New Department of Education First Amendment grant regulations have real promise, but require caution

January 17, 2020

Yesterday, the Department of Education released a proposal for a new rule that would, among other things, tie grant funding from the department to compliance with the First Amendment. FIRE welcomes efforts from the Department of Education to ensure that our nation’s colleges and universities take seriously both the First Amendment and their own institutional promises of free speech, academic freedom, and freedom of association. 

There are two provisions in the department’s new, 203-page proposed rule that fall within FIRE’s interests. The first requires public and private universities to live up to either the First Amendment or their institutional free expression promises, respectively, if they wish to receive Education Department grant money. The second would require public universities receiving such grants to restore freedom of association for student groups on campus, permitting them to determine their own membership and leadership standards.

To the extent that the proposed rule would condition the receipt of federal grants on meeting already-existing constitutional obligations, these requirements should be uncontroversial. FIRE also supports efforts to protect religious students’ freedom of association at public universities, and strongly supports the right and ability of belief-based groups, religious or otherwise, to maintain belief-based requirements for members and leaders.

These provisions could be a real step forward in the effort to secure free speech, academic freedom, and religious liberty rights on our nation’s campuses. 

However, rulemaking in this area is not without risk, as we pointed out when President Trump signed his March 21 executive order on campus free speech, which prompted this rulemaking process. FIRE has warned against any plan that would turn a college or university’s loss in court into a catastrophic loss in federal funding, for example, because of the distorting impact it would have on the behavior of both colleges and the courts. (Universities’ willingness to engage in outrageous behavior in the name of Title IX, which does carry the threat of a funding “death penalty,” provides ample reason to worry.) The proposed rule reduces, but does not eliminate, these concerns by providing a range of potential sanctions and by its application only to grant programs and not federal student aid.

Despite our concerns, we are hopeful that the Department of Education’s efforts to enforce compliance with free speech obligations will translate into an improved university commitment to free speech and academic freedom, and will significantly reduce censorship and violations of freedom of association on our nation’s college campuses.

FIRE looks forward to providing input to the department to help improve the proposal as it goes through the notice-and-comment rulemaking process. And, as always, we stand ready, at no cost, to assist colleges and universities in changing their policies to ensure they are in compliance with the First Amendment and/or their own institutional promises, and have nothing to fear from any rule that might ultimately be adopted.