Notice2023-03671
Request for Information Regarding First Amendment and Free Inquiry Related Grant Conditions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 22, 2023
Issuing agencies
Education Department
Abstract
The U.S. Department of Education (Department) is requesting information in the form of written comments that may include information, research, and other input from the public on how regulations adding material conditions relating to First Amendment freedoms and free inquiry to Department grants have affected or are reasonably expected to affect decisions surrounding First Amendment and free speech-related litigation in Federal and State court and institutional policies on freedom of speech. The Office of Postsecondary Education solicits these comments to inform its review of the current regulations and its implementation of applicable grant programs.
Full Text
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<title>Federal Register, Volume 88 Issue 35 (Wednesday, February 22, 2023)</title>
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[Federal Register Volume 88, Number 35 (Wednesday, February 22, 2023)]
[Notices]
[Pages 10881-10883]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03671]
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DEPARTMENT OF EDUCATION
[Docket ID ED--2023--OPE--0029]
Request for Information Regarding First Amendment and Free
Inquiry Related Grant Conditions
AGENCY: Office of Postsecondary Education, U.S. Department of Education
ACTION: Request for information.
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SUMMARY: The U.S. Department of Education (Department) is requesting
information in the form of written comments that may include
information, research, and other input from the public on how
regulations adding material conditions relating to First Amendment
freedoms and free inquiry to Department grants have affected or are
reasonably expected to affect decisions surrounding First Amendment and
free speech-related litigation in Federal and State court and
institutional policies on freedom of speech. The Office of
Postsecondary
[[Page 10882]]
Education solicits these comments to inform its review of the current
regulations and its implementation of applicable grant programs.
DATES: We must receive your comments on or before March 24, 2023.
ADDRESSES: Comments must be submitted via the Federal eRulemaking
Portal at <a href="http://regulations.gov">regulations.gov</a>. However, if you require an accommodation or
cannot otherwise submit your comments via <a href="http://regulations.gov">regulations.gov</a>, please
contact the program contact person listed under FOR FURTHER INFORMATION
CONTACT. The Department will not accept comments by fax or by email, or
comments submitted after the comment period closes. To ensure that the
Department does not receive duplicate copies, please submit your
comments only once. Additionally, please include the Docket ID at the
top of your comments.
Federal eRulemaking Portal: Go to <a href="http://www.regulations.gov">www.regulations.gov</a> to submit
your comments electronically. Information on sing Regulations.gov,
including instructions for accessing agency documents, submitting
comments, and viewing the docket, is available on the site under
``FAQ.''
Privacy Note: The Department's policy is to make all comments
received from members of the public available for public viewing in
their entirety on the Federal eRulemaking Portal at
<a href="http://www.regulations.gov">www.regulations.gov</a>. Therefore, commenters should be careful to include
in their comments only information that they wish to make publicly
available.
This is a request for information (RFI) only. This RFI is not a
request for proposals (RFP) or a promise to issue an RFP or a notice of
proposed rulemaking. This RFI does not commit the Department to
contract for any supply or service whatsoever. Further, we are not
seeking proposals and will not accept unsolicited proposals. The
Department will not pay for any information or administrative costs
that you may incur in responding to this RFI. The documents and
information submitted in response to this RFI become the property of
the U.S. Government and will not be returned.
FOR FURTHER INFORMATION CONTACT: Ashley Clark, U.S. Department of
Education, 400 Maryland Ave. SW, Room 2C185, Washington, DC 20202.
Telephone: (202) 453-7977. Email: <a href="/cdn-cgi/l/email-protection#315042595d54481f525d50435a7154551f565e47"><span class="__cf_email__" data-cfemail="2a4b5942464f530449464b58416a4f4e044d455c">[email protected]</span></a>.
If you are deaf, hard of hearing, or have a speech disability and
wish to access telecommunications relay services, please dial 7-1-1.
SUPPLEMENTARY INFORMATION:
I. Background
In 2020, the Department proposed and issued final regulations to
add material conditions relating to First Amendment freedoms and free
inquiry to certain Department grants. These regulations, commonly
referred to as the ``Free Inquiry Rule,'' added provisions related to
free inquiry (Sec. 75.500(b) and (c) for Direct Grant Programs, and
Sec. 76.500(b) and (c) for State-Administered Formula Grant Programs),
making it a material condition of these Department grants that public
institutions of higher education (IHEs) that receive these grants
comply with the First Amendment and private institutions that receive
grants from the Department follow their stated institutional policies
on freedom of speech, including academic freedom. As acknowledged in
the 2020 final rule, public IHEs are already legally required to comply
with the First Amendment and private IHEs are required to comply with
their stated policies on freedom of speech. The intended effect of
making compliance a material condition of receiving Department grants
is to encourage IHEs to foster environments that promote open,
intellectually engaging, and diverse debate.
The 2020 final rule states that an IHE will be determined to have
violated the grant conditions in Sec. Sec. 75.500(b) and (c) and
76.500(b) and (c) only if a State or Federal court issues a final, non-
default judgment against a public IHE for violating the First Amendment
or against a private IHE for violating stated institutional policies.
In the 2020 NPRM and 2020 final rule, the Department stated that we
believed State and Federal courts are the appropriate arbiters of
alleged free speech violations. Under the 2020 final rule, the
Department's role is deciding whether and to what extent to impose
additional penalties where such court judgments have been rendered,
including, but not limited to, withholding Federal grant funding. The
preamble to the 2020 final rule stated that if a court issues such a
judgment against a public IHE for violating the First Amendment or a
private IHE for violating stated institutional policies, the
institution must submit to the Secretary a copy of the judgment within
45 days. The Department would then consider such a grantee to be in
violation of a material condition and could pursue available remedies
for noncompliance.
