[Federal Register Volume 85, Number 228 (Wednesday, November 25, 2020)]
[Notices]
[Pages 75310-75311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26108]


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DEPARTMENT OF EDUCATION


Notice of Reporting Process

AGENCY: Office of Postsecondary Education, Department of Education.

ACTION: Notice.

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SUMMARY: The Department of Education publishes information on how 
institutions of higher education may submit to the Secretary of 
Education a copy of certain final, non-default judgments as required 
under newly promulgated regulations in the Department's Religious 
Liberty and Free Inquiry Final Rule, (``Religious Liberty and Free 
Inquiry Final Rule'' or ``Final Rule''). The Department also publishes 
information about how a person may report a violation of newly 
promulgated regulations in the Final Rule that ensure equal treatment 
of religious student organizations at public institutions of higher 
education.

FOR FURTHER INFORMATION CONTACT: Gregory Martin, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 281-15, Washington, DC 20202. 
Telephone: (202) 453-7535. Email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service, toll free, at 1-800-
877-8339.

SUPPLEMENTARY INFORMATION: The Department publishes this notice to 
inform public institutions of higher education how to submit to the 
Secretary a copy of a final, non-default judgment by a State or Federal 
court that the public institution or an employee of the public 
institution, acting in his or her official capacity, violated the First 
Amendment to the U.S. Constitution, as required under 34 CFR 75.500(b) 
and 34 CFR 76.500(b) of the Final Rule, 85 FR 59,916 (Sept. 23, 2020). 
The Department also publishes this notice to inform private 
institutions of higher education how to submit to the Secretary a copy 
of a final, non-default judgment by a State or Federal court to the 
effect that the private institution or an employee of the private 
institution, acting on behalf of the private institution, violated its 
stated institutional policy regarding freedom of speech or academic 
freedom, as required under 34 CFR 75.500(c) and 34 CFR 76.500(c) of the 
Final Rule. Finally, the Department publishes this notice to inform the 
public how a person may report a violation of newly promulgated 
regulations in the Final Rule, 34 CFR 75.500(d) and 34 CFR 76.500(d), 
that ensure equal treatment of religious student organizations at 
public institutions of higher education.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) on request to the person listed under FOR 
FURTHER INFORMATION CONTACT.
    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 www.govinfo.gov. 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 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

    Dated: November 20, 2020.
Robert L. King,
Assistant Secretary for Postsecondary Education.

Submission of a Final, Non-Default Judgment to the Secretary Pursuant 
to 34 CFR 75.500(b)-(c) and 34 CFR 76.500(b)-(c)

    Under 34 CFR 75.500(b) and 34 CFR 76.500(b) of the Final Rule, 
which becomes effective on November 23, 2020, a public institution of 
higher education must submit to the Secretary a copy of a final, non-
default judgment by a State or Federal court that the public 
institution or an employee of the public institution, acting in his or 
her official capacity, violated the First Amendment no later than 45 
calendar days after such final, non-default judgment is entered. Under 
34 CFR 75.500(c) and 34 CFR 76.500(c) of the Final Rule, a private 
institution of higher education must submit to the Secretary a copy of 
a final, non-default judgment by a State or Federal court to the effect 
that the private institution or

[[Page 75311]]

an employee of the private institution, acting on behalf of the private 
institution, violated its stated institutional policy regarding freedom 
of speech or academic freedom no later than 45 calendar days after such 
final, non-default judgment is entered. A final judgment is a judgment 
that the institution chooses not to appeal or that is not subject to 
further appeal.\1\ Public and private institutions of higher education 
should submit to the Secretary a copy of any such final, non-default 
judgment by a State or Federal court by email to 
[email protected] no later than 45 calendar days after such 
final, non-default judgment is entered.
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    \1\ 34 CFR 75.500(b)(1), (c)(1); 34 CFR 76.500(b)(1), (c)(1).
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    As previously noted, the Final Rule becomes effective November 23, 
2020, and the Department will not enforce the Final Rule 
retroactively.\2\ Accordingly, under 34 CFR 75.500(b) and 34 CFR 
76.500(b) of the Final Rule, a public institution does not need to 
submit a copy of a final, non-default judgment by a State or Federal 
court concerning conduct that violated the First Amendment if such 
conduct occurred before November 23, 2020. Similarly, under 34 CFR 
75.500(c) and 34 CFR 76.500(c) of the Final Rule, a private institution 
does not need to submit a copy of a final, non-default judgment by a 
State or Federal court concerning conduct that violated a stated 
institutional policy regarding freedom of speech or academic freedom if 
such conduct occurred before November 23, 2020. A public institution 
must submit to the Secretary a copy of a final, non-default judgment by 
a State or Federal court concerning conduct that violated the First 
Amendment if such conduct occurred on or after November 23, 2020. 
Similarly, a private institution must submit to the Secretary a copy of 
a final, non-default judgment by a State or Federal court concerning 
conduct that violated a stated institutional policy regarding freedom 
of speech or academic freedom if such conduct occurred on or after 
November 23, 2020.
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    \2\ Federal agencies authorized by statute to promulgate rules 
may only create rules with retroactive effect where the authorizing 
statute has expressly granted such authority. See 5 U.S.C. 551 
(referring to a ``rule'' as agency action with ``future effects'' in 
the Administrative Procedure Act); Bowen v. Georgetown Univ. Hosp., 
488 U.S. 204, 208 (1988) (``Retroactivity is not favored in the law. 
Thus, congressional enactments and administrative rules will not be 
construed to have retroactive effect unless their language requires 
this result.'').
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Reporting Alleged Violations of 34 CFR 75.500(d) and 34 CFR 76.500(d)--
Equal Treatment of Religious Student Organizations at Public 
Institutions of Higher Education

