth and knowledge is central to the purpose of an educational institution, and the Department strongly believes that institutional violations of academic freedom rights are a legitimate basis for remedial action. As the President's Executive Order 13864 made clear, the Department is to “take appropriate steps” to “ensure institutions that receive Federal research or education grants promote free inquiry.”
51

Simply substituting the Executive Order's text into our final rule would not by itself accomplish the objectives set out by the President. Indeed, the Executive Order's very language contemplates that the Department would exercise at least some discretion in determining the most appropriate means of accomplishing its goals. After careful consideration, the Department believes the approach contained in the final rule, which would entail potential remedial action by the Department only in the event of a non-default and final adverse court judgment against an institution, would most effectively implement this Executive Order. Such an approach respects a private institution's academic freedom because the Department does not require a private institution to adopt any particular stated institutional policy regarding freedom of speech, including academic freedom, and will respect whatever stated institutional policies, if any, that a private institution chooses to adopt.

49

Available at https://www.aaup.org/file/1940%20Statement.pdf.

50

McAdams,
914 N.W.2d at 737 (holding private university breached its contract with a professor over a personal blog post because, by virtue of its adoption of the 1940 AAUP Statement of Principles on Academic Freedom, the post was “a contractually-disqualified basis for discipline”).

51
84 FR 11402.

Lastly, we believe that free inquiry on our Nation's campuses is a fundamentally important subject that deserves a serious rulemaking process. As such, a formal notice-and-comment rulemaking, as opposed to non-binding sub-regulatory guidance, is the most appropriate approach. It also reinforces the Administration's commitment to the rule of law and robust public participation in the development of regulations that govern us.

Changes:
None.

Departmental Discretion Over Remedial Actions

Comments:
One commenter argued that the trigger for noncompliance under the proposed rule is far too low and urged the Department to establish a higher threshold. The commenter believed that a single adverse court judgment should not by itself justify a loss of Federal funding; the impact of such a penalty is disproportionate. Instead, the Department should deem an institution out of compliance only if there is a pattern of final, non-default judgments finding serious violations of the First Amendment or stated institutional policies. Alternatively, the Department could modify the trigger to only apply where the institution failed to immediately comply with an adverse final court ruling. This commenter also recommended that the Department more clearly define the circumstances under which it may terminate or suspend grant funding. The commenter expressed concern that institutions may not have adequate guidance or sufficiently clear precedent to understand when free speech violations can result in lost funding. The commenter acknowledged that the preamble listed factors that the Department may consider, including: The “actual or potential harm or impact that results or may result from the wrongdoing,” the “frequency of incidents and/or duration of the wrongdoing,” “whether there is a pattern or prior history of wrongdoing,” “whether the wrongdoing was pervasive within [the institution of higher education],” and whether the institution's “principals tolerated the offense.” However, the commenter contended that the Department still has too much discretion in determining appropriate sanctions. According to the commenter, this may result in politicized judgments and unfair treatment of institutions who engage in the same underlying misconduct. The commenter asserted that the Department should more precisely define the amount of discretion it has in determining sanctions. The commenter suggested, for example, that the Department be allowed to suspend or terminate grant funding only where certain aggravating factors are present, such as a systematic pattern or practice of violations or deliberate indifference by an institution. This commenter also believed that the Department should first be required to work with a given institution to achieve compliance before imposing any sanctions. Another commenter expressed concern that the proposed rule would deem institutions in violation of a material condition of their Department grant even if the institution cured or otherwise remedied the violation before the court entered an adverse ruling. This commenter urged the Department to consider whether the institution had taken steps to voluntarily cure the underlying violation as a relevant factor in determining appropriate remedies for an institution's non-compliance.

Discussion:
The Department wishes to emphasize that the final rule will not compel the Secretary to take any particular remedial action with respect to a grant in the event of a final, non-default judgment by a State or Federal court that a public institution violated the First Amendment or a private institution violated its stated institutional policies regarding freedom of speech, including academic freedom. As a matter of course, the Department attempts to secure compliance by voluntary means or by imposing special conditions before turning to more serious remedies, and the Department's final regulations state as much.
52

