On January 16, 2020, the U.S. Secretary of Education Betsy DeVos announced a proposed rule to revise the current regulations regarding the eligibility of faith-based entities to participate in grant programs offered through the Department of Education, including Direct Grants, State-Administered Formula Grants, and discretionary grants authorized under Title III and V of the Higher Education Act of 1965, as amended (HEA), and the eligibility of students to obtain certain benefits under those programs. In the press release, Secretary DeVos stated “Our actions today will protect the constitutional rights of students, teachers, and faith-based institutions… The Department’s efforts will level the playing field between religious and non-religious organizations competing for federal grants, as well as protect First Amendment freedoms on campus and the religious liberty of faith-based institutions.”
Among the proposed rules are modifications clarifying that faith-based organizations would be eligible to apply for and receive grants under Department of Education programs on the same basis as any other private organization; removing requirements on faith-based organizations that receive grants to provide assurances or notices that are not imposed on non-faith-based organizations; and clarifying that “a faith-based organization that participates in Department-funded programs retains its autonomy, right of expression, religious character, and independence from Federal, State, and local governments.”
The proposed rules would also add a non-exhaustive list of criteria that offers religious institutions different methods to demonstrate that they are “controlled by a religious organization” in order to be exempt from Title IX of the Education Amendments of 1972 and its implementing regulations to the extent Title IX and its implementing regulations would not be consistent with the institutions’ religious tenets.
The proposed rules would amend regulations governing the Hispanic-Serving Institutions Program, Strengthening Institutions Program, Strengthening Institutions Program, Strengthening Historically Black Colleges and University Program, and Strengthening Historically Black Graduate Institutions Program by removing language that prohibits use of such funds for otherwise allowable activities if they relate to “religious worship” and “theological subjects” and replace it with language that more narrowly defines the limitations.
The proposed rules would also require public colleges and universities to comply with the First Amendment, and private colleges and universities to comply with their institutional policies regarding freedom of speech and academic freedom, as a condition of receiving Federal research or education grants. The proposed rules would also prohibit public colleges and universities from receiving certain grants from denying to a “faith-based student organization any of the rights, benefits, or privileges that are otherwise afforded to non-faith-based student organizations, as a material condition of the grant.”
According to the Department of Education, the proposed changes were prompted by the Department’s desire to fulfill the requirements of Executive Order 13798 – Promoting Free Speech and Religious Liberty (82 FR 21675) and Executive Order 13864 – Improving Free Inquiry, Transparent, and Accountability at Colleges and Universities (84 FR 11401) and to align its regulations with the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) 137 S.Ct. 2012, and the U.S. Attorney General Memorandum on Federal Law Protections for Religious Liberty (October 6, 2017).
The comment period for the proposed rule ended on February 18, 2020. The Department of Education received 17,767 comments. LCW will be watching this matter closely and will report if and when the proposed rule is adopted and finalized.
The complete proposed rule is available here: https://www2.ed.gov/policy/highered/reg/hearulemaking/2018/fedreg-draft-20200116.pdf.
NOTE:
The receipt of federal funds from the Department of Education may require faith-based organizations, as a condition of receiving those funds, to comply with federal laws from which they may otherwise be exempt. We advise reviewing the conditions for receipt of federal funds through grant programs with legal counsel before agreeing to any terms and accepting any funds.