    Under 34 CFR 75.500(d) and 34 CFR 76.500(d) of the Final Rule, a 
public institution as a material condition of the Department's grant 
``shall not deny to any student organization whose stated mission is 
religious in nature and that is at the public institution any right, 
benefit, or privilege that is otherwise afforded to other student 
organizations at the public institution (including but not limited to 
full access to the facilities of the public institution, distribution 
of student fee funds, and official recognition of the student 
organization by the public institution) because of the religious 
student organization's beliefs, practices, policies, speech, membership 
standards, or leadership standards, which are informed by sincerely 
held religious beliefs.'' Anyone may report an alleged violation of 34 
CFR 75.500(d) and 34 CFR 76.500(d) to the Department by email at 
[email protected].
    As explained in the preamble to the Final Rule, an ``all-comers'' 
policy as described in Christian Legal Society v. Martinez, 561 U.S. 
661 (2010), does not violate the Final Rule's requirement regarding 
equal treatment of religious student organizations at public 
institutions in 34 CFR 75.500(d) and 34 CFR 76.500(d). A true all-
comers policy ``mandate[s] acceptance of all comers'' meaning that 
``[s]chool-approved groups must `allow any student to participate, 
become a member, or seek leadership positions in the organization, 
regardless of [the student's] status or beliefs,' '' and without any 
exceptions.\3\ A non-discrimination policy with enumerated protected 
classes is not an all-comers policy and, therefore, cannot be applied 
to prohibit religious student organizations from having faith-based 
membership or leadership criteria.\4\ Under the stipulated facts of 
Martinez, the all-comers policy applied to all 60 groups on campus, 
including ``political groups (e.g., the . . . Democratic Caucus and the 
. . . Republicans), religious groups (e.g., the . . . Jewish Law 
Students Association and the . . . Association of Muslim Law Students), 
groups that promote[d] social causes (e.g., both pro-choice and pro-
life groups), groups organized around racial or ethnic identity (e.g., 
the Black Law Students Association, the Korean American Law Society, La 
Raza Law Students Association, and the Middle Eastern Law Students 
Association), and groups that focus[ed] on gender or sexuality (e.g., 
the Clara Foltz Feminist Association and Students Raising Consciousness 
at Hastings).'' \5\ The implications of such an all-comers policy were 
that ``the . . . Democratic Caucus cannot bar students holding 
Republican political beliefs from becoming members or seeking 
leadership positions in the organization.'' \6\ With respect to a true 
all-comers policy, pro-choice groups could not bar membership or 
leadership positions from pro-life individuals; Muslim groups could not 
bar membership or leadership positions from non-Muslims; the feminist 
group could not bar membership or leadership positions from 
misogynists; sororities could not bar membership or leadership 
positions from males; fraternities could not bar membership or 
leadership positions from females; and so on. Such an all-comers policy 
is constitutional under Martinez and permissible under the Final Rule, 
but is not required by the U.S. Constitution, the holding in Martinez, 
or the Final Rule. Indeed, many public institutions of higher education 
elect not to implement a true all-comers policy due to these obvious 
practical difficulties. Absent a true all-comers policy that is 
uniformly applied, Sec. Sec.  75.500(d) and 76.500(d) of the Final Rule 
prevent public institutions from failing to recognize religious student 
organizations because of their faith-based membership or leadership 
criteria. Whether a policy is a true ``all-comers'' policy may be 
challenged if the policy or the application of the policy results in a 
violation of 34 CFR 75.500(d) or 34 CFR 76.500(d). Other policies also 
may be challenged if the policy or the application of the policy 
results in a violation of 34 CFR 75.500(d) and 34 CFR 76.500(d).
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    \3\ Id. at 671 (citations omitted).
    \4\ Id. at 678 n.10.
    \5\ Id. at 709.
    \6\ Id. at 675.

[FR Doc. 2020-26108 Filed 11-24-20; 8:45 am]
BILLING CODE 4000-01-P