The final rule includes a broad range of pre-existing potential remedial actions described in subpart G of Part 75 and Subpart I of Part 76 of Title 34 of the Code of Federal Regulations, including imposing special conditions, temporarily withholding cash payments pending correction of the deficiency, suspension or termination of a Federal award, and disbarment. Indeed, the Secretary would retain discretion to, for example, take remedial action where the institution has demonstrated a pattern of non-compliance or deliberate indifference, or opt not to take remedial action where the institution promptly implemented appropriate corrective measures to remedy the violation. The Department also must abide by the Administrative Procedure Act and cannot act in an arbitrary or capricious manner with respect to any institution without facing liability.
53

The Department acknowledges the concerns raised by one commenter that the factors elucidated in the preamble of the NPRM that debarring officials may consider might not provide adequate guidance to institutions in some circumstances and could lead to inconsistent treatment of institutions for engaging in the same misconduct. The Department will use the same regulatory rubric that it uses to take other remedial actions for violations of a grant condition for the conditions in §§ 75.500(b)-(c) and 76.500(b)-(c), and a violation of the First Amendment for a public institution or a violation of stated institutional policies for a private institution does not merit a completely different regulatory scheme for remedial action. All the same concerns that the commenter raises may be raised about existing grant conditions and the Department's discretion to address them, and experience has not borne out these concerns. The Department uses the existing regulatory scheme to determine the most appropriate remedial action for egregious violations such as fraud or criminal actions such as theft, and the Department examines the unique factual circumstances of each violation before determining what, if any, remedial action is appropriate. Similarly, we believe that, as with all violations of the conditions of a particular grant, decisions regarding appropriate remedies must be made on a case-by-case basis. As a practical matter it is therefore impossible to provide comprehensive and exact guidance to institutions and stakeholders as to precisely how the Department will act in all future cases. The Department needs to retain some flexibility to determine appropriate remedial actions, if any, given the unique facts and circumstances of each case. We also wish to remind commenters that the fundamental question of whether an institution violated free speech rights in the first instance will be decided by the courts, and not the Department. This approach has the additional benefit of de-politicizing the process.

52

See
34 CFR 75.901 (cross-referencing 2 CFR 200.338 (Remedies for noncompliance)); 2 CFR 200.338 (“If the Federal awarding agency or pass-through entity determines that noncompliance cannot be remedied by imposing additional conditions, the Federal awarding agency or pass-through entity may take one or more of the following actions, as appropriate in circumstances. . . .”).

53
5 U.S.C. 706(2)(A).

Changes:
None.

Timeframe for Submission of Adverse Court Judgments

Comments:
One commenter requested that the Department extend the applicable timeframe for institutions to submit notice of a final adverse court judgment to the Department. The commenter noted that in Federal courts, parties generally have 30 days to submit an appeal on a judgment but that there are circumstances when this window should be extended. Some State courts permit longer time periods for submitting appeals. The commenter concluded that the Department should amend the final rule to require institutions to submit notice of any final, non-default court judgment no later than 30 days following the expiration of the period for filing a notice of appeal.

Discussion:
The Department is sympathetic to the idea that institutions should have more time to submit copies of final court judgments. However, applicable appeals periods may vary across jurisdictions, and therefore tying the window for submitting adverse court judgments to such periods may result in conflicting timelines and make it more challenging for the Department to ensure compliance. As a result, the Department is extending the applicable timeframe from the 30 days proposed in the NPRM, to 45 calendar days. As the commenter noted, most Federal courts provide at least 30 days for a party to file an appeal, and allowing an institution 45 days to provide the Department with a copy of the final, non-default judgment will help ensure that the institution has adequate time to decide whether to appeal the judgment. The Department believes that applying a uniform timeline of 45 calendar days for all institutions would serve the interests of clarity, consistency, and ease of administration. Institutions will have 45 calendar days, as opposed to 45 business days, because business days are not uniform across the country. For example, there may be regional holidays that apply for some institutions but not others. As such, the Department believes that using calendar days instead of business days is clearer, more consistent, and will make it easier to ensure compliance.

Changes:
We have extended the applicable timeframe for institutions to submit copies of final adverse court judgments to the Department from 30 days to 45 calendar days.

