[Federal Register Volume 88, Number 35 (Wednesday, February 22, 2023)]
[Notices]
[Pages 10881-10883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03671]


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DEPARTMENT OF EDUCATION

[Docket ID ED--2023--OPE--0029]


Request for Information Regarding First Amendment and Free 
Inquiry Related Grant Conditions

AGENCY: Office of Postsecondary Education, U.S. Department of Education

ACTION: Request for information.

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SUMMARY: The U.S. Department of Education (Department) is requesting 
information in the form of written comments that may include 
information, research, and other input from the public on how 
regulations adding material conditions relating to First Amendment 
freedoms and free inquiry to Department grants have affected or are 
reasonably expected to affect decisions surrounding First Amendment and 
free speech-related litigation in Federal and State court and 
institutional policies on freedom of speech. The Office of 
Postsecondary

[[Page 10882]]

Education solicits these comments to inform its review of the current 
regulations and its implementation of applicable grant programs.

DATES: We must receive your comments on or before March 24, 2023.

ADDRESSES: Comments must be submitted via the Federal eRulemaking 
Portal at regulations.gov. However, if you require an accommodation or 
cannot otherwise submit your comments via regulations.gov, please 
contact the program contact person listed under FOR FURTHER INFORMATION 
CONTACT. The Department will not accept comments by fax or by email, or 
comments submitted after the comment period closes. To ensure that the 
Department does not receive duplicate copies, please submit your 
comments only once. Additionally, please include the Docket ID at the 
top of your comments.
    Federal eRulemaking Portal: Go to www.regulations.gov to submit 
your comments electronically. Information on sing Regulations.gov, 
including instructions for accessing agency documents, submitting 
comments, and viewing the docket, is available on the site under 
``FAQ.''
    Privacy Note: The Department's policy is to make all comments 
received from members of the public available for public viewing in 
their entirety on the Federal eRulemaking Portal at 
www.regulations.gov. Therefore, commenters should be careful to include 
in their comments only information that they wish to make publicly 
available.
    This is a request for information (RFI) only. This RFI is not a 
request for proposals (RFP) or a promise to issue an RFP or a notice of 
proposed rulemaking. This RFI does not commit the Department to 
contract for any supply or service whatsoever. Further, we are not 
seeking proposals and will not accept unsolicited proposals. The 
Department will not pay for any information or administrative costs 
that you may incur in responding to this RFI. The documents and 
information submitted in response to this RFI become the property of 
the U.S. Government and will not be returned.

FOR FURTHER INFORMATION CONTACT: Ashley Clark, U.S. Department of 
Education, 400 Maryland Ave. SW, Room 2C185, Washington, DC 20202. 
Telephone: (202) 453-7977. Email: [email protected].
    If you are deaf, hard of hearing, or have a speech disability and 
wish to access telecommunications relay services, please dial 7-1-1.

SUPPLEMENTARY INFORMATION:

I. Background

    In 2020, the Department proposed and issued final regulations to 
add material conditions relating to First Amendment freedoms and free 
inquiry to certain Department grants. These regulations, commonly 
referred to as the ``Free Inquiry Rule,'' added provisions related to 
free inquiry (Sec.  75.500(b) and (c) for Direct Grant Programs, and 
Sec.  76.500(b) and (c) for State-Administered Formula Grant Programs), 
making it a material condition of these Department grants that public 
institutions of higher education (IHEs) that receive these grants 
comply with the First Amendment and private institutions that receive 
grants from the Department follow their stated institutional policies 
on freedom of speech, including academic freedom. As acknowledged in 
the 2020 final rule, public IHEs are already legally required to comply 
with the First Amendment and private IHEs are required to comply with 
their stated policies on freedom of speech. The intended effect of 
making compliance a material condition of receiving Department grants 
is to encourage IHEs to foster environments that promote open, 
intellectually engaging, and diverse debate.
    The 2020 final rule states that an IHE will be determined to have 
violated the grant conditions in Sec. Sec.  75.500(b) and (c) and 
76.500(b) and (c) only if a State or Federal court issues a final, non-
default judgment against a public IHE for violating the First Amendment 
or against a private IHE for violating stated institutional policies. 
In the 2020 NPRM and 2020 final rule, the Department stated that we 
believed State and Federal courts are the appropriate arbiters of 
alleged free speech violations. Under the 2020 final rule, the 
Department's role is deciding whether and to what extent to impose 
additional penalties where such court judgments have been rendered, 
including, but not limited to, withholding Federal grant funding. The 
preamble to the 2020 final rule stated that if a court issues such a 
judgment against a public IHE for violating the First Amendment or a 
private IHE for violating stated institutional policies, the 
institution must submit to the Secretary a copy of the judgment within 
45 days. The Department would then consider such a grantee to be in 
violation of a material condition and could pursue available remedies 
for noncompliance.
    Furthermore, the 2020 final rule added a third provision (Sec.  
75.500(d) for Direct Grant Programs and Sec.  76.500(d) for State-
Administered Formula Grant Programs) prohibiting public IHEs from 
denying to a religious student organization at the public institution 
any right, benefit, or privilege that is otherwise afforded to other 
student organizations at the institution because of the religious 
student organization's beliefs, practices, policies, speech, membership 
standards, or leadership standards informed by sincerely held religious 
beliefs. That provision is not part of this request for information and 
is instead being addressed separately in a notice of proposed 
rulemaking (see Docket ID ED-2022-OPE-0157).

