Department of Education Finalizes New Rule

On September 9, U.S. Secretary of Education Betsy DeVos announced the publication of a final rule that implements President Trump’s Executive Order 13864, Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities.

The new rule conditions federal research or education grants on compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions. According to the announcement, “The Department will rely upon a final, non-default judgment by a state or federal court to determine whether a public or private institution has violated these material grant conditions.”

The new rule also codifies how an educational institution may demonstrate that it is controlled by a religious organization for purposes of determining when the religious exemption under Title IX of the Education Amendments of 1972 applies. It also requires a public institution to provide religious student organizations “any right, benefit or privilege that is otherwise afforded to other student organizations at the public institution.”

The rule was unveiled after the Education Department reviewed more than 17,000 public comments it received in response to its proposal. CUPA-HR joined ACE and 24 other higher education groups in February to submit comments in response to the proposal and express concern that the proposed rule could create a situation where the “Department of Education could terminate federal funding based on an isolated federal or state court decision stemming from a single speech-related incident occurring on a campus,” leading to a variety of unintended consequences for the higher education community. These concerns were not addressed in the final rule, which will take effect 60 days following publication in the Federal Register.

For additional information on the final rule, please see the department’s fact sheet.