Questions on “Stated Institutional Policies”

Comments:
One commenter submitted several requests for clarification regarding the phrase “stated institutional policies regarding freedom of speech, including academic freedom” contained in the proposed rule. In particular, the commenter noted that the Department did not clearly define what types of documents constitute “stated institutional policies.” For example, it is unclear to what extent a particular document must address “academic freedom” or “free speech” such that compliance with it constitutes a material condition for Federal research and education grants. The commenter also expressed uncertainty as to what makes a given document “institutional.” For example, it is unclear whether any department or school within an institution can have its own “institutional” policy or whether the policy must be institution-wide. The commenter also questioned whether the proposed rule would require private institutions that do not have stated institutional policies to adopt them and, if so, whether the protections offered by their stated institutional policies must be coextensive with First Amendment rights. Lastly, the commenter requested clarity as to whether a private institution's compliance with its stated institutional policies regarding freedom of speech and academic freedom is a material condition even where the institution states that its policies are legally unenforceable. The commenter sought to know whether the proposed rule would require such policies to be enforceable through contract or tort, or at least prohibit private institutions from explicitly framing them as legally unenforceable.

Discussion:
The Department appreciates the substantive requests for clarification regarding the scope of the phrase “stated institutional policies regarding freedom of speech, including academic freedom” in the proposed rule. We note that whether a given institutional policy is covered by the final rule will be clarified by State and Federal courts first because these courts will determine whether the stated institutional policies concern freedom of speech, which includes academic freedom. The Department will determine that a private institution has not complied with its stated institutional policies only if there is a final, non-default judgment by a State or Federal court to the effect that the private institution or an employee of the private institution, acting on behalf of the private institution, violated its stated institutional policy regarding freedom of speech or academic freedom.

We note that nothing in the final rule necessarily limits covered policies to those that are institution-wide, or requires covered policies to be presented in a particular format. For example, covered policies may include, but do not necessarily have to be presented as, circulars, bulletins, or catalogues. Stated institutional policies also may be in the form of representations made by an institution's employees who are acting on behalf of the institution. For example, an employee acting on behalf of an institution may state that reservations are required to reserve an outdoor space for a demonstration or a protest, and these representations may constitute a stated institutional policy. And it may be possible for a covered policy to be department-specific, or to apply only to students or to employees. Further, and as stated in the preamble of the NPRM, these regulations would not compel private institutions to adopt a particular stated institutional policy, or to adopt any policy at all. If a private institution chooses to adopt a stated institutional policy regarding free speech, which includes academic freedom, then nothing in the final rule would compel that institution to make its protections coextensive with the First Amendment. And the question of what effect, if any, a statement that a given institutional policy is not legally enforceable has is a matter to be decided by State and Federal courts through litigation.

Changes:
None.

34 CFR 75.500(d) and 34 CFR 76.500(d)—Religious Student Organizations

Comments in Support

A significant number of commenters advocated that universities should be diverse and inclusive spaces for all students, including religious students. These commenters also stated that religious student organizations make their best contribution to campus life when they retain their distinct religious identity and character and that the proposed regulations would protect religious student organizations' identity and character. Most of these same commenters thanked the Department for the proposed regulations to promote the equal treatment of religious student groups
54

so they can continue to serve their campuses. The Department appreciates the comments in support of these final regulations and includes the comments in support of these final regulations based on the various topics the commenters addressed in describing the benefits of religious student organizations as well as the struggles that religious student organizations face.

54
The Department refers to “religious student organizations” interchangeably as “religious student groups.”

Comments:

Pluralism and Diversity

Many former participants in religious student groups expressed how religious student groups enhanced their experience at universities because they were given the opportunity to explore personal beliefs and experience and contribute to diversity on campus.

One commenter shared their experience serving in their forty-first year as a campus minister at several different universities and is a member of an association of campus ministers at the university where they serve and in this capacity met and collaborated with university presidents, deans, and a variety of student service departments throughout their time in ministry. This same commenter explained how

campus ministers mediate between university governance and student groups to contribute to campus diversity and added that religious groups strive to broaden diversity and enhance inclusivity on college campuses.

One commenter recalled their experience serving in student government at their university, how allowing religious student groups to participate in campus life contributed to mutual understanding and appreciation among a diverse student body. The commenter stated that such diversity makes universities thrive.

Another commenter recalled their experience as a leader of a religious student group where students benefitted from the diversity and inclusivity fostered by religious groups on campus. Students were able to explore faiths and practice their beliefs which many commenters affirmed.

One commenter noted how religious groups are often excluded from conceptions of diversity on college campuses, yet religious organizations contribute to campus diversity. The commenter observed that organizations can only achieve this diversity by organizing with the integrity and conviction afforded by the proposed regulations.

Several students from religious legal societies noted how they were able to fellowship with those in their faith traditions in addition to explore different belief systems in the diverse, intense environment of law school. One of these commenters noted how having a greater variety of religious student groups would have only further increased diversity to benefit the campus.