II. Review of 34 CFR 75.500 and 76.500, Paragraphs (b) and (c)

    On August 19, 2021, the Department issued a blog post announcing 
that we were conducting a review of these regulations while keeping in 
mind the importance of several key elements, including First Amendment 
protections, nondiscrimination requirements, and the promotion of 
inclusive learning environments for all students.\1\ We stated in our 
blog post that the First Amendment requires that public colleges and 
universities not infringe upon students' rights to engage in protected 
free speech and religious exercise and emphasized our long-held and 
continuing view that ``[p]rotecting First Amendment freedoms on public 
university and college campuses is essential.'' The Department further 
recognized that IHEs, their students, and the courts have historically 
been responsible for resolving disputes relating to these complex 
matters where these important principles intersect.
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    \1\ Cooper, Michelle Asha. ``Update on the Free Inquiry Rule,'' 
Department of Education Homeroom Blog (Aug. 19, 2021), https://blog.ed.gov/2021/08/update-on-the-free-inquiry-rule/.
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    As part of the review, the Department conducted outreach and held 
meetings with higher education and institutional stakeholders, 
including organizations representing minority-serving institutions and 
other under-resourced institutions; faith-based organizations, 
including organizations representing religious IHEs; and organizations 
that advocate for civil rights and civil liberties. The purpose of the 
meetings was to hear from impacted groups that had diverging 
perspectives in their comments on the proposed provisions in the 2020 
NPRM. Some institutional stakeholders raised on-going concerns that the 
provisions added by the 2020 final rule in paragraphs (b) and (c) of 34 
CFR 75.500 and 76.500 unnecessarily go beyond what is required by the 
courts, encourage campus community members to pursue litigation more 
frequently, and

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undermine existing campus processes. Stakeholders also stated that 
these provisions could increase institutional costs as a result of 
increased litigation and prompt institutions to change their approach 
to litigation, such as being more likely to settle. In the case of 
private institutions, the Department has heard concerns that the 
regulations may incentivize private colleges to limit, eliminate, or 
reconsider their policies on free speech for fear of losing grant 
funds. Some stakeholders indicated support for these provisions and 
stated that the regulation helps secure crucial civil liberties under 
the First Amendment.

III. Solicitation of Comments: Impact of 34 CFR 75.500 and 76.500, 
Paragraphs (b) and (c)

    The Biden-Harris Administration deeply values the First Amendment, 
including its guarantees of free speech and free exercise. The 
Department is seeking input from the public on how the regulations have 
affected or are reasonably expected to affect decisions surrounding 
First Amendment and free speech-related litigation in Federal and State 
court and institutional policies on freedom of speech. The Department 
is interested in this public input to inform its review of the current 
regulations and its implementation of applicable grant programs. This 
effort is separate from any ongoing regulatory work. The deadline for 
these submissions is March 24, 2023.
    The Department encourages comments from impacted institutions of 
higher education; researchers, academics, policy experts, and other 
individuals familiar with First Amendment rights and institutional 
policies; organizations that work on First Amendment issues, including 
those that work directly with institutions and students; students and 
other members of the public.
    The Department seeks responses to the specific questions below, as 
well as the general concepts and topics identified as they relate to 
First Amendment rights and free speech policies on campus.
    The Department invites comments as to:
    1. Whether and how the current regulations have affected or are 
reasonably expected to affect decisions surrounding First Amendment and 
free speech-related litigation in Federal and State court;
    2. How these regulations have affected or are reasonably expected 
to affect public IHEs' approach to designing institutional policies 
related to First Amendment protections, including on-campuses processes 
used to address alleged free speech and academic freedom violations;
    3. How these regulations have affected or are reasonably expected 
to affect private IHEs' approach to designing institutional policies 
related to free speech and academic freedom, including on-campuses 
processes used to address alleged free speech and academic freedom 
violations;
    4. Whether and how these grant conditions have provided additional 
protections of First Amendment rights in the case of public colleges, 
or promotion of free speech and free inquiry policies in the case of 
private institutions;
    5. Whether these regulations affect or could be expected to affect 
how aggrieved campus community members seek resolution to alleged free 
speech and academic freedom policy violations;
    6. Whether these regulations have resulted in additional 
quantifiable costs beyond what was considered in the 2020 final rule;
    7. Any other information that the public believes would inform the 
Department's understanding of the impact of these regulations.
    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document in an accessible format. The Department will 
provide the requestor with an accessible format that may include Rich 
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, 
braille, large print, audiotape, or compact disc, or other accessible 
format.
    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.

Nasser H. Paydar,
Assistant Secretary, Office of Postsecondary Education.
[FR Doc. 2023-03671 Filed 2-21-23; 8:45 am]
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