Education Department Finalizes New Rule on Campus Free Speech
September 14, 2020

​​​​​The Department of Education (ED) last week announced its final ​rule implementing President Trump’s executive order linking federal research and education grants to campus free speech for public institutions.

Under the rule, public institutions will be required to comply with the First Amendment as a condition of receiving grant funding, while private institutions receiving funding would have to comply with their “stated institutional policies” on freedom of speech. ED will find an institution has failed to comply with these requirements if there is a “final, non-default judgment” by a state or federal court that a public institution has violated the First Amendment or a private institution has violated its stated free speech policies.

The rules also clarify how an educational institution may demonstrate that it is controlled by a religious organization for purposes of Title IX, the 1972 civil rights law prohibiting sex-based discrimination in educational programs that receive government funding. Religious groups were already exempt, but the new rule now defines what it means to be controlled by a religious organization.

Along with 25 other higher education associations, ACE submitted comments in February on the proposed rule, expressing a number of concerns. The primary problem the groups identified centered on the breadth of the rule. As they explained, conditioning the loss of federal grant funding on a single “final, non-default judgement” by a court is “breathtaking in its reach” and will likely lead to a variety of unintended consequences. The department made no effort to address the concerns raised by the associations.

As ACE President Ted Mitchell said in a statement when the president unveiled the executive order in 2019, the idea of federal involvement in campus speech issues is a solution in search of a problem—one that likely will lead to ill-advised government micromanagement of colleges and universities.

The rule will take effect in 60 days.  ​