Direct Grant Programs, State-Administered Formula Grant Programs, Non Discrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, Developing Hispanic-Serving Institutions Program, Strengthening Institutions Program, Strengthening Historically Black Colleges and Universities Program, and Strengthening Historically Black Graduate Institutions Program, 59916-59982 [2020-20152]

Download as PDF 59916 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations DEPARTMENT OF EDUCATION Office of the Secretary 34 CFR Parts 75 and 76 Office for Civil Rights 34 CFR Part 106 Office of Postsecondary Education 34 CFR Parts 606, 607, 608, and 609 [Docket ID ED–2019–OPE–0080] RIN 1840–AD45 Direct Grant Programs, StateAdministered Formula Grant Programs, Non Discrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, Developing HispanicServing Institutions Program, Strengthening Institutions Program, Strengthening Historically Black Colleges and Universities Program, and Strengthening Historically Black Graduate Institutions Program Office for Civil Rights, Office of Postsecondary Education, Department of Education. ACTION: Final rule. AGENCY: In response to Executive Order 13864 (Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities), the Department of Education revises 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 recent decisions from United States Supreme Court’s decisions, the Department revises its current regulations regarding grant programs authorized under titles 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. The Department also revises its current regulations to clarify how educational institutions may demonstrate that they are controlled by a religious organization to qualify for the khammond on DSKJM1Z7X2PROD with RULES3 SUMMARY: VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 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. DATES: This final rule is effective November 23, 2020. FOR FURTHER INFORMATION CONTACT: Sophia McArdle, U.S. Department of Education, 400 Maryland Avenue SW, Room 290–44, Washington, DC 20202. Telephone: 202–453–6318. Email: Sophia.McArdle@ed.gov. If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free at 1–800–877– 8339. SUPPLEMENTARY INFORMATION: Executive Summary Purpose of this Regulatory Action: Through these final regulations, the Department reinforces First Amendment freedoms such as the freedom of speech and free exercise of religion. On March 21, 2019, President Trump signed Executive Order 13864, Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities.1 In response to this Executive Order, as well as the First Amendment, and the Secretary’s general authority under 20 U.S.C. 1221e–3, the Department endeavors to ensure that all institutions of higher education, as defined in 20 U.S.C. 1002(a), that receive Federal research or education grants 2 from the Department ‘‘promote free inquiry.’’ 3 Denying free inquiry is inherently harmful at any institution of higher education because students are denied the opportunity to learn and faculty members are denied the opportunity to freely engage in research and rigorous academic discourse. Both Executive Order 13864 and these final regulations are intended to promote the First Amendment’s guarantees of free expression and academic freedom, as the courts have construed them; to align with Federal statutes to protect free expression in schools; 4 and to protect free speech on campuses nationwide. Under the Supreme Court’s First Amendment jurisprudence protecting the individual’s right to his own ideas and beliefs, ‘‘no official, high or petty, can 1 84 FR 11402. Order No. 13864, section 3(c) defines ‘‘federal research or education grants’’ as ‘‘all funding provided by a covered agency directly to an institution but do not include funding associated with Federal student aid programs that cover tuition, fees, or stipends.’’ 3 Id. section 3(a). 4 20 U.S.C. 1011a; 20 U.S.C. 4071. 2 Exec. PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.’’ 5 As a result, officials at public institutions may not abridge their students’ or employees’ expressions, ideas, or thoughts.6 In a significant opinion, Keyishian v. Board of Regents of the University of the State of New York, the Supreme Court observed, ‘‘Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.’’ 7 Consequently, the First Amendment right of free expression means that public officials may not discriminate against students or employees based on their viewpoints.8 For example, public institutions cannot charge groups excessive security costs ‘‘simply because [these groups and their speakers] might offend a hostile mob.’’ 9 In a landmark opinion, Tinker v. Des Moines Independent Community School District, the Supreme Court acknowledged more than half a century ago that ‘‘[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’’ 10 These final regulations help ensure that students and teachers will retain their constitutional rights to freedom of speech at public institutions. Academic freedom is another aspect of freedom of speech, as ‘‘[f]reedom of speech secures freedom of thought and belief.’’ 11 Academic freedom is an indispensable aspect of the ‘‘freedom of thought and belief’’ to which individuals across educational institutions, including private ones, may enjoy.12 It follows that academic freedom is intertwined with, and is a predicate to, freedom of speech itself; and injury to one is tantamount to 5 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). 6 Tinker v. Des Moines Ind. Comm. Sch. Dist., 393 U.S. 503, 505–07 (1969). 7 385 U.S. 589, 603 (1967). 8 See, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829–30 (1995). 9 Forsyth Cnty., Ga. v. Nationalist Mov’t, 505 U.S. 123, 134–35 (1992); see also College Republicans of the Univ. of Wash. v. Cauce, No. C18–189–MJP, 2018 WL 804497 (W.D. Wash. Feb. 9, 2018) (holding University of Washington Security Fee Policy violates the students’ First Amendment rights to freedom of speech and expression). 10 393 U.S. at 506. 11 Nat’l Inst. of Family and Life Advocates v. Becerra, 138 S. Ct. 2361, 2379 (2018) (NIFLA) (Kennedy, J., concurring). 12 Id. E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 injury to both. Academic freedom’s noble premise is that the vigilant protection of free speech unshackled from the demands and constraints of censorship will help generate new thoughts, ideas, knowledge, and even questions and doubts about previously undisputed ideas. Although academic freedom’s value derives itself from the fact that its ‘‘results . . . are to the general benefit in the long run,’’ academic freedom is also inherently important in a free society.13 Academic freedom, just like freedom of speech itself, is predicated on the principle that thoughts, arguments, and ideas should be expressed by individuals and assessed by listeners on their own merit, rather than the censor’s coercion. Academic freedom insists on the freedom and power of speech so that the speaker has a fair opportunity to convince the listener of an idea and the listener a fair opportunity to be persuaded. The confluence of free speech and academic freedom is nothing new as far as the United States’ educational institutions are concerned. As Yale University, a private American institution of higher learning, acknowledged almost half a century ago: Because ‘‘[t]he primary function of a university is to discover and disseminate knowledge by means of research and teaching,’’ ‘‘the university must do everything possible to ensure within it the fullest degree of intellectual freedom.’’ 14 Yale further deduced that ‘‘[t]he history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.’’ 15 When free speech is suppressed, academic freedom is the casualty many times over, ‘‘for whoever deprives another of the right to state unpopular views necessarily also deprives others of the right to listen to those views.’’ 16 Neither harm is tolerable, and these regulations endeavor to protect academic freedom, as a part of free speech, at institutions of higher education. Executive Order 13864 and the final regulations also align with Federal statutes to protect free inquiry. Congress has expressed that ‘‘no student attending an institution of higher education . . . should, on the basis of 13 Chairman’s Letter to the Fellows of the Yale Corporation, Report of the Committee on Freedom of Expression at Yale, Yale University (Dec. 23, 1974) (Yale Report on Freedom of Expression). 14 Yale Report on Freedom of Expression, supra (emphasis added). 15 Id. 16 Id. VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 participation in protected speech or protected association, be excluded from participation in, be denied the benefits of, or be subjected to discrimination or official sanction under [numerous] education program[s], activit[ies], or division[s] of the institution[s] directly or indirectly receiving financial assistance.’’ 17 Congress has also articulated that ‘‘an institution of higher education should facilitate the free and open exchange of ideas,’’ and ‘‘students should not be intimidated, harassed, discouraged from speaking out, or discriminated against’’ on account of their speech, ideas or expression.18 And since 1871, Congress has made actionable violations of the First Amendment by those acting in an official government capacity, whether on campuses or elsewhere.19 Congress, thus, disapproves of the suppression of or discrimination against ideas in the academic setting. To be certain, the Department will honor the institutional mission of private institutions, including their religious mission. To this end, the final regulations do not require a private institution to ensure freedom of speech, including academic freedom, unless it chooses to do so through its own stated institutional policies. Private institutions, however, cannot promise students, faculty, and others opportunities to engage in free speech, including academic freedom, in stated institutional policies without delivering on this promise. These private institutions must comply with whatever stated institutional policies regarding freedom of speech, including academic freedom, that they choose to adopt. Religiously affiliated institutions, in freely exercising their faith, may define their free speech policies as they choose in a manner consistent with their mission. The final regulations do not mandate that religiously affiliated institutions adopt any particular policies in order to participate in the Department’s grants and programs. In other words, the final regulations do not require any private institution to adopt a campus free speech policy that 17 20 U.S.C. 1011a. In the same section, Congress has defined ‘‘protected speech’’ as ‘‘speech that is protected under the first and 14th amendments to the Constitution, or would be protected if the institution of higher education involved were subject to those amendments,’’ 20 U.S.C. 1011a(c)(3); and has defined ‘‘protected association’’ as ‘‘the joining, assembling, and residing with others that is protected under the first and 14th amendments to the Constitution, or would be protected if the institution of higher education involved were subject to those amendments,’’ 20 U.S.C. 1011a(c)(2). 18 20 U.S.C. 1011a(2)(C)–(D). 19 42 U.S.C. 1983. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 59917 complies with the First Amendment, and the Department cannot force any religiously affiliated school to compromise the free exercise of its religion. Indeed, these final regulations help protect the right to free exercise of religion for both institutions and students. Generally, the government may not force institutions and students to choose between exercising their religion or participating in a publicly available government benefit program.20 In accordance with this principle, no religious student organization should be forced to choose between their religion and receiving the benefits, rights, and privileges that other student organizations receive from a public institution. Religious student organizations should be able to enjoy the benefits, rights, and privileges afforded to other student organizations at a public institution. Similarly, institutions that participate in Federal programs under Title III and Title V of the HEA and their students should be able to freely exercise their religion in accordance with the First Amendment and RFRA.21 Laws and policies which provide public benefits in a way that is ‘‘neutral and generally applicable without regard to religion’’ do not ordinarily offend the First Amendment, but policies that ‘‘single out the religious for disfavored treatment’’ violate the Free Exercise Clause.22 The Free Exercise Clause ‘‘ ‘protect[s] religious observers against unequal treatment’ ’’ 23 and ‘‘guard[s] against the government’s imposition of ‘special disabilities on the basis of religious views or religious status.’ ’’ 24 Accordingly, public institutions cannot exclude religious student organizations from receiving neutral and generally available government benefits.25 These final regulations help ensure that religious institutions as well as their students fully retain their right to free 20 Trinity Lutheran, 137 S. Ct. at 2024. Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020); Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017). The Department also considered the Religious Freedom Restoration Act (RFRA), 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). 22 Trinity Lutheran, 137 S. Ct. at 2020. 23 Id. at 2019 (quoting Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993)). 24 Id. at 2021 (quoting Emp’t Div., Dep’t of Human Res. of Ore. v. Smith, 494 U.S. 872, 877 (1990)). 25 Id. at 2024–25. 21 Little E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 59918 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations exercise of religion with respect to the Department’s programs under Title III and V of the HEA. Finally, Title IX provides that it shall not apply to an educational institution which is controlled by a religious organization if the application of Title IX or its implementing regulations would not be consistent with the religious tenets of such organization but does not directly address how educational institutions demonstrate whether they are controlled by a religious organization.26 Nor does the statute provide necessary clarity that a recipient can itself be a religious organization that controls its own operations, curriculum, or other features. These final regulations codify existing factors that the Assistant Secretary for Civil Rights uses when evaluating a request for a religious exemption assurance from the Office for Civil Rights and also address concerns that there may be other means of establishing the requisite control. Many of these factors that the Assistant Secretary considers, however, have been included in non-binding guidance dating back more than 30 years. Accordingly, the Department provides clear terms in these final regulations to provide recipients and other stakeholders with clarity regarding what it means to be ‘‘controlled by a religious organization.’’ This clarity will create more predictability, consistency in enforcement, and confidence for educational institutions asserting the exemption. The Department recognizes that religious organizations are organized in widely different ways that reflect their respective theologies. Some educational institutions are controlled by a board of trustees that includes ecclesiastical leaders from a particular religion or religious organization who have ultimate decision-making authority for the educational institutions. Other educational institutions are effectively controlled by religious organizations that have a non-hierarchical structure, such as a congregational structure. The Department does not discriminate against educational institutions that are controlled by religious organizations with different types of structures. Indeed, the Department has long recognized exemptions for educational institutions that are controlled by religious organizations with hierarchical and non-hierarchical structures. The Department is constitutionally obligated to broadly interpret ‘‘controlled by a religious organization’’ to avoid religious discrimination among 26 20 U.S.C. 1681(a)(3). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 institutions of varying denominations.27 The Department also must take into account RFRA in promulgating its regulations and must not substantially burden a person’s exercise of religion through its regulations.28 The Department’s non-exclusive list of criteria for an institution to demonstrate that it is controlled by a religious organization reflect some methods that its Office for Civil Rights has used to evaluate and respond to a recipient’s assertion of a religious exemption under Title IX. The final regulations, thus, offer educational institutions different methods to demonstrate that they are eligible to assert an exemption to the extent application of Title IX and its implementing regulations would not be consistent with the institutions’ religious tenets or practices. Summary of the Major Provisions of this Regulatory Action: The Department promulgates these final regulations to: • Require public institutions of higher education that receive a Direct Grant or subgrant from a StateAdministered Formula grant program of the Department to comply with the First Amendment, as a material condition of the grant; • Require private institutions that receive a Direct Grant or subgrant from a State-Administered Formula Grant program of the Department to comply with their stated institutional policies on freedom of speech, including academic freedom, as a material condition of the grant; • Require that a public institution receiving a Direct Grant or subgrant from a State-Administered Formula Grant program of the Department not deny 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; • Add a non-exhaustive list of criteria that offers educational institutions different methods to demonstrate that 27 Larson v. Valente, 456 U.S. 228, 244 (1982) (‘‘The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’’); see also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 202 (2012) (Alito, J., concurring; joined by Kagan, J.) (arguing that a broad, functionalist interpretation of religious teachers for purposes of the ministerial exception is necessary to be inclusive of faiths like Islam and Jehovah’s Witnesses). 28 Little Sisters of the Poor Saints Peter and Paul Home, 140 S. Ct. 2367, 2384 (2020) (stating that a federal agency would be susceptible to claims that a rule was arbitrary and capricious if it did not consider the requirements of RFRA in formulating administrative solutions, and further, that it is not error for a federal agency to look to RFRA as a guide when framing a religious exemption). PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 they are controlled by a religious organization and, thus, eligible to claim an exemption to the application of Title IX and its implementing regulations to the extent Title IX and its implementing regulations would not be consistent with the institutions’ religious tenets or practices; and • Amend regulations governing the Developing Hispanic-Serving Institutions Program, Strengthening Institutions Program, Strengthening Historically Black Colleges and Universities Program, and Strengthening Historically Black Graduate Institutions Program by defining ‘‘school or department of divinity’’ to be more consistent with the First Amendment and other Federal laws and by removing language that prohibits use of funds for otherwise allowable activities if they merely relate to ‘‘religious worship’’ and ‘‘theological subjects’’ and replace it with language that more narrowly defines the limitations in a manner consistent with the First Amendment and other Federal laws. Costs and Benefits: The Department estimates that these final regulations would result in one-time costs of approximately $297,770 and would benefit the general public and grantees by improving the clarity of the regulations. Timing, Comments, and Changes On January 17, 2020, the Secretary published a notice of proposed rulemaking (NPRM) for these parts in the Federal Register.29 The NPRM included proposed regulations that were the same as or substantially similar to regulations that other agencies proposed about the rights and obligations of faithbased organizations with respect to grants.30 The NPRM also included proposed regulations that other agencies did not include and that were specific to the Department of Education such as regulations regarding free inquiry, Title IX of the Education Amendments Act of 1972, and various programs such as the Developing Hispanic-Serving Institutions Program, Strengthening Institutions Program, Strengthening 29 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Direct Grant Programs, State-Administered Formula Grant Programs, Developing HispanicServing Institutions Program, and Strengthening Institutions Program, 85 FR 3190 (proposed Jan. 17, 2020). 30 Compare 85 FR 3190, with 85 FR 2889 (Department of Homeland Security), 85 FR 2897 (Department of Agriculture), 85 FR 2916 (U.S. Agency for International Development), 85 FR 2921 (Department of Justice), 85 FR 2929 (Department of Labor), 85 FR 2938 (Department of Veterans Affairs), 85 FR 2974 (Department of Health and Human Services), and 85 FR 8215 (Department of Housing and Urban Development). E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations Historically Black Colleges and Universities Program, and Strengthening Historically Black Graduate Institutions Program. This Final Rule consists of the regulations that are unique to the Department of Education. The remainder of the proposed regulations in the NPRM, including proposed changes to 2 CFR 3474.15, 34 CFR 75.51, 34 CFR 75.52, 34 CFR 75.712, 34 CFR 75.713, 34 CFR 75.714, Appendix A to Part 75, Appendix B to Part 75, 34 CFR 76.52, 34 CFR 76.712, 34 CFR 76.713, and 34 CFR 76.714, as well as the addition of a severability clause in 34 CFR 3474.21, 34 CFR 75.63, and 34 CFR 76.53, will be promulgated through a subsequent final rule. Consequently, there is a new Regulation Identification Number (RIN) for this rule (1840– AD45). Where a severability clause is being added to a subpart for which regulations are included in both final rules, the severability clause is included in only one of the two regulatory packages. However, the severability clauses will apply to all applicable rules, when published, and our explanation of the reasoning for the addition of these clauses in the NPRM continues to apply. This final rule contains changes from the NRPM, which are fully explained in the Analysis of Comments and Changes section of this document. Public Comment In response to our invitation in the NPRM, we received more than 17,000 comments on the proposed regulations. We discuss substantive issues under topical headings, and by the sections of the final regulations to which they pertain. Analysis of Comments and Changes An analysis of the public comments and a discussion of changes made following publication of the NPRM follow below. 34 CFR 75.500(b)–(c) and 34 CFR 76.500(b)–(c)—Free Inquiry khammond on DSKJM1Z7X2PROD with RULES3 General Support Comments: Several commenters expressed general support for the proposed rule’s free inquiry provisions in 34 CFR 75.500 and 34 CFR 76.500. Commenters stated that students should not be shielded from ideas that might offend them because that may leave them ill-prepared to compete in the global marketplace of ideas. These commenters expressed concern that policies that insulate students from different perspectives would undermine their ability to think critically. Some commenters stated that the proposed VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 rule would produce beneficial effects because it would promote intellectually vibrant and ideologically diverse educational communities. Commenters commended the Department for recognizing that the First Amendment applies to public institutions of higher education but not to private institutions of higher education. One commenter emphasized the importance of the Department respecting the role of the courts in assessing the constitutionality of institutional policies and practices that may violate the First Amendment and asserted that the proposed rule appropriately leaves these determinations to the courts. The commenter also expressed support for the Department in leaving private institutions with the choice of whether to extend free speech protections to their students and faculty. This commenter suggested that for the Department to impose First Amendment obligations on private institutions could potentially violate their own First Amendment rights. One commenter expressed concerns regarding the rise of ‘‘free speech zone’’ policies that limit the physical areas where students may engage in demonstrations and other expressive activities, burdensome and potentially biased permitting processes, and overbroad discriminatory harassment policies that may have the effect of stifling free speech on college campuses and violating the First Amendment at public institutions. This commenter expressed some optimism that the proposed rule would alter institutions’ risk-benefit analysis when setting and defending their policies and actions, which may result in a significant decrease in restrictive speech codes. Another commenter specifically supported the inclusion of language clarifying that private institutions are free to honor their institutional policies and stated missions, specifically religious missions, particularly as they relate to freedom of speech and academic freedom. They stated that recognizing the autonomy of private institutions in this way respects the freedom that allows for an array of rich, diverse educational options. Discussion: The Department appreciates the general support from commenters for the free inquiry provisions contained in § 75.500(b) and (c), which apply to Direct Grant Programs, and § 76.500(b) and (c), which apply to State-Administered Formula Grant Programs. The Department acknowledges the beneficial effects of requiring public institutions to comply with the First Amendment to the U.S. Constitution as a material PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 59919 condition for receiving grants from the Department and of requiring private institutions to comply with their own stated institutional policies regarding freedom of speech, including academic freedom, as a material condition for receiving grants from the Department. The beneficial effects may include encouraging both public and private institutions to foster environments that promote open, intellectually engaging, and diverse debate. Free inquiry is an essential feature of our Nation’s democracy, and it promotes learning, scientific discovery, and economic prosperity. Indeed, the proposed regulations are intended to promote the First Amendment’s guarantees of free expression and academic freedom, as the courts have construed them; to align with Federal statutes to protect free expression in schools; and to protect free speech on campuses nationwide. As one commenter observed, reinforcing intellectual diversity and freedom of speech on college campuses may be especially necessary, given the speechrestrictive policies and actions some institutions have taken in recent years.31 Furthermore, we agree with commenters who noted it is appropriate for the Department to rely on the judiciary as the primary arbiter of alleged violations of First Amendment freedoms concerning public institutions and alleged violations of free speech protections in stated institutional policies of private institutions. The courts have cultivated a well-developed and intricate body of relevant case law 31 See In re Awad v. Fordham Univ., 2019 N.Y. Slip Op. 51418(U) (N.Y. Sup. Ct. Jul. 29, 2019) (holding private university’s refusal to recognize a chapter of Students for Justice in Palestine was contrary to the university’s mission statement guaranteeing freedom of inquiry); McAdams v. Marquette Univ., 914 NW2d 708, 737 (Wis. 2018) (holding private university breached its contract with a professor over a personal blog post because, by virtue of its adoption of the 1940 American Association of University Professors (AAUP) Statement of Principles on Academic Freedom, the post was ‘‘a contractually-disqualified basis for discipline’’); Young America’s Found. v. Napolitano, Case No. 3:17–cv–02255 (N.D. Cal. Nov. 10, 2017) (Amended Complaint); id. (Doc. No. 44) (Statement of Interest by the U.S. Department of Justice, stating that the University of California at Berkeley policies violated the First Amendment); Shaw v. Burke, Case No. 2:17–cv–02386 (C.D. Cal. Mar. 28, 2017) (Complaint); id. (Doc. No. 39) (Statement of Interest by the U.S. Department of Justice, stating that Pierce Community College’s policies violated the First Amendment); see also Community College Agrees to Resolve Free Speech Lawsuit, Associated Press (Jan. 23, 2018, 11:43 a.m.), https://www.detroitnews.com/story/news/ local/michigan/2018/01/23/constitution-arrestbattle-creek-community-college/109735506/; Tal Kopan, Student stopped from handing out Constitutions on Constitution Day sues, Politico: Under the Radar (Oct. 10, 2013, 2:47 p.m.), https:// www.politico.com/blogs/under-the-radar/2013/10/ student-stopped-from-handing-out-constitutionson-constitution-day-sues-174792. E:\FR\FM\23SER3.SGM 23SER3 59920 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 and may serve as the primary decisionmaking body with respect to free speech matters under the final rule. As noted by commenters, the final regulations also accurately recognize that the First Amendment applies to public institutions and not private institutions, and that private institutions may choose stated institutional policies regarding freedom of speech that reflect their values. As explained later in this preamble, only public institutions that are legally required to abide by the First Amendment must do so as a material condition of a grant. Changes: None. General Litigation Concerns Comments: Many commenters expressed concern that the proposed rule would encourage excessive and frivolous litigation that may have harmful effects on institutions of higher education and students. One commenter noted that litigation may not be the ideal way to resolve free speech issues and suggested that other forms of dispute resolution in the educational context may be more immediate and effective. Commenters argued that the proposed rule would result in an increasing number and frequency of speech-related litigation against both public and private institutions, and that this would only increase college and university costs for students. Institutions would have to devote more resources to lawyers and litigation personnel instead of on core educational functions of teaching, research, and service, which would ultimately harm students. One commenter asserted that by tying Federal grant money to the outcome of speech-related disputes, the proposed rule will incentivize plaintiffs’ attorneys to add frivolous free speech claims to every lawsuit to pressure institutions to settle. This commenter reasoned that the proposed rule would undermine the Department’s free speech goals by discouraging responsive and immediate resolution of free speech claims because institutions would have an incentive to appeal adverse court judgments instead of reaching a posttrial and pre-appeal resolution with plaintiffs. This commenter also suggested that by exposing institutions to the risk of being deemed in violation of a material condition of their grant, the proposed rule would add more pressure on institutions to avoid final adverse judgments by either settling before trial or by appealing the judgment. The commenter expressed concern that the proposed rule may perversely encourage private institutions to eliminate or otherwise limit their stated institutional policies regarding free speech to make it VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 easier to achieve compliance and reduce the risk of potentially losing Federal funding, and stated that this would have the effect of undermining the Department’s goal of protecting free speech. One commenter argued that plaintiffs’ attorneys could effectively threaten public institutions with potential loss of Federal funding if they do not agree to their demands, which may undermine the constitutional State sovereign immunity doctrine that is designed to protect States. Another commenter suggested that by raising the stakes of free speech litigation for institutions, the final regulations may have the unintended effect of pressuring courts not to find such violations. To avoid this potential problem, the commenter suggested an alternative framework where the Department would codify wellestablished First Amendment standards as set forth by the Supreme Court into the final regulations instead of tying the analysis to the outcome of litigation. This commenter argued that adopting this approach through a formal noticeand-comment regulation would have the added benefit of depoliticizing the enforcement of these rights without the possibility of adverse effects on litigation. Discussion: It is not the intent of the Department to subject public and private institutions to excessive and frivolous litigation, unfairly pressure institutions to change their litigation strategies to avoid unfavorable court judgments, discourage institutions from adopting alternative dispute resolution processes, discourage private institutions from adopting stated institutional policies regarding free speech, increase the costs of higher education and exacerbate affordability issues, distract institutions from their core educational functions, or to otherwise harm students. The Department disagrees that the proposed or final regulations encourage frivolous litigation. Institutions are not required to report any lawsuit against a public institution alleging a violation of First Amendment rights or any lawsuit against a private institution alleging a violation of stated institutional policies regarding freedom of speech, including academic freedom. Additionally, frivolous litigation does not result in a final, non-default judgment against the institution, and an institution’s grant from the Department may only be in jeopardy under these final regulations if there is a final, non-default judgment against the institution or an employee acting on behalf of the institution. These final regulations clearly state in §§ 75.500(b)(1) and 76.500(b)(1): PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 ‘‘Absent such a final, non-default judgment, the Department will deem the public institution to be in compliance with the First Amendment.’’ Similarly, these final regulations clearly state in §§ 75.500(c)(1) and 76.500(c)(1): ‘‘Absent such a final, non-default judgment, the Department will deem the private institution to be in compliance with its stated institutional policies.’’ Rather than expose institutions to liability from frivolous litigation, the Department anticipates that State and Federal courts will continue to recognize and dismiss any frivolous claims and adjudicate meritorious claims to appropriately vindicate the free speech rights of students, faculty, administrators, and other stakeholders. Nothing in the final regulations prohibits institutions from adopting alternative dispute resolution processes to resolve claims. We acknowledge that some grantees may, in the event that they face a lawsuit alleging violations of the First Amendment or institutional policies regarding freedom of speech, shift their litigation strategies to avoid a final, non-default judgment by a Federal or State court against them. To the extent that they do so, such actions could result in additional costs to grantees that they would not incur in the absence of the rule. However, institutions may shift litigation strategies for other reasons, such as to conserve resources through settlement rather than seeking to prevail in court, or for public relations and reputational purposes. Such violations of the First Amendment or stated institutional policies ultimately result in harm to students with respect to the functions of teaching, research, and service because they will not be exposed to the marketplace of ideas that is essential to learning and education. With respect to any potential costs for failing to comply with the First Amendment or stated institutional policies, the Department does not terminate an institution’s grant as a first resort. The Department has not historically suspended or terminated a Federal award or debarred a grantee as the first measure in addressing a violation and instead first attempts to secure voluntary compliance from the grantee. Indeed, the Department’s regulations provide that the Department may suspend or terminate a Federal award or debar a grantee, if there is a continued lack of compliance and if imposing additional, specific conditions is not successful.32 We do not believe it 32 See 34 CFR 75.901 (referencing 2 CFR 200.338); 2 CFR 200.338 (stating Federal awarding agency may suspend or terminate an award if E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 is likely that such violations, if they do occur, would result in a substantial number of grants being terminated unless the institution refuses after a final, non-default judgment to voluntarily comply with the First Amendment or its own stated institutional policies regarding freedom of speech, including academic freedom, or any special conditions that the Department may impose to achieve such compliance. Accordingly, we believe any effect on the litigation strategy of grantees is difficult to predict and would be contingent on the unique facts and circumstances of each case. The Department also wishes to emphasize that courts repeatedly have been called upon to vindicate the free speech rights of students, faculty, and other stakeholders on college campuses. The Department believes that State and Federal courts are appropriate adjudicators of free speech violations under the final rule, and we believe they adjudicate such matters fairly and dispassionately. The Department is the arbiter of the proper penalty, if any, with respect to a public institution that violates the First Amendment or a private institution that violates its own stated institutional policies regarding freedom of speech, including academic freedom. We note that one commenter who raised the issue of State sovereign immunity did not appear to explain exactly how that doctrine would be implicated by potentially withholding grant funds from public institutions for violating First Amendment rights, as determined in a final court judgment issued by a State or Federal court. States are subject to the First Amendment through the Fourteenth Amendment,33 and Congress may abrogate State sovereign immunity for violations of the First Amendment through legislation under section 5 of the Fourteenth Amendment. The Department’s final regulations recognize that Congress provided a right of action in 42 U.S.C. 1983 for violations of the First Amendment by those acting in an official government capacity, whether on campuses or elsewhere.34 These final regulations do not in any way abrogate noncompliance cannot be remedied by imposing additional conditions); 34 CFR 76.401. 33 De Jonge v. Oregon, 299 U.S. 353, 364 (1937) (‘‘Freedom of speech and of the press are fundamental rights which are safeguarded by the due process clause of the Fourteenth Amendment of the Federal Constitution. . . . The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.’’); Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940); Near v. Minnesota, 283 U.S. 697, 707 (1931). 34 See, e.g., Edelman v. Jordan, 415 U.S. 651 (1974); Ex parte Young, 209 U.S. 123 (1908). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 sovereign immunity and instead recognize that employees acting on behalf of a public institution are prone to be sued under 42 U.S.C. 1983, if they violate the First Amendment. The Department agrees with the general assertion made by one commenter that the formal notice-andcomment rulemaking process may have the benefit of de-politicizing regulatory enforcement. We, however, respectfully disagree with the propositions that First Amendment case law should be codified in the final regulations and that the Department should have responsibility for adjudicating violations. The reality is that First Amendment law is subject to change over time. We considered the possibility that the Department itself should adjudicate claims alleging that a public institution violated the First Amendment or alleging that a private institution violated its stated institutional policies regarding freedom of speech, and the Department ultimately decided against this alternative as both State and Federal courts have a well-developed body of case law concerning First Amendment freedoms as well as breach of contract cases or other claims that may be brought with respect to stated institutional policies. Changes: None. Potential False Claims Act (FCA) Liability Comments: Some commenters stated that the proposed rule would result in a flood of frivolous FCA claims against private institutions under 31 U.S.C. 3729, et seq. Commenters were concerned that inaccurate certifications of compliance submitted to the Secretary by private institutions may give rise to FCA liability. One commenter noted that FCA actions may result in treble damages plus sizable penalties, which could create a significant incentive for private individuals or organizations to file qui tam cases. Commenters asserted that frivolous FCA litigation would impose substantial costs and disruption on private institutions and result in less, not more, protection of free inquiry and expression. One commenter argued that the preamble wrongly suggested that the Department will treat final judgments of non-compliance with institutional policies on free inquiry and expression as per se FCA violations. This commenter suggested such legal reasoning is flawed because the FCA is a standalone statute with different elements that plaintiffs must satisfy by a preponderance of the evidence; these statutory requirements such as the PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 59921 defendant ‘‘knowingly’’ submitting a false or fraudulent claim for payment or making false statements material to a false or fraudulent claim, apply regardless of a separate court judgment finding non-compliance. The commenter also stated that the proposed rule purportedly linking FCA liability to private institutional policies on free inquiry and expression would create an uneven playing field because FCA liability is generally tied to fairly uniform regulations, statutes, and contractual provisions. And the commenter asserted that the proposed rule failed to provide guidance on what type of conduct would be imputed to a private institution. The commenter cited Supreme Court precedent for the proposition that the government merely claiming a condition is material, as the Department purportedly did in the proposed rule, does not by itself satisfy the materiality requirement under the FCA. Because of these concerns, the commenter recommended that the Department remove language from the preamble that would require private institutions to certify to the Secretary their compliance with institutional policies on free speech as a material condition of an award. Requiring such certification may increase potential FCA exposure, result in a flood of baseless qui tam cases, and impose a substantial burden on private institutions. The commenter stated that if the Department opts to retain the certification requirement then it should explicitly clarify that the FCA is an independent statute with standalone requirements that must be proven by a preponderance of the evidence for a court to find a violation. Discussion: The Department wishes to clarify that, and as one commenter correctly observed, the FCA is a separate statute with distinct elements that must be established to prove liability. Indeed, the Department never stated that a private institution’s failure to comply with its own stated institutional policies is a per se violation of the FCA. Rather, and as the Department clearly noted in the preamble of its NPRM, the Department considers the condition that private institutions comply with their stated institutional policies regarding freedom of speech to be a material condition of the Department’s grant. Similarly, the Department considers the condition that public institutions comply with the First Amendment to the U.S. Constitution to be a material condition of the Department’s grant. The Department has revised §§ 75.500(b)–(c) and 76.500(b)–(c) to expressly state that such conditions are material conditions E:\FR\FM\23SER3.SGM 23SER3 59922 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 of the Department’s grant. The Department correctly noted in its NPRM and maintains its position that if private institutions fail to comply with their own stated institutional policies regarding freedom of speech, including academic freedom, then such noncompliance may satisfy the materiality requirement for FCA liability.35 The Department also noted in its NPRM that there are no cases directly on point under the False Claims Act because the Department and other Federal agencies have not previously required compliance with stated institutional policies on freedom of speech, including academic freedom, as a material condition of a grant.36 The Department clearly states that these conditions are material conditions in this final rule to place institutions on adequate notice of the Department’s position. However, there are other elements that must be proven to establish FCA liability. A court, and not the Department, will ultimately be the arbiter of liability under the FCA. The Department is not requiring a private institution to adopt any particular policy regarding freedom of speech, including academic freedom, and private institutions should comply with their stated institutional policies. Private institutions currently may face liability if they do not adhere to their own stated institutional policies.37 Potential liability under the FCA is another strong incentive for private institutions to comply with their own stated institutional policies, and the gravity of any potential consequence under the FCA serves as an adequate deterrent to guard against institutions making empty promises to its students and faculty. Private institutions should accurately represent their stated institutional policies regarding freedom of speech and adhere to such policies. Freedom of speech, including academic freedom, is of the utmost importance for education and learning, and a private 35 See, e.g., Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 2002–04 (2016). 