Department of Education Final Rule Covers Four Key Areas

By: Jim Newberry

Published: September 18, 2020

The U.S. Department of Education has issued a final rule (“Final Rule”) meant to clarify policies regarding freedom of speech, academic freedom, and Title IX exemptions.

The Final Rule does four things:

  1. Implements Executive Order 13864, Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities, which compels institutions receiving federal funds to abide by the ideas set forth in the First Amendment as well as the institution’s own policies on freedom of speech and academic freedom. Penalties for violations could result in a litany of consequences, up to and including loss of funds or debarment.
  2. Clarifies how an institution demonstrates that it is controlled by a religious organization for purpose of Title IX exemptions. Some schools are already exempt from Title IX, but the Final Rule sheds some light on exactly how the DOE defines “controlled by a religious organization.” Click here to view the list of exemption criteria.
  3. Levels the playing field for all student organizations by prohibiting discrimination regardless of beliefs, policies, or membership and leadership standards. The Final Rule opens the door for all organizations at public institutions to have equal access to privileges such as facilities and student fee funds.
  4. Aligns rules surrounding the use of development grants under Title III and V of the Higher Education Act of 1964 more closely with the First Amendment and other federal regulations. The Final Rule prohibits these grants from being used for religious instruction, worship, or proselytization. It also streamlines the definition of “school or department of divinity” to cover an institution (or one of its departments) whose mission is to prepare students for work in ministry or other religious vocation.

For questions about how the Final Rule might affect your institution, please contact one of the authors of this alert.

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