The U.S. Department of Education Issues Final Rule on Religious Liberty and Free Inquiry

On September 22, 2020, the U.S. Department of Education (“Department”) issued the Final Rule on Religious Liberty and Free Inquiry (“Final Rule”). The Final Rule implements new requirements on public and private institutions of higher education as material conditions of receiving certain federal grants. These material conditions relate to free speech, free inquiry and religious liberty. An institution’s failure to comply with these material conditions may jeopardize its eligibility to participate in the Department’s Direct Grant or State-Administered Formula Grant Programs. These grants are distinct from Title IV Grants and include for example, funding under the CARES Act.

Improving Freedom of Speech and Free Inquiry

The Final Rule adds a new requirement that all public institutions of higher education must comply with the guarantees under the First Amendment, which include protections for freedom of speech, association, press, religion, assembly, petition, and academic freedom, as a material condition of receiving any grant under the Department’s Direct Grant or State-Administered Formula Grant Programs. The Department defers to state and federal courts to determine whether a First Amendment violation has occurred, and will only find that an institution has violated the First Amendment if a state or federal court issues a final, non-default judgment order finding that the institution or its employee, acting in his or her official capacity, violated the First Amendment.

Similarly, the Final Rule requires private institutions of higher education to comply with their own stated institutional policies regarding freedom of speech, which includes academic freedom, as a material condition of receiving any grant under the Department’s Direct Grant or State-Administered Formula Grant Programs. The Final Rule does not require private institutions to adopt any particular freedom of speech or academic freedom policies in order to receive such grants. However, if a private institution has its own stated institutional policies regarding freedom of speech or academic freedom, then the institution and its employees acting on behalf of the institution must comply with such policies as a material condition of receiving such grants.

The Department defers to state and federal courts to determine whether an institution has failed to comply with its institutional policies regarding freedom of speech or academic freedom and will only find an institution violated its own policies if a state or federal court issues a final, non-default judgment finding that a private institution or its employee, acting on behalf of the institution, violated its stated institutional policy regarding freedom of speech or academic freedom.

Title IX

Title IX does not apply to an education institution that is “controlled by a religious organization” to the extent that application of Title IX would be inconsistent with the religious tenets of the organization. The Final Rule clarifies the religious exemptions to Title IX by providing non-exhaustive factors that the Department will find sufficient to establish that an education institution is “controlled by a religious organization” for purposes of Title IX. An education institution will be “controlled by a religious organization” and eligible to assert a religious exemption pursuant to Title IX if:

1. The education institution is a school or department of divinity.
2. The education institution requires its faculty, students, or employees to be members of, or otherwise engage in religious practices of, or espouse a personal belief in, the religion of the organization by which it is controlled.
3. The education institution, in its charter or catalog, or other official publication, contains an explicit statement that it is controlled by a religious organization or an organ thereof, or is committed to the doctrines or practices of a particular religion, and the members of its governing body are appointed by the controlling religious organization or an organ thereof, and it receives a significant amount of financial support from the controlling religious organization or an organ thereof.
4. The education institution has a doctrinal statement or a statement of religious practices, along with a statement that members of the institution community must engage in the religious practices of, or espouse a personal belief in, the religion, its practices, or the doctrinal statement or statement of religious practices.
5. The education institution has a published institutional mission that is approved by the governing body of an educational institution and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings.

Equal Treatment of Religious Student Organizations at Public Institutions

The Final Rule provides that a public institution may not deny any student organization whose stated mission is religious in nature any right, benefit, or privilege that is otherwise afforded to other student organizations at the public institution as a material condition of the Department’s Direct Grant or State-Administered Formula Grant Programs. This includes, but is not limited to, the student organizations’ access to the facilities at a public institution, distribution of student fee funds, and official recognition of the student organization by the public institution.

Certain Programs Under Title III and Title V of the Higher Education Act of 1964, as Amended

The Final Rule amended certain regulations under the Higher Education Act of 1964, as amended (“HEA”), by removing the broader language prohibiting the use of development grants for the use of funds that relate to “religious worship” and “theological subjects.” The Final Rule narrows the restriction of these prohibitions to only apply to development grants for activities or services that constitute as religious instruction, religious worship, or proselytization consistent with the First Amendment and other federal laws. This amendment also narrowed the prohibition of using development grants for activities provided by “a school or department of divinity,” which will apply to an institution, or a department of an institution, whose program solely prepares students to become ministers of religion or to enter into some other religious vocation. These amendments apply to the Strengthening Institutions Program, the Developing Hispanic-Serving Institutions Program, the Strengthening Historically Black Colleges and Universities Program and the Strengthening Historically Black Graduate Institutions Program under the HEA.