Furthermore, the 2020 final rule added a third provision (Sec.
75.500(d) for Direct Grant Programs and Sec. 76.500(d) for State-
Administered Formula Grant Programs) prohibiting public IHEs from
denying to a religious student organization at the public institution
any right, benefit, or privilege that is otherwise afforded to other
student organizations at the institution because of the religious
student organization's beliefs, practices, policies, speech, membership
standards, or leadership standards informed by sincerely held religious
beliefs. That provision is not part of this request for information and
is instead being addressed separately in a notice of proposed
rulemaking (see Docket ID ED-2022-OPE-0157).
II. Review of 34 CFR 75.500 and 76.500, Paragraphs (b) and (c)
On August 19, 2021, the Department issued a blog post announcing
that we were conducting a review of these regulations while keeping in
mind the importance of several key elements, including First Amendment
protections, nondiscrimination requirements, and the promotion of
inclusive learning environments for all students.\1\ We stated in our
blog post that the First Amendment requires that public colleges and
universities not infringe upon students' rights to engage in protected
free speech and religious exercise and emphasized our long-held and
continuing view that ``[p]rotecting First Amendment freedoms on public
university and college campuses is essential.'' The Department further
recognized that IHEs, their students, and the courts have historically
been responsible for resolving disputes relating to these complex
matters where these important principles intersect.
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\1\ Cooper, Michelle Asha. ``Update on the Free Inquiry Rule,''
Department of Education Homeroom Blog (Aug. 19, 2021), <a href="https://blog.ed.gov/2021/08/update-on-the-free-inquiry-rule/">https://blog.ed.gov/2021/08/update-on-the-free-inquiry-rule/</a>.
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As part of the review, the Department conducted outreach and held
meetings with higher education and institutional stakeholders,
including organizations representing minority-serving institutions and
other under-resourced institutions; faith-based organizations,
including organizations representing religious IHEs; and organizations
that advocate for civil rights and civil liberties. The purpose of the
meetings was to hear from impacted groups that had diverging
perspectives in their comments on the proposed provisions in the 2020
NPRM. Some institutional stakeholders raised on-going concerns that the
provisions added by the 2020 final rule in paragraphs (b) and (c) of 34
CFR 75.500 and 76.500 unnecessarily go beyond what is required by the
courts, encourage campus community members to pursue litigation more
frequently, and
[[Page 10883]]
undermine existing campus processes. Stakeholders also stated that
these provisions could increase institutional costs as a result of
increased litigation and prompt institutions to change their approach
to litigation, such as being more likely to settle. In the case of
private institutions, the Department has heard concerns that the
regulations may incentivize private colleges to limit, eliminate, or
reconsider their policies on free speech for fear of losing grant
funds. Some stakeholders indicated support for these provisions and
stated that the regulation helps secure crucial civil liberties under
the First Amendment.
III. Solicitation of Comments: Impact of 34 CFR 75.500 and 76.500,
Paragraphs (b) and (c)
The Biden-Harris Administration deeply values the First Amendment,
including its guarantees of free speech and free exercise. The
Department is seeking input from the public on how the regulations have
affected or are reasonably expected to affect decisions surrounding
First Amendment and free speech-related litigation in Federal and State
court and institutional policies on freedom of speech. The Department
is interested in this public input to inform its review of the current
regulations and its implementation of applicable grant programs. This
effort is separate from any ongoing regulatory work. The deadline for
these submissions is March 24, 2023.
The Department encourages comments from impacted institutions of
higher education; researchers, academics, policy experts, and other
individuals familiar with First Amendment rights and institutional
policies; organizations that work on First Amendment issues, including
those that work directly with institutions and students; students and
other members of the public.
The Department seeks responses to the specific questions below, as
well as the general concepts and topics identified as they relate to
First Amendment rights and free speech policies on campus.
The Department invites comments as to:
1. Whether and how the current regulations have affected or are
reasonably expected to affect decisions surrounding First Amendment and
free speech-related litigation in Federal and State court;
2. How these regulations have affected or are reasonably expected
to affect public IHEs' approach to designing institutional policies
related to First Amendment protections, including on-campuses processes
used to address alleged free speech and academic freedom violations;
3. How these regulations have affected or are reasonably expected
to affect private IHEs' approach to designing institutional policies
related to free speech and academic freedom, including on-campuses
processes used to address alleged free speech and academic freedom
violations;
4. Whether and how these grant conditions have provided additional
protections of First Amendment rights in the case of public colleges,
or promotion of free speech and free inquiry policies in the case of
private institutions;
5. Whether these regulations affect or could be expected to affect
how aggrieved campus community members seek resolution to alleged free
speech and academic freedom policy violations;
6. Whether these regulations have resulted in additional
quantifiable costs beyond what was considered in the 2020 final rule;
7. Any other information that the public believes would inform the
Department's understanding of the impact of these regulations.
Accessible Format: On request to the program contact person listed
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities
can obtain this document in an accessible format. The Department will
provide the requestor with an accessible format that may include Rich
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file,
braille, large print, audiotape, or compact disc, or other accessible
format.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Code of
Federal Regulations at <a href="http://www.govinfo.gov">www.govinfo.gov</a>. At this site you can view this
document, as well as all other documents of this Department published
in the Federal Register, in text or Portable Document Format (PDF). To
use PDF you must have Adobe Acrobat Reader, which is available free at
the site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at
<a href="http://www.federalregister.gov">www.federalregister.gov</a>. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
Nasser H. Paydar,
Assistant Secretary, Office of Postsecondary Education.
[FR Doc. 2023-03671 Filed 2-21-23; 8:45 am]
BILLING CODE 4000-01-P
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