36 85 FR 3213 n.137. 37 See Doe v. Univ. of the Sciences, No. 19–2966 (3d Cir. May 29, 2020) (holding student sufficiently stated a breach of contract claim that the private institution failed to provide procedural fairness as promised in its policy); McAdams, 914 N.W.2d at 737 (holding private university breached its contract with a professor over a personal blog post because, by virtue of its adoption of the 1940 AAUP Statement of Principles on Academic Freedom, the post was ‘‘a contractually-disqualified basis for discipline’’). The Department also noted in its NPRM that ‘‘public and private institutions also may be held accountable to the Department for any substantial misrepresentation under the Department’s borrower defense to repayment regulations. 34 CFR 668.71.’’ 85 FR 3213 n.137. VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 institution’s stated institutional policies reflect the values of that institution. Students may select institutions based on values reflected in stated institutional policies, and students pay tuition and other fees in anticipation that the institution will comply with its stated institutional policies. We do not wish to eliminate language that would require private institutions to comply with their stated institutional policies as a material condition of a grant and explain the Department’s authority to issue such regulations in the ‘‘Executive Orders and Other Requirements’’ section of this preamble. Freedom of speech, including academic freedom, is an integral part of learning and education. Expressly requiring private institutions to comply with their stated institutional policies on freedom of speech, including academic freedom, as a material condition of the Department’s grant reinforces the importance of compliance and reminds private institutions of the promises they chose to make to their students, faculty, and other stakeholders. Changes: The Department has revised these final regulations to expressly state in §§ 75.500(b)–(c) and 76.500(b)–(c) that complying with the First Amendment is a material condition of the Department’s grant for public institutions and that complying with stated institutional policies regarding freedom of speech, including academic freedom, is a material condition of the Department’s grant for private institutions. The Department made a technical correction to § 76.500(b)(2) to state ‘‘State or subgrantee’’ instead of ‘‘grantee’’ to align with § 76.500(b)(1). The Department also made a technical correction to § 76.500(c)(2) to state ‘‘State or subgrantee’’ instead of ‘‘grantee’’ to align with § 76.500(c)(1). These technical corrections also align § 76.500(b)–(c) with the remainder of the regulations in Part 76 of Title 34 of the Code of Federal Regulations, as the regulations in that part refer to States or subgrantees. Unequal Treatment Between Institutions Comments: A handful of commenters raised concerns that the proposed rule would result in unequal treatment of public and private institutions. One commenter asserted that to hold public institutions to the First Amendment while only holding private institutions to their own stated institutional policies is unfair and may raise constitutional concerns. This commenter suggested that application of the proposed rule could create an illogical scenario where a public institution would lose Federal funding for denying recognition to a PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 student organization that promotes hate speech prohibited by the public institution’s policies, but a private institution in the same situation would not. Commenters also emphasized that tying Federal funding for public institutions to First Amendment compliance and funding for private institutions to compliance with stated institutional policies could result in unfair treatment because different courts and jurisdictions have different jurisprudence. For example, the Department would create an unequal playing field where an institution could lose funding for engaging in the same underlying misconduct as another institution, but the latter did not lose funding because it was in a different jurisdiction. Commenters noted that the First Amendment is a particularly complex area of law, and cases may be decided by sharply divided courts. One commenter suggested it may be reasonable for public institutions to rely on dissenting First Amendment court opinions. This commenter argued that the Department is incorrectly assuming that First Amendment case law is obvious, that public institutions should anticipate potential developments, and that this unfairness is compounded by the fact that it can take years for appellate courts to resolve conflicting First Amendment jurisprudence. One commenter asserted that the proposed rule would create an uneven playing field between private institutions. In particular, this commenter reasoned, courts in different jurisdictions could reach different conclusions about whether private institutions violated their stated policies. And courts may also differ on the question of whether institutional policies are legally binding contracts such that violations may or may not give rise to legal remedies. The commenter expressed concern that this potential inconsistency could result in some private institutions losing Federal grant funding but not other private institutions even where the underlying misconduct at issue is fundamentally the same. Discussion: The Department wishes to emphasize that, as a matter of law, public institutions are subject to the First Amendment, but private institutions are not. Public institutions that are legally required to abide by the First Amendment cannot as a matter of law promulgate policies that are in violation of the First Amendment. We also note that the commenter who suggested that holding public institutions to their First Amendment obligations while holding private E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations institutions to their stated institutional policies may raise constitutional concerns did not provide an explanation as to how constitutional concerns would be implicated. Nothing in this final rule requires private institutions to adopt a particular stated institutional policy regarding freedom of speech, including academic freedom, or to adopt a stated institutional policy regarding free speech at all. As such, it may be possible depending on the unique facts and circumstances of a given case that public institutions and private institutions are treated differently under the final rule even where the alleged violation at issue is the same. Nothing prohibits the Department from treating public institutions differently than private institutions in this regard. Indeed, the Department’s policy position aligns with the different treatment between public and private institutions reflected in the law; the law subjects public institutions but not private institutions to the First Amendment through the Fourteenth Amendment, while private institutions are legally subject to their own stated institutional policies. The Department agrees with commenters who noted that the First Amendment may be a particularly complex area of law. It is precisely for this reason, among others, that this regulation defers to courts as the adjudicators of free speech claims against public and private institutions. The Department believes our judicial system has the requisite expertise and impartiality to render such important decisions. We also acknowledge the reality raised by several commenters that different jurisdictions may have different interpretations of the First Amendment and different interpretations of private institutions’ stated institutional policies. Accordingly, it is possible that courts may reach different conclusions with respect to institutions’ free speech compliance even where the underlying alleged misconduct is fundamentally the same. Institutions, however, will be most familiar with the First Amendment jurisprudence as well as other case law in the Federal and State courts where they may be sued. Thus, it is fair to hold institutions accountable to the laws that already apply to them. The Department also wishes to remind commenters that nothing in the final rule would preclude the right of institutions to appeal adverse court judgments. This may be especially warranted and in the institution’s best interests where, for example, the matter involves an especially complex area of First VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 Amendment law or where there is a split among courts in the jurisdiction over how to interpret private institutions’ stated institutional policies. Under the final rule, the Department cannot find an institution in violation unless and until a State or Federal court of law has rendered a final, non-default judgment against the institution. The final regulations in §§ 75.500(b)(1), (c)(1) and 76.500(b)(1), (c)(1) clearly state: ‘‘A final judgment is a judgment that the . . . institution chooses not to appeal or that is not subject to further appeal.’’ Changes: None. The Department’s Approach Is Unnecessarily Punitive Comments: Some commenters contended that conditioning Federal funding on compliance with the First Amendment and stated institutional policies is too extreme a punishment. Commenters expressed concern that the proposed rule is too broad because it covers not only final non-default court judgments against public institutions or private institutions but also against ‘‘any of its employees acting in their official capacity’’ for public institutions or ‘‘employees acting on behalf of the private institution.’’ Commenters asserted that this language could have the effect of potentially threatening institutional funding based on the conduct of a single rogue or unthinking employee, even where the institution terminated or otherwise disciplined the employee whose alleged misconduct resulted in an adverse court judgment. One commenter argued that because of this potential unfairness the Department should remove the phrase ‘‘or an employee of the private institution, acting on behalf of the private institution’’ from the final rule. Another commenter raised the example of millions of dollars of critical Federal funding being withheld from an institution because of a single employee’s error or good-faith misinterpretation of institutional policy. This commenter emphasized the reality that an institution is comprised of many different individuals, including administrators, faculty, and employees, who may have different interpretations of the institution’s values and principles, and that the mens rea requirement for institutional culpability under the proposed rule is far too low. The commenter reasoned that organizations cannot always prevent rogue employees from violating established policies and procedures. Another commenter believed it is unfair and illogical to suspend, terminate, or disbar public institutions PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 59923 from Federal research grants where, for example, the grants are wholly unrelated to First Amendment matters. The commenter expressed concern that students, researchers, and society as a whole may suffer if research and campus programs are ended because of First Amendment litigation unrelated to that program. For example, the commenter noted, a final judgment in a close First Amendment case arising from an unrelated area could lead to the termination of a TRIO grant designed to help first-generation students graduate from college. A few commenters expressed general concern that the proposed rule leaves the Department with too much latitude in determining how to punish institutions for noncompliance, which could include disbarment. One commenter suggested that the Department could reduce the risk of public backlash by ensuring the penalty for a violation is proportional to the offense, such as by setting the penalty on a sliding scale dependent on the number of full-time students enrolled at the institution. Discussion: The Department acknowledges the general concerns raised by commenters that conditioning grants on compliance with the First Amendment for public institutions and on compliance with stated institutional policies for private institutions may be unfair, excessively punitive, and harmful to society in some circumstances, and the more specific concerns raised by commenters regarding private institutional liability deriving from employee misconduct. With respect to concerns regarding holding institutions accountable for their employees’ misconduct, the Department wishes to emphasize that, under the final regulations, State and Federal courts, and not the Department, will have primary responsibility for determining whether an employee acting in the employee’s official capacity violated the First Amendment or whether an employee acting on behalf of a private institution violated its stated institutional policies. The reality is that institutions act through the people who work for them, and the final regulations make clear that institutions will only be held accountable for the actions taken by their employees if the employee was acting on behalf of the private institution. We therefore believe it is important and necessary to retain language in the final rule that would reflect that reality. These final regulations implicate employees that are acting on behalf of the private institution, and the private institution E:\FR\FM\23SER3.SGM 23SER3 59924 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 always may argue that such an employee was not acting on their behalf in any litigation. Similarly, these regulations implicate employees that are acting in their official capacity for the public institution, and public institutions always may argue that such an employee was acting in the employee’s personal or individual capacity and not in an official capacity in the litigation. Indeed, lawsuits under 42 U.S.C. 1983 must be against an employee and cannot be against a public institution because public institutions, which are state agencies, have immunity under the Eleventh Amendment.38 Officials at public institutions may be sued in their official capacity for injunctive relief and not monetary relief,39 and may be sued in their personal or individual capacity for monetary relief.40 These regulations provide that public institutions will only be held to account for final judgments against the public institution or against an employee acting in the employee’s official and not personal or individual capacity. Courts will consider and determine whether an employee was acting in the employee’s official capacity or personal or individual capacity in determining whether a cause of action was properly stated under 42 U.S.C. 1983 and what type of relief is available. With respect to private institutions, factors courts may consider in tort or contract litigation could include whether the violations carried out by the institution’s employees were intentional or merely a mistake made in good-faith, whether there was a pattern of misconduct or an isolated incident, whether any breach constitutes a material breach, or whether the institution took prompt and effective remedial action to address the misconduct. The courts’ analysis in any final, non-default judgment, thus, will aid the Department in determining whether and how to remedy a violation of the First Amendment with respect to public institutions and a violation of stated institutional policies regarding freedom of speech, including academic freedom, with respect to private institutions. The Department also believes that our judicial system has the 38 Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65–66 (1989); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97–99 (1984); Ex Parte Young, 209 U.S. 123, 149 (1908); Collin v. Rector & Bd. of Visitors of Univ. of Va., 873 F. Supp. 1008, 1013 (W.D. Va. 1995). 39 Will, 491 U.S. at 70–71 & n.10; Cobb v. The Rector and Visitors of the Univ. of Va., 69 F. Supp. 2d 815, 823–24 (W.D. Va. 1999). 40 Kentucky v. Graham, 473 U.S. 159, 167–68 (1985); Ridpath v. Bd. of Governors of Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 requisite expertise and impartiality to render sound judgments that consider all the relevant facts and circumstances of a given case. We also wish to emphasize that an adverse court judgment against a public or private institution does not necessarily mean that the Department will implement a permanent or otherwise severe remedial action against the institution. As the proposed rule made clear, the Department has a broad range of remedial actions it may consider in the event a State or Federal court renders an adverse judgment against a public or private institution, and the remedies will be commensurate with the egregiousness of the violation. For example, the Department may impose special conditions aimed at remedying noncompliance, temporarily withhold cash payments pending correction of the institution’s deficiency, suspend or otherwise terminate a Federal award, or potentially disbar the institution, as described in Subpart G of Part 75 and Subpart I of Part 76 of Title 34 of the Code of Federal Regulations.41 It is certainly not the intent of the Department to impede important and beneficial research activities undertaken by public institutions. However, we disagree with the proposition that the First Amendment is not implicated in research grants. Ensuring that public institutions respect the First Amendment, which includes academic freedom, is essential to ensuring the integrity of academic research and the fulfillment of public institutions’ educational mission. The First Amendment, which includes academic freedom, may prohibit a public institution from preventing a professor from conducting research on a particular topic or subject matter. As explained in more detail in the ‘‘Purpose of this Regulatory Action’’ section, denying free inquiry is inherently harmful at any institution of higher education because students are denied the opportunity to learn and faculty members are denied the opportunity to freely engage in research and rigorous academic discourse. Securing First Amendment rights for students and faculty is fundamental to education at public institutions. Moreover, these potential remedial actions are optional in nature. The Department is not legally required to implement any such remedial action; rather, the final rule merely clarifies that we have the legal authority to do so. Depending on the unique facts and 41 34 CFR 75.901 (cross-referencing 2 CFR 200.338); 34 CFR 76.901; 2 CFR 180.800. PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 circumstances of a given case, it is possible that the Department would conclude that no remedial action following a final, non-default adverse court judgment against the institution is warranted. Furthermore, we respectfully disagree with one commenter’s assertion that the proposed rule leaves the Department with excessive discretion in determining an appropriate remedial action. The NPRM lists several concrete factors that Department officials may consider, such as the actual or potential harm or impact that results or may result from the institution’s wrongdoing, the frequency of incidents and/or duration of the wrongdoing, whether there is a pattern or prior history of wrongdoing or whether it was more isolated in nature, the relative positions within the institution of the individuals involved in the wrongdoing, or whether the institution’s principals and other supervisory officials tolerated the misconduct.42 The list of factors debarring officials may consider is nonexhaustive and represents general factors relevant for officials to consider in tailoring potential remedial actions to the severity of an institution’s misconduct.43 The reality is that determining an appropriate remedial action for institutional misconduct is a highly fact-specific inquiry. The Department believes these factors provide adequate notice to institutions and other stakeholders about our decision-making process. It is certainly not the Department’s intention to excessively punish institutions or to harm broader societal interests by conditioning grants on public institutions’ compliance with the First Amendment and private institutions’ compliance with their stated institutional policies. The Department appreciates the suggestion offered by one commenter to consider penalties on a sliding scale relative to the enrollment size of the institution. Nothing precludes the Department from considering such a factor, if this factor is relevant to a determination of the appropriate remedy. The relative enrollment size of the institution, however, may not be relevant in every situation especially as section 3(c) of Executive Order 13864 defines ‘‘Federal research or education grants’’ as including ‘‘all funding provided by a covered agency directly to an institution but do not include funding associated with Federal student aid programs that cover tuition, fees, or stipends.’’ Accordingly, the Federal research or education grants at issue do 42 85 FR 3213. see also 2 CFR 180.860. 43 Id.; E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 not affect Federal student aid programs such as programs under Title IV of the HEA. Changes: None. Proposed Modifications Comments: Commenters proposed several modifications to the proposed rule. One commenter contended that requiring institutions to submit complaints, as distinct from court judgments, is unnecessary because complaints may be unsubstantiated allegations that are irrelevant. This commenter suggested that requiring submission of complaints assumes a level of institutional mens rea and culpability that may be unfair. This commenter also advised the Department to consider providing grants for security to institutions instead of conditioning Federal funding on compliance with the First Amendment or with stated institutional policies. The commenter reasoned that providing grants for security to institutions could effectively protect controversial and diverse speakers from being shut down by protesting students. According to this commenter, grants for security may be a more effective way to promote the Department’s free speech goals because it is more narrowly focused on preserving the free speech rights of students and staff, as opposed to the proposed rule’s disproportionately punitive approach. Another commenter urged the Department to avoid discouraging private institutions from adopting institutional policies on free speech by holding private institutions that promise free speech protections to the same standards that public institutions are held to under the First Amendment unless their application for Federal grants specifically explains how the private institutions’ commitments to free speech deviate from First Amendment obligations. In short, this commenter believed the Department should require private institutions to clearly explain how and why they would like to be held to a lesser standard than public institutions under the First Amendment because that may discourage private institutions from watering down their free speech protections to avoid liability. The commenter argued that the Department should clarify in the final rule that a private institution’s acceptance of Federal grant money constitutes a contract with the Department to honor commitments to free speech and academic freedom and specifically state that students and faculty, along with the Federal government, are the intended third-party beneficiaries of the VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 institution’s free speech contractual terms. This commenter reasoned such clarification would foreclose the argument in private lawsuits that an institution’s general commitments to free speech and academic freedom are actually subject to undisclosed carveouts that diverge from the principles of the First Amendment or the core tenets of academic freedom. The commenter also asserted that the Department should require private institutions to publish their certifications (and, if applicable, explain how their standards deviate from obligations imposed by the First Amendment) publicly and prominently on their websites where interested parties such as prospective students, current students, and faculty are likely to visit. According to the commenter, this certification disclosure requirement would have the benefit of enabling those interested parties to choose the school that best fits their values. Discussion: The Department appreciates the many suggested modifications to the final rule offered by commenters. We note that the final rule would not require institutions to submit complaints to the Department. Rather, institutions would have an affirmative obligation to submit only copies of any non-default, final judgment rendered against them in a State or Federal court that a public institution or an employee of the public institution, acting in his or her official capacity, violated the First Amendment or that a private institution or an employee of the private institution, acting in his or her official capacity, violated its stated institutional policy regarding freedom of speech, including academic freedom. With respect to the suggestion offered by one commenter to provide grants for security as an alternative to the final rule, we acknowledge that such funds may be effective in safeguarding fair opportunities for controversial speakers to present their ideas and for listeners to consider them. However, the Department believes that grants for security without further action will not go far enough to address the problem of the denial of free speech rights across American college campuses. Such grants for security will not prevent public institutions from violating the First Amendment or prevent private institutions from violating their own stated institutional policies regarding freedom of speech, including academic freedom. Moreover, it is not our intention to discourage private institutions from adopting stated institutional policies regarding free speech, including academic freedom. We respect private institutional PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 59925 autonomy and believe such institutions should retain flexibility to craft policies that best fit the values of their unique educational communities. Imposing an affirmative obligation on private institutions to explain how their stated institutional policies deviate from First Amendment obligations would be intrusive because private institutions are not legally required to abide by the First Amendment. The Department also believes our judicial system is wellequipped to determine whether and in what way institutions’ violations of their free speech obligations and commitments are legally actionable under the final regulations. As such, it would be improper for us to operate under the assumption that all commitments made by a private institution in connection with the Department’s grants are only contractual in nature, and other laws such as State laws ultimately will determine whether any stated institutional policies constitute a contract. Even if the Department considered these stated institutional policies to constitute a contract, the governing State law or other laws may require a different result. We also note that a private institution’s failure to adhere to its own institutional policies can be a contractual breach but it can also be a tort or more. Additionally, we do not wish to specify that only faculty and students are the intended third-party beneficiaries of a private institution’s stated institutional policies regarding freedom of speech, including academic freedom. There may be other groups of people who also are third-party beneficiaries of a private institution’s stated institutional policies regarding freedom of speech, including academic freedom, and the Department will defer to the State and Federal courts as well as the relevant case law to determine which groups of people are third-party beneficiaries of such stated institutional policies. We believe courts provide neutral, reasoned judgments, as they have long recognized contractual relationships between students and their institutions, and between employees and other stakeholders and their institutions. The Department carefully considered the potential value to students, employees, and the general public by imposing a disclosure requirement on private institutions to make publicly available their stated institutional policies regarding free speech, including academic freedom. We acknowledge that such a requirement may enable stakeholders to make informed choices and compare institutions. In addition, E:\FR\FM\23SER3.SGM 23SER3 59926 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 we note that the commenter did not suggest a similar disclosure requirement for public institutions, nor provide an explanation as to why such a requirement should not apply. However, we did not propose imposing such a burden on either public institutions or private institutions and do not wish to do so now. Requiring either public or private institutions to post all of their policies regarding the First Amendment or freedom of speech, including academic freedom, respectively, is an enormous undertaking as institutions may have various policies for faculty and students such as policies on curriculum, employee codes of conduct, chalking, posting on bulletin boards, protesting, etc., and each school or department may have their own policies on freedom of expression. To gather all such policies and publicly post them on websites is a burden that the Department does not currently wish to impose at this juncture, although such a burden may be appropriate if private institutions seek to hide or obscure their stated institutional policies in the future. The Department wishes to emphasize that nothing in the final rule would prevent private or public institutions from publicly and prominently disclosing their free speech policies, should they choose to do so. Some institutions may even be required to do so under State laws.44 Changes: None. ‘‘Academic Freedom’’ Concerns Comments: One commenter contended that the Department should remove all reference to ‘‘academic freedom’’ from the final rule. The commenter noted that neither the President’s Executive Order nor the Higher Education Act statutory provisions cited in the proposed rule explicitly referenced ‘‘academic freedom’’ or the concept of academic freedom, and argued that the Department appears to mistakenly assume that academic freedom and freedom of speech are coextensive. Academic freedom is a complex concept, and the commenter stated that the Department also failed to distinguish institutional academic freedom from individual academic freedom. For example, the commenter stated, institutions have their own academic freedom to hold their faculty accountable to certain professional standards and to require them to perform their duties with integrity. The commenter reasoned that purported violations of ‘‘academic freedom’’ are an inappropriate basis to withdraw grants. 44 See, e.g., Va. Code section 23.1–401.1(B). VerDate Sep<11>2014 21:08 Sep 22, 2020 Jkt 250001 Instead, the commenter requested that the Department substitute the actual text of the Executive Order into the final rule’s language or to otherwise make these changes through sub-regulatory guidance. Discussion: The Department respectfully disagrees with the assertion made by the commenter that all reference to ‘‘academic freedom’’ should be removed from the final regulations. Executive Order 13864 references ‘‘stated institutional policies regarding freedom of speech for private institutions,’’ 45 and academic freedom is derived from and squarely rooted in freedom of speech.46 The Supreme Court of the United States has eloquently explained why respect for freedom of speech, which includes academic freedom, is so critical in higher education: The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.47 As the Department explains in the ‘‘Background—Part 2 (Free Inquiry) section’’ of the NPRM,48 the courts have consistently viewed academic freedom as an important and distinct interest with respect to freedom of speech. Faculty, staff, and other institutional stakeholders have academic freedom interests. This concept of academic freedom is widely recognized as a core value; for example, at least one commenter cited to the well-known and highly regarded American Association of University Professors (AAUP), 1940 Statement of Principles on Academic Freedom and Tenure with 1970 Interpretive Comments (AAUP’s Statement of Principles on Academic Freedom).49 Indeed, courts have held private institutions accountable to the AAUP’s Statement of Principles on Academic Freedom to the extent such a private school has adopted this statement.50 Academic freedom is an 45 84 FR 11401. 85 FR 3196–99. 47 Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). 48 85 FR 3196–99. 49 Available at https://www.aaup.org/file/ 1940%20Statement.pdf. 50 McAdams, 914 N.W.2d at 737 (holding private university breached its contract with a professor over a personal blog post because, by virtue of its adoption of the 1940 AAUP Statement of Principles 46 See PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 indispensable aspect of the freedom of thought and belief to which individuals across educational institutions, including private ones, are entitled. It is intertwined with, and is a predicate to, freedom of speech itself. For example, academic freedom may include faculty rights to choose curriculum, coursework, and other subject matter materials, and to explore avenues of thought in and out of the classroom. Academic freedom may also encompass students’ right to pursue truth and knowledge relevant to their fields of study. The rigorous pursuit of truth and knowledge is central to the purpose of an educational institution, and the Department strongly believes that institutional violations of academic freedom rights are a legitimate basis for remedial action. As the President’s Executive Order 13864 made clear, the Department is to ‘‘take appropriate steps’’ to ‘‘ensure institutions that receive Federal research or education grants promote free inquiry.’’ 51 Simply substituting the Executive Order’s text into our final rule would not by itself accomplish the objectives set out by the President. Indeed, the Executive Order’s very language contemplates that the Department would exercise at least some discretion in determining the most appropriate means of accomplishing its goals. After careful consideration, the Department believes the approach contained in the final rule, which would entail potential remedial action by the Department only in the event of a nondefault and final adverse court judgment against an institution, would most effectively implement this Executive Order. Such an approach respects a private institution’s academic freedom because the Department does not require a private institution to adopt any particular stated institutional policy regarding freedom of speech, including academic freedom, and will respect whatever stated institutional policies, if any, that a private institution chooses to adopt. Lastly, we believe that free inquiry on our Nation’s campuses is a fundamentally important subject that deserves a serious rulemaking process. As such, a formal notice-and-comment rulemaking, as opposed to non-binding sub-regulatory guidance, is the most appropriate approach. It also reinforces the Administration’s commitment to the rule of law and robust public participation in the development of regulations that govern us. Changes: None. on Academic Freedom, the post was ‘‘a contractually-disqualified basis for discipline’’). 51 84 FR 11402. E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations Departmental Discretion Over Remedial Actions Comments: One commenter argued that the trigger for noncompliance under the proposed rule is far too low and urged the Department to establish a higher threshold. The commenter believed that a single adverse court judgment should not by itself justify a loss of Federal funding; the impact of such a penalty is disproportionate. Instead, the Department should deem an institution out of compliance only if there is a pattern of final, non-default judgments finding serious violations of the First Amendment or stated institutional policies. Alternatively, the Department could modify the trigger to only apply where the institution failed to immediately comply with an adverse final court ruling. This commenter also recommended that the Department more clearly define the circumstances under which it may terminate or suspend grant funding. The commenter expressed concern that institutions may not have adequate guidance or sufficiently clear precedent to understand when free speech violations can result in lost funding. The commenter acknowledged that the preamble listed factors that the Department may consider, including: The ‘‘actual or potential harm or impact that results or may result from the wrongdoing,’’ the ‘‘frequency of incidents and/or duration of the wrongdoing,’’ ‘‘whether there is a pattern or prior history of wrongdoing,’’ ‘‘whether the wrongdoing was pervasive within [the institution of higher education],’’ and whether the institution’s ‘‘principals tolerated the offense.’’ However, the commenter contended that the Department still has too much discretion in determining appropriate sanctions. According to the commenter, this may result in politicized judgments and unfair treatment of institutions who engage in the same underlying misconduct. The commenter asserted that the Department should more precisely define the amount of discretion it has in determining sanctions. The commenter suggested, for example, that the Department be allowed to suspend or terminate grant funding only where certain aggravating factors are present, such as a systematic pattern or practice of violations or deliberate indifference by an institution. This commenter also believed that the Department should first be required to work with a given institution to achieve compliance before imposing any sanctions. Another commenter expressed concern that the proposed rule would deem institutions in violation of a material condition of VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 their Department grant even if the institution cured or otherwise remedied the violation before the court entered an adverse ruling. This commenter urged the Department to consider whether the institution had taken steps to voluntarily cure the underlying violation as a relevant factor in determining appropriate remedies for an institution’s non-compliance. Discussion: The Department wishes to emphasize that the final rule will not compel the Secretary to take any particular remedial action with respect to a grant in the event of a final, nondefault judgment by a State or Federal court that a public institution violated the First Amendment or a private institution violated its stated institutional policies regarding freedom of speech, including academic freedom. As a matter of course, the Department attempts to secure compliance by voluntary means or by imposing special conditions before turning to more serious remedies, and the Department’s final regulations state as much.52 The final rule includes a broad range of preexisting potential remedial actions described in subpart G of Part 75 and Subpart I of Part 76 of Title 34 of the Code of Federal Regulations, including imposing special conditions, temporarily withholding cash payments pending correction of the deficiency, suspension or termination of a Federal award, and disbarment. Indeed, the Secretary would retain discretion to, for example, take remedial action where the institution has demonstrated a pattern of non-compliance or deliberate indifference, or opt not to take remedial action where the institution promptly implemented appropriate corrective measures to remedy the violation. The Department also must abide by the Administrative Procedure Act and cannot act in an arbitrary or capricious manner with respect to any institution without facing liability.53 The Department acknowledges the concerns raised by one commenter that the factors elucidated in the preamble of the NPRM that debarring officials may consider might not provide adequate guidance to institutions in some circumstances and could lead to inconsistent treatment of institutions for engaging in the same misconduct. The Department will use 52 See 34 CFR 75.901 (cross-referencing 2 CFR 200.338 (Remedies for noncompliance)); 2 CFR 200.338 (‘‘If the Federal awarding agency or passthrough entity determines that noncompliance cannot be remedied by imposing additional conditions, the Federal awarding agency or passthrough entity may take one or more of the following actions, as appropriate in circumstances. . . .’’). 