Education Dept. issues important new free speech and religious liberty regulations

• Public colleges and universities required to uphold First Amendment rights of students to access Department of Education grants
• Private colleges required to adhere to their written policies on freedom of expression to access Department of Education grants
• Religious student groups are guaranteed equal access to university resources as secular organizations as a material condition of obtaining a Department of Education grant

WASHINGTON, Sept. 9, 2020 - The Department of Education released new, final regulations today providing crucial free speech and religious liberty protections for students at our nation’s public college campuses. Institutions that violate those core rights will risk losing access to federal education grants. Put simply, the regulations require public institutions of higher education to do what they are already obligated to do: protect the First Amendment rights of their students.

The new regulations also require from private institutions what many courts already require: that the institutions comply with their stated institutional policies regarding freedom of speech and academic freedom. If a court finds that a private institution violated its policies, it risks losing access to Department of Education grants.

Under the new rules, religious student organizations must also have equal access to the benefits colleges afford to recognized secular organizations. This means that public institutions of education may no longer discriminate against religious student organizations by denying them access to campus facilities or student fee money available to secular student organizations “because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs.”

“Too many institutions violate student and faculty free speech rights as a matter of course,” said FIRE Legislative and Policy Director Joe Cohn. “Hopefully, the additional risk of losing federal grant money will encourage them to rethink their practices.” 

FIRE is cautiously optimistic about the new regulations, which have the potential to incentivize institutional respect for and attention to core civil liberties. However, these regulations are not without risk. Because institutions risk losing access to federal grants if they lose a First Amendment lawsuit, there is a possibility that institutions will change the way they litigate those lawsuits. It may also affect the way judges decide First Amendment cases, knowing that large federal grants may be at stake.

“It is not too much to ask of our nation’s colleges and universities that they follow the First Amendment or keep their own free speech promises if they wish to receive federal grant money,” said FIRE Executive Director Robert Shibley. “As always, FIRE stands ready to assist any institution wishing to join those who already ensure that their policies protect free speech.”

CONTACT:

Daniel Burnett, Assistant Director of Communications, FIRE: 215-717-3473; media@thefire.org