FIRE submits comment to the Department of Education on proposed religious liberty and campus free speech regulations

February 19, 2020

FIRE submitted its formal comment yesterday on the Department of Education’s proposed regulations on religious liberty and freedom of expression on campus. 

The proposed regulations seek to provide protections to faith-based educational institutions and student organizations and to implement President Trump’s March 21, 2019, “Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities.”

A key provision in the proposed regulations would protect the religious liberty and freedom of association of students by ensuring that religious student organizations have equal access to the benefits that official recognition offers to their secular counterparts. FIRE supports this provision, but asked the Department of Education to make clear that this protection applies to all belief-based student organizations. After all, shouldn’t the College Democrats and College Republicans also be allowed to restrict leadership and membership to students who share their parties’ beliefs? 

The proposed regulations also provide a framework for the department to leverage a portion of the taxpayer dollars it invests in higher education to ensure that recipient institutions deliver on their legal obligations to protect religious liberty, freedom of association, free speech, freedom of assembly, freedom of the press, and academic freedom. 

As we state in our comment, we are “cautiously optimistic about this proposal because of its potential to incentivize institutional respect for and attention to these core civil liberties … . Nevertheless, the proposal is not without risks that might undercut its effectiveness.” 

The key provision of the proposed regulations addressing free speech, freedom of assembly, freedom of the press, and academic freedom at public universities reads:

(b)  Each grantee that is an institution of higher education, as defined in 20 U.S.C. 1002(a), that is public (hereinafter “public institution”) must also comply with the First Amendment to the U.S. Constitution, including protections for freedom of speech, association, press, religion, assembly, petition, and academic freedom. The Department will determine that a public institution has not complied with the First Amendment only if there is a final, non-default judgment by a State or Federal court that the public institution or an employee of the public institution, acting in his or her official capacity, violated the First Amendment. A final judgment is a judgment that the public institution chooses not to appeal or that is not subject to further appeal. Absent such a final, non-default judgment, the Department will deem the public institution to be in compliance with the First Amendment. 

(1) Each grantee that is a public institution also must submit to the Secretary a copy of the final, non-default judgment by that State or Federal court to conclude the lawsuit no later than 30 days after such final, non-default judgment is entered.  

Because public institutions are already legally bound by the First Amendment, this provision does not add any new substantive legal obligation. It may, however, have a significant impact on public institutions because it increases the potential consequences for those institutions that violate these core rights. 

The proposed regulations take a similar approach to how they seek to promote these rights at private institutions. Private institutions aren’t bound by the First Amendment. Instead, courts may hold schools that promise their students and faculty with free speech rights and academic freedom to those commitments. Accordingly, the proposed regulations state:

Each State or subgrantee that is an institution of higher education, as defined in 20 U.S.C. 1002(a), that is private (hereinafter “private institution”) must comply with its stated institutional policies regarding freedom of speech, including academic freedom. The department will determine that a private institution has not complied with these 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. A final judgment is a judgment that the private institution chooses not to appeal or that is not subject to further appeal. Absent such a final, non-default judgment, the department will deem the private institution to be in compliance with its stated institutional policies.

FIRE offered recommendations on how that section could be improved. In our comment, we wrote:

While FIRE agrees that private institutions that promise free speech and academic freedom should be held to those commitments, and we regularly work to do that through our advocacy, we recommend amending the language to avoid unintentionally incentivizing private institutions to retreat from these crucial values.

Specifically, private institutions that promise freedom of expression and academic freedom should be held to the same standards public institutions are held to under the First Amendment unless their application for federal grants specifically details how the institution’s commitments to those principles deviate from the obligations imposed on their public counterparts by the First Amendment. 

Putting the onus on those institutions that wish to be held to lesser standards to be clear, detailed, and public about their allowances for censorship may serve as a powerful disincentive to those who would water down those commitments to avoid liability.

Because the proposal relies on final, non-default court judgments, the Department should make clear in the regulations that a private institution’s acceptance of federal grant money forms a contract with the Department to honor commitments to free speech and academic freedom, measured as those principles would be measured at public institutions, unless the private institution details exceptions in the application. The regulations and resulting contracts should further specifically state that students and faculty, along with the federal government, are the intended beneficiaries of this contractual term, foreclosing 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.

Finally, private institutions should be required to publish their certifications (and, if applicable, their lesser standards and exceptions) publicly and prominently online, in a place students and faculty are likely to visit, so prospective students and faculty can choose schools that match their values.

FIRE is hopeful that the proposal will provide an impetus for college and universities to stop engaging in censorship, but we also recognize that the proposal is not without its risks. 

Because the proposal could result in the withholding of federal grant funds if an institution loses a First Amendment lawsuit, we recognize the possibility that the plan will have unintended consequences on how institutions litigate those cases and how courts decide them. That only a portion of the federal dollars an institution receives are at risk, and that the department can give institutions an opportunity to cure problems (which they should already be doing, if they lost a final judgment) before actually losing funds, mitigates our concerns.

Nevertheless, we have asked the Department of Education to consider an alternative approach that would no longer link federal funds to the results of litigation. Instead, we would empower the department to handle a narrow subset of cases where the Supreme Court has set forth workable standards: those cases involving peer-on-peer harassment and those cases about an institution’s time, place, and manner restrictions. We further recommended that the department ensure “ that the penalty for a violation was proportional to the offense, perhaps by setting the penalty on a sliding scale dependent on the number of full-time students enrolled at the institution.” 

We thank the Department of Education for following statutory requirements for proposing new regulations, which allow for informed and timely feedback from all stakeholders. FIRE appreciates the opportunity to provide our analysis.