53 5 U.S.C. 706(2)(A). PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 59927 the same regulatory rubric that it uses to take other remedial actions for violations of a grant condition for the conditions in §§ 75.500(b)–(c) and 76.500(b)–(c), and a violation of the First Amendment for a public institution or a violation of stated institutional policies for a private institution does not merit a completely different regulatory scheme for remedial action. All the same concerns that the commenter raises may be raised about existing grant conditions and the Department’s discretion to address them, and experience has not borne out these concerns. The Department uses the existing regulatory scheme to determine the most appropriate remedial action for egregious violations such as fraud or criminal actions such as theft, and the Department examines the unique factual circumstances of each violation before determining what, if any, remedial action is appropriate. Similarly, we believe that, as with all violations of the conditions of a particular grant, decisions regarding appropriate remedies must be made on a case-by-case basis. As a practical matter it is therefore impossible to provide comprehensive and exact guidance to institutions and stakeholders as to precisely how the Department will act in all future cases. The Department needs to retain some flexibility to determine appropriate remedial actions, if any, given the unique facts and circumstances of each case. We also wish to remind commenters that the fundamental question of whether an institution violated free speech rights in the first instance will be decided by the courts, and not the Department. This approach has the additional benefit of depoliticizing the process. Changes: None. Timeframe for Submission of Adverse Court Judgments Comments: One commenter requested that the Department extend the applicable timeframe for institutions to submit notice of a final adverse court judgment to the Department. The commenter noted that in Federal courts, parties generally have 30 days to submit an appeal on a judgment but that there are circumstances when this window should be extended. Some State courts permit longer time periods for submitting appeals. The commenter concluded that the Department should amend the final rule to require institutions to submit notice of any final, non-default court judgment no later than 30 days following the expiration of the period for filing a notice of appeal. E:\FR\FM\23SER3.SGM 23SER3 59928 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 Discussion: The Department is sympathetic to the idea that institutions should have more time to submit copies of final court judgments. However, applicable appeals periods may vary across jurisdictions, and therefore tying the window for submitting adverse court judgments to such periods may result in conflicting timelines and make it more challenging for the Department to ensure compliance. As a result, the Department is extending the applicable timeframe from the 30 days proposed in the NPRM, to 45 calendar days. As the commenter noted, most Federal courts provide at least 30 days for a party to file an appeal, and allowing an institution 45 days to provide the Department with a copy of the final, non-default judgment will help ensure that the institution has adequate time to decide whether to appeal the judgment. The Department believes that applying a uniform timeline of 45 calendar days for all institutions would serve the interests of clarity, consistency, and ease of administration. Institutions will have 45 calendar days, as opposed to 45 business days, because business days are not uniform across the country. For example, there may be regional holidays that apply for some institutions but not others. As such, the Department believes that using calendar days instead of business days is clearer, more consistent, and will make it easier to ensure compliance. Changes: We have extended the applicable timeframe for institutions to submit copies of final adverse court judgments to the Department from 30 days to 45 calendar days. Questions on ‘‘Stated Institutional Policies’’ Comments: One commenter submitted several requests for clarification regarding the phrase ‘‘stated institutional policies regarding freedom of speech, including academic freedom’’ contained in the proposed rule. In particular, the commenter noted that the Department did not clearly define what types of documents constitute ‘‘stated institutional policies.’’ For example, it is unclear to what extent a particular document must address ‘‘academic freedom’’ or ‘‘free speech’’ such that compliance with it constitutes a material condition for Federal research and education grants. The commenter also expressed uncertainty as to what makes a given document ‘‘institutional.’’ For example, it is unclear whether any department or school within an institution can have its own ‘‘institutional’’ policy or whether the policy must be institution-wide. The commenter also questioned whether the VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 proposed rule would require private institutions that do not have stated institutional policies to adopt them and, if so, whether the protections offered by their stated institutional policies must be coextensive with First Amendment rights. Lastly, the commenter requested clarity as to whether a private institution’s compliance with its stated institutional policies regarding freedom of speech and academic freedom is a material condition even where the institution states that its policies are legally unenforceable. The commenter sought to know whether the proposed rule would require such policies to be enforceable through contract or tort, or at least prohibit private institutions from explicitly framing them as legally unenforceable. Discussion: The Department appreciates the substantive requests for clarification regarding the scope of the phrase ‘‘stated institutional policies regarding freedom of speech, including academic freedom’’ in the proposed rule. We note that whether a given institutional policy is covered by the final rule will be clarified by State and Federal courts first because these courts will determine whether the stated institutional policies concern freedom of speech, which includes academic freedom. The Department will determine that a private institution has not complied with its stated institutional policies only if there is 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. We note that nothing in the final rule necessarily limits covered policies to those that are institution-wide, or requires covered policies to be presented in a particular format. For example, covered policies may include, but do not necessarily have to be presented as, circulars, bulletins, or catalogues. Stated institutional policies also may be in the form of representations made by an institution’s employees who are acting on behalf of the institution. For example, an employee acting on behalf of an institution may state that reservations are required to reserve an outdoor space for a demonstration or a protest, and these representations may constitute a stated institutional policy. And it may be possible for a covered policy to be department-specific, or to apply only to students or to employees. Further, and as stated in the preamble of the NPRM, these regulations would not compel private institutions to adopt a particular PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 stated institutional policy, or to adopt any policy at all. If a private institution chooses to adopt a stated institutional policy regarding free speech, which includes academic freedom, then nothing in the final rule would compel that institution to make its protections coextensive with the First Amendment. And the question of what effect, if any, a statement that a given institutional policy is not legally enforceable has is a matter to be decided by State and Federal courts through litigation. Changes: None. 34 CFR 75.500(d) and 34 CFR 76.500(d)—Religious Student Organizations Comments in Support A significant number of commenters advocated that universities should be diverse and inclusive spaces for all students, including religious students. These commenters also stated that religious student organizations make their best contribution to campus life when they retain their distinct religious identity and character and that the proposed regulations would protect religious student organizations’ identity and character. Most of these same commenters thanked the Department for the proposed regulations to promote the equal treatment of religious student groups 54 so they can continue to serve their campuses. The Department appreciates the comments in support of these final regulations and includes the comments in support of these final regulations based on the various topics the commenters addressed in describing the benefits of religious student organizations as well as the struggles that religious student organizations face. Comments: Pluralism and Diversity Many former participants in religious student groups expressed how religious student groups enhanced their experience at universities because they were given the opportunity to explore personal beliefs and experience and contribute to diversity on campus. One commenter shared their experience serving in their forty-first year as a campus minister at several different universities and is a member of an association of campus ministers at the university where they serve and in this capacity met and collaborated with university presidents, deans, and a variety of student service departments throughout their time in ministry. This same commenter explained how 54 The Department refers to ‘‘religious student organizations’’ interchangeably as ‘‘religious student groups.’’ E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations campus ministers mediate between university governance and student groups to contribute to campus diversity and added that religious groups strive to broaden diversity and enhance inclusivity on college campuses. One commenter recalled their experience serving in student government at their university, how allowing religious student groups to participate in campus life contributed to mutual understanding and appreciation among a diverse student body. The commenter stated that such diversity makes universities thrive. Another commenter recalled their experience as a leader of a religious student group where students benefitted from the diversity and inclusivity fostered by religious groups on campus. Students were able to explore faiths and practice their beliefs which many commenters affirmed. One commenter noted how religious groups are often excluded from conceptions of diversity on college campuses, yet religious organizations contribute to campus diversity. The commenter observed that organizations can only achieve this diversity by organizing with the integrity and conviction afforded by the proposed regulations. Several students from religious legal societies noted how they were able to fellowship with those in their faith traditions in addition to explore different belief systems in the diverse, intense environment of law school. One of these commenters noted how having a greater variety of religious student groups would have only further increased diversity to benefit the campus. One commenter observed that religious student groups provide support and opportunities for students. This commenter was able to connect with students of other faiths in this environment and suggested that religious organizations allow students to connect with the ‘‘outside world’’ beyond the university. Another commenter noted how religious student groups contribute to students’ needs from a variety of backgrounds— including non-religious students— offering students access to food, finding housing for homeless students, and supported lonely or suicidal students. One former participant of a religious student group noted how their group especially encouraged multiethnic diversity on campus and how this initiative led to religious student group leaders assisting with training of university dorm leaders on this topic. Commenters also observed how religious student organizations were VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 inclusive of the broader campus communities. A commenter recalled that all students were invited to participate in the religious organization’s discussions and service projects. The commenter clarified that while this religious group worked alongside groups with different beliefs, the commenters’ organization was necessarily led by leaders with a distinctive religious perspective. Another commenter shared that the religious organization’s religious integrity was essential to its inclusivity as the organization coordinated with other student groups to serve the campus community. Personal Edification From Religious Student Organizations Student Health and Well Being A commenter stated that a religious student group contributed to their health and life trajectory in addition to maturing their own beliefs in college. Another commenter expressed that participation in a religious student group offered social and emotional maturity throughout the commenter’s experience. Many commenters described participation in religious student groups as life-changing, transformative, or with great impact on their day-to-day life. Other commenters shared how participation in religious student groups allows for academic, social, and psychological growth. One commenter shared how numerous studies conclude that religion and spirituality predict mental health, selfesteem, and constructive social activities, and at the same time, noninvolvement is negatively associated with destructive behaviors such as drug and alcohol abuse, risk-taking, and crime. One commenter shared a story of how they were struggling with substance addiction as a freshman entering university, but participation in a religious student group helped them get clean and become healthy and involved in the university. Another commenter shared how participation in religious student groups has enabled good stress management while in school, enhanced this commenter’s holistic thinking and leadership skills, formed life-long friendships, and facilitated positive opportunities to serve the campus and community. Several commenters shared how religious student groups allow students to thrive in a rigorous environment. A commenter expressed how religious student groups brought healing and helped students through challenges posed by post-graduate studies. Another commenter added that religious student PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 59929 groups are important for students in a time of anxiety. One commenter shared how they attended a college where religious conversations were encouraged, and they participated in a small group where they talked about real life and real religion. They shared how they were so grateful to have had the opportunity to mature in that environment. They stated that they were not allowed to rest on what they thought might be true, but rather had to discover what was true. They also stated that today’s youth are the most anxious generation ever due to a lack of agreed-upon truths that provide a framework for living well, and that the freedom to explore faith in college let them hear about religious thought and the opportunity to find peace there. Community A number of supportive commenters were former or current participants in religious student groups expressing how those groups are valuable because they are spaces where community and healthy, wholesome relationships can be formed, and mentorship opportunities are available. Another commenter shared how participation in a religious student group developed a broader array of relationships across gender, ethnic, cultural, and sexuality lines than any other season of their life and it was specifically because of their involvement with a religious student group. One commenter described religious student groups as unique places in the world where people from any walk of life, social setting, socioeconomic background, faith background, sexual orientation, etc., can come together to learn with and from one another. One commenter described their religious organization as welcoming and creating an open atmosphere in which conversation could be held. Another commenter found that participation in a religious student group made them a more compassionate citizen and informed discussions about justice and faith on campus. A commenter shared that when they were a college student, the religious groups on their campus contributed the most to campus life, community service, and social justice. The commenter stated that the Black Campus Ministries group, because of their convictions, influenced the university’s President to make changes that made the university more accessible for students of color. One commenter shared how being a minority on campus was an intimidating experience, but a religious E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 59930 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations student group offered a safe space for building relationships and community. Several commenters expressed how a religious student group was integral to incorporating this commenter into the campus community and acclimating to a large student body. One commenter expressed how access to a religious student organization provided access to resources that would have been difficult to obtain without a vehicle, in addition to creating a community. Many commenters described how religious student groups unify and heal campuses. Several commenters noted how religious student groups worked to unify and support campuses after tragic on-campus events. Another commenter expressed that religious student groups provided a place for racial harmony. Another commenter stated that religious student groups preserve diversity when campuses are politically polarized, since the groups welcome students across political lines. A commenter explained how a religious student group initiated a campus-wide debate series which was beneficial to the community beyond just religious students. One commenter expressed how a religious student group allowed the commenter to form a likeminded community and face challenges posed by law school. One commenter noted how religious student groups provided sanctuary and a safe haven for individuals in law school. A commenter recalled experiences from a religious student group at law school which offered mentorship to first-year law students. Religion was able to inform these students’ legal studies, and students were able to explore their beliefs through religious student groups. Additionally, one commenter expressed that participation in a religious sports organization provided support through uniquely challenging experiences presented to student athletes. Another commenter added that learning how to respect religious beliefs made them a better global citizen. Several commenters recalled programs through their religious student groups which would reach out to and incorporate international students into the student body, and some offered mentorship opportunities. Several commenters noted that religious student groups create a place for religious students to gather when faculty did not appear welcoming or were hostile towards religious beliefs. Another commenter noted that religious student groups were silenced, hampered, and discriminated against on campus which hurt religious student groups and the greater campus community as a whole. VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 According to another commenter, the community formed by religious student groups is paramount during transitional periods in students’ lives and that some religions are centered around relationships with members of the same faith tradition. A commenter noticed how religious student groups particularly helped at-risk students. A commenter observed how religious student groups provide support to students who are adjusting to and navigating life beyond the guidance of their families. Religious student groups provide spiritual and life guidance with warmth and compassion for students who are settling into their new campus environments, according to several commenters. A commenter noted how religious student groups provide mentorship and emotional support and companionship for students struggling with their home lives or personal challenges. According to commenters, religious student groups afforded students alternative social opportunities to develop healthy relationships on campus. One commenter shared that participation in a religious student group helped them long for a vision in which the Greek system was healthier and restored to its original intent. They stated that the Greek system has a bad public image and persona, but the commenter believes at its roots was a desire to better men and women around a common set of core ideas and values. Their time with Greek InterVarsity helped them want to advance Greek life on campus that more holistically reflected these original ideas and values than living into the perceived public image of just partying. The commenter believes that those in the Greek system are grown and challenged in this stage of life in such a way that it helps prepare and equip them to serve their communities at large after graduation. Service A significant number of commenters discussed the community service that religious student groups perform, including many stories from current and former students about service projects through their religious student organizations. Many commenters shared how they were able to partner with other campus organizations or lead campus initiatives. One Christian campus organization was even given an award for forming successful partnerships with local, national, or international organizations in an effort to make a positive impact on society, according to a commenter from a public university. Religious student groups were where one commenter learned the PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 power of ‘‘us’’ as opposed to ‘‘me’’ as an individual, and how much positive impact a group with the same mission can have. One commenter expressed how religious student groups build students up to empower them to do good in their communities. One commenter stated that participation in a religious student group set a foundation for charity and civic duties as a citizen. Another commenter believed that participation in a religious student group helped them to become a more intentional, compassionate person to care for others around them. Several commenters expressed that religious student groups taught them how to care and advocate for the marginalized in society. One commenter shared about how involvement with religious student groups exposed the student to topics related to their major of study such as systemic injustices, caring for the homeless and the marginalized, and how to care for the environment. Another commenter shared how religious groups would provide services to their campuses like cleaning up after fraternity campuses and working in soup kitchens. One commenter shared how participation enhanced their hospitality skills and ability to contribute to the campus environment. One former participant in a religious student group shared how a Christian group hosted a collective drive where they could engage the entire campus community to serve called ‘‘Love Puerto Rico’’, in which they collected supplies like generators, tarps, and extension cords that were sent to Puerto Rico to assist in Hurricane Maria relief efforts. Another commenter shared that their religious student group organized activities like serving the homeless, tutoring children, raising money for cancer research, and more similar service projects because of their religious beliefs. One commenter shared how their religious student group set up welcome events during the first weeks of school so students can get to know other students and build relationships on a campus where 95 percent of students commute from around the city. A commenter shared how a religious student group taught them to care about the global issues of the world and played a key role in educating them about fighting human trafficking and partnering broadly within the university to work together to create programs to help others fight human trafficking. Soft Skills Multiple commenters shared how participation in religious student organizations can provide opportunities E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations to lead and enhance leadership and other practical skills. A commenter shared that they would not have developed as a leader if they had not joined a religious student group, since other leadership activities such as sororities were selective organizations with limited opportunities. One commenter recounted their experience with leadership in religious student groups which uniquely provided an opportunity to lead in their local community. Another commenter experienced lifelong benefits from the leadership training provided by religious student groups. Multiple commenters noted how involvement with religious student groups improved communication and organizational, in addition, to leadership skills. Another commenter noted how participation in a religious organization was an asset to the campus, as it increased their critical thinking skills, knowledge base, exposure to cultures, and provided a community. A commenter found that participation in a religious student group informed some students’ career paths. Commenters noted the improvement to their educational environment from participation in religious student groups. One commenter noted how religious groups’ participation provides a holistic education for students. One commenter recalled how participation in a legal student group throughout law school taught the commenter how to practice the law in the context of their faith, and another law student shared how participation in a religious student group created a forum in which law students could address related topics like the separation of church and state. Another commenter shared they learned to read religious texts and interpret them for themselves. One commenter added to the discussion on social benefits of religious student groups by noting how they learned to listen and value the perspectives of a diverse group of people—a skill the commenter stated was not taught inside the classroom. Multiple commenters observed how religious student groups provided forums for students to debate ideas. Another commenter described religious student groups as a safe environment to ask hard and meaningful questions. Another commenter elaborated that religious student groups were a space to explore questions of meaning and purpose and learn how to pursue things like social justice, racial reconciliation, and environmental stewardship on the commenter’s campus and in the commenter’s community. One commenter shared that, during the VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 1970s, a religious student group guided them to think about social issues like race and class. One commenter recalled how, although there were sometimes conflicts among groups, allowing student groups to have membership requirements allowed diversity that was a helpful preparatory experience for life. Another commenter added that their experience in a religious student group taught them how to respect others’ beliefs and to engage congenially with those who have different religions. One commenter shared how exploring their faith in a Christian student group allowed them to grow to be more accepting of religious differences, more aware of the failings and strengths of their own faith tradition, and more desirous of genuine dialogue between differently-believing students on campus. One university professor who teaches political science and philosophy described their courses on ‘‘church and state’’ issues, where the class would debate this very issue as it has been a current event for the past few years. The professor was regularly unable to get their students to debate from the side of public universities that wish to discriminate against faith-based groups by requiring them to adopt ‘‘university standards’’ for student leadership of their clubs. The students, whether for faith-based reasons or not, were virtually 100 percent in agreement that clubs should be free to choose their own leaders and write their own constitutions without conforming to the university’s requirements. Administrative Burden on Religious Student Organizations Several religious student group representatives and commenters expressed relief that State legislatures had passed legislation to protect the integrity of religious student groups and therefore supported these regulations to apply federally. One commenter noted that the Department’s adoption of the provision for religious student organizations would bring Federal policy in line with at least 15 States that have enacted laws to this effect.55 55 Commenter cited: 2019 Ala. Laws 396 (2019); Ariz. Rev. Stat. Ann. section 15–1863 (2019); Ark. Code Ann. section 60–60–1006 (2019); Idaho Code section 33–107D (2019); S.F. 274, 88th Gen. Ass. 1st Sess. (Iowa 2019); Kan. Stat. Ann. section 60–5311– 5313 (2019); Ky. Rev. Stat. Ann. section 164.348(2)(h) (LexisNexis 2019); La. Stat. Ann. section 17:3399.33 (2018); N.C. Gen. Stat. section 115D–20.2, 116–40.12; Ohio Rev. Code Ann. section 3345.023 (LexisNexis 2019); Okla. Stat. tit. 70, section 70–2119.1 (2014); H.B. 1087, 94th Leg. Assemb., Reg. Sess. (S.D. 2019); Tenn. Code Ann. section 49–7–156 (2017); S.B. 18, 86th Leg. (Tex. 2019); Va. Code Ann. section 23.1–400 (2013). PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 59931 Derecognition One university student shared their story of administrative interference in which a State university system refused to allow religious groups to have any faith-based qualifications for their leaders, prompting concern among religious groups that their leaders would not be required to agree with their mission or teach their faith. The commenter explained how the university’s rules forced their religious organization to choose between getting registered and risking their specific beliefs being watered down or having strong leaders who could authentically teach the faith while losing their status as a registered group for nearly one year. The group chose not to compromise their beliefs and accept a non-registered status which lost them benefits granted by the university. The group was unable to host all of its usual events since they had to pay for a space on campus in which to hold their meetings at an unsustainable cost. One commenter shared that wellintended anti-discrimination policies at both public and private universities can be used in an ‘‘indiscriminate’’ manner that nearly undermined the ability of the campus ministry in which the commenter participated. Their group was threatened with de-recognition if they had any faith criteria for their leaders. A university professor who serves on the national board of a student-focused ministry organization, shared how at their university within the last three years, student groups have been told that they cannot be recognized as a student group because ‘‘there are too many Christian groups’’ on campus or because their leadership is unable to confirm that they will comply with university non-discrimination requirements which directly contravene the religious tenets that the religious groups embrace. Although these decisions were appealed and mostly reversed, the student groups experienced weeks of delay arising from prejudice or misconceptions. The commenter shared that even when the decision was eventually reversed, it unnecessarily exacerbated polarization which discourages discussion and debate of important ideas on campuses. A college denied the application of a religious student organization because the university alleged that there were ‘‘enough of those’’ religious student organizations. This organization was denied official recognition so it could not use college facilities or be listed as a resource for students. E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 59932 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations A religious student organization at a public university’s school of law explained how their student organization, along with other religious organizations, were threatened with exclusion from campus because of their religious beliefs. The university eventually rescinded its proposed policy change that threatened these groups, but the university failed to adopt a written policy to assure religious groups that it would not someday adopt the detrimental policy. This commenter expressed how Federal regulations would help make a final decision for universities. A representative from an on-campus religious student organization shared how they were actively involved with university service projects and complied with all university requirements set by the university. Yet twice, the organizations faced de-recognition because the religious student group required students to agree with the beliefs and mission of the religious organization. The group spent a year negotiating with the university to resolve the question, and the second time, it was necessary to procure help from State legislators to pass religious protections. This commenter supported expansion of these regulations on the Federal level. One commenter recalled their involvement with a religious student group and how it was harassed by complaints and even kicked off many college campuses. The people complained that since the religious group required leaders to believe in their way of life that the religious group leaders were discriminating against other religions, so that religious groups would not be able to choose leaders who share their authentic religious beliefs. The commenter wants to see religious student groups treated equally. One commenter shared that they learned that a public university’s student government tried to derecognize several religious student groups because the groups expected their leaders to agree with their beliefs. While the issue was forgotten for some time, it resurged and distracted the student group leadership from investing in their community. A former member of a religious student group at a public university shared how the organization submitted its constitution for approval as a registered student organization, but it was rejected because the constitution suggested that student leaders had to agree with the group’s fundamental beliefs. The commenter expressed that it appeared the administration was singling out this group because the VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 purpose of the organization is religious. The university did allow the organization to register after a year of effort and forced the organization to change the wording of its constitution. A current student at a public university shared how the commenter’s university student government tried to stop religious student organizations from having faith-based criteria for their leaders. Several groups expressed concern that such a requirement would lead to singling out religious groups because other organizations could expect leaders to agree with their purposes, but religious groups could not because their purposes were religious. The administration had to override the student government and agreed that religious student groups could have religious requirements for their leaders. One commenter, whose husband served as the staff sponsor for a campus Christian fellowship student club at a public university, recalled how their religious student group was banned from campus because of a State university system regulation that forbade student clubs from imposing ideological requirements on their student leaders. After communicating with the religious student group’s parent organization, the chancellor of the university system recognized the unconstitutionality of its arbitrary requirement and allowed the club back on campus the following year. Administrative Delay A commenter from a public university’s school of law shared that it took one year for the university to recognize the commenter’s religious student group as a registered student organization; the delay was largely caused by confusion surrounding the organization’s desire to have a statement of faith requirement for their board members. The organization felt this was necessary because many of its board members’ duties outlined in the by-laws involved leading the group in prayer, worship, Bible studies, and fostering members’ spiritual growth. The administration prolonged the decision because it stated that it would have to amend the school’s organizational policies to permit faith-based student organizations to require such a statement of faith for board members. The organization was forced to navigate a bureaucratic maze to amend the university’s underlying organizational documents and risked the inability to be recognized. A student leader in a religious student group at a public university recalled how the university announced it was changing its policy so that religious PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 student organizations could not require their leaders to agree with their religious beliefs. Only through official recognition, the commenter recalled, were religious groups able to partner with the atheist club, for example, to host events like public debates. After some struggle, the campus organization collaborated with the university to pass a policy which allowed religious groups to uphold standards for their leaders. A member of a religious student organization at a law school commented that they attended an event at another local law school with students who had to change the name of their organization because of administrative hurdles. Denying Access to Resources A commenter from a public university shared how, on top of facing public criticism because of their beliefs, their religious student group faced administrative hurdles like a lengthy appeal process to get funding for an event that non-religious groups have never struggled to fund. A commenter who worked with a Catholic student group on more than 100 campuses across the U.S. shared how they have encountered resistance while bringing viewpoint diversity to college campuses. Their organizations had often been deprived from accessing campus facilities, funding, free speech, and even approval from the university based on their orthodox beliefs, even though these chapters help students to think critically and better prepare them for life. A commenter shared how their religious sorority was allowed to collectively profess its faith while some sister chapters were unable to do so. They stated that difficulties have been caused by the organization’s requirements for members to affirm basic religious beliefs, so the national organization had to eliminate the requirement that chapters achieve campus recognition. They stated that this was done to maintain the religious groups’ convictions, but the consequences included organization members being unable to acquire space reservations on campus without fees, unable to advertise, and unable to affiliate themselves with the brand name of the university, among other complications. A community member and advisor for a student organization at a public liberal arts college shared how some of the student leaders were told not to approach students on campus because of a solicitation policy which was enacted to restrict commercial speech or canvassing. The commenter stated that the university rewrote the policy based E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations on the religious organization’s activities to target the group. The religious organization sent a letter from legal counsel to get the university to correct the overbreadth of its solicitation policy. khammond on DSKJM1Z7X2PROD with RULES3 Other A legal practitioner who has represented Christian ministries that have faced pressure or exclusion from the campus community because of the group’s beliefs and the application of these beliefs to membership and leadership expressed concern about the ongoing confusion about religious organizations’ rights. A campus minister expressed support for the rule because, even though they worked at a private institution, they had seen their colleagues be discriminated against under the guise of nondiscrimination. A commenter shared that religious student ministry at a public university was an outstanding example of contributing to the campus, yet religious student groups had been discriminated against for upholding and practicing religious teachings that the group espoused. An attorney shared that they had heard many examples of student groups at the secondary, college and graduate levels who had encountered arbitrary and unfounded opposition from administrators and educators, including two cases reviewed by the U.S. Supreme Court. The commenter observed that the value of diversity has been used to disadvantage religious groups while it is applied more favorably to other groups. This commenter shared that confronting universities about discriminatory policies is expensive, confrontational and time-consuming which depletes resources that could be better used. A political science professor wrote that they served as a faculty advisor for many of these organizations and had suffered through administrative discrimination and denial of privileges on campus. Equal Treatment A commenter expressed support because students need a sanctuary where they can practice their religious beliefs, like the sanctuary that other organizations afford. The commenter worried that culture exempts religious organizations from teachings about tolerance, and that religious organizations are not being treated equally according to the U.S. Constitution. Commenters overwhelmingly stated that universities should provide services, spaces, and access to diverse student groups, including religious VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 59933 student groups, on an equal basis. Many commenters expressed that religious students must have equal rights in order for public universities to remain truly tolerant of all people and to protect diversity on campuses. A commenter shared that universities should safeguard the environment in which students are supposed to express themselves freely, especially regarding freedom of religion. The commenter clarified that separation of church and state as conceived by America’s Founding Fathers was not intended to silence religious expression. A commenter stated that if religious student groups are not being treated equally, then this is discrimination and oppositional to the U.S. Constitution’s protection of religious freedom. to care for the nation’s poor and to serve others in time of national calamity or regional crisis. A national campus ministry wrote of the tremendous loss when a religious student group is refused registered status. They stated that such a group becomes essentially a second-class group, becomes more isolated, and loses credibility with students. It also often experiences considerable (and often prohibitive) financial costs, required to pay for the use of campus facilities that are made available to registered organizations at no cost. The campus community is harmed as well, because diversity is most rich when authentic belief-based expression by both individuals and groups is allowed to flourish. Harms Suffered as a Result of Unequal Treatment Several commenters wrote that stripping students’ religious groups of their distinctiveness or kicking them off campus brings hardship and mental stress to students, making universities hostile to these students. Another commenter warned that when these religious groups are threatened by the university for their religious convictions, great stress and anxiety plague student members who then need to use their energy and resources not for studying but instead for fighting for space to exist on campus without harassment. This commenter also described how religious groups provide support and help for their members to be able to thrive as students. Another commenter added that religious student groups allow students to manage stress, while denying equal treatment to religious student groups brings hardship and mental stress. Another commenter wrote that religious student groups can develop students’ moral compasses that can decrease depression, drug use, and anxiety that are so common on campus today. A licensed psychologist who formerly participated in a religious student group wrote that these organizations offer critical stress relief through community and provide support, care, and mentorship to the college students. A commenter wrote that denying religious student groups equal treatment would disadvantage individuals of faith in their formation, expression and service with no benefit to those outside of the faith other than stunting their awareness of the diverse faith culture in which they participate. Another commenter wrote that to deprive and limit campus access is to ensure an education that will lack a capacity for compassion that has always stood ready Contribution to Diversity Many commenters expressed support for the regulations because they would increase ideological diversity which contributes to a more robust university environment. Some commenters noted the significance of this since public institutions are taxpayer-funded. A significant number of commenters, including organizations that represent various religions stated that universities should be diverse and inclusive spaces for all students and should treat religions equally. These organizations supported the regulations so that religious student groups will be treated fairly. Several commenters clarified that diversity is only achieved when all religions are respected. Some commenters added that religious student groups have a distinctive need to be protected so that organizations can operate with integrity. Many commenters shared that allowing religious student groups to fully express their convictions uniquely contributes to campus diversity. Many commenters expressed the value of diversity on campuses. One commenter stated that universities should be places where students grapple with different viewpoints, so allowing the diversity that religious student organizations bring would enhance cross-cultural and conflict conversation competencies. A commenter asserted that more diversity leads to a more balanced perspective at universities. A commenter shared that diversity and inclusion are fundamental to students’ education and development and granting equal access to these religious student groups would aid diversity and inclusion on campuses. Additionally, a commenter added that diversity and inclusion are measured by how well an institution tolerates students whose opinions and life principles the PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER3.SGM 23SER3 59934 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 institution may disagree with and how they are allowed to practice those principles. Another commenter noted that religious diversity increases tolerance. One commenter contended that an institution prevents diversity on campuses by not allowing religious student groups to practice their religion with integrity. One commenter stated that beliefs cannot be uniform among a freethinking people, so valuing safety over free expression will have a disparate impact on the nation’s intelligence. Many commenters supported the regulation to prevent discrimination against religious student groups seeking to live out their values. One commenter expressed concern over certain ideologies silencing religious, conservative ones. The commenter advocated for more diversity, fed by religious student groups’ activity, to create greater diversity of belief, experience, and opinion ultimately to create a more robust university environment for the free exchange of ideas. One commenter expressed concern over their children’s college environment where conservative students could face bullying, isolation, among other social repercussions, and emphasized that truly inclusive diversity is needed. Another commenter warned that religious student organizations should not be marginalized simply because other prominent ideologies in society disagree with them. One national women’s organization expressed concern over discrimination against religious student groups and emphasized that religious student groups should be treated equally. They supported the new rule because they stated it would bring the Department in line with the President’s Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities to protect the First Amendment rights of students of all faiths at public post-secondary institutions. Social Benefits A non-profit law firm stated that religion and the social networks and organizations surrounding it are crucial in transmitting civic norms and habits, such as belonging to a community organization, especially a health-related one, youth-serving organizations, neighborhood and civic associations, fraternal and service organizations, and even professional and labor groups. A commenter wrote these clubs bring vibrancy and diversity of belief, opinion, and experience, creating a VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 more robust university environment to engage in the free exchange of ideas. One commenter expressed the need for free speech and First Amendment protections and shared a 2010 survey of college students which found that only 36 percent agreed with the statement that ‘‘it is safe to hold unpopular views on campus.’’ This number drops to 30 percent for seniors, and only 16.7 percent of faculty agreed with the statement. The commenter elaborated that the free market of ideas sharpens students’ critical thinking skills. They stated that protecting the First Amendment will save students and universities from costly litigation. A commenter whose daughter participated in a religious student group shared that religious student groups are places where belief systems and cultures can be explored along with other intellectual pursuits. Another commenter noted how religious student groups afford students the opportunity to explore faith, examine and choose, as an adult, a path they may want to follow. An additional commenter wrote that the university experience is a key time for intellectual development and character formation, so diversity added from religious student groups is profitable to students. Many commenters underscored that students ought to be allowed to learn from a multiplicity of viewpoints to form their own convictions while forming common ground with and respect for other beliefs. They stated that all students need to be taught critical thinking and be exposed to all intellectual and religious ideas so that they can be intelligent, wise, and fair-minded individuals. Other commenters emphasized how spiritual maturity is important in an educational environment where students are pursuing their future vocations. A retired university professor supported the proposed regulations because they saw much growth in young people based on the open exchange of ideas, both in the classroom and through extra-curricular activities. The commenter advocated that the Department adopt these regulations so that religious student groups will have the ability to contribute to this exchange from their own religious identity and character. A commenter wrote how religious student groups increase belonging on campuses. Religious student groups provide students with great encouragement and a place to feel they belong—this is especially needed and true for freshman that have left home and now have 800 people in their PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 history class or 30,000 students on their campus. These religious student groups provide mentorship, leadership, and training. A different commenter stated these activities occur because of the religious organization’s unique characteristics. Many commenters shared personal testimonies of how religious student groups created community and life-long friendships, especially amid stress. Another commenter clarified that these institutions are not riddled with hazing, sexual abuse, or similar scandals as are other college organizations. A commenter noted that groups like Hillel and InterVarsity serve important constituencies well in an increasingly polarized society. Another commenter wrote that student’s religious and spiritual beliefs are a key part of their identity, and many have a strong desire to connect with other students who share their same identity, yet oftentimes religious student organizations are the most active organizations on campus, and the most welcoming to people of all (or no) spiritual background to their events and activities on campus. Many commenters unpacked the benefits of spiritual development on students and the campus as a whole. One commenter observed spiritual development is critical to ensuring a stable future for our country. A commenter explained that spiritual development contributes to students’ whole moral, conscious, and character growth. Another commenter shared how participation in a religious student group creates spiritual habits that often result in a lifetime of community service. Many commenters observed the community contributions religious student groups make through charity activities, giving, volunteerism, outreach to engage in civil services, etc. Other commenters shared the values that are promulgated by religious student groups including caring for others, community, temperance, leadership, community, justice, gratitude, prudence, and actually much more tolerance than those trying to eliminate them. Another commenter who serves as a non-profit leader who works predominantly with students of color stated that they believe the community afforded by campus religious organizations significantly aid in the social and academic flourishing of all college students and especially those from historically marginalized communities. A commenter recalled how they had seen a religious student group help homeless students find shelter and food, emotionally hurting students find truth and healing, over- E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations achieving and perfectionistic students find grace, students who lack confidence become leaders of their peers, students take risks to start groups that encourage and support other students who were hurting, and students in general become more loving, competent, and contributing individuals. khammond on DSKJM1Z7X2PROD with RULES3 Improvements to Educational Environment One commenter supported the regulations because they stated they would inherently enhance the total cause of public education, and another commenter shared how university cultures are greatly enhanced by the presence of religious organizations. More specifically, a commenter believed one of the most important functions of our universities is to expose students to diverse ideas in order to understand the world and as a means of helping them learn to think logically and rigorously about ideas. Additionally, they stated that universities should help equip students to better discern truth from falsehood, fact from fiction, and wish from reality. Furthermore, a commenter shared that a thriving institution is one that supports a student’s moral integrity, which is based upon religious beliefs and not simply academia, which would support student morale and campus well-being. Another commenter echoed the value of diversity, stating that universities are precisely a forum for exploring different and new ideas, and for deepening knowledge in areas of interest. Developing one’s own spirituality helps human beings cope better with life’s stresses, and religious groups may provide just that support to students on campus. Concerns With Government Interference or Entanglement A commenter observed that universities denying religious organizations the ability to impose moral criteria effectively bans the organization. Another commenter expressed discontent over State university administrators deciding which religious student groups are allowed or excluded. Another commenter stated that these regulations would support the constitutional rights guaranteed under the Establishment Clause—government officials never should be allowed to dictate to religious groups their leadership standards, and government officials should never be able or allowed to penalize religious groups because of their religious beliefs and speech. Commenters stated that a national standard, codified by these regulations, VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 would provide consistent protection for students’ speech and religious freedom regardless of which State a student chooses to move to in order to attend college. Another commenter expanded on the argument that universities should not be picking which groups can receive equal treatment, since public university administrators and faculty are on the public payroll. The commenter stated that they administer public funds, yet they use taxpayer money against members of the public when they (a) deny approval for a group of Christian students to meet in a building on campus, (b) revoke approval to post notices of their events on campus bulletin boards, (c) require sponsorship by a member of the faculty in order to exist on campus, or (d) exclude the group from receiving a share of the distribution of student activity fee revenues because of the group’s religious nature. Another religious student group expressed support that the proposed regulations would emphasize that no religion-based discrimination against faith-based entities will be accepted at any stage of the funding process. Many commenters expressed concern over increasing intolerance of free speech and religious viewpoints which may deviate from mainstream thought on college campuses, noting that many colleges have shown intolerance towards religious organizations by driving them off campuses. Many commenters identified Jewish, Muslim, Catholic, and Protestant organizations, in particular, as targets of religious discrimination. Several commenters posed that university officials were penalizing religious groups specifically because of their beliefs and speech, so they were dictating their leadership standards to the religious groups. A commenter argued that such penalization and dictation of leadership standards violated the Establishment Clause. A few other commenters suggested that students were physically at risk when speaking controversial viewpoints and are not always protected by campus security, so they supported these regulations to provide support and protection to these groups. Another commenter shared that among many other clubs that select leadership based on the alignment with a code of conduct or set of beliefs, people of faith, alone, have been singled out by universities and harassed on the basis of those beliefs. A commenter stated that seemingly offensive speech is not a justification for institutions of higher education which receive Federal funds to disrespect fundamental First PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 59935 Amendment rights and that the State cannot choose which morality and ideologies it allows. Another commenter added government should neither favor nor oppose religion, so public academic institutions should be handling religious issues exactly the same way as the government, in a completely neutral fashion. One non-profit organization that supports campus ministries across the United States supported nondiscrimination policies and believes that they should be used to protect against invidious discrimination. They stated that non-discrimination requirements should protect, rather than penalize, religious groups that want to retain their distinct religious character. This organization strongly supported the proposed regulations because student organizations need protection from administrative overreach by universities and colleges. According to this organization, the proposed regulations, thus, strengthen current non-discrimination policies. Another commenter expressed that for a college to kick a group off campus unless they allow leaders who contest the very principles for which the group stands, is a surefire way to destroy religious liberty on campus. The commenter stated that not only are such campus policies unfair to religious groups (and such policies have typically arisen from a desire to single out such groups), but such policies deprive people of their First Amendment rights. A commenter wrote that denying a religious organization access to a public campus may impede growth toward religion while growth away from religion continues unfettered; this creates a bias against religion and impedes students’ religious freedoms. This commenter stated that derecognition is a punitive action and derecognizing religious organizations on public college campuses is a violation of religious freedom. One commenter expressed strong concerns about anti-conservative, religious bias in America that is being manifested on U.S. campuses, including destruction of property and heckling, among other problems. Religious Integrity A significant number of commenters shared that universities do themselves and their students a disservice when a religious student group’s ability to retain their distinct religious identity and character is hindered and the group is discriminated against on the basis of religious conviction. The commenters stated that religious student groups make their best contribution to campus E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 59936 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations life when they retain their distinct religious identity and character. They contended that the proposed regulations would make that possible on every public campus. Many commenters expressed that a religious institution should be allowed the freedom to uphold the values it holds close in regard to who it hires, fires, and what activities are allowed on campus based on the particular tenets of their faith practice, corresponding with the value that America places on freedom of religion. They stated that student organizations on college and university campuses should be able to select leaders who share the organizations’ goals and mission. But they also noted that religious groups, including Jewish, Muslim, and Catholic student organizations, have been discriminated against for requiring that their leaders uphold and practice the religious teachings that the group espouses. Many commenters drew analogies regarding organizations’ right to choose leadership that reflects their values, priorities, or skills. For example, one commenter drew the analogy that a male football team would not be led by a woman, a female acapella group is not led by a man, Phi Beta Kappa is not led by someone with poor grades. Further, this commenter observed that groups like Phi Beta Kappa are not criticized for discriminating based on intelligence nor fraternities or acapella groups for excluding membership based on sex, so religious organizations should not be considered any differently. Another commenter supported these proposed regulations and noted that under Title VII of the Civil Rights Act of 1964 (‘‘Title VII’’), if a factor such as religion, sex, or national origin, etc., is reasonably necessary in the normal operation of an organization to carry out a particular job function, then that factor is bona fide occupational qualification, and the use of such a factor is not considered discriminatory. A commenter supported the proposed regulations because setting standards for the leaders of our organizations, whether religious or secular, is the best measure to protect the core values, character and mission of such organizations. This commenter stated that a scientific society would quickly lose effectiveness and credibility if it allowed its leadership to be infiltrated by those who do not believe or subscribe to the ‘‘scientific method’’ as the best course for research and scientific discovery. Another commenter noted that leaders sharing basic convictions of the religious organization allowed the commenter to VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 understand the organization and expect consistency. According to this commenter, leadership sharing these convictions allows for the organization to build upon common ground and grow. The national director of a major nonprofit and interdenominational campus ministry operating hundreds of groups at campuses across the U.S. supported the proposed regulations for reasons related to religious integrity because these proposed regulations recognize the value of association around common interests, reflect protections afforded other associative groups at universities, and affirm that an associative group can and should be led by those who fully agree with the purpose(s) of the group. A non-profit law firm elaborated that because personnel is policy, any organization dedicated to advancing a particular cause must ensure that those who lead it are actually committed to that cause. Thus, organizations dedicated to advancing a particular cause, whether the College Democrats, the College Republicans, the Christian Medical Association, Chabad on Campus, or any other group formed around a common cause or belief should be permitted to maintain membership and leadership standards that ensure the common cause is furthered. Another commenter shared that religious organizations’ values and beliefs, particularly, make them positive contributors to campus life, so the proposed regulations, which would extend equal treatment to religious student groups, would make the public campus a welcoming environment for all. A commenter wrote that, based on many conversations they had over the past few years, the ability of each group to retain that its unique religious identity can only be truly protected by regulations such as this—to once and for all end the discrimination that too often happens and lessen the fear of lawsuits if institutions try to protect groups that others want to keep off campus. Another commenter added that further legal protection is needed for religious student groups, given the polarized climate. Another commenter reflected that faith and interfaith groups have become increasingly sponsored and promoted in the workplace as a part of a larger diversity and inclusion measure. Since universities educate tomorrow’s workers, universities should mirror these trends and provide students the opportunity to explore faith during their formative years. A commenter stated that having a diversity of groups requires PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 organizations being able to elect their own leaders. This commenter also stated that the Establishment Clause is violated when government officials dictate to religious groups their leadership standards or when such officials penalize religious groups because of their religious beliefs and speech. One commenter reasoned that denying religious groups their identities makes every organization equal if it is not able to express its core values and beliefs and that having such groups increases understanding and acceptance while allowing college students to grow. One particular religious group strongly supported the regulations because they support the right of student organizations to maintain core religious beliefs as necessary for group membership and leadership. They contended that students do not lose constitutional rights simply because they step onto a college campus. Public university officials abridge the guarantees of the First Amendment when they limit students’ ability to freely assemble and gather around their most deeply held beliefs. One commenter wrote in support of the proposed rules because education is an area of significant importance in Judaism, and they believe that these proposed rules would help foster a better environment in which Jewish Americans can educate their children. They argued that the proposed regulations would also play an important role in safeguarding the rights of Jewish student organizations on public college campuses. One commenter reasoned that removing membership/leadership qualifications gives space for leaders with dangerous motives (such as someone seeking to manipulate others) to enter a leadership position, posing a risk to belief-based organizations. Clarity A significant number of commenters expressed support for the proposed regulations because they would clarify longstanding confusion over religious organizations’ role and rights on university campuses. They noted how these regulations would add clarity for both religious organizations and campus administrators by instituting clear standards. Discussion: The Department appreciates these comments in support and agrees that religious student organizations play an important role at public institutions of higher education. The Department revises §§ 75.500(d) and 76.500(d) to expressly note that the provisions, concerning religious student E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations organizations, constitute material conditions of the Department’s grants. The Department consistently characterized the provisions in §§ 75.500(d) and 76.500(d) in the NPRM as material conditions.56 The tremendous amount of support for these provisions demonstrates that these regulations are indeed material and necessary to reinforce First Amendment freedoms at public institutions. The Department has revised its other provisions in §§ 75.500(b)–(c) and 76.500(b)–(c) regarding compliance with the First Amendment for public institutions and freedom of speech, including academic freedom, for private institutions to reflect that these provisions are material conditions, consistent with the characterization of these provisions in the NPRM. The Department wishes to note that all of the provisions in §§ 75.500 and 76.500 promulgated through these final regulations are material conditions. Additionally, commenters described a myriad of ways in which public institutions may treat religious student organizations differently than other student organizations. In response to these comments, the Department revised the parenthetical in §§ 75.500(d) and 76.500(d) that includes a nonexhaustive list of examples of how a public institution may deny a religious organization a right, benefit, or privilege that is otherwise afforded to other student organizations at the public institution. As commenters raised the issue of public institutions denying religious student organizations student fee funds provided to other student organizations and as the Supreme Court of the United States decisively ruled on the distribution of student fee funds to religious student organizations in Rosenberger v. Rector & Visitors of the University of Virginia,57 the Department revises the parenthetical to include distribution of student fee funds as one way in which a public institution may treat a religious student organization differently than other student organizations. Changes: The Department revises §§ 75.500(d) and 76.500(d) to state that the provisions related to religious student organizations at public institutions constitute a material condition of the grant. The Department also revises the parentheticals in §§ 75.500(d) and 76.500(d) that include a non-exhaustive list of examples of how a public institution may deny a religious organization a right, benefit, or privilege that is otherwise afforded to 56 See, 57 515 e.g., 85 FR 3191, 3199, 3214. U.S. 819 (1995). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 other student organizations at the public institution. The Department specifically includes distribution of student fee funds in this non-exhaustive list. The Department makes a technical correction in § 75.500(d) to refer to grantees that are public institutions to align with the language in the remainder of § 75.500. The Department makes a technical correction to § 76.500(d) to refer to States or subgrantees that are public institutions to align with the language in the remainder of § 76.500(d). Comments in Opposition Separation of Church and State & Concerns Under the Establishment Clause of the First Amendment Comments: Several commenters asserted that the proposed regulation pertaining to religious student organizations violates the Establishment Clause. One commenter argued that the Establishment Clause bars the government from making accommodations for religion that impose significant burdens on third parties, such as students or nonreligious organizations. Another commenter stated that the final regulation would expand the allowable use of Federal financial assistance to support religious instruction, worship, and proselytization. The commenter noted that the First Amendment prohibits the government from directly funding religious instruction, worship, and proselytization, as the Supreme Court held in Locke v. Davey.58 Other commenters maintained that any organization that makes the choice to exclude classes of people based on religion, race, gender identity, or sexual orientation should not receive public tax dollars. One commenter who identified as a former Episcopal chaplain at a large public university stated that this commenter’s campus ministry included a student organization recognized by the university. This commenter noted, however, that there was no expectation that the university help fund the chaplain’s ministry and that the funding came entirely through the Episcopal church. This commenter further noted that other campus ministries at that university used this same approach to separation of church and state and advocated that the Department maintain such a separation. Commenters also argued that, because we live in a pluralistic society, it is inappropriate for publicly funded institutions to fund religious student organizations at all. 58 Locke PO 00000 Commenters maintained that no public funds should support religious student organizations, but rather, churches alone should fund such student groups. These commenters argued that Thomas Jefferson’s ‘‘wall of separation’’ is more important than ever in our diverse world. Commenters also stated that the Constitution demands that our children’s ability to get an education must never depend on whether they share the religious beliefs of any government-funded organization. Commenters also contended that the religious exemption violates the Establishment Clause’s prohibition on government promotion or advancement of religion. According to this commenter, in Corporation of Presiding Bishop v. Amos, the Supreme Court explained that the Title VII exemption allows ‘‘churches to advance religion,’’ which does not violate the Constitution.59 The commenter contended that the case would have been different had ‘‘the government itself . . . advanced religion through its own activities and influence.’’ 60 The commenter concluded that unlike in Amos, here the government itself is involved. Discussion: The Department disagrees with commenters who state that the regulation violates the Establishment Clause. It is a well-established principle that public institutions may provide benefits to religious student organizations without running afoul of the First Amendment. Indeed, ‘‘[i]f the Establishment Clause barred the extension of general benefits to religious groups, a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair.’’ 61 More specifically, ‘‘the guarantee of neutrality is not offended where, as here, the government follows neutral criteria and evenhanded policies to extend benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse[.]’’ 62 59 483 U.S. 327, 337 (1987). 60 Id. 61 Widmar v. Vincent, 454 U.S. 263, 274–75 (1981) (internal quotation marks and citation omitted); Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2254 (2020) (‘‘We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.’’). 62 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 820–21 (1995) (citation omitted); see also Widmar, 454 U.S. at 274 (internal quotation marks removed) (‘‘[A]n open forum in a public university does not confer any imprimatur of state approval on religious sects or practices. As the Court of Appeals quite aptly stated, such a policy would no more commit the University . . . to religious goals than it is now committed to the goals v. Davey, 540 U.S. 712 (2004). Frm 00023 Fmt 4701 Sfmt 4700 59937 E:\FR\FM\23SER3.SGM Continued 23SER3 59938 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 Not only is providing benefits to religious student organizations permitted under the Establishment Clause, but withholding benefits from religious student organizations because of their viewpoint or religious character is forbidden under the First Amendment, as the Supreme Court has repeatedly recognized in cases involving institutions of higher education.63 Moreover, §§ 75.500(d) and 76.500(d) strengthen the wall of separation between church and state by preventing public university administrators from violating the First Amendment by interfering with religious beliefs or becoming entangled with religion. The Supreme Court has found this kind of interference unconstitutional, like in the case of Widmar v. Vincent,64 in which the Court struck down a university policy excluding all religious groups from using school facilities. The Court observed that ‘‘the University would risk greater ‘entanglement’ ’’ between church and state because ‘‘the University would need to determine which words and activities fall within ‘religious worship and religious teaching.’ ’’ 65 Similarly, it is improper for universities to decide what constitutes religious qualifications, or to determine which religious qualifications are acceptable. Indeed, ‘‘[a]ccording the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause.’’ 66 The Department notes that the final rule will not impose constitutionally significant burdens on third parties. First, the rule mandates equal treatment for religious student organizations as compared to their secular counterparts; these final regulations do not favor or disfavor religious student organizations or any particular religion. Second, the U.S. Constitution does not prohibit religious student organizations from excluding students from leadership because they do not meet an organization’s religious qualifications, even though such exclusion may be potentially inconvenient or disappointing. Such exclusion under these final regulations is a permissible distinction based on religious belief or conduct. The alternative—requiring faith-based groups to forgo their of the Students for a Democratic Society, the Young Socialist Alliance, or any other group eligible to use its facilities.’’). 63 Rosenberger, 515 U.S. at 846; Healy v. James, 408 U.S. 169, 194 (1972); Widmar, 454 U.S. at 277; see also Martinez, 561 U.S. at 685. 64 Widmar, 454 U.S. at 274–75. 65 Id. at 272, n.11. 66 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 188–89 (2012). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 religious tenets when selecting leadership—violates their freedoms of speech, association, and free exercise. The First Amendment requires public institutions of higher education to refrain from infringing on this ecosystem of liberties unless a public institution adopts a true all-comers policy as explained in the ‘‘All-Comers’ Policies for Student Organizations’’ section, below. Additionally, §§ 75.500(d) and 76.500(d) support, rather than hinder, pluralism, as these regulations prevent public institutions from suppressing or discriminating against ideas in an academic setting. These final regulations ensure that institutions of higher education comply with Congress’ mandate to ‘‘facilitate the free and open exchange of ideas’’ and prevent students from being ‘‘intimidated, harassed, [or] discouraged from speaking out, or discriminated against’’ on account of their speech, ideas or expression.67 The Department thus disagrees with commenters who opined that the rule requires children to share the religious beliefs of a government-funded organization in order to obtain an education. Instead, §§ 75.500(d) and 76.500(d)—which deal exclusively with student organizations, not the school’s curriculum—increases the range of religious and ideological diversity to which students are exposed. The Department notes that existing §§ 75.532 and 76.532 strictly prohibit any State, grantee, or subgrantee from using its grant to pay for religious worship, instruction, or proselytization. These final regulations do not alter §§ 75.532 and 76.532 in any way. Assuming arguendo that the holding in Locke v. Davey requires such restrictions, the Department’s existing regulations are consistent with the restrictions that the commenter believes Locke requires. The Department’s existing regulations, thus, ensure that grants are not used in violation of the Establishment Clause. Lastly, these final regulations are not contrary to the Establishment Clause principles established in Corporation of the Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos because the government is not using its activities or influence to advance or promote religion, but is instead requiring public institutions not to deny to religious student organizations any right, benefit, or privilege that is otherwise afforded to other student organizations at the public institution. It accomplishes exactly what Corporation of the Presiding Bishop ruled was 67 20 PO 00000 U.S.C. 1011a(2)(C)–(D). Frm 00024 Fmt 4701 Sfmt 4700 permissible: Allowing a religious group to exercise its religion without government interference.68 As the Supreme Court stated: ‘‘A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose.’’ 69 Changes: None. ‘‘All-Comers’’ Policies for Student Organizations Comments: Several commenters opposed the changes to §§ 75.500(d) and 76.500(d) because they contended colleges have the right to require all student organizations, religious or nonreligious, to comply with nondiscrimination policies to receive funding or recognition in accordance with the holding in Christian Legal Society v. Martinez.70 Other commenters contended that the Department should not bar schools from applying neutral, generally applicable policies to religious student organizations. Commenters argued that it is inappropriate for the executive branch to foreclose all-comers policies by public colleges and universities. These commenters argued that these policy decisions are best left to institutions as informed by their own State laws. Many commenters noted that in Martinez, the Supreme Court upheld as constitutional a public university’s allcomers policy that required student groups seeking official recognition to allow any student to join and participate in that group, including in elections for leadership positions. The Court held that such policies do not violate the free speech, expressive association, and free exercise rights of the students.71 The Court also concluded that all-comers policies do not violate the Free Exercise Clause.72 Rejecting the argument that such policies target religion, the Court explained that exempting religious groups from all-comers policies would provide them ‘‘preferential, not equal, treatment.’’ 73 Commenters also remarked that the proposed regulations would mandate the very same preferential treatment for religious student organizations that the Supreme Court held was not necessary in Martinez. Commenters noted that in Martinez, the Supreme Court held that where a school implements a nondiscrimination policy requiring 68 Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 337 (1987). 69 Id. 70 561 U.S. 661 (2010). 71 Id. at 683. 72 Id. at 697 n.27. 73 Id. E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations official, school-funded student groups to accept ‘‘all-comers,’’ the policy is a reasonable, viewpoint neutral condition governing the formal recognition of student organizations.74 According to commenters, in Martinez the Christian Legal Society argued that being required to accept members who did not share the organization’s core beliefs about religion and sexual orientation violated First Amendment rights to free speech, expressive association, and free exercise of religion.75 The commenters asserted the Court recognized that it is ‘‘hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers’’,76 and that what the group actually sought was ‘‘not parity with other organizations, but a preferential exemption from [the school’s] policy.’’ 77 Discussion: In Christian Legal Society v. Martinez, the Supreme Court considered a policy that ‘‘mandated 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 [her] status or beliefs.’ ’’ 78 The Department emphasizes that §§ 75.500(d) and 76.500(d) are consistent with the holding in Martinez, as these regulations do not prohibit public colleges and universities from implementing all-comers policies, nor do they bar these institutions from applying neutral, generally applicable policies to religious student organizations. By its very definition, a neutral policy of general applicability binds all organizations, and thus is permissible under §§ 75.500(d) and 76.500(d); therefore, an authentic allcomers policy would be neutral and generally applicable. Under the stipulated facts of Martinez, the 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 74 Id. at 669. at 668. 76 Id. at 694. 77 Id. at 669. 78 Id. at 671 (citations omitted). sexuality (e.g., the Clara Foltz Feminist Association and Students Raising Consciousness at Hastings).’’ 79 The implications of such a policy were that ‘‘the . . . Democratic Caucus cannot bar students holding Republican political beliefs from becoming members or seeking leadership positions in the organization.’’ 80 With respect to a true all-comers policy, pro-choice groups could not bar leadership positions from pro-life individuals; Muslim groups could not bar leadership positions from non-Muslims; the feminist group could not bar leadership positions from misogynists; and so on. Such a policy is constitutional under Martinez, but is not required by the U.S. Constitution or under the holding in Martinez. Indeed, many public institutions of higher education elect not to implement true all-comers policies due to these obvious practical difficulties. The final regulations would not, as one commenter suggested, mandate preferential treatment for religious student organizations. In Martinez, the religious student organization sought ‘‘not parity with other organizations, but a preferential exemption from [the institution’s all-comers] policy.’’ 81 Here, the Department requires parity among all organizations. A public institution of higher education may adopt a generally applicable policy, such as an authentic all-comers policy, which applies equally to all student organizations and which requires all student organizations to allow any student to participate, become a member, or seek leadership positions in the organization, regardless of the student’s status or beliefs. A public institution also may adopt a generally applicable policy that allows all student organizations to set their own qualifications for membership and leadership. A public institution also may adopt other types of generally applicable policies with respect to student organizations as long as such policies apply equally to all student organizations, including religious student organizations. None of these scenarios give religious student organizations an exemption or preferential treatment, but merely equal treatment, which is required under the First Amendment. Ultimately, §§ 75.500(d) and 76.500(d) clarify that public institutions allowing student organizations to restrict membership or hold certain standards for leadership may not implement nonneutral policies that single out religious 75 Id. VerDate Sep<11>2014 18:45 Sep 22, 2020 79 Id. at 709. at 675. 81 Id. at 669. 80 Id. Jkt 250001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 59939 student organizations for unfavorable treatment. Numerous public commenters described instances in which disfavored treatment of religious student organizations occurs daily on college campuses nationwide, demonstrating the need for such a rule. Public institutions remain free to adopt generally applicable membership policies, such as an all-comers policy, but a public institution may not selectively enforce its policies to target religious student organizations so as to deny them any right, benefit, or privilege that is otherwise afforded to other student organizations at the public institution. Changes: None. Religious Student Organizations Should Not Receive Special Protection or Receive Preferential Treatment Comments: Several commenters opposed the final regulations because, by not expanding the exception to other groups with specific viewpoints such as political or affinity groups, they stated the proposed regulations would allegedly grant faith-based student organizations preferential treatment. One commenter noted that student organizations at public colleges and universities constitute a public forum, and that, while these institutions may not discriminate based on viewpoint, they also cannot favor some viewpoints by granting special exemptions only to religious organizations. Numerous commenters also contended that schools should fund only those groups that serve ‘‘the common good’’ on their campus. Several commenters opined that ‘‘strict sectarian groups’’ do not support the common good. One commenter opined that a religious student group that believes in creationism or a flat Earth should not be equally eligible for money as a physics club. Another commenter contended that, by promulgating this regulation, the Department is attacking science, and the commenter predicted that such attacks will ultimately damage the nation’s economy. Commenters also stated that the Department must not require colleges and universities to fund groups that contradict accepted science or discriminate against select groups of students such as LBGTQ+ individuals, racial minorities, or any other recognized group. Other commenters suggested that religious students are not the students that government programs are ‘‘actually intended’’ to help, that religious student groups should refrain from proselytization, and that religious groups experience disfavored treatment because they do not truly work ‘‘for the good of all humanity.’’ E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 59940 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations Commenters opined that the final regulations would allow any religiously affiliated student organization to blackmail universities by claiming to be discriminated against if they did not receive money from their university each time they requested it. Several commenters remarked that schools should be able to discipline student organizations that practice exclusion and bias. Commenters also claimed that, if religious student organizations truly work for the good of all humanity as they say they do, such groups would not proselytize or discriminate against anyone, and therefore they would have no need for these final regulations. Discussion: The Department reiterates that the final regulations do not mandate preferential treatment for faithbased student organizations; instead, the regulatory text requires that religious student organizations not be denied benefits given to any other student group because of their religious nature. Therefore, rather than giving religious student organizations special treatment, the regulation explicitly requires the opposite outcome—that religious student organizations at public institutions be afforded equal treatment. Indeed, the substance of the numerous oppositional comments confirmed the need for a final rule requiring equal treatment for religious groups. First, contrary to the commenters who opined that religious student organizations do not contribute to the common good, the Department received a tremendous number of comments from students who had benefited personally, academically, and professionally because of participation in religious student groups. These commenters also described numerous ways in which their communities benefited because of service projects carried out by these religious student groups. Second, while the Department understands that not everyone agrees with the mission or beliefs of religious student organizations, the First Amendment requires public institutions of higher education to refrain from content-based or viewpoint discrimination under the Free Speech Clause and to protect the free exercise of religion under the Free Exercise Clause. Indeed, the Supreme Court has held that ‘‘[s]tate power,’’ which public institutions wield, ‘‘is no more to be used so as to handicap religions than it is to favor them.’’ 82 Likewise, the Constitution ‘‘forbids hostility’’ toward ‘‘all religions,’’ 83 and discrimination in 82 Everson 83 Lynch v. Bd. of Educ., 330 U.S. 1, 18 (1947). v. Donnelly, 465 U.S. 668, 673 (1984). