ACE, Groups Respond to Education Department’s Proposal to Rewrite Trump Administration’s Free Inquiry Rule
March 27, 2023

In September 2021, the Department of Education announced it was conducting a review of the Trump-era regulations commonly referred to as the “free inquiry” final rule, a response to an executive order issued by the former president which directed agencies to take all steps consistent with existing laws to encourage free inquiry on campuses.

The free inquiry rule conditions getting Department of Education grant funding (excluding Title IV student aid) on a public institution complying with the First Amendment and on a private institution complying with its free speech related policies. In addition, it prohibits a public institution from denying a religious student organization any “right, benefit, or privilege afforded to other student organizations” because of the religious organization’s “beliefs, practices, policies, speech, membership standards, or leadership standards.”

In 2020, ACE and several higher education associations submitted written comments expressing serious concerns with the proposed rule. But the rule was finalized in September of that year, virtually unchanged. 

Last month, ED announced a proposal to rescind the portion of the rule related to religious student organizations. At the same time, the department issued a request for information (RFI) on the first part of the rule related to the withholding of ED grant funds from institutions that fall to comply with the First Amendment (for publics) and with their stated policies and procedures on free speech (for privates).

On March 24, ACE and a number of other higher education groups responded, outlining support for revoking the provision on student religious organizations. In addition, in response to the RFI, ACE and the other higher ed associations restated their concerns with provisions related to termination of federal grant funding, writing that they “undermine rather than support institutional efforts to foster environments that promote open, intellectually engaging debate on diverse topics on campus.”

Denying a Religious Student Organizations any “Right Benefit or Privilege”

The free inquiry rule prohibits a public institution from denying a religious student organization any “right, benefit, or privilege (including full access to the facilities of the public institution and official recognition of the organization) afforded to other student organizations” because of the religious student organization’s “beliefs, practices, policies, speech, membership standards, or leadership standards.”

In explaining its rationale for proposing to rescind this regulation, ED said that it has “not seen evidence that the regulation has provided meaningfully increased protection for religious student organizations beyond the robust First Amendment protections that already exist, much less that it has been necessary to ensure they are able to organize and operate on campus.”

The department also said the rules had caused confusion about college and university nondiscrimination requirements, and that it had been burdensome to investigate claims about institutions’ treatment of student organizations.

ACE and the other higher education association signers strongly agreed with this assessment, writing that the provision rests “on a deeply flawed and troubling understanding of First Amendment jurisprudence and the proper obligations and roles of institutions, the Department, and the judiciary in upholding these guarantees.”

Of fundamental concern here is is that the free inquiry regs inappropriately foreclose legally permitted decision-making by public colleges and universities regarding all-comer policies, based on the precedent set by the Supreme Court in Christian Legal Society v. Martinez.

“Federal regulations should not interfere with these rights,” the groups wrote, “nor should they put public institutions in the untenable position of losing Department grant funding for exercising these rights.”

Groups Urge ED to Scrap the Remaining Regulations in the Free Inquiry Rule

Responding to the RFI seeking general input, the groups write that the current rules “reflect a deeply flawed understanding of how First Amendment and free-speech protections work on a campus and how these important rights are protected through institutions, their communities, and the courts.” They urge the department to follow suit with the religious student organization provision and rescind the rules to prevent further harm and “future mischief.”

Under the rule, ED can find an institution out of compliance if there is a “final, non-default judgment” by a state or federal court that a public institution has violated the First Amendment or that a private institution has violated its stated free speech policies. Penalties could include withholding federal grant funds.

However, because public institutions are already legally required to comply with the First Amendment and private institutions are required to comply with their stated policies on freedom of speech, the current rule offers no additional protections and actually diminishes these rights through the potential loss of grant funding.

By permitting the termination of all federal funding based on a single court decision, the current rule is “breathtaking in its reach, and its real-world application is chilling and could lead to a variety of unintended consequences,” the groups write.

They urge the department to remove itself from these sometimes complicated determinations and return to past practice of allowing First Amendment and free speech rights to be upheld by institutions, their communities and the courts.