DOE Issues Final Rule on Free Speech and Religious Liberty Protections

Last week, the U.S. Department of Education issued a Final Rule, codifying when higher education institutions that receive certain federal grant funds must respect religious speech and clarifying when religious institutions can claim exemptions to federal sex discrimination laws. Much of the Final Rule merely codifies existing legal requirements, such as mandates that public institutions not treat religious student groups differently than secular groups and requirements that public and private institutions comply with First Amendment or policy protections of free speech and academic freedom. One new requirement is that public and private institutions of higher education that receive certain DOE grants must report any final, non-default judgment finding a violation of the institution’s free speech and academic freedom policies to DOE no more than 45 calendar days after such judgment is entered. In such cases, the DOE will consider the institution to be out of compliance with the First Amendment or the institution’s policies and procedures on free speech and academic freedom, and institutions may risk a loss of grant funds. The Final Rule is part of a consistent federal trend toward greater deference to religion in higher education under the current administration.

The Final Rule followed a March 2020 Executive Order directing institutions to protect First Amendment rights or risk losing federal funding. The Final Rule implements the Executive Order and includes other additional requirements.

With respect to First Amendment free speech and academic freedom concerns, the Final Rule imposes the following requirements on public and private higher education institutions as a material condition for receiving DOE research and education grants:

• Public institutions of higher education must comply with the First Amendment. As a reminder, the First Amendment already imposes free speech and academic freedom requirements on public educational institutions. The rule language highlights the redundancy of this requirement: “Each grantee that is an institution of higher education . . . that is public and that is legally required to abide by the First Amendment . . . must also comply with the First Amendment . . . as a material condition of the Department’s grant.”
• Private institutions of higher education must comply with their written policies on free speech, including academic freedom. Private institutions are not bound by the First Amendment but generally must adhere to their own stated institutional policies regarding freedom of speech and academic freedom. The Final Rule makes such adherence a material condition for receipt of certain DOE grant funds. Private institutions ultimately maintain the right to choose whether to extend free speech protections to their students and faculty but must follow through with any rights they choose to extend. The commentary to the rules points out that this discretion may be particularly useful to religious institutions, which may choose to limit speech that does not honor their stated religious missions.
• Both public and private institutions must report any final, non-default judgment by a state or federal court finding noncompliance with the First Amendment (for public institutions) or institutional free speech and academic freedom policies (for private institutions) to the DOE. The Final Rule gives teeth to the March 2020 Executive Order by requiring public and private institutions to report such judgments to DOE and provides that the Department will consider such information as evidence of noncompliance with the Final Rule. As a practical matter, because different courts and judges may apply the same law to the same fact pattern yet reach very different conclusions, it will be very important for institutions to keep up with decisions in their relevant jurisdictions.
• Public institutions may not treat religious student groups differently than non-religious student groups. The Final Rule prohibits any public institution that receives DOE grants from denying to any student organization with a stated religious mission any right, benefit, or privilege afforded to other student organizations at the public institution. Institutions should review “all-comers” policies that may require religious groups to allow members and leaders who do not agree with their religious tenants to determine whether such rules conflict with the Final Rule.
• Public and private institutions may not use certain grant funds for activities or services that constitute religious instruction, religious worship, or proselytization. The Final Rule removes, however, language that prohibits the use of funds for otherwise allowable activities that “merely relate” to sectarian instruction or religious worship, more narrowly defining the limitation.

The Final Rule also clarifies when private institutions can demonstrate “control by a religious organization” for purposes of an important Title IX exemption. Title IX and its implementing regulations expressly exempt schools “controlled by a religious organization.” However, neither Title IX nor the rules define “controlled by a religious organization.” The Final Rule clarifies this phrase by codifying a non-exhaustive list of criteria that a private institution may use to satisfy the definition. According to the DOE, this clarification will create more predictability, consistency in enforcement, and confidence for private institutions asserting the exemption.

The Final Rule was published on September 9, 2020, and will become effective 60 days from its publication date.