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 response to the exercise of a fundamental right—here, by religious student organizations—triggers strict scrutiny under the Equal Protection Clause.84 Making religious student groups’ funding contingent on whether they believe in creationism—or any other religious belief—is forbidden, as the Supreme Court has repeatedly held.85 Thus, contrary to the arguments of these commenters, religious student organizations, regardless of their religious beliefs, are entitled to the same general benefits as other secular organizations under the First Amendment. Neither the religious group nor the science club should be silenced. Further, §§ 75.500(d) and 76.500(d) do not enable religious student organizations to discriminate on the basis of protected classes, such as race or sex. It simply allows them to create leadership or membership qualifications based on religious tenets or standards of conduct informed by their religion. Disciplining these organizations for exercising their First Amendment rights, as suggested by one commenter, is forbidden by the Constitution. Further, whether or not a religious group engages in proselytization is not relevant to whether there is a need for these final regulations. The overwhelming number of comments in support of these final regulations demonstrate that there are instances in which religious student organizations are treated unequally and discriminated against on college campuses, and support our determination that these final regulations are necessary to remedy such discrimination against religious student organizations. Religious student organizations would not be empowered to ‘‘blackmail’’ universities by ‘‘claiming’’ discrimination each time they failed to receive money. If, in fact, a public institution of higher education does not provide religious student organizations a public benefit that is generally available to secular organizations because of the religious character of the student organization, then it is engaging in discrimination prohibited by these final regulations and the principles established by the Supreme Court in Trinity 86 and Espinoza.87 However, 84 See Clark v. Jeter, 486 U.S. 456, 461 (1988). 515 U.S. at 846; Healy, 408 U.S. at 194; Widmar, 454 U.S. at 277. 86 Trinity Lutheran, 137 S. Ct. at 2021–22 (holding unconstitutional a policy forcing a religious institution to choose between ‘‘participat[ing] in an otherwise available benefit program or remain[ing] a religious institution’’). 87 Espinoza, 140 S. Ct. at 2261 (application of State’s no-aid provision violated the Free Exercise Clause by ‘‘cutting families off from otherwise 85 Rosenberger, PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 withholding funds from any student organization under a neutral rule of general applicability is not constitutionally suspect or prohibited under these final regulations.88 Finally, the Department disagrees that these final regulations will damage the economy. As discussed comprehensively in the NPRM, the Department has analyzed the costs and benefits of complying with these regulations. We concluded that the regulations impose approximately $297,770 in costs in Year 1, and we are issuing them on a reasoned determination that their benefits justify their costs. Further, we do not believe that the final regulations will result in any significant costs to the Federal government, general public, or recipients of support under the affected programs. If public institutions treat religious student organizations and other student organizations equally, then these public institutions will avoid liability for First Amendment violations, which may even result in a cost savings. Changes: None. The Proposed Regulations Will Allow Discrimination Against Certain Groups of Students Comments: Several commenters maintained that the proposed regulations are ‘‘dangerous’’ and ‘‘harmful’’ to LGBTQ+ students, women and girls, religious minority students, and ‘‘many others.’’ One commenter stated that the changes proposed by the Department are un-Christian and would reward bigotry and hatred by creating a religious right to discriminate against vulnerable groups. Some commenters who identified as parents of LGBTQ+ students opposed these proposed regulations. These commenters were concerned that powerful religious groups in the U.S. would persecute and harm their children openly because these groups fear no reprisal from the government. These commenters also noted that LGBTQ+ students should have the same rights as other students and not be pushed back into more separation. Commenters also asserted that the proposed regulations fail to address the harm that such an exemption would pose for students who would face discrimination by school-sanctioned student groups. These commenters noted that, because of the central role that access to education plays in available benefits if they choose a religious private school rather than a secular one’’). 88 RFRA applies to the Department when there is a substantial burden, even if the burden results from a rule of general applicability. 42 U.S.C. 2000bb–1. E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 personal and professional development, eliminating discrimination in education has long been recognized as a governmental interest of the utmost importance. They cited Supreme Court precedent to support their positions.89 One commenter stressed the long history of student groups serving as vehicles for discrimination, preventing marginalized students from being fully integrated into student life on university campuses across the country.90 The commenter claimed that the Department’s proposed regulations would return public university campuses to a shameful era in which public universities broadly countenanced discrimination against vulnerable groups of students. Several commenters opined that the Department is using religious liberty as an excuse to discriminate or hurt other students. Commenters suggested that the Department seems to have proposed these regulations because the Department desires to attack LGBTQ+ students and promote bigotry on university campuses. A commenter suggested that the employees at the Department who helped work on the proposed regulations should move to a theocratic government overseas such as Saudi Arabia or Israel. Several commenters remarked that the Department, by proposing these regulations, is forcing the beliefs of older, white, upper-middle class conservative Christians onto the rest of America. One commenter stated that the government should never fund discrimination, and that allowing such discrimination raises constitutional concerns. This commenter asserted that the government has a ‘‘constitutional obligation’’ to ‘‘steer clear, . . . of giving significant aid to institutions that practice racial or other invidious discrimination.’’ 91 Discussion: The Department disagrees with commenters who state that the final regulations will promote discrimination, bigotry, and hate on college campuses. The Department is not espousing any religious beliefs and is instead requiring public institutions 89 See, e.g., Norwood v. Harrison, 413 U.S. 455, 469 (1973) (holding that Mississippi could not give textbooks to students attending racially segregated private schools because ‘‘discriminatory treatment exerts a pervasive influence on the entire educational process’’); see also, e.g., Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (footnote omitted) (‘‘[T]he Government has a fundamental, overriding interest in eradicating racial discrimination in education. . . .’’) 90 Commenter cited the Brief of Amicus Curiae of the ACLU et al. at 10–12, Christian Legal Soc’y, 561 U.S. 661 (Mar. 15, 2010). 91 Norwood, 413 U.S. at 465–66. VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 not to discriminate against religious student organizations, no matter what their religious beliefs may be. These final regulations apply to religious student organizations, including religious minorities and religious groups that have endured persecution. The overwhelming number of comments received in support of these final regulations regarding religious student organizations and recent case law about religious student organizations being denied the rights and benefits afforded to other student organizations at public institutions demonstrate these final regulations are indeed necessary.92 Religious freedom, by its definition, promotes tolerance and pluralism because it protects the right of individuals and groups to obey their conscience even when their conscience is at odds with popular beliefs and practices. Additionally, religious freedom constrains State action that would otherwise seek to enforce uniformity of thought or silence dissent. Thus, requiring public institutions to recognize students’ First Amendment rights to speech, association, and free exercise will foster a culture that is more welcoming of various viewpoints and lifestyles, not less. Accordingly, the Department does not desire to attack any group but instead intends to encourage coexistence among a wide variety of organizations and viewpoints. This will help, not harm, LGBTQ+ students, women, religious minorities, and student organizations of all kinds. Indeed, LGBTQ+ students would be able to organize student organizations that limited membership to only students who identify as LGBTQ+, if a public institution of higher education adopted a generally applicable policy that allowed all student organizations to promulgate membership criteria. The Department remains committed to eliminating invidious discrimination in the educational setting and vigorously enforces Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin, as well as Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex. However, the Department clarifies that excluding individuals from leadership in a student group because of their beliefs or conduct is not comparable to using the ‘‘constitutionally suspect criteria’’ of a 92 InterVarsity Christian Fellowship/USA v. Univ. of Iowa, 408 F. Supp. 3d 960 (S.D. Iowa 2019) (currently on appeal to the U.S. Court of Appeals for the 8th Circuit); Bus. Leaders in Christ v. Univ. of Iowa, 360 F. Supp. 3d 885, 899 (S.D. Iowa 2019) (currently on appeal to the U.S. Court of Appeals for the 8th Circuit). PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 59941 protected characteristic such as race when forming school policies—which is what the Supreme Court struck down in Norwood and Bob Jones University.93 As noted above in the comments in support of these final regulations, many commenters described policies in which their religious student organizations required leaders, regardless of their race or sex, to either espouse certain religious beliefs or to conduct themselves according to the tenets of their faith. Nevertheless, many of these groups were denied recognition by their institutions because of alleged ‘‘discrimination.’’ These comments demonstrate that, rather than using religious liberty to further discrimination, institutions are using ‘‘tolerance’’ as an excuse to hurt religious organizations. Depriving student groups of their rights in the name of ‘‘anti-discrimination’’ furthers religious discrimination itself, which the Constitution does not tolerate. The Department does not agree with commenters who suggest that the final regulations reflect a theocratic form of government or are an attempt to force the beliefs of older, white, upper-middle class conservative Christians onto the rest of America. The purpose of the final rule is not to favor a certain viewpoint, but to reestablish neutrality on campuses, which is what the First Amendment requires. Moreover, with neutrality comes ideological and religious pluralism, which is healthy for a democratic society. The final regulations are intended to protect religious organizations from unconstitutional action stemming from the disapproval of a particular religion or of religion in general.94 Bias against religion and religious student organizations is a growing problem as many commenters noted that public institutions have become increasingly less diverse and more hostile towards religious student organizations. This trend is caused by institutions moving away from the First Amendment and seeking to establish viewpoint uniformity, which is not good for those in the minority or the majority. Ultimately, the final regulations will ensure that religious student organizations will not be coerced by university administrators to abandon their sincerely held beliefs in lieu of prevailing opinions on college campuses. It will restore to religious student organizations the ability to 93 Norwood, 413 U.S. at 469; Bob Jones Univ., 461 U.S. at 604. 94 Lukumi, 508 U.S. at 532 (‘‘[T]he First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general.’’). E:\FR\FM\23SER3.SGM 23SER3 59942 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 participate at public institutions of higher education on equal footing with all student organizations without disadvantaging or harming any students or organizations. Changes: None. The Proposed Regulations Are Not Required by Law or Allegedly Violate the Law Comments: Many commenters stated that the Department does not explain the need for what they characterize as a broad exemption for religious student organizations on college campuses. Several commenters argued that no laws, including the Free Exercise Clause, require these final regulations. These commenters noted that, in CLS v. Martinez, the Court held that CLS, in seeking an exemption from Hastings’ across-the-board all-comers policy, sought preferential, not equal treatment; the group therefore could not moor its request for accommodation to the Free Exercise Clause.95 Commenters also stressed that the regulation is not required under Title IV of the HEA. Commenters argued that the proposed regulations violate the clear directive of Executive Order 13864, namely that agencies ‘‘take appropriate steps, in a manner consistent with applicable law[.]’’ 96 One commenter maintained that the proposed regulations could conflict with State and/or Federal civil rights laws that require campus all-comers or non-discrimination policies. This commenter noted that Title IX and other Federal and State civil rights laws prohibit public institutions of higher education from discriminating on the basis of sex and other protected characteristics. According to this commenter, public universities also may choose to advance State-law goals through the school’s educational endeavors. The commenter opined that in order to ensure full compliance with State and Federal civil rights laws, public colleges and universities often have in place robust non-discrimination policies that apply neutrally to all student organizations. Similarly, another commenter asserted that the proposed regulations offer some public institutions a choice between aligning with State and local non-discrimination laws and maintaining eligibility for Federal grant funding. This commenter contended that colleges and universities that choose to maintain eligibility for Departmental grants by revising their protocols to allow for recognition of faith-based student organizations 95 Martinez, 96 84 561 U.S. at 697 n.27. FR 11402. VerDate Sep<11>2014 18:45 Sep 22, 2020 without all-comers policies would, in some jurisdictions, expose themselves to a legal challenge grounded in State and local nondiscrimination laws. One commenter also opined that the proposed regulations include language that is worrisome in its vagueness, as it prohibits public institutions from denying rights to a religious student organization based on the group’s ‘‘practices, policies, . . . and leadership standards.’’ 97 This commenter contended that this language is untethered to religious beliefs or religious speech. This commenter asserted that the Department should not want colleges and universities to abdicate their responsibility to set reasonable and appropriate standards for student organizations, and it certainly ought not to compel that abdication. This commenter gave the example that no college or university should be encouraged or compelled to turn a blind eye to hazing because it is occurring within a religious student organization. Another commenter expressed concerns that the proposed regulations may create a scenario in which a public institution of higher education could lose Federal funding for denying recognition to a student organization that promotes hate speech barred by school policies, while a private institution receiving funding under the identical program could censor speech otherwise protected by the First Amendment but which violates the school’s internal speech policies. The commenter argued that such an outcome defies reason and would likely not survive constitutional scrutiny. Discussion: The Department disagrees with commenters who state that the Department does not explain the need for the rule. The NRPM noted that courts repeatedly have been called upon to vindicate the rights of dissident campus speakers who do not share the views of the majority of campus faculty, administrators, or students. It also provided numerous examples of cases in which Federal courts found that public universities discriminated against religious student organizations in violation of the First Amendment by withholding funding or denying other rights, benefits, and privileges afforded to secular student organizations. Sections 75.500(d) and 76.500(d) are wholly consistent with applicable law, including but not limited to Supreme Court precedent, the First Amendment, Title IX, and the HEA. First, regarding Supreme Court precedent, the 97 This commenter quotes from §§ 75.500(d) and 76.500(d), as proposed in the NRPM. Jkt 250001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 Department clarifies that §§ 75.500(d) and 76.500(d) do not, as several commenters stated, prevent institutions from implementing all-comers policies which were upheld in Martinez, nor does it constitute an ‘‘exemption’’ for religious student groups from all-comers policies. Instead, these final regulations reinforce the First Amendment’s mandate that public institutions treat religious student organizations the same as other student organizations. As such, a university does not have to choose between compliance with State law and securing Federal funding in the form of grants; it is free to enforce an all-comers policy, which is permissible under Martinez, in order to comply with any State anti-discrimination laws as long as it applies that policy equally to all student organizations as stipulated in Martinez. If a public institution chooses not to adopt an all-comers policy, which is also permissible, then the institution cannot require a student organization, including a religious student organization, to open eligibility for membership and leadership to all students. Ultimately, a university has the discretion to choose what kind of policy will best comply with its own State and local anti-discrimination laws. Additionally, these final regulations are consistent with the U.S. Constitution and governing case law.98 ‘‘The Free Exercise Clause ‘protect[s] religious observers against unequal treatment’ and subjects to the strictest scrutiny laws that target the religious for ‘special disabilities’ based on their ‘religious status.’ ’’ 99 The Supreme Court has ‘‘repeatedly confirmed’’ that ‘‘denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order.’’ 100 Most recently in Espinoza, the Supreme Court confirmed again: ‘‘This rule against express religious discrimination is no doctrinal innovation. Far from it. As 98 These final regulations also are consistent with and in furtherance of the Religious Freedom Restoration Act (RFRA). 20 U.S.C. 2000bb, et seq.; Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct., at 2383–84 (U.S. July 8, 2020). RFRA ‘‘provide[s] very broad protection for religious liberty.’’ Burwell v. Hobby Lobby, 573 U.S. 682, 693 (2014). RFRA applies to the Department, and some of the Department’s grantees may essentially act on behalf of the Department in awarding subgrants or administering formula-grant programs. These final regulations as material conditions of a Department’s grant under §§ 75.500(d) and 76.500(d) will help ensure that any entity, acting on behalf of the Department with respect to a grant, does not substantially burden a person’s free exercise of religion. 99 Trinity Lutheran, 137 S. Ct. at 2019 (quoting Lukumi, 508 U.S. at 533). 100 Id. E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 Trinity Lutheran explained, the rule is ‘unremarkable in light of our prior decisions.’ ’’ 101 Sections 75.500(d) and 76.500(d) are designed to bolster these protections and prevent public institutions from denying rights, benefits, and privileges to religious student organizations because of their religious character. The First Amendment protects religious student organizations’ right to free exercise of religion in addition to the freedoms of speech and association, and these final regulations are consistent with the First Amendment, including the Free Exercise Clause, which requires equal treatment of secular and religious student organizations. Given the abundant evidence noted by commenters regarding schools ‘‘denying generally available benefits’’ to religious groups ‘‘solely on account of religious identity,’’ these regulations are necessary to make the guarantees in the First Amendment, including the Free Exercise Clause, a reality at public institutions.102 Similarly, a public institution does not violate Title IX by allowing religious student organizations to have faith-based criteria for their leaders or to otherwise engage in the free exercise of their religion. These final regulations reinforce freedoms guaranteed by the First Amendment. Additionally, the Title IX Final Rule, which became effective on August 14, 2020, expressly states that none of the regulations implementing Title IX requires a recipient of Federal financial assistance to ‘‘[r]estrict any rights that would otherwise be protected from government action by the First Amendment of the U.S. Constitution.’’ 103 With respect to the HEA, the Department acknowledges that these final regulations are not a condition of participation in programs under Title IV of the HEA. These final regulations are consistent with the HEA, which expressly states that ‘‘an institution of higher education should facilitate the free and open exchange of ideas’’ 104 and ‘‘students should be treated equally and fairly.’’ 105 Further and as explained 101 Espinoza, 140 S. Ct. at 2260 (quoting Trinity Lutheran, 137 S. Ct. at 2021) (internal quotation marks and citation omitted). 102 Lukumi, 508 U.S. at 532 (‘‘At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.’’). 103 85 FR 30573 (the Title IX final regulations provide this express statement at 34 CFR 106.6(d)(1)). 104 20 U.S.C. 1011a(a)(2)(C). 105 20 U.S.C. 1011a(a)(2)(E). Congress also stated in 20 U.S.C. 1011a(a)(2)(F) that ‘‘nothing in this paragraph shall be construed to modify, change, or VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 more fully in the ‘‘Executive Orders and Other Requirements’’ section, the Department is authorized under 20 U.S.C. 1221e–3, 20 U.S.C. 3474, and E.O. 13864 to promulgate these final regulations. Lastly, the Department acknowledges that under these final regulations, a public institution may lose Federal funding for violating the First Amendment—by, for example, prohibiting hate speech,106 if such hate speech constitutes protected speech under the First Amendment, while a private institution may not lose its funding for engaging in the same conduct. But this distinction between public and private institutions is not unique to these final regulations. It is a well-established principle that private institutions are not bound by the First Amendment.107 Such an outcome is contemplated by the very text of the First Amendment, which prohibits ‘‘Congress’’ from violating fundamental freedoms and which was later made applicable to the States through the Fourteenth Amendment.108 Despite this constitutionally mandated distinction, the Department emphasizes that private institutions are still bound by their own ‘‘stated institutional policies regarding freedom of speech, including academic freedom’’ under §§ 75.500(c) and 76.500(c) of these final regulations. Additionally, these final regulations would not interfere with an institution’s ability to enforce an anti-hazing policy, because such a policy would be a neutral, generally applicable rule applied to all student groups. These final regulations are instead intended to address policies that single out religious groups for disparate treatment. To clarify that religious student organizations may not be treated differently on account of their religion, the Department revises §§ 75.500(d) and 76.500(d) to state that public institutions shall not deny to any student organization whose stated mission is religious in nature any right, benefit, or privilege that is otherwise afforded to other students organizations at the public institution because of the religious student organization’s beliefs, infringe upon any constitutionally protected religious liberty, freedom, expression, or association.’’ 106 Matal v. Tam, 137 S. Ct. 1744, 1765 (2017) (‘‘it is a fundamental principle of the First Amendment that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys.’’). 107 Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1926 (2019) (‘‘The Free Speech Clause of the First Amendment constrains governmental actors’’). 108 First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 778 (1978). PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 59943 practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs. These revisions clarify which student organizations may be considered religious by noting that the student organization’s own stated mission is religious in nature. These revisions also clarify that beliefs, practices, policies, membership standards, or leadership standards, which are informed by sincerely held religious beliefs, must not constitute the basis for differential treatment from other student organizations, which is consistent with the First Amendment. Changes: The Department revised §§ 75.500(d) and 76.500(d) to clarify that religious student organizations include any student organization whose stated mission is religious in nature. The Department further revised these regulations to clarify that a public institution cannot deny any right, benefit, or privilege that is otherwise afforded to other student organizations at 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. Whether Public Institutions Discriminate Against Religious Organizations Comments: Numerous commenters shared specific instances in which faithbased student organizations were discriminated against because of their religious status. As noted in more detail in the ‘‘Comments in Support’’ subsection of the ‘‘34 CFR 75.500(d) and 34 CFR 76.500(d)—Religious Student Organizations’’ section, many different commenters reported, for example, that universities refused to recognize or outright banned religious organizations that used faith-based qualifications to select leadership. As a result, these organizations, if they were even allowed on campus at all, were stripped of university benefits such as funding or facilities, faced bureaucratic hurdles that were not applied to secular organizations, and in one case, could not even approach students on campus because of the university’s biased solicitation policy. Commenters noted that even when these institutions reversed their policies, religious student organizations were still subject to administrative delays of up to a year in some cases, faced prejudice and misconceptions, and experienced increased polarization, which discouraged debate. Conversely, some commenters maintained that religious student E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 59944 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations organizations are already treated equally under the current rules, and the Department failed to include even anecdotal evidence that religious student organizations who wish to restrict their membership or leadership have been treated differently from other types of private groups. A commenter argued that this ‘‘fix’’ is the very definition of a solution in search of a problem. A commenter also stated that unofficial student groups often have access to the school’s facilities to conduct meetings and the use of chalkboards and generally available bulletin boards to advertise events. According to this commenter, even the Supreme Court, in CLS v. Martinez, found that the CLS chapter was being treated the same as other private groups on campus, including fraternities, sororities, social clubs and secret societies, which maintained a presence at the university without official status.109 Discussion: The Department notes the numerous comments recounting instances of discrimination against religious student organizations, in which they were deprived of recognition, funding, or facilities, among other benefits, due to their religious status or character. The Department is revising §§ 75.500(d) and 76.500(d) specifically to remedy these issues of disparate treatment. We disagree with the commenters who suggest that religious student organizations are always treated equally with respect to secular organizations under the current regulations, and that the Department included no evidence to the contrary. For example, the NPRM cited to Rosenberger v. Rector & Visitors of the University of Virginia,110 in which the Supreme Court held that a public institution denying funding to a religious student newspaper but not other secular student newspapers amounted to unlawful viewpoint discrimination under the First Amendment. In addition, the NPRM cited Business Leaders in Christ v. University of Iowa,111 in which the Federal district court very recently held that treating a religious student organization differently than other student organizations violated the religious student organization’s First Amendment rights to free speech, expressive association, and free exercise of religion. Further, the Department received a tremendous number of comments replete with examples of the differential treatment that faith-based 109 Martinez, 561 U.S. at 691. 110 515 U.S. 819, 845, 829–30 (1995). 111 360 F. Supp. 3d 885, 899 (S.D. Iowa 2019). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 organizations suffer compared to secular student organizations, only some of which are described above. These anecdotes concerned religious student organizations at hundreds of schools across the country; came from national nonprofit organizations, professors, faculty advisors, students, and lawyers; and described experiences that occurred over decades. The Department acknowledges that there may be instances when unofficial student groups are granted access to some of an institution’s facilities or resources, as was the case in Martinez.112 Nevertheless, such access to limited benefits does not cure the constitutional infirmities under the First Amendment when religious student organizations are denied benefits afforded to other student organizations or unequally burdened as compared to other student organizations. And often religious student organizations are denied access to any of an institution’s facilities or resources, which, as one commenter expressed, relegates them to second-class status. Singling out religious student organizations for disfavored treatment because of their religious nature or religious viewpoints is precisely what the Supreme Court held impermissible in Rosenberger v. Rector & Visitors of University of Virginia 113 and Widmar v. Vincent.114 Thus, these final regulations are consistent with Supreme Court case law. As explained in more detail in the ‘‘ ‘All-Comers’ Policies for Student Organizations’’ section, these final regulations are consistent with the holding in Martinez, which permitted but did not require public institutions to adopt all-comers policies.115 Changes: None. Proposed Modifications & Requests for Clarification Comments: One commenter expressed the need for private colleges to be included under the regulations for public institutions because of concerns regarding a policy at one private institution requiring student groups to open leadership to any student or lose school recognition. This commenter noted that a loss of recognition results in a loss of access to student activity fee money, low-cost or free university spaces, and recruiting tools. 112 Martinez, 561 U.S. at 673 (finding school withheld official recognition from Christian Legal Society but allowed it the use of facilities, chalkboards, and generally available campus bulletin boards). 113 515 U.S. 819, 845 (1995). 114 454 U.S. 263, 277 (1981). 115 561 U.S. at 698. PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 Discussion: This commenter describes what is known as an all-comers policy which, while uncommon in practice, was upheld by the Supreme Court of the United States in CLS v. Martinez.116 It is permissible for an institution to implement such a policy under the Department’s final regulations, since it is a neutral rule of general applicability. However, absent such an all-comers policy, §§ 75.500(d) and 76.500(d) prevents public institutions from failing to recognize religious student organizations because of their faithbased membership or leadership criteria. The Department further responds that §§ 75.500(d) and 76.500(d)—which are rooted in the First Amendment—do not apply to private institutions because private institutions are not bound by the First Amendment.117 Private institutions are, however, obligated to uphold their ‘‘stated institutional policies regarding freedom of speech, including academic freedom,’’ through §§ 75.500(c) and 76.500(c) of these final regulations. Institutions that violate their own stated institutional policies regarding freedom of speech, including academic freedom, will be found in violation of the material conditions in §§ 75.500(c) and 76.500(c) if there is a final, non-default judgment by a State or Federal court to the effect that the private institution violated such stated institutional policies.118 Changes: None. Comments: One commenter noted that §§ 75.500(d) and 76.500(d) provide no indication of how the Department will determine that a public college or university has violated the regulation’s requirement to treat religious organizations and secular organizations the same. The commenter guessed that, absent indications to the contrary, the Department will make this determination entirely by itself. The commenter opined that this type of inquiry is inappropriate for the Department to engage in and one it is ill-equipped to make. Discussion: The Department has the resources and expertise to determine the narrow issue as to whether a public university has violated the regulation’s requirement to not deny a religious student organization any of the rights, benefits, and privileges afforded to other student organizations. Whether religious student organizations are denied the rights, benefits, and privileges as other student organizations is a discrete issue 116 561 U.S. 661 (2010). Cmty. Access Corp., 139 S. Ct. at 117 Manhattan 1926. 118 34 CFR 75.500(c)(1); 34 CFR 76.500(c)(1). E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 that the Department may easily investigate. This issue does not involve the full panoply of First Amendment issues that the other regulations in §§ 75.500(b)–(c) and 76.500(b)–(c) present. The Department would only determine whether other student organizations indeed received the right, benefit, or privilege that the religious student organization was allegedly denied because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs. The Department routinely investigates violations of its regulations, and attorneys within the Department’s Office of General Counsel regularly advise the relevant office within the Department on any legal issues that arise in an investigation. Unlike investigations of any potential violation of any provision of the First Amendment or any stated institutional policy regarding freedom of speech, including academic freedom, an investigation of the treatment of religious student organizations as compared to other student organizations is limited in scope and presents a discrete issue. An investigation to determine whether religious student organizations are being treated differently than other student organizations is similar to the types of investigations that the Department currently conducts. The Department has developed expertise in investigating, for example, the discrimination or different treatment on the basis of sex under Title IX or on the basis of race, color, and national origin under Title VI. Additionally, §§ 75.500(d) and 76.500(d) expressly indicate ways in which a public institution may treat a religious organization differently from a secular organization, such as by failing to provide full access to the facilities of the public institution, withholding funds from a religious organization, or denying official recognition to a religious organization. Changes: None. 34 CFR 75.700 and 34 CFR 76.700— Compliance With the U.S. Constitution, Statutes, Regulations, Stated Institutional Policies, and Applications Comments: One commenter asserted that under §§ 75.700 and 76.700, grantees must comply with all relevant statutes, regulations, and approved applications. However, the Department would limit compliance requirements to only specific sections of four statutes and related regulations. The commenter noted the Department’s stated rationale that this modification would provide VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 greater specificity and clarity, however, given the broad range of relevant statutes, regulations, and individual grant program requirements, the commenter believed there is no rational justification to modify these requirements. The commenter did not provide further explanation or clarification for this position. Discussion: The Department wishes to clarify that the current language of §§ 75.700 and 76.700 already requires grantees and subgrantees to comply with all applicable laws, regulations, and approved applications. Statutory and regulatory requirements to which grant recipients must comply already include the prohibition on race discrimination under Title VI, the prohibition on sex discrimination under Title IX, the prohibition on discrimination on the basis of handicap under Section 504 of the Rehabilitation Act of 1973, and the prohibition on age discrimination under the Age Discrimination Act. Section 75.700, as proposed and as promulgated in these final regulations, would clarify that grantees participating in Direct Grant Programs must comply with all of the statutes and provisions in § 75.500, including § 75.500(b) and § 75.500(d) if they are public institutions and § 75.500(c) if they are private institutions. Similarly, § 76.700 would clarify that States and subgrantees participating in State-Administered Formula Grant Programs must comply with all of the statutes and provisions in § 76.500, including § 76.500(b) and § 76.500(d) if they are public institutions and must comply with § 76.500(c) if they are private institutions. Changes: None. 34 CFR 106.12 Educational Institutions Controlled by Religious Organizations During the public comment period, the Department received comments both in support of and in opposition to the proposed regulations about the religious exemption under Title IX. Below, we discuss substantive issues under topical headings, and by the sections of the final regulations to which they pertain. General Support for Proposed Changes to 34 CFR 106.12 Comments: Some commenters expressed strong support for the proposed changes to § 106.12. One commenter, for instance, believed that the proposed changes were necessary to ensure the continued protection of religious liberty for religious educational institutions, contending that the proposed regulations, if PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 59945 finalized, would make clear that Title IX provides institutions with an affirmative defense against accusations of discrimination. Commenters also noted that Title IX does not require permission or recognition from the government before an institution asserts its eligibility for a religious exemption as a defense for a religious belief or the practice dictated by that belief. Similarly, one commenter supported the Department’s acknowledgement of the various ways that an institution may establish its eligibility for a religious exemption under Title IX, and noted that, in prior administrations, responses to letters claiming the religious exemption were significantly delayed. According to the commenter, this caused religious institutions to worry that the Department’s Office for Civil Rights (OCR) was considering whether to deem the schools ineligible for the exemption, despite their thoroughly religious character. One commenter believed that the ‘‘application’’ for an assurance that a school could invoke or maintain a religious exemption had previously been misconstrued by the Department, to the detriment of religious schools and universities, and to the detriment of the values protected by the United States Constitution. The commenter contended that there is no ‘‘application process’’ set forth in the Title IX statute for a religious exemption. The commenter further contended that the Department has no power or authority to review and rule upon a school’s religious tenets, or whether a school is justified on the basis of those tenets to invoke an exemption. The commenter stated that not only does the Title IX statute not require such review before a school may invoke a religious exemption, but that the First Amendment would not permit such review. Discussion: The Department appreciates and agrees with the comments that religious liberty must be preserved and protected.119 In promulgating this regulation, the Department took into account the RFRA 120 and the United States Attorney General’s October 6, 2017 Memorandum 119 See Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1754 (2020) (stating, in the Title VII religious exemption context, ‘‘We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.’’). 120 42 U.S.C. 2000bb–2(4) (referring to 42 U.S.C. 2000cc–5(7)(A) (defining ‘‘religious exercise’’ as ‘‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief’’)). See also Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020); Burwell v. Hobby Lobby, 573 U.S. 682 (2014). E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 59946 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations on Federal Law Protections for Religious Liberty.121 Further, the Department believes that its view of the religious exemption provisions within Title IX avoids unconstitutional discrimination against faith-based entities that would otherwise occur if OCR required that educational institutions fit one specific organizational structure before they can become eligible for a religious exemption. The Department agrees with the commenter who stated that there is no ‘‘application process’’ set forth in the Title IX statute. No part of the statute requires that recipients receive an assurance letter from OCR, and no part of the statute suggests that a recipient must be publicly on the record as a religious institution that claims a religious exemption before it may invoke a religious exemption in the context of Title IX. While the implementing regulations at 34 CFR 106.12 set forth a process for recipients to ‘‘claim’’ the exemption by submitting a letter, in writing, to the Assistant Secretary, the Department has eliminated that requirement in the Title IX Final Rule, effective on August 14, 2020, which permits but does not require recipients to submit a letter claiming a religious exemption from Title IX.122 The Department further acknowledges that the final regulation promulgated through this rulemaking with respect to § 106.12 provides a non-exhaustive list of criteria that offer educational institutions different methods to demonstrate that they are eligible to claim an exemption to the application of Title IX, 20 U.S.C. 1681, and its implementing regulations, to the extent Title IX and its implementing regulations would not be consistent with the institutions’ religious tenets or practices. Title IX, 20 U.S.C. 1681(a)(3), does not directly address how educational institutions demonstrate whether they are controlled by a religious organization. The criteria in 34 CFR 106.12(c) codify existing factors that the Assistant Secretary for Civil Rights uses when evaluating, on a caseby-case basis, a request for a religious exemption assurance from OCR, and also addresses concerns that there may be other means for establishing the necessary control. While several commenters argued that the best course for OCR is to require 121 Available at https://www.federalregister.gov/ documents/2017/10/26/2017-23269/federal-lawprotections-for-religious-liberty. 