One commenter observed that religious student groups provide support and opportunities for students. This commenter was able to connect with students of other faiths in this environment and suggested that religious organizations allow students to connect with the “outside world” beyond the university. Another commenter noted how religious student groups contribute to students' needs from a variety of backgrounds—including non-religious students—offering students access to food, finding housing for homeless students, and supported lonely or suicidal students.

One former participant of a religious student group noted how their group especially encouraged multiethnic diversity on campus and how this initiative led to religious student group leaders assisting with training of university dorm leaders on this topic.

Commenters also observed how religious student organizations were inclusive of the broader campus communities. A commenter recalled that all students were invited to participate in the religious organization's discussions and service projects. The commenter clarified that while this religious group worked alongside groups with different beliefs, the commenters' organization was necessarily led by leaders with a distinctive religious perspective. Another commenter shared that the religious organization's religious integrity was essential to its inclusivity as the organization coordinated with other student groups to serve the campus community.

Personal Edification From Religious Student Organizations

Student Health and Well Being

A commenter stated that a religious student group contributed to their health and life trajectory in addition to maturing their own beliefs in college. Another commenter expressed that participation in a religious student group offered social and emotional maturity throughout the commenter's experience. Many commenters described participation in religious student groups as life-changing, transformative, or with great impact on their day-to-day life. Other commenters shared how participation in religious student groups allows for academic, social, and psychological growth. One commenter shared how numerous studies conclude that religion and spirituality predict mental health, self-esteem, and constructive social activities, and at the same time, non-involvement is negatively associated with destructive behaviors such as drug and alcohol abuse, risk-taking, and crime. One commenter shared a story of how they were struggling with substance addiction as a freshman entering university, but participation in a religious student group helped them get clean and become healthy and involved in the university. Another commenter shared how participation in religious student groups has enabled good stress management while in school, enhanced this commenter's holistic thinking and leadership skills, formed life-long friendships, and facilitated positive opportunities to serve the campus and community.

Several commenters shared how religious student groups allow students to thrive in a rigorous environment. A commenter expressed how religious student groups brought healing and helped students through challenges posed by post-graduate studies. Another commenter added that religious student groups are important for students in a time of anxiety.

One commenter shared how they attended a college where religious conversations were encouraged, and they participated in a small group where they talked about real life and real religion. They shared how they were so grateful to have had the opportunity to mature in that environment. They stated that they were not allowed to rest on what they thought might be true, but rather had to discover what was true. They also stated that today's youth are the most anxious generation ever due to a lack of agreed-upon truths that provide a framework for living well, and that the freedom to explore faith in college let them hear about religious thought and the opportunity to find peace there.

Community

A number of supportive commenters were former or current participants in religious student groups expressing how those groups are valuable because they are spaces where community and healthy, wholesome relationships can be formed, and mentorship opportunities are available.

Another commenter shared how participation in a religious student group developed a broader array of relationships across gender, ethnic, cultural, and sexuality lines than any other season of their life and it was specifically because of their involvement with a religious student group. One commenter described religious student groups as unique places in the world where people from any walk of life, social setting, socio-economic background, faith background, sexual orientation, etc., can come together to learn with and from one another.

One commenter described their religious organization as welcoming and creating an open atmosphere in which conversation could be held. Another commenter found that participation in a religious student group made them a more compassionate citizen and informed discussions about justice and faith on campus.

A commenter shared that when they were a college student, the religious groups on their campus contributed the most to campus life, community service, and social justice. The commenter stated that the Black Campus Ministries group, because of their convictions, influenced the university's President to make changes that made the university more accessible for students of color. One commenter shared how being a minority on campus was an intimidating experience, but a religious

student group offered a safe space for building relationships and community.

Several commenters expressed how a religious student group was integral to incorporating this commenter into the campus community and acclimating to a large student body. One commenter expressed how access to a religious student organization provided access to resources that would have been difficult to obtain without a vehicle, in addition to creating a community.

Many commenters described how religious student groups unify and heal campuses. Several commenters noted how religious student groups worked to unify and support campuses after tragic on-campus events. Another commenter expressed that religious student groups provided a place for racial harmony. Another commenter stated that religious student groups preserve diversity when campuses are politically polarized, since the groups welcome students across political lines. A commenter explained how a religious student group initiated a campus-wide debate series which was beneficial to the community beyond just religious students.

