By Nasser H. Paydar, Assistant Secretary, Postsecondary Education
In September 2021, the Department announced it was conducting a review of regulations related to First Amendment freedoms, including religious freedoms, which impose additional requirements on its higher education institutional grant recipients. The Department’s review of these regulations focused on ensuring several key elements, including First Amendment protections, nondiscrimination requirements, and the promotion of inclusive learning environments for all students. As noted in this blog post, the Department believes that protecting First Amendment freedoms, including protections for free speech and the free exercise of religion, on public university and college campuses is essential.
After its thorough review, the Department today issued a Notice of Proposed Rulemaking proposing to rescind a portion of the regulation related to religious student organizations because the Department believes it is not necessary in order to protect the First Amendment right to free speech and free exercise of religion given existing legal protections, it has caused confusion about schools’ nondiscrimination requirements, and it prescribed a novel and unduly burdensome role for the Department in investigating allegations regarding public institutions’ treatment of religious student organizations. We have not seen evidence that the regulation has provided meaningfully increased protection for religious student organizations beyond the robust First Amendment protections that already exist, much less that it has been necessary to ensure they are able to organize and operate on campus.
Where complex questions over the First Amendment arise, Federal and State courts are best equipped to resolve these matters. In its proposed rule, the Department is proposing to return to this longstanding practice of deferring to courts. If public institutions of higher education (IHEs) do discriminate against religious student organizations on the basis of the organizations’ beliefs or character, such organizations can and do seek relief in the courts, which have longstanding expertise in and responsibility for protecting rights under the Free Speech and Free Exercise Clauses. Thus, while the Department certainly shares the view that public institutions should not treat religious student organizations less favorably than other student organizations, we do not, at this time, believe that a threat of remedial action with respect to the Department’s grants helps achieve this goal.
Today, the Department also issued a request for information on other portions of the rule related to public institutions’ compliance with the First Amendment and private institutions’ compliance with their stated policies and procedures on free speech and free inquiry. The Department is seeking additional input from stakeholders on the impact of these portions of the regulations, including whether they have had any beneficial or detrimental effects.
We encourage stakeholders and the public to submit comments through the public comment process. The Department’s proposed rescission and request for information will each be open for public comment for 30 days from the date of publication in the Federal Register. The unofficial version of the proposed rescission is available here and the request for information is available here.
This proposed recission does not alter the Department’s commitment to religious freedom, which is enshrined in the First Amendment to the U.S. Constitution as a fundamental human right that contributes to the vibrancy, diversity, and strength of our nation. This proposed rescission also does not alter the Department’s commitment to emphasize the importance of First Amendment protections, including religious freedom protections, at public IHEs. The Department will continue to encourage all IHEs to protect students’ opportunities to associate with fellow members of their religious communities, to share the tenets of their faith with others, and to express themselves on campus about religious and nonreligious matters alike.