122 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 FR 30026, 30573 (May 19, 2020). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 educational institutions to seek an assurance letter describing their religious exemption before a complaint is filed against them, the Department notes that the reasons for the changes to 34 CFR 106.12(b) were addressed in the November 29, 2018 Title IX NPRM,123 and the recently released Title IX Final Rule, effective August 14, 2020.124 As explained in the Title IX NPRM and Final Rule, the current version of 34 CFR 106.12(b) could suggest that recipients are required to write a letter to the Assistant Secretary for Civil Rights, and argue that parts of the regulation conflict with a specific tenet of the religious institution. The Department has determined that such a requirement is unnecessary in order to assert certain exemptions, and the Title IX final regulation seeks to codify the Title IX statute’s broad statement that ‘‘this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.’’ The NPRM for these regulations did not propose any changes to 34 CFR 106.12(b). However, some commenters expressed strong agreement with the Department’s proposed changes to § 106.12(b) in the November 29, 2018 Title IX NPRM addressing sexual harassment and other topics, especially when coupled with the proposed changes outlined in this January 17, 2020 NPRM for these final regulations. The Department has determined that, in the aggregate, these changes better align the Title IX regulations with the Title IX statute, the First Amendment, and the Religious Freedom Restoration Act, 42 U.S.C. 2000bb, et seq. The Department understands the often complex relationships between recipients and controlling religious organizations. The Department acknowledges that its practices in the recent past regarding assertion of a religious exemption, including delays in responding to inquiries about the religious exemption, may have caused educational institutions to become reluctant to exercise their rights under the Free Exercise Clause of the First Amendment. The Department would like to make sure its regulations are consistent with educational institutions’ ability to fully and freely enjoy rights guaranteed under the Free Exercise Clause of the U.S. Constitution and Federal statutes. Accordingly, the 123 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 83 FR 61462 (Nov. 29, 2018). 124 See 85 FR 30573. PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 Department chose to engage in noticeand-comment rulemaking to clarify the religious exemption under Title IX. Changes: None. General Opposition to Proposed Changes to 34 CFR 106.12 Comments: Many commenters expressed opposition to the proposed changes to § 106.12 because they believed that the changes would allow schools to claim sweeping, almost unlimited religious exemptions to Title IX. These commenters asserted that the proposed rule would make it easier for a broader range of schools to claim a religious exemption, which the commenters often described as a right to discriminate while nevertheless still receiving Federal monies. Some of these commenters stated that the Department should find a Title IX violation in every case of sex discrimination, and protect all students in all schools receiving Federal funds, instead of allowing schools to find ways to shield themselves from liability for discriminatory practices. Commenters also expressed general opposition to the proposed changes to § 106.12 by way of sharing their personal experiences of being educators, female students, LGBTQ students, parents of LGBTQ students, victims of sexual assault, and students at religious schools. These commenters stated that students who go to religious schools should be equally protected against sex discrimination as all other students, even if the discrimination stems from a religious practice. Commenters argued that sex-based discrimination can result in students like them being disciplined, mistreated, or forced out of school. These commenters asserted that as a result of the proposed changes to § 106.12, female students who were either pregnant or parenting, LGBTQ students, and religious minority students could face enormous costs, such as having to interrupt or end their degree program due to expulsion, losing their tuition payments made up until that point, and missing out on subsequent professional opportunities. Some of these commenters further suggested that religious schools are sometimes the only or best higher education option for these students, even for people who do not identify with the tenets of the religion of the school. Commenters also expressed specific concerns about potential situations that could result from the proposed changes to § 106.12, including a student who is sexually assaulted on an abstinenceonly campus being expelled due to engaging in sexual activity; a school E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations being unable to stop another student from forming a club based on hatred of women or LGBTQ students based on purported religious principles, or a school being required to equally offer school resources to such a group on equal terms as other student groups. Other examples posed by the commenters included a student raped on a ‘‘dry’’ campus after drinking being expelled after reporting the rape, due to consumption of alcohol in violation of school policies. Alternatively, a school might expel the same student, asserted commenters, for not reporting the rape, and allowing the rapist to continue to pose a threat on campus, even if the failure to report was out of fear of retaliation for drinking. According to commenters, this posed a dilemma for students, who might be disciplined whether or not they reported sexual assault. Commenters described scenarios where schools could not stop a student group or faculty member from bringing a speaker to campus who is known for hate speech and inciting violence; or a gay student at a religious institution who is being harassed, and discloses his sexual orientation as part of his report of the harassment, and who is subsequently expelled by his school, purportedly for his own safety. One commenter believed that the proposed changes to § 106.12 would condone schools that receive Federal funding looking the other way toward sex discrimination, and would in fact replicate the predatory and violent types of behavior against students that these schools should be working to prevent and respond to. The commenter also asserted that the Department should not allow schools to discriminate against students who are victims and survivors of sexual violence. Another commenter asserted that expanding or providing religious exemptions under Title IX will allow religious beliefs and religiouslymotivated acts to be weaponized against students and families. The commenter believed that schools using religious exemptions will use them to harm and damage the students that they want to target, and religious people and schools will be able to do whatever they want without common sense and oversight. The commenter also questioned whether religious exemptions are automatically reviewed by the Department’s Office of the General Counsel or its OCR on an annual basis, or for reasonableness, so that religious exemptions that conflict with recent developments in the law or case law are revoked. Some commenters expressed agreement with the basic principle that VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 religious freedom is an important part of the First Amendment, but also expressed opposition to the proposed rule. Other commenters asserted that, as a legal matter, schools receiving money from the Federal government are not allowed to discriminate because of the separation of church and State as required by the Constitution. One commenter expressed concern that the proposed changes to § 106.12 would create a separate, federally funded system of religious schools that are allowed to define who makes up their student body in narrow, discriminatory ways that undermine the ethics and intent of publicly-funded schools. Discussion: As the Department stated in the NPRM for this rulemaking, the purpose of these proposed amendments is to implement Executive Order 13831 and conform more closely to the Supreme Court’s current First Amendment jurisprudence; relevant Federal statutes such as Title IX and RFRA; Executive Order 13279, as amended by Executive Orders 13559 and 13831; and the Attorney General’s Memorandum on Religious Liberty.125 The regulations in 34 CFR part 106 address discrimination on the basis of sex in education programs or activities receiving Federal financial assistance, and the Secretary has authority to regulate with regard to discrimination on the basis of sex in such programs under 20 U.S.C. 1682. The proposed changes to § 106.12(c) of the Title IX regulations will eliminate the need for schools and other stakeholders to consult non-binding guidance to help discern whether an institution is controlled by a religious organization for a religious exemption under Title IX and provides a non-exhaustive list of criteria that is sufficient to establish that an institution is controlled by a religious organization. The Department understands that some commenters opposed the proposed regulation because they feel that institutions should never be permitted to discriminate on the basis of sex in education programs or activities receiving Federal financial assistance. Many of these commenters characterized the religious exemption under Title IX as the right to discriminate on the basis of sex, which these individuals felt violated the principle of separation of church and State. In response to these comments, the Department notes that the Title IX statute expressly provides for multiple exceptions to the application of Title IX 125 85 PO 00000 to certain entities, including 20 U.S.C. 1681(a)(3) (titled, ‘‘Educational institutions of religious organizations with contrary religious tenets’’). While the Establishment Clause is an important part of the Constitution, implementing the religious exemption language expressly contemplated by the Title IX statute does not violate the Constitution or its Establishment Clause. Where, as here, a statute expressly provides for a religious exemption from statutory provisions, the recipient of Federal funds’ free exercise of religion, which also is guaranteed under the Constitution, may be infringed by failing to recognize that exemption under the statute. The Department acknowledges that some commenters felt that proposed § 106.12(c) would allow recipients to shield themselves from losing Federal funds over their discriminatory practices. In response, the Department again reiterates that the Title IX statute, at 20 U.S.C. 1681(a)(3), created an express exemption from the requirements of Title IX for ‘‘educational institutions of religious organizations with contrary religious tenets.’’ While our revised § 106.12(c) seeks to clarify eligibility for claiming a religious exemption, the Department will evaluate and respond to all complaints filed with OCR that allege discrimination under Title IX, including allegations that the religious exemption in 20 U.S.C. 1681(a)(3) does not apply to an institution. The Department understands that some commenters were concerned that religious schools are sometimes the best or only higher education option for students, even for students who do not identify with the tenets of the religion of the school. While the Department is sympathetic to this point, a recipient that meets the criteria for a religious exemption is entitled to the protections that the statute affords it. The Department recognizes that several commenters remarked upon the ‘‘broad’’ language utilized in multiple subsections of proposed § 106.12(c). While the Department does not agree with the assessment by one commenter that the Department is opening the floodgates to ‘‘almost unlimited’’ religious exemptions under Title IX, the Department appreciates the thoughtful comments about the ‘‘moral beliefs or practices’’ language used in proposed § 106.12(c)(5),126 and acknowledges that 126 See proposed 34 CFR 106.12(c)(5) (‘‘A statement that the educational institution subscribes to specific moral beliefs or practices, and a statement that members of the institution FR 3190–01. Frm 00033 Fmt 4701 59947 Continued Sfmt 4700 E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 59948 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations the language could be interpreted in an overly broad manner. In response to these and other concerns raised about the ‘‘moral beliefs or practices’’ language, the Department has removed the entirety of proposed § 106.12(c)(5) in the final regulation. This change is discussed in more detail in the ‘‘Proposed 34 CFR 106.12(c)(5)’s reference to moral beliefs’’ section of this preamble. As discussed in more detail in the ‘‘Proposed 34 CFR 106.12(c)(7)’’ section of this preamble, the Department also received comments that expressed concern about the ‘‘other evidence’’ language used in proposed § 106.12(c)(7). Specifically, some commenters expressed that an educational institution could attempt to meet the criteria of § 106.12(c)(7) with very minimal evidence that they are controlled by a religious institution. In the final regulation, the Department added qualifiers to § 106.12(c)(7) to make clear that ‘‘other evidence’’ must be sufficient to establish that an educational institution is controlled by a religious organization, pursuant to 20 U.S.C. 1681(a)(3). In doing so, the Department clarifies that there has to be sufficient ‘‘other evidence’’ to establish control. The Department notes, in response to commenters who allege that this provision exceeds the scope of the statute by requiring almost no evidence of control by a religious organization, that the ‘‘other evidence’’ must itself establish control by a religious organization, and not merely a tenuous tie to a religious organization. This provision does not expand the permissible scope of the statute to mean that literally any evidence—regardless of the amount of evidence, its relevance, or its persuasiveness—is sufficient to establish a religious exemption. With respect to arguments that raised concerns about the proposed regulation permitting students to form hate groups on campus, or concerns that schools would be unable to control which speakers are brought to campus, the final regulations do no such thing. A school’s ability to assert a religious exemption from Title IX does not affect a school’s rights to permit student groups or speakers from forming or speaking on campus. The issues of invited speakers, freedom of association, and campus speech, generally, are complex issues that are evaluated in light of the First Amendment and community may be subjected to discipline for violating those beliefs or practices.’’). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 associated case law.127 Section 106.12(c) does not address those complex issues, and it should not be construed as affecting the recipient’s rights to address First Amendment issues on their campuses. The Department thanks the many commenters who shared their personal experiences in attending institutions controlled by religious organizations. Some of these commenters expressed general opposition to the proposed rule because of their fear of the possible consequences to certain groups of individuals attending such institutions, including LGBTQ students, pregnant and parenting students, students who have experienced sexual violence while intoxicated, students who have engaged in sexual activity that is against their religion’s teachings, and religious minority students. In particular, one commenter suggested that the Department should not permit educational institutions to discriminate against students who have experienced sexual violence. The Department reiterates that a religious exemption under Title IX is not a wholesale exemption from all provisions pertaining to sex-based discrimination, and that any assertion of an exemption must be based on the religious tenets of a religious organization that controls the educational institution. In this regard, the Department is skeptical that schools will be eligible to assert exemptions from the requirement to respond appropriately to sexual harassment under Title IX or from the prohibition on retaliation against individuals who invoke their rights under Title IX. One commenter specifically asked if the Department (either OCR or the Office of the General Counsel) would automatically review religious exemptions for reasonableness, on an annual basis. In response, the Department states that it will review assertions of religious exemptions, like all Title IX matters, pursuant to its enforcement authority under Title IX. However, the Department has never, and will not begin now, ‘‘automatically reviewing’’ all religious exemptions under Title IX, on an annual basis. If a complaint is filed, and the complaint alleges that a recipient improperly applied a religious exemption or any other exemption under Title IX, OCR will carefully consider the complaint, evaluate compliance with the statute 127 See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) (freedom of association); Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 233 (2000) (free speech and free association on a college campus); Rosenberger v. Rector and Visitors of Univ. of, Va., 515 U.S. 819 (1995) (viewpoint neutrality and the First Amendment). PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 and regulations, and respond accordingly. Finally, the Department notes that anyone who believes that a recipient institution has engaged in sex discrimination in violation of Title IX may file a complaint with OCR. Details about filing a complaint are available on OCR’s website at www.ed.gov/ocr/ complaintintro.html. Additional resources on Title IX are available on OCR’s website at www.ed.gov/ocr/ frontpage/pro-students/sex-pr.html. Changes: In the final regulation, the Department is removing proposed § 106.12(c)(5) from the non-exhaustive list of criteria for establishing a religious exemption. In addition, the Department is adding two qualifiers to proposed § 106.12(c)(7), which is § 106.12(c)(6) in the final regulations, to make clear that the other evidence used to meet this final criterion must be sufficient to establish that an educational institution is controlled by a religious organization, pursuant to 20 U.S.C. 1681(a)(3). Proposed Changes to 34 CFR 106.12 and Relationship to Title IX Generally Comments: Some commenters asserted that the proposed changes to § 106.12 ignore the purpose of Title IX. These commenters further argued that the proposed changes undermine the mission of OCR by letting institutions allow discrimination by student groups and staff, even when doing so means that the institution would not meet the general duties it would have under Title IX. Some commenters even suggested that OCR was forcing institutions to invoke exemptions from Title IX, in the sense that religious institutions might be forced to invoke a religious exemption, even if they wanted to comply with the general non-discrimination duties of Title IX. One commenter noted the impact of what happens when students’ Title IX rights are ignored. The commenter believed that the proposed changes to § 106.12 would put all students at risk because when one student is affected, it also affects their peers who may witness harassment, be subjected to increased harassment themselves, and may become anxious and unable to concentrate in school. Another commenter was concerned that the proposed changes would require public institutions to fund religious student organizations, even when they discriminate against students protected under Title IX. The commenter believed this contradicts the Supreme Court’s opinion in Christian Legal Society v. Martinez,128 and would force public 128 561 E:\FR\FM\23SER3.SGM U.S. 661 (2010). 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations institutions to fund discrimination prohibited by Title IX. Some commenters expressed general opposition to the proposed changes to § 106.12 and asserted that the Department did not explain how the proposed changes are consistent with the Title IX statute. A commenter asserted that the Department did not explain why the proposed changes are needed to assist qualifying institutions. Finally, a commenter asserted that the Department did not explain why any alleged benefits of the proposed changes are greater than the discriminatory harm faced by students and employees at educational institutions. Discussion: The religious exemption provision of Title IX, 20 U.S.C. 1681(a)(3), does not directly address how educational institutions demonstrate whether they are controlled by a religious organization. As the comments in response to the proposed rule demonstrate, some commenters have taken this lack of clarity to mean that an educational institution can never be controlled by a religious organization, unless the religious organization takes the form of a separate corporate or other legal entity. The criteria in § 106.12(c) helpfully codify existing factors that the Assistant Secretary for Civil Rights uses when evaluating, on a case-by-case basis, requests for a religious exemption assurance from OCR, and while addressing concerns that there may be other means of establishing the necessary control. Additionally, because many of these factors are contained in non-binding guidance issued to OCR personnel dating back more than 30 years, enacting clear regulatory provisions will provide recipients and other stakeholders with clarity regarding what it means to be ‘‘controlled by a religious organization.’’ Here, the Department has authority to regulate with regard to discrimination on the basis of sex under 20 U.S.C. 1682, and the Department has determined it is necessary to regulate given the statutory silence and genuine ambiguity in regard to the criteria for obtaining a religious exemption under Title IX. These regulations are consistent with the Title IX statute in that they do not contradict, but attempt to clarify, an explicit exception provided for in the Title IX statute. Of course, no educational institution controlled by a religious organization is required to assert any religious exemption at all. Nor does § 106.12 alter the ability of individual students to pressure a school into asserting a religious exemption to Title IX or declining to assert such an exemption. VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 Commenters’ fears that § 106.12, as proposed, will permit students or student groups to obligate their schools to distribute monies or services in a different manner, based on a religious exemption to Title IX, are incorrect. To the extent that individual students may not be protected by non-discrimination obligations if they attend an educational institution controlled by a religious organization, such a consequence is a result of the Title IX statute itself, and not the regulations. The Department acknowledges that some commenters felt that the Department did not sufficiently articulate why the proposed changes are needed to assist institutions controlled by religious organizations. As explained above, these proposed revisions conform more closely to the intent of Executive Order 13831 and to the Supreme Court’s current First Amendment jurisprudence; relevant Federal statutes such as RFRA; Executive Order 13279, as amended by Executive Orders 13559 and 13831; and the Attorney General’s Memorandum on Religious Liberty. The Department has determined that the codification of the factors utilized by OCR in analyzing a religious exemption from Title IX will promote transparency and remove barriers to recipients exercising their First Amendment rights. Further, enacting clear regulations will provide recipients and other stakeholders with clarity regarding what it means to be ‘‘controlled by a religious organization.’’ As some commenters argued, some educational institutions were concerned that they might not be eligible for a religious exemption because their religious and organizational structure did not include an external controlling organization. This provision’s clarity— which also enshrines specific criteria for ‘‘control’’ into regulations with the force and effect of law, as opposed to nonbinding guidance—will create more predictability, consistency in enforcement, and confidence for educational institutions asserting the exemption. The Department carefully considered comments about weighing the anticipated benefits of the proposed regulation against the potential discriminatory harm that may be experienced by students and employees. While the Department appreciates that many commenters were concerned about potential harm to vulnerable populations, the Department asserts that Congress enacted Title IX with explicit exceptions to the requirements of Title IX, and these final regulations do not create new exceptions to the Title IX statute. Instead, the Department is PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 59949 providing much-needed clarity to the meaning of vague terminology utilized in the statute. Finally, the Department notes that it has addressed a commenter’s concerns pertaining to public institutions funding student organizations that discriminate on the basis of sex, and the Supreme Court’s decision in Christian Legal Society v. Martinez,129 in the ‘‘AllComers’ Policies for Student Organizations’’ section of this preamble. In short, the Department clarifies that this regulation does not prevent institutions from implementing allcomers policies, which were upheld in Martinez, nor does it constitute an ‘‘exemption’’ for religious student groups from all-comers policies. Instead, these final regulations reinforce the First Amendment’s mandate that public institutions treat religious student organizations the same as other student organizations. As such, a university does not have to choose between compliance with State law and securing Federal funding in the form of grants; it is free to enforce an all-comers policy in order to comply with any State antidiscrimination laws as long as it applies that policy equally to all student organizations. If a public institution chooses to not adopt an all-comers policy, which is also permissible under Martinez, then the institution cannot require a student organization, including a religious student organization, to open eligibility for membership and leadership to all students. Ultimately, a university has the discretion to choose what kind of policy will best comply with its own State and local anti-discrimination laws. In any event, whether a school meets the definition of an educational institution controlled by a religious organization in § 106.12, and further, whether it opts to invoke an exemption from Title IX, do not affect its rights under the First Amendment. Changes: None. Impact of Proposed Changes to 34 CFR 106.12 on LGBTQ Individuals Comments: Many commenters expressed specific concerns that the proposed changes to § 106.12 would create barriers for and cause harm to LGBTQ students, parents, and school employees. Some commenters articulated specific concerns related to LGBTQ students, including direct financial costs like lost tuition for students who are forced to leave their schools; lost wages for employees who are fired for reasons that otherwise would violate Title IX; and, health129 561 E:\FR\FM\23SER3.SGM U.S. 661 (2010). 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 59950 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations related costs like the impact of stress on mental and physical health. One commenter noted that policies that extend equal rights and legal protections are associated with decreased stress levels and improved health outcomes among sex and gender minorities. Some commenters asserted that the proposed changes to § 106.12 would harm LGBTQ students by referencing specific statistics regarding the experiences of LGBTQ youth in school, including statistics from GLSEN’s 2017 National School Climate Survey (GLSEN Survey), to support their assertions. These commenters noted that the GLSEN Survey found that the vast majority of LGBTQ students experienced harassment or assault based on personal characteristics, including sexual orientation, gender expression, gender, religion, race and ethnicity, and disability; seven in ten LGBTQ students experienced verbal harassment based on sexual orientation; more than half of LGBTQ students experienced verbal harassment based on gender expression; more than a third of LGBTQ students missed at least a day of school in the last month because of feeling unsafe at school, and at least two in five students avoided bathrooms and locker rooms because they felt unsafe or uncomfortable; the frequency of verbal harassment based on gender expression increased from 2015 to 2017; and LGBTQ students who experienced highlevels of anti-LGBTQ victimization were nearly twice as likely to report that they do not plan to pursue postsecondary education; and these students had lower GPAs, lower self-esteem, and higher levels of depression. Other commenters provided statistics related to LGBTQ youth without referencing a specific study, noting that LGBTQ youth are more likely to attempt suicide than heterosexual youth; that almost two-thirds of LGBTQ youth report being personally affected by antiLGBTQ policies and practices; that 18 percent of LGBTQ students report leaving a school because they felt unsafe or uncomfortable; and that among LGBTQ students who make it to college, 31 percent have experienced a hostile campus environment. Some commenters noted that a recent assessment of schools seeking religious exemptions found that the vast majority of requesting institutions sought exemptions from Title IX that were related to sexual orientation and gender identity. Commenters contended that these exemptions were invoked in order to facilitate sex discrimination by the institutions. According to these commenters, it is reasonable to expect VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 the trend to continue under the proposed changes to § 106.12. One commenter argued that employment discrimination based on sex, including sexual orientation and gender identity, remains a grave problem in the United States. The commenter asserted that although Federal law currently prohibits discrimination based on sex, the proposed changes to § 106.12 would embolden Federal contractors to cite religious beliefs in order to justify religious discrimination. One commenter expressed concern that, as a practical matter, the proposed changes mean that a student who identifies as LGBTQ or who is a child of LGBTQ parents could be confronted with open anti-LGBTQ hostility by a Department-funded social service program partnering with public schools to provide healthcare screening, transportation, shelter, clothing, or new immigrant services. The commenter also believed that the proposed changes increase the likelihood that these harms will result by requiring the Department to issue special notices informing potential grantees that they can apply to be exempt from generally applicable civil rights laws. Discussion: The Department acknowledges that the religious exemptions sought by some educational institutions have involved the application of Title IX to complex issues involving sexual orientation, gender identity, or transgender status. These educational institutions have often cited their religious texts and tenets when articulating conflicts with Title IX in correspondence with OCR. While the Department understands that some commenters believe that religious exemptions should not be granted when there is a conflict with Title IX stemming from a religious tenet addressing sexual orientation, gender identity, or transgender status, the Department enforces Title IX consistent with applicable statutes, including RFRA, and case law. Title IX does not require the Department to deny otherwise valid religious exemption requests if they relate to sexual orientation, gender identity, or transgender status. Further, the Department disagrees that these proposed regulations will have a significantly increased negative impact upon LGBTQ individuals, because the final regulations clarify existing statutory exemptions to Title IX and the recipients’ eligibility for claiming such exemptions. The religious exemption contained in Title IX has existed since PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 the statute’s enactment in 1972.130 Since that time, the Department has issued a number of letters in response to educational institutions’ correspondence asserting eligibility for a religious exemption, and the Department has stated publicly that it utilizes many of the criteria contained in this proposed regulation when considering such correspondence.131 The Department cannot predict whether the number of recipients claiming the exemption will increase because (1) OCR’s past practice has been to allow recipients to claim a religious exemption even after a complaint has been filed against the recipient, and thus, OCR has never had a concrete number of recipients who are claiming a religious exemption at a given time; and (2) after August 14, 2020 (the effective date of the Title IX Final Rule), it is clear that the recipient is under no obligation to affirmatively notify OCR that they are claiming a religious exemption. In any event, based on public comment, the Department does not believe that there are a significant number of educational institutions who have not previously sought a religious exemption, but would be eligible to do so as a result of these final regulations, which include existing factors from OCR’s non-binding guidance. With respect to commenters alleging that Federal contractors will now be able to discriminate on the basis of sex, the Department notes that this provision only applies to educational institutions that are controlled by a religious organization. The Department is committed to the rule of law and robust enforcement of Title IX’s nondiscrimination mandate. As a statutory exemption to certain provisions of Title IX exists for educational institutions controlled by a religious organization, the Department must acknowledge and practically administer such an exemption. Changes: None. Impact of Proposed Changes to 34 CFR 106.12 on Pregnant and Parenting Individuals Comments: Many commenters expressed specific concerns that the proposed changes to § 106.12 would negatively impact pregnant and 130 Title IX of the Education Amendments of 1972, Public Law 92–318, 373, 86 Stat. 235 (signed into law on June 23, 1972). 131 See, e.g., U.S. Dep’t of Educ., Office for Civil Rights, Memorandum from William Smith, Acting Assistant Sec’y for Civil Rights, to OCR Senior Staff regarding Title IX Religious Exemption Procedures and Instructions for Investigating Complaints at Institutions with Religious Exemptions (Oct. 11, 1989), available at https://www2.ed.gov/about/ offices/list/ocr/docs/smith-memo-19891011.pdf. E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 parenting students. Some of these commenters also expressed specific concerns that the proposed changes would permit discrimination based on seeking reproductive health care, including those who have had an abortion or are unmarried and pregnant. One commenter asserted that the proposed rule would allow colleges and universities to discriminate against a significant portion of the population given that one in four women will have an abortion in their lifetime. Discussion: The Department appreciates and has considered the comments raising concerns that the proposed changes may negatively impact pregnant and parenting students. However, the Department reiterates its disagreement with the contention that the proposed changes will have a significant increased impact on certain students, given that the process to assert eligibility for a religious exemption already exists, and the final rule does not significantly change the scope of educational institutions who are eligible to assert a religious exemption. The Title IX implementing regulations regarding the religious exemption were initially issued on May 9, 1980,132 and the Department has issued a number of letters addressing religious exemptions on the basis of pregnancy and/or familial status since that time.133 In any event, if an educational institution controlled by a religious organization seeks a religious exemption from Title IX for the purposes of treating students differently on the basis of pregnancy or familial status, or having previously sought or obtained an abortion, and the criteria described in § 106.12 are met, the school would have stated a valid religious exemption under Title IX, regardless of the practical consequences of such a finding. These final regulations do not create a religious exemption where there was none. Changes: None. Opposition to Religious Exemptions Generally Comments: Some commenters expressed opposition to the concept of religious exemptions in general. One commenter stated that when a person signs up to a certain profession and to conduct business, like an institution of higher education, they accept certain 132 The Department notes that the Title IX regulations were amended on November 13, 2000, to include provisions pertaining to single-sex education. 133 See ‘‘Other Correspondence.’’ Office for Civil Rights, Department of Education, https:// www2.ed.gov/about/offices/list/ocr/ correspondence/other.html. VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 obligations, including nondiscrimination on the basis of gender and sexual orientation. The commenter also stated that the concept of religious exemptions is irrational and unworkable and inherently subjective. The commenter asserted that we would not entertain people indulging a religious belief to discriminate against racial groups, and to allow discrimination against sexual groups is equally absurd. Discussion: The Department understands that several commenters’ opposition to the proposed changes stemmed from their opposition to religious exemptions generally. However, the Title IX statute explicitly provides for an exception to Title IX for an educational institution which is controlled by a religious organization if the application of Title IX would not be consistent with the religious tenets of that organization. This is one of nine specific exemptions to the prohibition against discrimination on the basis of sex that Congress included in Title IX before adopting the statute.134 The Department is charged with implementing and administering this law, but it did not create the religious exemption from Title IX, and it has no authority to disregard the statutory text.135 Changes: None. Advance Notice of Religious Exemptions Require Advance Notice Comments: Some commenters asserted that the proposed changes to § 106.12 were particularly concerning because students’ rights may be denied at exempt institutions with no prior notice, since a school may use the exemption as a defense to a Title IX complaint without ever having officially requested the exemption from the Department. One commenter asserted that the proposed changes to § 106.12 would eliminate the advance notice requirement for religious exemptions. Another commenter opposed the proposed changes to § 106.12 and stated that the current process for obtaining an assurance of an exemption under Title IX is (1) minimally burdensome, (2) provides notice to the public as to what schools are requesting exemptions, and (3) ensures that religion as a basis for the exemption mirrors what is legally permissible. 134 See 20 U.S.C. 1681. the RFRA applies to the Department and ‘‘operates as a kind of super statute, displacing the normal operations of other federal laws,’’ often mandating religious accommodations and exemptions. Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1754 (2020). 135 Additionally, PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 59951 On the other hand, other commenters expressed support for the Department’s position that ‘‘[a]n institution’s exempt status is not dependent upon its submission of a written statement to OCR.’’ One commenter felt that, although the proposed rule did not propose changes to § 106.12(b), clarification should be added to § 106.12(b) that the law does not require the submission of a letter to claim the religious exemption. One commenter suggested that the Department ought to clarify that schools may inherently assert the religious exemption, rather than having to apply for it. The commenter suggested that the Department modify or eliminate existing § 106.12(b): Exemption. An educational institution which wishes to claim the exemption set forth in paragraph (a) of this section, shall do so by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part which conflict with a specific tenet of the religious organization. The commenter expressed concern that the phrase ‘‘shall do so’’ implies a form of application; whereas, the institution should be able to assert that they have the exemption when they meet the criteria in proposed § 106.12(c). Accordingly, the commenter suggested the following revision: Exemption. An educational institution may assert the exemption set forth in paragraph (a) without prior written assurance from the Department. An educational institution may request such written assurance from the Assistant Secretary but is not required to do so. One commenter suggested a ‘‘tightening’’ of the language in proposed § 106.12(c) to clarify that government approval is not needed for a religious exemption. The commenter believed that the phrases ‘‘sufficient to establish’’ and ‘‘is eligible to assert’’ could be used to claim that an institution must receive the Department’s permission to exercise its right to a religious exemption. The commenter suggested that this section be rephrased to clearly indicate that requests by institutions for Department review and opinion are entirely voluntary in nature. Discussion: The Department has reviewed and considered the comments urging the Department to require advanced publication of an educational institution’s religious exemption under Title IX before the institution may claim the exemption. However, the Department declines to adopt a new requirement mandating that educational institutions controlled by religious organizations publicize their invocation E:\FR\FM\23SER3.SGM 23SER3 59952 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations of a religious exemption to students, employees, or other individuals. The Department is not persuaded that such a mandate would be consistent with the Title IX statute, or beneficial overall. With respect to some commenters’ suggestions that the Department modify § 106.12(b), the Department states that the NPRM for these final regulations did not propose, nor do we make here, changes to § 106.12(b). However, the Department’s November 29, 2018, NPRM,136 and the recently released Title IX Final Rule,137 both address changes to § 106.12(b). In regard to the comment requesting that the Department clarify that government approval is not needed in order for a recipient to claim a religious exemption, the Department again reiterates that recipients are not required to request a religious exemption from specific provisions of Title IX. If they meet the criteria for a religious exemption, recipients may simply assert the religious exemption at any time, whether before or after an investigation has been opened. The Department’s position and interpretation is clear on this point, especially when coupled with the Title IX Final Rule, and further clarification is not needed. Changes: None. Other Concerns Related to Proposed Changes to 34 CFR 106.12 khammond on DSKJM1Z7X2PROD with RULES3 Comments: One commenter expressed concern that the Department did not obtain approval of the proposed rule from the Attorney General, in violation of Executive Order 12250. According to the commenter, Executive Order 12250 requires any NPRM that addresses sex discrimination under Title IX to be reviewed by the Attorney General prior to its publication in the Federal Register.138 The commenter noted that the aforementioned authority (although not the authority to approve final regulations) had been delegated to the Assistant Attorney General for Civil Rights.139 One commenter asserted that any changes to the Department’s Title IX regulations should be done in coordination with the other Federal agencies that have Title IX regulations. The commenter stated that the proposed 136 83 FR 61482, 61496. FR at 30475–82, 30573–74. 