One commenter expressed how a religious student group allowed the commenter to form a likeminded community and face challenges posed by law school. One commenter noted how religious student groups provided sanctuary and a safe haven for individuals in law school. A commenter recalled experiences from a religious student group at law school which offered mentorship to first-year law students. Religion was able to inform these students' legal studies, and students were able to explore their beliefs through religious student groups. Additionally, one commenter expressed that participation in a religious sports organization provided support through uniquely challenging experiences presented to student athletes.

Another commenter added that learning how to respect religious beliefs made them a better global citizen. Several commenters recalled programs through their religious student groups which would reach out to and incorporate international students into the student body, and some offered mentorship opportunities.

Several commenters noted that religious student groups create a place for religious students to gather when faculty did not appear welcoming or were hostile towards religious beliefs. Another commenter noted that religious student groups were silenced, hampered, and discriminated against on campus which hurt religious student groups and the greater campus community as a whole.

According to another commenter, the community formed by religious student groups is paramount during transitional periods in students' lives and that some religions are centered around relationships with members of the same faith tradition. A commenter noticed how religious student groups particularly helped at-risk students. A commenter observed how religious student groups provide support to students who are adjusting to and navigating life beyond the guidance of their families. Religious student groups provide spiritual and life guidance with warmth and compassion for students who are settling into their new campus environments, according to several commenters. A commenter noted how religious student groups provide mentorship and emotional support and companionship for students struggling with their home lives or personal challenges.

According to commenters, religious student groups afforded students alternative social opportunities to develop healthy relationships on campus. One commenter shared that participation in a religious student group helped them long for a vision in which the Greek system was healthier and restored to its original intent. They stated that the Greek system has a bad public image and persona, but the commenter believes at its roots was a desire to better men and women around a common set of core ideas and values. Their time with Greek InterVarsity helped them want to advance Greek life on campus that more holistically reflected these original ideas and values than living into the perceived public image of just partying. The commenter believes that those in the Greek system are grown and challenged in this stage of life in such a way that it helps prepare and equip them to serve their communities at large after graduation.

Service

A significant number of commenters discussed the community service that religious student groups perform, including many stories from current and former students about service projects through their religious student organizations. Many commenters shared how they were able to partner with other campus organizations or lead campus initiatives. One Christian campus organization was even given an award for forming successful partnerships with local, national, or international organizations in an effort to make a positive impact on society, according to a commenter from a public university. Religious student groups were where one commenter learned the power of “us” as opposed to “me” as an individual, and how much positive impact a group with the same mission can have. One commenter expressed how religious student groups build students up to empower them to do good in their communities.

One commenter stated that participation in a religious student group set a foundation for charity and civic duties as a citizen. Another commenter believed that participation in a religious student group helped them to become a more intentional, compassionate person to care for others around them. Several commenters expressed that religious student groups taught them how to care and advocate for the marginalized in society. One commenter shared about how involvement with religious student groups exposed the student to topics related to their major of study such as systemic injustices, caring for the homeless and the marginalized, and how to care for the environment.

Another commenter shared how religious groups would provide services to their campuses like cleaning up after fraternity campuses and working in soup kitchens. One commenter shared how participation enhanced their hospitality skills and ability to contribute to the campus environment.

One former participant in a religious student group shared how a Christian group hosted a collective drive where they could engage the entire campus community to serve called “Love Puerto Rico”, in which they collected supplies like generators, tarps, and extension cords that were sent to Puerto Rico to assist in Hurricane Maria relief efforts. Another commenter shared that their religious student group organized activities like serving the homeless, tutoring children, raising money for cancer research, and more similar service projects because of their religious beliefs. One commenter shared how their religious student group set up welcome events during the first weeks of school so students can get to know other students and build relationships on a campus where 95 percent of students commute from around the city. A commenter shared how a religious student group taught them to care about the global issues of the world and played a key role in educating them about fighting human trafficking and partnering broadly within the university to work together to create programs to help others fight human trafficking.

Soft Skills

Multiple commenters shared how participation in religious student organizations can provide opportunities

to lead and enhance leadership and other practical skills. A commenter shared that they would not have developed as a leader if they had not joined a religious student group, since other leadership activities such as sororities were selective organizations with limited opportunities. One commenter recounted their experience with leadership in religious student groups which uniquely provided an opportunity to lead in their local community. Another commenter experienced lifelong benefits from the leadership training provided by religious student groups. Multiple commenters noted how involvement with religious student groups improved communication and organizational, in addition, to leadership skills. Another commenter noted how participation in a religious organization was an asset to the campus, as it increased their critical thinking skills, knowledge base, exposure to cultures, and provided a community. A commenter found that participation in a religious student group informed some students' career paths.

