The Department of Education has released a final rule for colleges and universities regarding campus free speech and religious freedom. The new regulation could trigger the loss of federal grant aid for institutions that run afoul of its provisions. Institutional eligibility for federal student aid funds will not be impacted by the rule.
The rule penalizes private colleges and universities that are found to violate their own institutional policies on free speech and similarly penalizes public colleges and universities that are found to violate the First Amendment. ED will rely on final, non-default judgments made by state or federal courts to determine if triggering violations occur; institutions are now required to report such judgments to ED no later than 45 calendar days after the ruling is entered.
Many of the details of the rule focus on protections for faith-based student groups and faith-based institutions. Public colleges, for instance, are now required to provide religious student groups all the “rights, benefits, or privileges that other student groups enjoy,” even if those groups discriminate against potential student members based on their gender identity or sexual orientation. Per ED’s guidance, “religious student group[s] must have the same rights as other student groups at the public institution to receive official recognition, to use the institution’s facilities, and to receive student fee funds.”
Similarly, the rule clarifies how faith-based institutions can exempt themselves from compliance with Title IX regulations to the extent that “application of Title IX would not be consistent with the religious tenets of such organization.”
The rule partially originated from a presidential executive order and is very similar to a draft first proposed by Education Secretary Betsy DeVos in January. The final regulations were published in the Federal Register on September 23 and will take effect after 60 days.