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Free Inquiry:  In response to Executive Order 13864 (Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities), the Department proposes to revise its current regulations to encourage institutions of higher education to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment to the U.S. Constitution for public institutions and compliance with stated institutional policies regarding freedom of speech, including academic freedom, for private institutions. These regulations also require a public institution to not deny a religious student organization any of the rights, benefits, or privileges that are otherwise afforded to other student organizations.

In response to the United States Supreme Court’s decisions in Trinity Lutheran Church of Columbia, Inc. v. Comer , 137 S. Ct. 2012 (2017), and consistent with Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020) as well as Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020), the Religious Freedom Restoration Act, 42 U.S.C. 2000bb, et seq., the United States Attorney General’s October 6, 2017 Memorandum on Federal Law Protections for Religious Liberty, Executive Order 13798 (Promoting Free Speech and Religious Liberty), and Executive Order 13831 (Establishment of a White House Faith and Opportunity Initiative), the Department proposes to revise its current regulations regarding grant programs authorized under titles III and V of the Higher Education Act of 1964, as amended (HEA), and the eligibility of students to obtain certain benefits under those programs.

Lastly, the Department also proposes to revise its current regulations at 34 C.F.R. 106.12 to clarify how educational institutions may demonstrate that they are controlled by a religious organization to qualify for the exemption provided under Title IX of the Education Amendments of 1972, 20 U.S.C. 1681(a)(3), to the extent Title IX or its implementing regulations would not be consistent with the religious tenets of such organization.

Joint Interagency Rulemaking (Faith-Based):  This proposed rule would amend the Department's regulations to implement Executive Order 13831 (Establishment of a White House Faith and Opportunity Initiative). Among other changes, this rule proposes to provide clarity regarding the rights and obligations of faith-based organizations participating in the Department’s programs. This proposed rulemaking aligns with the Department’s goal of implementing its programs and activities consistent with the First Amendment to the Constitution and the requirements of federal law, including the Religious Freedom Restoration Act.

Statement of Need:

In response to the United States Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), the United States Attorney General’s October 6, 2017 Memorandum on Federal Law Protections for Religious Liberty, and Executive Order 13831 (Establishment of a White House Faith and Opportunity Initiative), the Department proposed to provide clarity regarding the rights and obligations of faith-based organizations participating in the Department’s programs.

Additionally, in response to Executive Order 13864 (Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities), the Department of Education proposed regulations that would revise its current regulations to encourage institutions of higher education to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment to the U.S. Constitution for public institutions and compliance with stated institutional policies regarding freedom of speech, including academic freedom, for private institutions. These regulations also proposed to require a public institution to not deny a religious student organization any of the rights, benefits, or privileges that are otherwise afforded to other student organizations. The Department also proposed to revise its current regulations regarding grant programs authorized under titles III and V of the Higher Education Act of 1964, as amended (HEA), and the eligibility of students to obtain certain benefits under those programs. The Department also proposed to revise its current regulations to clarify how educational institutions may demonstrate that they are controlled by a religious organization to qualify for the exemption provided under Title IX, 20 U.S.C. 1681(a)(3), to the extent Title IX or its implementing regulations would not be consistent with the religious tenets of such organization.

Summary of the Legal Basis:

The Department is issuing these regulations under the authority provided by 20 U.S.C. 1221e-3, 20 U.S.C. 3474 , 20 U.S.C. 1101 et seq. and 20 U.S.C. 1057 et seq., 20 U.S.C. 1681 et seq. and EO 13864.

Alternatives:

These are identified in the preamble of the final regulations.

Anticipated Costs and Benefits:

These are identified in the preamble of the final regulations.

Risks:

These are identified in the preamble of the final regulations.