Commenters noted the improvement to their educational environment from participation in religious student groups. One commenter noted how religious groups' participation provides a holistic education for students. One commenter recalled how participation in a legal student group throughout law school taught the commenter how to practice the law in the context of their faith, and another law student shared how participation in a religious student group created a forum in which law students could address related topics like the separation of church and state. Another commenter shared they learned to read religious texts and interpret them for themselves.

One commenter added to the discussion on social benefits of religious student groups by noting how they learned to listen and value the perspectives of a diverse group of people—a skill the commenter stated was not taught inside the classroom. Multiple commenters observed how religious student groups provided forums for students to debate ideas. Another commenter described religious student groups as a safe environment to ask hard and meaningful questions. Another commenter elaborated that religious student groups were a space to explore questions of meaning and purpose and learn how to pursue things like social justice, racial reconciliation, and environmental stewardship on the commenter's campus and in the commenter's community. One commenter shared that, during the 1970s, a religious student group guided them to think about social issues like race and class.

One commenter recalled how, although there were sometimes conflicts among groups, allowing student groups to have membership requirements allowed diversity that was a helpful preparatory experience for life. Another commenter added that their experience in a religious student group taught them how to respect others' beliefs and to engage congenially with those who have different religions. One commenter shared how exploring their faith in a Christian student group allowed them to grow to be more accepting of religious differences, more aware of the failings and strengths of their own faith tradition, and more desirous of genuine dialogue between differently-believing students on campus.

One university professor who teaches political science and philosophy described their courses on “church and state” issues, where the class would debate this very issue as it has been a current event for the past few years. The professor was regularly unable to get their students to debate from the side of public universities that wish to discriminate against faith-based groups by requiring them to adopt “university standards” for student leadership of their clubs. The students, whether for faith-based reasons or not, were virtually 100 percent in agreement that clubs should be free to choose their own leaders and write their own constitutions without conforming to the university's requirements.

Administrative Burden on Religious Student Organizations

Several religious student group representatives and commenters expressed relief that State legislatures had passed legislation to protect the integrity of religious student groups and therefore supported these regulations to apply federally. One commenter noted that the Department's adoption of the provision for religious student organizations would bring Federal policy in line with at least 15 States that have enacted laws to this effect.
55

55
Commenter cited: 2019 Ala. Laws 396 (2019); Ariz. Rev. Stat. Ann. section 15-1863 (2019); Ark. Code Ann. section 60-60-1006 (2019); Idaho Code section 33-107D (2019); S.F. 274, 88th Gen. Ass. 1st Sess. (Iowa 2019); Kan. Stat. Ann. section 60-5311-5313 (2019); Ky. Rev. Stat. Ann. section 164.348(2)(h) (LexisNexis 2019); La. Stat. Ann. section 17:3399.33 (2018); N.C. Gen. Stat. section 115D-20.2, 116-40.12; Ohio Rev. Code Ann. section 3345.023 (LexisNexis 2019); Okla. Stat. tit. 70, section 70-2119.1 (2014); H.B. 1087, 94th Leg. Assemb., Reg. Sess. (S.D. 2019); Tenn. Code Ann. section 49-7-156 (2017); S.B. 18, 86th Leg. (Tex. 2019); Va. Code Ann. section 23.1-400 (2013).

Derecognition

One university student shared their story of administrative interference in which a State university system refused to allow religious groups to have any faith-based qualifications for their leaders, prompting concern among religious groups that their leaders would not be required to agree with their mission or teach their faith. The commenter explained how the university's rules forced their religious organization to choose between getting registered and risking their specific beliefs being watered down or having strong leaders who could authentically teach the faith while losing their status as a registered group for nearly one year. The group chose not to compromise their beliefs and accept a non-registered status which lost them benefits granted by the university. The group was unable to host all of its usual events since they had to pay for a space on campus in which to hold their meetings at an unsustainable cost.

One commenter shared that well-intended anti-discrimination policies at both public and private universities can be used in an “indiscriminate” manner that nearly undermined the ability of the campus ministry in which the commenter participated. Their group was threatened with de-recognition if they had any faith c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-20152. Public record. Not legal advice.