138 Citing sections 1–202, 1–402 of Executive Order 12250; see also Memorandum from John Gore, Acting Assistant Attorney General, to Federal Agency Civil Rights Directors regarding Clearance Requirements for Title VI, Title IX, Section 504, and Related Nondiscrimination Regulations and Policy Guidance Documents (Apr. 24, 2018). 139 28 CFR 0.51(a). 137 85 VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 changes to § 106.12 focus on the Department of Education only, even though there are 25 other Federal agencies with Title IX regulations, and most of those agencies provide financial assistance to the same private schools, colleges, and universities that the Department of Education funds. The commenter also asserted that the Department must work with all other Federal agencies to adopt a common set of standards on this common question of which entities are eligible for exemptions to Title IX. The commenter believed that the Regulatory Flexibility Act requires the Department to identify and address all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule. The commenter also believed that Executive Order 12866 requires the Department to avoid regulations that are inconsistent, incompatible, or duplicative with those of other Federal agencies. The commenter contended that it is not sufficient to merely predict that other agencies will amend their Title IX regulations to comport with the Department’s proposed changes to § 106.12 in the future. According to the commenter, dissimilarity in Title IX regulations leads to confusion about how different agency Title IX regulations interact among courts and recipients, as has been the case with single-sex schools and classes and dress codes. The commenter stated that the Department may also struggle with inconsistencies because it has entered into delegation agreements with other Federal agencies to handle complaints of discrimination under Title IX and complaints filed with other agencies may be referred to the Department for handling. According to the commenter, this means that the Department may have to investigate, on behalf of another agency, a Title IX complaint at a private school that the Department believes is exempt from Title IX. Another commenter was concerned that the proposed rule would eliminate religious freedom protections for college preparation and work-study programs intended to help high school students from low income families prepare for college, and would impact federally funded afterschool and summer learning programs for students in high-poverty, low performing schools. Discussion: First, Executive Order 12250 was signed by President Jimmy Carter on November 2, 1980.140 This Executive Order states that the Attorney 140 Exec. Order No.12250, Leadership and Coordination of Nondiscrimination Laws, 45 FR 72995 (Nov. 2, 1980), https://www.justice.gov/crt/ executive-order-12250. PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 General shall coordinate the implementation and enforcement by Executive agencies of various nondiscrimination provisions of the following laws: (a) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.). (b) Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.). (c) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794). (d) Any other provision of Federal statutory law which provides, in whole or in part, that no person in the United States shall, on the ground of race, color, national origin, handicap, religion, or sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.141 Specifically, section 1–202 of the Executive Order 12250 states: In furtherance of the Attorney General’s responsibility for the coordination of the implementation and enforcement of the nondiscrimination provisions of laws covered by this Order, the Attorney General shall review the existing and proposed rules, regulations, and orders of general applicability of the Executive agencies in order to identify those which are inadequate, unclear or unnecessarily inconsistent.142 As it pertains to the aspects of this NPRM that propose changing the Title IX regulations, the Department is in compliance with Executive Order 12250 because the Department submitted this proposed rule for consideration to the Office of Management and Budget (OMB), and OMB initiated a clearance process with the Department of Justice. Pursuant to this OMB clearance process, the Department of Justice has had an opportunity to review the proposed changes to § 106.12. Additionally, the Department is aware that, pursuant to Executive Order 12250, the Attorney General of the United States must approve the final text of any changes to regulations pertaining to Title IX before they take effect.143 Next, with respect to the concerns about the Department of Education’s Title IX regulations diverging from other Federal agency regulations pertaining to Title IX, we begin by noting that the Department of Education’s implementing regulations for Title IX are available at 34 CFR 106.1, et seq. In contrast, the Title IX common rule, published on August 30, 2000, covers education program providers or recipients that are funded by other Federal agencies, including the Nuclear Regulatory Commission, the Small Business Administration, the National 141 See id. § 1–202. 143 Id. section 1–1. 142 Id. E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations Aeronautics and Space Administration, the Department of Commerce, the Tennessee Valley Authority, the Department of State, the Agency for International Development, the Department of Housing and Urban Development, the Department of Justice, the Department of the Treasury, the Department of Defense, the National Archives and Records Administration, the Department of Veterans Affairs, the Environmental Protection Agency, the General Services Administration, the Department of the Interior, the Federal Emergency Management Agency, the National Science Foundation, the Corporation for National and Community Service, and the Department of Transportation.144 However, the Department of Education is in a unique position with respect to Federal agencies implementing and enforcing Title IX because, as the common rule acknowledges, the Department is (and has historically been) the lead agency for enforcement of Title IX through its guidance, interpretations, technical assistance, investigative expertise, and the amount of resources that the Department commits to enforcement of Title IX. Despite the assertions of some commenters, there is no requirement that there be perfect parity in Title IX regulations across the Federal agencies. Indeed, differences between the Department’s regulations and the common rule exist even apart from this rule. Given the Department’s historical role as a leader in Title IX administration and enforcement, it is appropriate that substantive changes to the Title IX regulations originate with the Department. Once the Department’s proposed changes to Title IX are in effect, other Federal agencies may consider whether the Department’s changes should be reflected in their own regulations. However, the assertion that the Department is prohibited from amending, or that it would be unworkable to amend, the Department’s Title IX regulations because other Federal agencies have Title IX regulations that differ slightly from the Department’s regulations is simply not a correct statement of law or policy. We do not believe these final regulations would be inconsistent, incompatible, or duplicative with those of other agencies, and have engaged in the interagency review process through OMB’s Office of Information and Regulatory Affairs to 144 Title IX Final Common Rule for 21 Federal agencies: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (65 FR 52857). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 help ensure that this is the case. Further, we discuss our compliance with the Regulatory Flexibility Act in the ‘‘Executive Orders and Other Requirements’’ section of this preamble. The Department acknowledges that it has previously entered into delegation agreements with other Federal agencies to review and enforce complaints filed with those agencies, although OCR has suspended several of these interagency agreements. In any event, if OCR were to accept complaints filed with other agencies as part of a delegation arrangement, OCR would make the necessary coordination efforts to ensure compliance with all laws, including Title IX. Last, with respect to one commenter who was concerned that the rule would eliminate religious freedom protections for college preparation and work-study programs, § 106.12 would not eliminate existing religious freedom protections for any individual or program. Instead, § 106.12 is designed to codify in part existing OCR guidance with respect to the definition of an educational institution controlled by a religious organization and clarify when such entities are eligible to assert an exemption. Changes: None. Proposed 34 CFR 106.12(c)—Definition of ‘‘Controlled by’’ a Religious Organization Comments: Some commenters expressed general support for § 106.12, noting that a recipient can itself be a religious organization that controls its own operations, curriculum, and other features. One commenter asserted that many of the schools in the Jewish community are entities that are wholly independent from a synagogue or other hierarchical body, and thus are not controlled by a religious organization that maintains a separate legal form. The commenter felt that the list of nonexhaustive factors for claiming a religious exemption represented an understanding that religious institutions may be controlled by religion in different ways, yet they are no less religious. In the same vein, another commenter supported the changes because they stated that some Christian and other religious educational institutions are organized and governed by a local board or body of religious leaders, rather than being operated under a hierarchical organization. According to the commenter, for many of these organizations, local control, free of any denominational or hierarchical organization, is a deeply held religious belief and practice. PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 59953 One commenter was supportive of the proposed changes to § 106.12(c) because, according to the commenter, these changes would preclude the Department from engaging in unconstitutional differentiation among religious institutions based on their connection (or lack thereof) with any outside entity such as a denomination or religious order. One commenter expressed gratitude for the six added provisions in proposed § 106.12(c) to help explain the ‘‘controlled by’’ language. The commenter felt that the list would add clarity for schools and stakeholders. Another commenter also believed that the proposed changes to § 106.12(c)(1)– (7) clarified what constitutes an institution that is ‘‘controlled by a religious organization.’’ One commenter supported the proposal to clarify the eligibility to assert religious exemptions under Title IX because it will give students clear parameters for whether the institutions they apply to and attend are eligible for religious exemptions. The commenter also argued, separately, that the proposed rule would expand the limited exemption for religious schools in Title IX to a broader range of schools that can claim their First Amendment rights, and suggested that such an expansion could lead to equality for all schools. One commenter believed that the criteria in proposed § 106.12(c) would prevent the imposition of a government standard of what constitutes a religious identity on institutions established for a religious educational purpose, and protect an individual’s and an institution’s free exercise and assembly rights. One commenter supported what they called a broad reading of what could qualify as a religious institution because according to the commenter, it would ensure that the freedom of all types of religious institutions are protected. In addition, some commenters expressed general concern that the Department’s proposal would expand the definition in § 106.12(c) of schools controlled by a religious organization in ways that have nothing to do with religion, which would lead to increased discrimination by schools that were not truly religious, and against the students that Title IX was intended to protect. Some commenters asserted that the proposed changes to the definition of ‘‘controlled by’’ a religious organization in § 106.12(c) would strip the word ‘‘control’’ of its intended meaning, and would virtually adopt an expanded religious exemption for schools ‘‘closely identified with the tenets of a religious organization,’’ which the commenter E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 59954 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations argued was previously rejected by Congress. These commenters believed that if Congress had intended to allow exemptions for educational institutions without regard to the existence of an outside, external religious organization, it would have modeled the language in Title IX on Title VII of the Civil Rights Act of 1964, which allows an exemption for educational institutions without regard to the existence of a religious organization, but instead Congress restricted the religious exemption in Title IX to schools ‘‘controlled by’’ a ‘‘religious organization.’’ One commenter believed that the Department’s statement that it is ‘‘constitutionally obligated’’ to broadly interpret the phrase ‘‘controlled by a religious organization’’ to avoid religious discrimination among institutions of varying denominations is an incorrect interpretation of the cannon of statutory avoidance, which does not permit an agency to rewrite a statute. The commenter referred to Jennings v. Rodriguez,145 when discussing this proposition. The commenter asserted that if a statutory exemption that is limited to educational institutions ‘‘controlled by a religious organization’’ unconstitutionally discriminates against religious organizations with different types of structures, then the Department’s only choice is not to apply the unconstitutional exemption to anyone. The commenter contended that Congress, in 1972 when Title IX was originally passed, and in 1988 when it was amended, would have wanted to enact Title IX without a religious exemption, if a court were to hold that the limited religious exemption it enacted was unconstitutional. The commenter noted that there is no statutory language in Title IX that can be excised from the religious exemption itself if the ‘‘controlled by a religious organization’’ is unconstitutionally limiting, because without this language, the exemption makes no sense. The commenter also asserted that even without the religious exemption in Title IX, an educational institution can invoke the Religious Freedom Restoration Act if it can show that Title IX substantially burdens its exercise of religion. The commenter further asserted that, if the religious exemption in Title IX as written is unconstitutional, the longstanding course of conduct by Congress demonstrates that it would have wanted Title IX to remain in effect. The commenter noted that Title IX was modeled on Title VI of the Civil Rights Act of 1964, but that Title VI does not 145 138 S. Ct. 830, 836 (2018). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 have a religious exemption, and neither do Section 504 of the Rehabilitation Act of 1973 or the Age Discrimination Act of 1975, which were both enacted after Title IX. Thus, the commenter contended that Congress did not think that a religious exemption was necessary in order to place nondiscrimination conditions on recipients of Federal financial assistance, even when the type of discrimination was not subject to heightened constitutional scrutiny. The commenter also noted that Congress confronted the question when it reauthorized the statute in 1988 and rejected expanding the religious exemption in Title IX. The commenter also stated that the majority of statutes enacted by Congress addressing sex discrimination by recipients of financial assistance have consistently prohibited sex discrimination without any religious exemptions, including statutes enacted around the same time as Title IX. One commenter noted that several other Federal statutes enacted around the same time as Title IX provide an exemption involving looser or more informal relationships with religious organizations that do not rise to the level of actual control, which demonstrates that Congress intentionally limited the exemption in Title IX to only instances where an educational institution is controlled by an outside religious organization. This commenter also stated that although courts have not yet interpreted the language ‘‘controlled by’’ in Title IX, cases interpreting similar language in other statutes are instructive. The commenter referenced cases interpreting the Federal Unemployment Tax Act (FUTA) and Fair Housing Act (FHA), where courts have demanded a showing of actual or legal control of an entity’s governing body to establish that an entity is ‘‘controlled by’’ a religious organization. According to the commenter, the language of the FHA religious exemption is narrower than that of Title IX and, thus, the courts’ narrow interpretation of the FHA exemption demands an even narrower interpretation in the Title IX context. One commenter asserted the suggestion that one component of an educational institution can be the religious organization has no basis in the statutory text. The commenter stated that this would make language that Congress has specifically included in other statutes redundant and noted that, in authorizing Federal funds to go to private schools after Hurricane Katrina, Congress exempted ‘‘a non-public school that is controlled by a religious organization or organized and operated on the basis of religious tenets.’’ The PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 commenter asserted that the Department has no authority to rewrite Title IX to include language that Congress included elsewhere, but not in Title IX. One commenter contended that while there may be varied methods of establishing control, it cannot be enough that an educational institution has elected to subscribe to or adopt a particular doctrinal statement or practices because the term ‘‘control’’ suggests a more coercive, two-party relationship. The commenter noted that Congress has defined a ‘‘tribally controlled college or university’’ to mean ‘‘an institution of higher education which is formally controlled or has been formally sanctioned, or chartered, by the governing body of an Indian tribe or tribes.’’ The commenter also noted that under ERISA, a pension plan qualifies for the ‘‘church plan’’ exemption if the organization maintaining it is either ‘‘controlled by or associated with a church.’’ The commenter further explained that courts use a multi-factor test for determining whether an organization is ‘‘associated with’’ a church, but both the IRS and courts have used the commonsense definition of organizational control: ‘‘the ability of church officials to appoint the majority of the trustees or directors of an organization.’’ Thus, the commenter asserted, there is no ground to deviate from such a commonsense definition in interpreting the same language in Title IX. One commenter asserted that when Congress wants to permit an exemption from non-discrimination laws for educational institutions that have relationships with religious organizations not based solely on control, it knows how to do it, but has done so only rarely. The commenter explained that in other situations, for example, Congress has permitted exemptions for ‘‘a non-public school that is controlled by a religious organization or organized and operated on the basis of religious tenets;’’ 146 for ‘‘any educational institution that is affiliated with a religious organization or closely associated with the tenets of a religious organization;’’ 147 for ‘‘a school that is operated by, supervised by, controlled by, or connected to a religious organization;’’ 148 and for ‘‘an institution which is controlled by or 146 Elementary and Secondary Education Hurricane Relief Act, Public Law 109–148, section 107, 119 Stat 2680 (2005). 147 District of Columbia Appropriations Act, 1990, Public Law 101–168, section 141(b), 103 Stat 1267 (Nov. 21, 1989). 148 Department of Defense and Full-Year Continuing Appropriations Act, 2011, Public Law 112–10, section 3008, 125 Stat 38. E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations which is closely affiliated with the tenets of a particular religious organization.’’ 149 One commenter noted that Congress considered changes to the religious exemption language in Title IX to expand it beyond ‘‘control’’ in 1988 when it expanded the coverage of Title IX in the Civil Rights Restoration Act. The commenter explained that at that time, proponents of an expanded religious exemption in Title IX, including the Department, urged that the language in Title IX be changed to include educational institutions ‘‘closely identified with the tenets of a religious organization.’’ 150 The commenter further explained that Congress rejected the proposal to broaden the religious exemption in Title IX, and President Reagan stated that one reason for his veto of the Civil Rights Restoration Act was the ‘‘failure to protect the religious freedom of private schools that are closely identified with the religious tenets of, but not controlled by, a religious organization.’’ 151 The commenter believed that the Department has no authority to rewrite Title IX to treat ‘‘controlled by’’ as if it encompassed any other types of relationships because Congress considered and rejected this idea. One commenter believed that the religious exemption in Title IX must be interpreted narrowly to give effect to the statute’s primary purpose to protect students and ensure equal access to education through the vigorous enforcement of civil rights. The commenter stated that the Title IX regulations therefore must, as a default rule, aim primarily to realize Title IX’s purpose for preventing and addressing sex discrimination in federally funded entities, and if the Department chooses to change this default expectation, it must provide an extremely compelling justification for doing so. The commenter asserted that the Department offered little justification for its broad interpretation of Title IX’s religious exemption in the proposed changes to § 106.12(c). The commenter further asserted that the limited nature of Title IX’s religious exemption is further underscored by its legislative history, in both its initial drafting and negotiations over later amendments, which make clear that legislators intended and understood the exemption to be narrow. One commenter was concerned that, contrary to the plain text of the statute, 149 Higher Education Amendments of 1992, Public Law 102–325, section 724, 106 Stat 448. 150 S. Rep. 100–64, at 27 (1987). 151 134 Cong. Rec. H1037 (Mar. 22, 1988). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 the proposed changes to § 106.12(c) would allow a broad range of schools that are not controlled by a religious organization to discriminate against students and employees based on sex. According to the commenter, approximately one fifth of Maryland colleges and universities describe themselves as having a religious affiliation, regardless of whether they are controlled by a religious organization. The commenter contended that the proposed changes would enable these institutions to use Federal funds to legally discriminate against teachers and students, and such an expansion would leave thousands of Maryland students and teachers vulnerable to sexual harassment, retaliation, and unwarranted disciplinary actions. One commenter asserted that the proposed changes to § 106.12(c) represent an unwarranted expansion of Title IX’s religious exemption. The commenter explained that the Title IX statute includes important limitations about which schools can qualify for an exemption and in particular the school needs to be ‘‘controlled by a religious organization.’’ According to the commenter, this means that it is not sufficient for a school to be affiliated with a religion or to follow certain religious principles; the school needs to be controlled by another organization, one that has specific religious tenets and is capable of exerting control over a school. One commenter generally stated that the Department has no authority to violate or rewrite unambiguous law, citing Chevron v. NRDC,152 and contended that the expansion of ‘‘controlled by’’ violates the statutory text of Title IX and thus the proposed rule must be withdrawn in its entirety. Discussion: The Department appreciates comments that the rule ensures that educational institutions that are controlled by religious organizations will be protected by § 106.12. However, to be clear, the Department does not agree with the commenter who supported the proposed regulation because, in the commenter’s view, the proposed changes to § 106.12 impliedly expanded the eligibility for religious exemptions to all schools, or to all schools that are associated with religious beliefs. That is not the case, and the Department’s regulation only addresses those educational institutions that are controlled by a religious organization. Further, the Department agrees with commenters who stated that it would pose challenges, and perhaps constitutional questions, to offer 152 467 PO 00000 U.S. 837 (1984). Frm 00041 Fmt 4701 Sfmt 4700 59955 religious exemptions to some institutions that are controlled by religious organizations but not others, on the sole basis that some religions are required by their tenets not to be associated to an external entity that controls their operations. The Department understands that some commenters felt that the proposed addition of § 106.12(c) was a departure from a long-established agency protocol pertaining to religious exemptions. However, the Department notes that the provisions in proposed § 106.12(c)(1)– (5) are factors consistent with the Department’s past practice in acknowledging an educational institution’s religious exemption. For instance, provisions (c)(1) through (c)(3) are consistent with guidance issued by former Assistant Secretary for Civil Rights Harry Singleton to Regional Civil Rights Directors on February 19, 1985.153 To guide attorneys within OCR as to whether an educational institution may establish ‘‘control’’ by a religious organization, the guidance relied on the March 1977 version of HEW Form 639A, which was issued by the former U.S. Department of Health, Education, and Welfare. Proposed provisions (c)(4) and (5) also are consistent with a letter from Acting Assistant Secretary for Civil Rights William L. Smith to OCR Senior Staff.154 The Department received both comments in support of and in opposition to the Department’s position that, consistent with prior OCR guidance, an educational institution may itself be the controlling religious organization under Title IX. Section 106.12(c)(6), as proposed, is consistent with longstanding OCR practice in recognizing this principle. For example, OCR has long recognized that a school or department of divinity is an educational institution controlled by a religious organization, without any requirement that the school or department of divinity be controlled by a religious organization that is organized as a separate legal entity from the educational institution itself. While the Department understands the assertions raised by some 153 U.S. Dep’t of Educ., Office for Civil Rights, Memorandum from Harry Singleton, Assistant Sec’y for Civil Rights, to Regional Civil Rights Directors regarding Policy Guidance for Resolving Religious Exemption Requests (Feb. 19, 1985), available at www2.ed.gov/about/offices/list/ocr/docs/singletonmemo-19850219.pdf. 154 U.S. Dep’t of Educ., Office for Civil Rights, Memorandum from William Smith, Acting Assistant Sec’y for Civil Rights, to OCR Senior Staff regarding Title IX Religious Exemption Procedures and Instructions for Investigating Complaints at Institutions with Religious Exemptions (Oct. 11, 1989), available at https://www2.ed.gov/about/ offices/list/ocr/docs/smith-memo-19891011.pdf. E:\FR\FM\23SER3.SGM 23SER3 59956 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 commenters that an educational institution must be controlled by a separate legal entity in the form of an external religious organization in order to qualify for a religious exemption, those assertions are atextual, and the Department’s final regulations recognizes that some educational institutions are organized and governed by a local board or body of religious leaders, rather than being operated under a hierarchical organization. The Title IX statute does not require that an educational institution and a controlling religious organization be separate and distinct entities. Further, the Department has long recognized that these entities can be one and the same, such as in the case of schools of divinity. Additionally, the Department acknowledges that the statutory text leads to potential ambiguities as to which educational institutions are eligible for exemptions, and over the years, the Department has had to develop a system for evaluating what is sufficient to establish that an educational institution is ‘‘controlled by a religious organization.’’ The Department has previously shared the parameters of this system with the public through (1) issuing non-binding agency memoranda 155 and (2) publicly posting the Department’s responses to letters seeking a religious exemption from Title IX.156 These procedures left educational institutions in the difficult position of digging through agency memoranda from the 1980s, and reading dozens of letters from OCR, in order to assess their eligibility for asserting a religious exemption under Title IX. Notably, however, many of these documents—including the document that referenced divinity schools being 155 See U.S. Dep’t of Educ., Office for Civil Rights, Memorandum from William Smith, Acting Assistant Sec’y for Civil Rights, to OCR Senior Staff regarding Title IX Religious Exemption Procedures and Instructions for Investigating Complaints at Institutions with Religious Exemptions (Oct. 11, 1989), available at https://www2.ed.gov/about/ offices/list/ocr/docs/smith-memo-19891011.pdf; U.S. Dep’t of Educ., Office for Civil Rights, Memorandum from Harry Singleton, Assistant Sec’y for Civil Rights, to Regional Civil Rights Directors regarding Title IX Religious Exemptions (Aug. 2, 1985), available at https://www2.ed.gov/about/ offices/list/ocr/docs/singleton-memo-19850802.pdf; U.S. Dep’t of Educ., Office for Civil Rights, Memorandum from Harry Singleton, Assistant Sec’y for Civil Rights, to Regional Civil Rights Directors regarding Policy Guidance for Resolving Religious Exemption Requests (Feb. 19, 1985), available at https://www2.ed.gov/about/offices/list/ocr/docs/ singleton-memo-19850219.pdf; Assurance of Compliance with Title IX, HEW Form 639–A (Mar. 18, 1977), available at https://www2.ed.gov/about/ offices/list/ocr/docs/hew-form-639-a-1977.pdf. 156 See Department website at https:// www2.ed.gov/about/offices/list/ocr/ correspondence/other.html. VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 eligible for religious exemptions—were issued before the events described by one of the commenters above occurred, such as the passage of a statute addressing Hurricane Katrina recovery, or President Ronald Reagan’s veto of the Civil Rights Restoration Act. The Department thus disagrees with this commenter, who suggested that OCR lacks regulatory authority for § 106.12 because Congress, in other statutes, suggested a distinction between maintaining religious tenets and being controlled by another legal entity that maintains religious tenets. That a different Congress drafted legislation in a different way does not alter the fact that the Title IX statute, as written, does not contain an independent requirement that the controlling religious organization be a separate legal entity than the educational institution. Indeed, the difference between these two categories of educational institutions appears to be a legal formality, in the sense that this comment could imply that forming a new legal entity on paper, and merely having that entity ‘‘control’’ the educational institution would, in fact, be sufficient to establish eligibility under the control test. Yet under this rationale, even a school of divinity would need to be controlled by an outside organization that is also a religious organization, contrary to over 30 years of OCR practice. Why Congress would desire such an outcome, even as a policy matter—to say nothing of the constitutional questions that might arise by privileging some religious structures over others—is left unaddressed by the commenter. The Department agrees with commenters who have asserted that the Department has no authority to change the language in the Title IX statute. The Department does not endeavor to change the language of the statute, or to expand it beyond the scope of its text. The Department sees no textual reason that would require limiting 20 U.S.C. 1681(a)(3) exclusively to schools that are controlled by external religious organizations. Accordingly, it will continue to recognize that an educational institution may, in some cases, also be the controlling religious organization. Moreover, as a separate and independent basis for interpreting the text in the manner above, and as the Department explained in the NPRM, and consistent with many comments described above, the Department recognizes that religious organizations are organized in widely different ways that reflect their respective theologies. Some educational institutions are controlled by a board of trustees that PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 includes ecclesiastical leaders from a particular religion or religious organization who have ultimate decision-making authority for the educational institutions. Other educational institutions are effectively controlled by religious organizations that have a non-hierarchical structure, such as a congregational structure. The Department does not discriminate against educational institutions that are controlled by religious organizations on the sole basis that they are organized with different types of internal structures. Indeed, the Department has long recognized exemptions for educational institutions that are controlled by religious organizations with hierarchical and non-hierarchical structures. As the Supreme Court explained in Jennings v. Rodriguez,157 under the constitutional-avoidance canon of statutory interpretation, when statutory language is susceptible to multiple interpretations, a court may avoid an interpretation that raises serious constitutional doubts, and instead may adopt an alternative that avoids those problems. However, the Supreme Court cautioned that, ‘‘a court relying on that canon still must interpret the statute, not rewrite it.’’ Here, the Department is not re-writing the statute. The regulatory language is clearly in line with the text of the statute. The Department does recognize, however, that the phrase ‘‘controlled by a religious organization,’’ could potentially give rise to different meanings. In that sense, Chevron v. NRDC does not preclude an agency from adopting a reasonable interpretation that is both consistent with the text of the statute, and that also, avoids potential constitutional conflicts with the First Amendment. Opting to ‘‘level down,’’ however, and having the Department enforce Title IX without regard for any assertion of a religious exemption, would require re-writing the statute that Congress passed. If Congress prefers an outcome where no educational institution is allowed to claim a religious exemption from Title IX, as opposed to all educational institutions controlled by a religious organization, it can amend the relevant statute, but the Department of Education cannot act unilaterally. The Department proposed § 106.12(c)(7) in recognition that neither Congress nor OCR could ever promulgate an exhaustive and exclusive list of criteria by which an educational institution may assert an exemption under Title IX. This provision is consistent with the Department’s 157 138 E:\FR\FM\23SER3.SGM S. Ct. 830, 836 (2018). 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 established position that an educational institution may show that it is ‘‘controlled by a religious organization’’ through innumerable facts and circumstances that are unique to that educational institution and/or the controlling religious organization. Finally, the Department has changed the first sentence of proposed § 106.12(c) to clarify and reiterate that an educational institution must be controlled by a religious organization to be eligible to assert a religious exemption from Title IX, and that it is the tenets of the religious organization that are referenced in 20 U.S.C. 1681(a)(3). A few commenters pointed out that the proposed language in § 106.12(c) of the NPRM did not explicitly mention that the recipient must be controlled by a religious organization. The Department understands and appreciates the points raised by these commenters, and the Department has amended the language of § 106.12(c) to include the ‘‘controlled by a religious organization’’ language, and to clarify that the tenets referenced in 20 U.S.C. 1681(a)(3) are those of the religious organization. Changes: The Department has changed the first sentence of proposed § 106.12(c) to further clarify that an educational institution must be controlled by a religious organization, as contemplated under subsection (a), to be eligible to assert a religious exemption. Change to Longstanding Policy/Need for Such a Change Comments: One commenter asserted that there is no evidence that the proposed changes to the definition of ‘‘controlled by’’ a religious organization in § 106.12(c) are needed. The commenter stated that hundreds of schools have requested religious exemptions under Title IX, and not a single request has been denied. Another commenter asserted that even under the existing criteria for seeking an exemption under Title IX, schools with loose ties to religious organizations have claimed to satisfy the test and sought exemptions. Some commenters were concerned that the proposed changes would alter the standard for religious exemptions under Title IX, which has been in place for more than 30 years. One of these commenters also was concerned that the proposed changes to § 106.12(c) would replace the longstanding test with a sweeping and vague standard that will create more, rather than less, ambiguity about which schools are eligible for a religious exemption under Title IX, which will create confusion for students and schools. Another of these VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 commenters also expressed general concern that the new test would add a range of new bases that a school can rely on to claim the exemption. Discussion: The Department does not agree with commenters’ arguments that the new provisions create more ambiguity about which educational institutions may assert a religious exemption. The new provisions spell out specific requirements—many of which have been interpreted and applied for decades by OCR—for educational institutions to refer to when considering whether to assert a religious exemption. Additionally, with respect to § 106.12(c)(5), the language references a specific accreditation regulatory provision that educational institutions will be able to review and consider before asserting a religious exemption. The Department appreciates commenters’ concerns but reiterates that the final rule is designed to put into place clear parameters for when an educational institution can be determined to be controlled by a religious organization. Commenters’ argument that no educational institution has previously been denied a religious exemption is not a reason to avoid having clear parameters for how to establish control, or to avoid embracing the value of enshrining into regulations, which have the force and effect of law, standards that have only been expressed in non-binding guidance. To be clear, a school that merely has loose ties to religious teachings or principles, without establishing ‘‘control’’ by a religious organization, is not eligible to assert a religious exemption. Changes: None. Proposed 34 CFR 106.12(c)—Tenets of the Religious Organization Comments: Some commenters expressed concern that proposed § 106.12(c) is inconsistent with Title IX because it would permit an educational institution to assert an exemption when application of Title IX would not be consistent with merely its practices (not tenets). The commenters asserted that the term ‘‘practices’’ is vague and ambiguous. The commenters further asserted that the Department has no authority to rewrite the Title IX statute via regulation. One commenter contended that the exemption in the Title IX statute addresses the religious tenets of the religious organization and not, as the proposed changes to § 106.12(c) would have it, the tenets of the educational institution. The commenter asserted that when Congress wants a school to be exempt based on its own religious tenets, it knows how to do it. The PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 59957 commenter pointed to the religious exemption provision for the Federal voucher program for DC, which exempts a participating private school ‘‘to the extent that the application of’’ the prohibition against sex discrimination ‘‘is inconsistent with the religious tenets or beliefs of the school.’’ The commenter stated that the Department has no authority to rewrite the exemption in Title IX to include language that Congress included elsewhere, but not in Title IX. Discussion: Following review of comments on the NPRM, the Department has re-evaluated whether § 106.12(c) should state that the criterion in § 106.12(c) shall be sufficient to establish that an educational institution may assert a religious exemption to the extent that application of this part would not be consistent with its religious ‘‘tenets or practices.’’ After further consideration, the Department has opted to use only the word ‘‘tenets,’’ which mirrors the language of the statute. The Department understands that some commenters asserted that the religious exemption under Title IX only exists when a Title IX obligation conflicts with the religious tenets of a controlling religious organization. As the Department has explained in both the NPRM and throughout this discussion of comments, OCR has long recognized that an educational institution may itself be the controlling religious organization. Thus, an educational institution that itself is a religious organization that controls its own operations may point to its own religious tenets when claiming a religious exemption under Title IX. Changes: The Department removed the word ‘‘practices’’ from the first sentence of § 106.12(c). Proposed 34 CFR 106.12(c)(1)–(4)’s Inclusion of the Phrase ‘‘a Statement.’’ Comments: One commenter was concerned that the language in § 106.12(c)(1)–(4) put a burden on the recipient to taken action in claiming the religious exemption by submitting a statement to the Assistant Secretary for Civil Rights. This commenter felt that the recipient should be able to assert the exemption when the recipient meets the criteria, not when they submit a statement to the Assistant Secretary, and that the language implied that a statement would need to be submitted to OCR for consideration. Discussion: The Department seeks to clarify that educational institutions claiming a religious exemption do not need to submit any such statements to OCR. To highlight this point, in the final E:\FR\FM\23SER3.SGM 23SER3 59958 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations regulation, the Department removed the words ‘‘a statement’’ from the beginning of subsections § 106.12(c)(1)–(4). Changes: The Department removed the words ‘‘a statement’’ from § 106.12(c)(1)–(4). khammond on DSKJM1Z7X2PROD with RULES3 Proposed 34 CFR 106.12(c)(4) Comments: One commenter asserted that proposed § 106.12(c)(4) would substantially expand the eligibility for a religious exemption to schools that are not, in fact, controlled by religious organizations. This commenter was concerned that there is no requirement in this subsection that a statement of doctrines or religious practices be derived from a religious organization, or that the educational institution have any relationship with a religious organization. Discussion: As the Department has explained in both the NPRM and throughout this discussion of comments, OCR has long recognized that an educational institution may itself be the controlling religious organization in the case of schools of divinity.158 Thus, an educational institution may point to its own religious tenets when claiming a religious exemption under Title IX. Under this proposed subsection, there is no requirement that the doctrinal statement or statement of religious practices be derived from an external religious organization. The Department recognizes that religious organizations are organized in different ways that may reflect their respective theologies. The Department does not discriminate against educational institutions that are controlled by religious organizations with different types of structures, including educational institutions that are their own controlling religious organization. Although these educational institutions may not have a formal legal relationship with another entity that controls their operations, they are nonetheless eligible for a religious exemption under Title IX. The Department does not find the arguments that there must be a specific relationship between the educational institution and an external religious organization to be persuasive, given that nothing in the text indicates such a requirement, and the fact that the requirement would seem to impose a legal hurdle that would differently affect different religions, and would have little or no practical policy benefit. These 158 See, e.g., U.S. Dep’t of Educ., Policy Guidance for Resolving Religious Exemption Requests (Feb. 19, 1985), available at www2.ed.gov/about/offices/ list/ocr/docs/singleton-memo-19850219.pdf. VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 commenters never explain why Congress would have wanted, as a policy matter, to encourage educational institutions to form external legal entities, and then have those entities ‘‘control’’ the educational institution, before an exemption could be asserted. Additionally, and as a separate basis for § 106.12, the Department is constitutionally obligated to broadly interpret ‘‘controlled by a religious organization’’ to avoid religious discrimination among institutions of varying denominations that have different governance structures.159 Changes: As discussed above, the Department removed the words ‘‘a statement’’ from § 106.12(c)(1)–(4). Proposed 34 CFR 106.12(c)(5)’s Reference to Moral Beliefs Comments: Many commenters were concerned that, under proposed § 106.12(c)(5), a religious exemption may be granted to an institution that ‘‘subscribes to specific moral beliefs’’ without that institution being ‘‘controlled’’ by a religious organization. Some commenters felt that this was a substantial expansion of the religious exemption under Title IX. Some commenters argued that establishing a ‘‘control’’ test based on moral beliefs would open the door for many more schools—beyond those that are actually controlled by a religious organization—to demand an exemption. Many commenters contended that proposed § 106.12(c)(5) would allow institutions to claim a religious exemption from Title IX, even if they had no meaningful relationship at all with a religious organization. One commenter argued that, under the proposed language, educational institutions may receive religious exemptions even if they believe in secular moral principles. Some commenters felt that the proposed expansion of the religious exemption under Title IX was unwarranted. One commenter felt that proposed § 106.12(c)(5) would distort the boundaries of the religious exemption beyond any resemblance to the statutory language. One commenter expressed concern that institutions did not need to identify any particular religion that controls 159 Larson v. Valente, 456 U.S. 228, 244 (1982) (‘‘The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’’); see also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 202 (2012) (Alito, J., concurring; joined by Kagan, J.) (arguing that a broad, functionalist interpretation of religious teachers for purposes of the ministerial exception is necessary to be inclusive of faiths like Islam and Jehovah’s Witnesses). PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 them, or a religion from which their beliefs stem, to qualify for a religious exemption under proposed § 106.12(c)(5). The commenter felt that, if institutions are not required to tie the religious exemption to a specific religion or religious belief, this proposed subsection would undermine Title IX’s protections. One commenter asserted that proposed § 106.12(c)(5) was the most concerning part of the proposed changes to § 106.12, because it would allow schools to simply state that they ‘‘subscribe to specific moral beliefs or practices’’ to claim a religious exemption, without the institution subscribing to a specific religious belief or being controlled by a specific religious institution. The commenter was worried that this scenario would give any institution carte blanche to expel pregnant or parenting students, ignore sexual harassment in the classroom, or deny women scholarships or jobs based solely on their sex, without having to establish anything related to religious tenets or affiliation. Some commenters believed that proposed § 106.12(c)(5), in conjunction with other parts of the proposed changes to § 106.12, would render the phrase ‘‘controlled by a religious organization’’ meaningless. One commenter explained that, under proposed § 106.12(c)(5), institutions would no longer be required to demonstrate any connection to a religious organization, let alone that they are controlled by a religious organization. One commenter asserted that the Department has no authority to transform the religious exemption in § 106.12 into a ‘‘moral’’ exemption, or to extend it to any organization not ‘‘controlled by a religious organization.’’ In that vein, one commenter contended that the proposed ‘‘moral beliefs’’ provision was the one that most exemplified the objection that the rule relaxed the requirements for educational institutions to claim an exemption, arguing that a school need not even subscribe to a religious belief to be exempt. One commenter expressed concern that, if the proposed changes to § 106.12 were adopted, the Department’s position would be that schools meet the ‘‘controlled by a religious organization’’ test simply by saying that they ‘‘subscribe to specific moral beliefs or practices.’’ The commenter noted that schools seeking an exemption under proposed § 106.12 do not need to point to any particular religious organization that controls them, or a religious organization that those moral beliefs or E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations practices come from. Further, the commenter contended that the proposed § 106.12(c)(5) does not even say that those moral beliefs or practices have to be connected to religion at all. Thus, as proposed, according to the commenter, § 106.12 could allow a school with only a tenuous relationship with religion to claim an exemption. One commenter stated that the ‘‘moral beliefs and practices’’ language in proposed § 106.12(c)(5) is ‘‘strikingly ambiguous and wholly unconnected to religion altogether.’’ The commenter stated that moral beliefs are difficult to define and may not have grounding in religious practice; some may be indirectly inspired by religion, but not tied to religion explicitly. The commenter stated that, by conflating moral beliefs with religion, the proposed changes to § 106.12 would open the religious exemption to widespread abuse by institutions with no religious connection that want to limit their obligations and liability under Title IX. One commenter asserted that the broad language in proposed § 106.12(c)(5) does not clarify the religious exemption, but rather muddles it. This commenter urged the Department to remove the ‘‘moral belief’’ language from this subsection because moral institutions are not the same as religiously-owned institutions, and because the commenter suggested that seeking permission to discriminate on the basis of sex is never an expression of morality. Other commenters were concerned that proposed § 106.12(c)(5) did not require the governing body of an institution, or a controlling religious organization, to approve the statement of moral beliefs or practices upon which the religious exemption is claimed. One commenter was concerned that the statement of moral beliefs and principles in proposed § 106.12(c)(5) did not have to be included in any official document, it did not have to be enforced consistently, and it did not have to be available to students before an institution could claim the religious exemption. One commenter was concerned that the statement of moral beliefs and principles did not have to be reflected in any official school documents or policies or accompanied by any evidence of prior positions on the stated moral principles. One commenter expressed concern that an educational institution could submit a ‘‘statement that the educational institution subscribes to specific moral beliefs or practices, and a statement that members of the institution community may be subjected to discipline for VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 violating those beliefs or practices,’’ without a requirement that these statements need to be ‘‘written, published, or otherwise made available to the institution’s community, approved prior to a discriminatory act, or otherwise enforced by the school.’’ One commenter was concerned that proposed § 106.12(c)(5) applies to schools whose ‘‘moral beliefs and practices’’ do not appear in writing, are not consistently enforced, or are simply a post-hoc rationalization asserted to rebut discrimination claims in the context of litigation. One commenter posited that the statement of moral beliefs and principles would not even need to exist until a student filed a complaint of discrimination, at which time an institution may claim a religious exemption from Title IX based on nonreligious moral beliefs. One commenter was concerned that students and employees would have no notice that their school believes itself exempt from Title IX’s requirements until after they are harmed by discrimination and ask their school to take protective or remedial action. One commenter believed that students would feel that that they were protected from sex-based discrimination until they experience such discrimination and try to file a complaint. The commenter was concerned that institutions would then make a disclosure that they are exempt from Title IX requirements. Discussion: As outlined above, the Department received considerable comment on the inclusion of proposed § 106.12(c)(5) in the NPRM. Most of these commenters expressed concern that the ‘‘moral beliefs or practices’’ language would significantly increase the number of institutions that could seek a religious exemption from Title IX. Some commenters opined that the ‘‘moral beliefs or practices’’ language could even apply to secular educational institutions, resulting in an outcome that a secular institution would be claiming a religious exemption from compliance with certain provisions of Title IX. As stated in the NPRM, the proposed paragraph (c)(5) was based in part on a letter from Acting Assistant Secretary for Civil Rights William L. Smith to OCR Senior Staff.160 That letter details 160 U.S. Dep’t of Educ., Office for Civil Rights, Memorandum from William Smith, Acting Assistant Sec’y for Civil Rights, to OCR Senior Staff regarding Title IX Religious Exemption Procedures and Instructions for Investigating Complaints at Institutions with Religious Exemptions (Oct. 11, 1989), available at https://www2.ed.gov/about/ offices/list/ocr/docs/smith-memo-19891011.pdf. PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 59959 examples of certain information that schools provided in the past to assist OCR’s analysis as to whether a religious exemption assurance request is supported, and it specifically includes the ‘‘moral belief and practices’’ language in proposed § 106.12(c)(5). However, after further consideration, the Department agrees with the commenters who have expressed that this language is too expansive. The Department can envision a scenario wherein an educational institution would attempt to utilize § 106.12(c)(5) to avoid Title IX obligations based upon ‘‘moral beliefs and practices’’ that are not even tangentially tied to religion. We believe this criterion is too broad as written and agree with the commenters who expressed concern that this provision could exceed the scope of the statutory text. The Department acknowledges the concerns that schools could invoke pretextual moral beliefs or quickly develop moral beliefs once they are accused of discrimination. We believe our removal of the provision regarding moral beliefs from the final regulations addresses these commenters’ concerns. Changes: The Department removed proposed § 106.12(c)(5) from the nonexhaustive list of criteria for establishing a religious exemption. Proposed 34 CFR 106.12(c)(6) General Opposition Comments: One commenter expressed concern that proposed § 106.12(c)(6) would permit a religious exemption upon a statement that ‘‘the educational institution is asserting that the educational institution is itself the controlling religious organization,’’ provided that the statement ‘‘includes, refers to, or is predicated on religious tenets, beliefs, teachings.’’ One commenter contended that proposed § 106.12(c)(6) would exempt a school from Title IX’s requirements when a governing body of a school approves a statement that ‘‘includes, refers to, or is predicated upon religious tenets, beliefs, or teachings.’’ The commenter stated that approval of such a statement does not transform a school’s governing body into a controlling religious organization as required by Title IX. One commenter asserted that, under an expansive reading of proposed § 106.12(c)(6), an institution’s statement to claim a religious exemption could include a secular statement on any topic, as long as it is simply ‘‘predicated upon’’—that is, it draws from or is inspired by—religious teachings. E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 59960 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations One commenter asserted that, if proposed § 106.12(c)(6) is implemented, ‘‘a single, post hoc board-approved statement referring to any religious beliefs would permit an institution to disregard Title IX’s prohibitions against sex discrimination.’’ The commenter expressed concern that the statement would not even need to be included in any official document, be enforced consistently, or made available to students. The commenter was also concerned that the statement would not even need to exist until after a student files a complaint for discrimination. One commenter contended that under proposed § 106.12(c)(6), an institution would be able to get an exemption if it makes a statement that is loosely inspired by religious teachings, even if that statement does not mention religion explicitly. On the other hand, one commenter supported the clarity added to proposed § 106.12 by the Department, specifically to proposed § 106.12(c)(6) to expressly acknowledge that a recipient can itself be a religious organization that controls its own operations, curriculum, or other features. This commenter noted that it represented many different denominations, as well as nondenominational schools, and that all of the schools are distinctly Christian, but the hierarchy and structure vary. The commenter believed that the nonexhaustive factors in proposed § 106.12(c) represent an understanding that religious institutions may be controlled by religion in different ways, yet are no less religious. Discussion: Proposed § 106.12(c)(6) provided that an educational institution was eligible to assert the exemption if the educational institution had a statement that is approved by its governing board and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings. This provision echoes the discussion above, stating that a recipient can itself be a religious organization that controls its own operations, curriculum, or other features. In short, an educational institution’s assertion of an exemption pursuant to § 106.12(c)(6), is not, without more, a concession that it is controlled by an external religious organization. Instead, the educational institution is asserting that the educational institution is itself the controlling religious organization. The Department acknowledges some commenters’ general disagreement with the proposition that an educational institution could be its own controlling religious organization. However, proposed § 106.12(c)(6) is consistent with longstanding OCR practice in VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 recognizing that the educational institution may itself be the controlling religious organization. For example, OCR has long recognized that a school or department of divinity is an educational institution controlled by a religious organization without any requirement that the school or department of divinity be controlled by an external religious organization. Additionally, § 106.12(c)(6) aligns well with the Department’s recently published definition of ‘‘religious mission’’ in 34 CFR 600.2.161 In that provision, a ‘‘religious mission’’ is defined as ‘‘[a] published institutional mission that is approved by the governing body of an institution of postsecondary education and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings’’ in the context of regulations about eligibility for Federal student aid under Title IV of the Higher Education Act of 1965, as amended. Where an educational institution has a religious mission, as defined in § 600.2, it may choose to assert an exemption to the extent application of Title IX and its implementing regulations would not be consistent with the institution’s religious tenets. While one commenter asserted that, under an expansive reading of proposed § 106.12(c)(6), an institution’s statement to claim a religious exemption could include a secular statement on any topic, as long as it is simply ‘‘predicated upon’’ religious tenets, beliefs, or teachings, the Department notes that this provision is not meant to be read ‘‘expansively’’ or ‘‘narrowly.’’ It is meant to be read for what it is: an example of an educational institution that is controlled by a religious organization, because it maintains a religious mission. That a school has and maintains a religious mission, as defined in 34 CFR 600.2, is sufficient to establish that it is an educational institution controlled by a religious institution. Of course, if the school does not meet the definition of an institution with a religious mission, it cannot avail itself of this provision. And with respect to commenters who argued that educational institutions might avail themselves of this provision after a complaint with OCR has been filed, the Department thinks that it is unlikely that educational institutions will— consistent with the changes being made to this provision—publish an institutional religious mission merely for the purpose of defending themselves from an OCR complaint. In any event, 161 84 FR 58834, 58914 (Nov. 1, 2019) (revising definition in 34 CFR 600.2). PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 no part of the 20 U.S.C. 1681(a)(3) suggests that adopting a religious mission after an OCR complaint is filed is impermissible, or that schools may not assert a religious exemption once OCR receives a complaint involving an educational institution. Indeed, OCR’s practice is to evaluate assertions of religious exemptions even after a complaint has been filed with OCR. If OCR receives a complaint involving a recipient’s adoption of a religious mission after a complaint was filed, or a complaint involving a recipient’s assertion of a religious exemption after a complaint was filed, OCR will carefully evaluate and consider the facts and circumstances of that complaint and respond appropriately. After careful consideration of the comments pertaining to the various structures utilized by the religious institutions and/or the controlling religious organizations, the Department has opted to make changes to the final regulation to even further bring it into line with the Department’s recently published definition of ‘‘religious mission.’’ The Department’s definition of ‘‘religious mission’’ in 34 CFR 600.2 defines ‘‘religious mission’’ as ‘‘[a] published institutional mission that is approved by the governing body of an institution of postsecondary education and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings’’ in the context of regulations about eligibility for Federal financial student aid under Title IV of the Higher Education Act of 1965, as amended. An educational institution that has a religious mission, as defined in § 600.2, may choose to assert an exemption to the extent application of Title IX and its implementing regulations would not be consistent with the institution’s religious tenets. Here, the Department sees merit in aligning this portion of the regulation with the recently adopted definition of ‘‘religious mission’’ in 34 CFR 600.2 in order to promote congruency in the language referencing these same types of recipients across the Department’s regulations. Changes: The provision is revised to refer to a ‘‘published institutional mission that is approved by the governing body of an educational institution and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings.’’ The Department will re-number proposed § 106.12(c)(6) to reflect the deletion of proposed § 106.12(c)(5). Accordingly, proposed § 106.12(c)(6) will appear as § 106.12(c)(5) in the final regulation. E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 Proposed 34 CFR 106.12(c)(7) Comments: Some commenters expressed concern about the use of the phrase ‘‘other evidence,’’ suggesting that this would lead to an even lower threshold for obtaining a religious exemption under proposed § 106.12(c)(7). One commenter was concerned that proposed § 106.12(c)(7) would invite institutions to seek a religious exemption even when they cannot meet the ‘‘demonstrably low’’ threshold of proposed § 106.12(c)(1)–(6) or identify religious tenets that conflict with Title IX. One commenter expressed concern that proposed § 106.12(c)(7) is a catch-all provision, and that it would permit institutions to establish religious control via any ‘‘other evidence,’’ and does not define or otherwise delineate what this ‘‘other evidence’’ may be, or how much of this evidence must exist. One commenter believed that the proposed § 106.12(c)(7) would provide an avenue by which institutions can incorporate any religious belief to justify non-compliance with Title IX regulations. According to the commenter, if proposed § 106.12(c)(7) is adopted, the end result would likely be that institutions with little-to-no connection to religion would be empowered to engage in federally unchecked sex discrimination with no Federal recourse for harmed individuals. Some commenters were also concerned that proposed § 106.12(c)(7) would substantially expand the religious exemption language in Title IX to include institutions that are not actually controlled by religious organizations. Some of these commenters were concerned that even schools with only a tenuous connection to a religious institution would request religious exemptions. One commenter asserted that, by interpreting the exemption so broadly and departing so far from Title IX’s language, the Department would open the door for many more schools—beyond those that are actually controlled by a religious organization—to demand an exemption. One commenter opposed proposed § 106.12(c)(7) because, under the expanded criteria proposed for religious exemptions, by its own admission, the Department creates a potential unquantifiable expansion of schools that can claim religious exemptions. According to the commenter, this would increase the likelihood that students and residents will attend schools where discrimination on the basis of sex is permitted. One commenter stated that, by significantly expanding opportunity to VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 receive an exemption, and therefore expanding the numbers of private, charter, and other schools legally permitted to not comply with Title IX’s requirements, the proposed changes would plainly undermine Congress’s objective. Some commenters believed that the proposed changes ignored a longstanding test for religious exemption requests and added an overly broad range of new bases that a school can rely on to claim the exemption. Discussion: The Department appreciated the insightful comments pertaining to the language of § 106.12(c)(7). The Department especially appreciated those comments directed at potential confusion about whether ‘‘other evidence,’’ meant any other evidence, regardless of how much or how persuasive the evidence might be. The Department proposed § 106.12(c)(7) in recognition that Congress did not promulgate an exclusive list of criteria by which an educational institution may assert an exemption under Title IX. Further, the Department acknowledges that there may be ways for an educational institution to establish that it is controlled by a religious organization beyond the criteria articulated in proposed § 106.12(c)(1)–(6). The Department merely seeks to provide flexibility for institutions to assert a religious exemption since there may be innumerable facts and circumstances that an educational institution may wish to use to show that it is ‘‘controlled’’ by a religious organization. The Department’s intent in drafting the proposed § 106.12(c)(7), however, was not to empower schools with tenuous relationships to religious organizations to utilize this ‘‘other evidence’’ criterion to claim an exemption under Title IX. The concerns pertaining to § 106.12(c)(7) have been duly noted by the Department, and in the final regulation, the Department emphasizes that the ‘‘other evidence’’ criterion must include sufficient evidence to establish that the educational institution is, in fact, controlled by a religious organization, pursuant to 20 U.S.C. 1681(a)(3). Indeed, while the point of the provision is to avoid unnecessarily limiting the scope of what type of evidence could establish control by a religious organization, this ‘‘other evidence’’ must be more than, for instance, a scintilla of evidence. The Department disagrees with the commenters asserting that § 106.12(c)(7) would substantially expand the religious exemption from Title IX. As PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 59961 discussed above, § 106.12(c)(7) was included in this regulation because the Department recognizes that there could be a variety of ways for a recipient to establish that it is eligible for a religious exemption. The Department has always carefully considered the evidence submitted when evaluating a religious exemption from Title IX, and given the wide array of recipients with different structures and belief systems, the Department has determined that it is appropriate to provide some flexibility in the types of evidence that would be sufficient to establish eligibility for the religious exemption. This is not an unquantifiable expansion of the religious exemption, as one commenter asserted. It is, however, an acknowledgment that recipients may use many forms of evidence, including evidence that is not specifically outlined in the other criteria of § 106.12(c), to establish eligibility for the religious exemption. This flexibility is appropriate given the broad religious exemption language in the Title IX statute and given that the Department is subject to the U.S. Constitution, including the Free Exercise Clause, as well as RFRA. As to the comment that this regulation will allow institutions to incorporate any religious belief into their operations to justify non-compliance with Title IX regulations, and that this will result in institutions with little-to-no connection to religion being empowered to engage in federally unchecked sex discrimination, the Department rejects the assertion that educational institutions will adopt religious beliefs, perhaps as a pretext, in order to avoid their Title IX obligations. Based on public comments, however, the Department has no information to suggest that there are educational institutions that are not currently eligible for a religious exemption, but which will become eligible as a result of this final rule. Additionally, the Department seeks to make clear that abuses of the religious exemption provisions of this regulation will not be unchecked. Individuals who contend that a recipient has improperly claimed a religious exemption from Title IX may file a complaint with OCR. Further, the Department’s criteria still require that the recipient to be controlled by a religious organization and, thus, recipients with little-to-no connection to religion would not meet the eligibility standard for claiming the exemption. Changes: The Department has clarified that ‘‘other evidence’’ in § 106.12(c)(6) must be ‘‘sufficient to establish’’ that the educational institution is controlled by a religious E:\FR\FM\23SER3.SGM 23SER3 59962 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations organization, pursuant to 20 U.S.C. 1681(a)(3). In addition, due to the deletion of proposed § 106.12(c)(5), proposed § 106.12(c)(7) is re-designated as § 106.12(c)(6) in the final regulation. khammond on DSKJM1Z7X2PROD with RULES3 Severability Comments: None. Discussion: We believe that each of the regulations discussed in this preamble would serve one or more important, related, but distinct purposes. We also believe that each of the paragraphs and provisions in 34 CFR 106.12 would serve one or more important, related, but distinct purposes. Each provision in 34 CFR 106.12 provides a distinct value to the Department, recipients, elementary and secondary schools, institutions of higher education, students, employees, the public, taxpayers, the Federal Government, and other recipients of Federal financial assistance separate from, and in addition to, the value provided by the other provisions. To best serve these purposes and parallel to the severability clauses proposed in the NPRM and included in these final regulations, we include a severability provision in 34 CFR 106.12(d) in the final regulations to make clear that these final regulations are designed to operate independently of each other and to convey the Department’s intent that the potential invalidity of one provision should not affect the remainder of the provisions. Similarly, the validity of any of the regulations, which were proposed in ‘‘Part 1—Religious Liberty’’ of the NPRM, should not affect the validity of any of the regulations, which were proposed in ‘‘Part 2—Free Inquiry’’ of the NPRM. Changes: The Department adds a severability clause in 34 CFR 106.12(d). 34 CFR 606.10 (Developing HispanicServing Institutions Program); 34 CFR 607.10 (Strengthening Institutions Program); 162 34 CFR 608.10 (Strengthening Historically Black Colleges and Universities Program); 34 CFR 609.10 (Strengthening Historically Black Graduate Institutions Program) Comments: One commenter expressed support for these proposed regulations because the existing regulation may be seen as excluding any school that teaches its students about theology, and, if interpreted in such a manner, the regulation would violate the First Amendment. According to this 162 The Department notes that 34 CFR 607.10 applies to the Strengthening Institutions Program umbrella, which includes the American Indian Tribally Controlled Colleges and University (TCCU) program and the Alaska Native- and Native Hawaiian-Serving Institutions (ANNH) program. VerDate Sep<11>2014 19:29 Sep 22, 2020 Jkt 250001 commenter, the proposed regulations align with a singular exception in current Supreme Court case law that a government entity may exclude a school or a department whose function is to prepare students to become ministers from an otherwise generally available scholarship program. One commenter contended that proposed §§ 606.10, 607.10, and 608.10 demonstrate that the Department would allow Federal financial assistance to support religious instruction, religious worship, and proselytization. According to this commenter, the Department is concerned that the current regulations inhibit the ability of institutions to use Federal funds for such activities. This commenter asserted that using Federal funds for such activities is prohibited by the Establishment Clause of the First Amendment and cited Locke v. Davey 163 to support this assertion. Discussion: We appreciate the comment in support. The commenter who opposed the proposed regulations misunderstood the Department’s proposed changes to §§ 606.10, 607.10, and 608.10, which expressly address unallowable activities or activities that a grantee may not carry out under a development grant. The Department proposed revising §§ 606.10(c)(3), 607,10(c)(3), and 608.10(c)(3) to expressly prohibit a grantee from using a development grant for ‘‘activities or services that constitute religious instruction, religious worship, or proselytization.’’ The Department also proposed revising § 609.10(c)(3) in this same manner. The Department’s revisions align §§ 606.10(a)(3), 607.10(a)(3), 608.10(a)(3), and 609.10(a)(3) with the Department’s other regulations such as 34 CFR 75.532 and 34 CFR 76.532 that prohibit grants, subgrants, or state-administered formula grants to be used for religious worship, religious instruction, or proselytization. Accordingly, the Department’s proposed revisions do not violate the Establishment Clause of the First Amendment or Supreme Court precedent interpreting the Establishment Clause. Changes: None. Comments: None. Discussion: Sections 606.10(a)(4), 607.10(a)(4), 608.10(a)(4), and 609.10(a)(4) provide in relevant part that a ‘‘school or department of divinity’’ means ‘‘an institution, or a department of an institution, whose program is solely to prepare students to become ministers of religion or solely to enter into some other religious vocation.’’ The Department is omitting the second 163 540 PO 00000 U.S. 712 (2004). Frm 00048 Fmt 4701 Sfmt 4700 instance of ‘‘solely’’ in the definition of ‘‘school or department of divinity’’ in §§ 606.10(a)(4), 607.10(a)(4), 608.10(a)(4), and 609.10(a)(4) because the second instance of ‘‘solely’’ is redundant. This revision is technical in nature to improve clarity and does not change the meaning of the proposed or final regulation. Changes: The Department omitted the second instance of ‘‘solely’’ in §§ 606.10(a)(4), 607.10(a)(4), 608.10(a)(4), and 609.10(a)(4). Executive Orders and Other Requirements Comments: A commenter argued that the NPRM is unlawful because 20 U.S.C. 1098a (§ 492 of the Higher Education Act of 1965, as amended (HEA)) requires the Department to engage in negotiated rulemaking for the proposed regulations, which it did not do. In that section, Congress used the phrase ‘‘pertaining to this subchapter’’ when describing regulations for which negotiated rulemaking was required, which the commenter interpreted broadly. The commenter also asserted that the HEA’s negotiated rulemaking requirement was particularly relevant in this case because the NPRM’s RIA stated that ‘‘some of the changes proposed in this regulatory action would materially alter the rights and obligations of recipients of Federal financial assistance under Title IV of the HEA.’’ The commenter also argued that the HEA’s master calendar requirement (20 U.S.C. 1089(c)(1)) should apply to these regulations, meaning that regulations that have not been published by November 1 prior to the start of the award year will not become effective until the beginning of the second award year after such November 1 date, July 1. Discussion: The negotiated rulemaking requirement in section 492 of the HEA applies only to regulations that implement the provisions of Title IV of the HEA, all of which relate to student aid programs or specific grants designed to prepare individuals for postsecondary education programs. Specifically, Title IV contains seven parts: (1) Part A—Grants to Students at Attendance at Institutions of Higher Education; (2) Part B—Federal Family Education Loan Program; (3) Part C— Federal Work-Study Programs; (4) Part D—William D. Ford Federal Direct Student Loan Program; (5) Part E— Federal Perkins Loans; (6) Part F—Need Analysis; and (7) Part G—General Provisions Relating to Student Financial Assistance Programs. The requirements of section 492 do not apply to every Department regulation that impacts institutions of E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations higher education; instead, they apply exclusively to regulations that implement Title IV of the HEA, in other words, that ‘‘pertain to’’ Title IV of the HEA. Section 492 of the HEA does not apply to regulations implementing programs authorized by other titles of the HEA, such as the discretionary grant programs in Title VI, or the institutional aid programs in titles III and V, all of which impact many institutions that also participate in the Title IV student aid programs. The statement in the RIA that the proposed regulations ‘‘would materially alter the rights and obligations of recipients of Federal financial assistance under Title IV of the HEA’’ was included in error, and we have corrected the RIA in these final regulations. Because the programs that are the subject of this rulemaking are not implementing the provisions of title IV of the HEA, the negotiated rulemaking requirement does not apply. Similarly, the title IV master calendar requirements do not apply to these regulations. The HEA provides that ‘‘any regulatory changes initiated by the Secretary affecting the programs under [title IV] that have not been published in final form by November 1 prior to the start of the award year shall not become effective until the beginning of the second award year after such November 1 date.’’ 164 While the Department has acknowledged that these regulations would impact institutions that participate in the title IV student assistance programs, among others, that impact does not trigger the master calendar requirement. These final regulations are not part of a ‘‘program under Title IV,’’ and the master calendar requirement therefore does not apply. Changes: None. Comments: One commenter stated that the Department did not properly notify and consult with the Small Business Administration early in the rulemaking process, and also that it violated the Regulatory Flexibility Act (5 U.S.C. 601, et seq.) (RFA) by failing to identify the costs of the proposed regulations on small entities and businesses or to identify alternatives, and that its treatment of small entities also violated Executive Order 13272. The commenter also asserted that the Department failed to provide the public with information about its regulatory flexibility analysis, specifically how many grant recipients are small entities. The commenter cited data provided in a prior rulemaking about the number of HEA Title IV recipients that were small institutions and stated that the failure to address or incorporate that data violated both the APA and Executive Order 13563. The commenter also stated that the Department was required to consider and address alternatives for small entities. Discussion: Section 605(b) of the RFA states that an agency need not include an initial regulatory flexibility analysis (5 U.S.C. 603) and final regulatory flexibility analysis (5 U.S.C. 604) if it can certify in the notice of proposed rulemaking or final regulations that the rule does not have a significant economic impact on a substantial number of small entities. Consistent with 5 U.S.C. 605, we can and do make this certification in the final rule. Therefore, the requirements in sections 603 and 604 that the commenter cites, including those related to identification of alternatives for small entities, are not applicable to the NPRM or these final regulations, and the Department has met its obligations under the RFA and Executive Order. The notification requirement the commenter referenced in Executive Order 13272 also does not apply, as it applies to ‘‘any draft rules that may have a significant economic impact on a substantial number of small entities.’’ 165 Further, because the certification under 5 U.S.C. 605 that this rule does not have a significant economic impact on a substantial number of small entities is based on the fact that this rule does not result in quantifiable costs, the information the commenter refers to from a prior rulemaking related to the number of HEA Title IV recipients that are small entities was not necessary for the Department’s compliance with the RFA and related Executive Order, or the public’s understanding of and ability to comment on our RFA certification. Changes: None. Comments: A commenter contended that the Department did not comply with Executive Order 12866 because the NPRM only identified alternatives relating to adopting different regulations and did not identify why the status quo required additional regulation. According to the commenter, the Department acknowledged in the NPRM that the Department has not identified any significant issues with grantees related to a failure to comply with the First Amendment or stated institutional policies regarding freedom of speech, undercutting the Department’s argument that these regulations are necessary. Discussion: The Department sufficiently identified the alternatives it 165 Exec. 164 20 Order No. 13272, section 3(b), 67 FR 53461 (Aug. 16, 2002). U.S.C. 1089(c)(1). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 59963 considered in the NPRM.166 Issuing guidance documents instead of regulations to address the issues discussed in the NPRM, including in ‘‘Part 1—Religious Liberty’’ and ‘‘Part 2—Free Inquiry,’’ would prove insufficient because guidance documents are not binding and do not carry the force and effect of law.167 To address these issues in a clear and enforceable manner, a formal noticeand-comment rulemaking was the most appropriate approach. The Department places conditions on its grants through its regulations, and the Department would not be able to implement the directive in Executive Order 13864 ‘‘to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies’’ without promulgating regulations. Notice-andcomment rulemaking reinforces our commitment to the rule of law and robust public participation in the development of regulations that govern us. Despite the guarantees of the First Amendment which applies to public institutions, and despite the ability to choose stated institutional policies at private institutions, courts have been called upon to vindicate the rights of dissident campus speakers, who do not necessarily share the views of the majority of campus faculty, administrators, or students. Without these lawsuits and the added incentive that these final regulations provide, the censorship and suppression of the speech of faculty, other employees, and students could go unredressed. For instance, when a public university, the University of North Carolina Wilmington, denied a promotion to a professor because he had authored newspaper columns about academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, and religion, he sued the university and prevailed. The United States Court of Appeals for the Fourth Circuit concluded that the professor’s ‘‘speech was clearly that of a citizen speaking on a matter of public concern’’ and, thus, was entitled to constitutional protection.168 Similarly, the Supreme Court of Wisconsin recently held that a private university breached its contract with a professor over a personal blog post because, by virtue of the adoption of the 1940 AAUP Statement of 166 85 FR 3219. v. Mortg. Bankers Ass’n, 575 U.S. 92, 97 167 Perez (2015). 168 Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 565 (4th Cir. 2011). E:\FR\FM\23SER3.SGM 23SER3 59964 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 Principles on Academic Freedom, the post was ‘‘a contractually-disqualified basis for discipline.’’ 169 Additionally, the United States District Court for the Southern District of California recently held that California State University San Marcos had violated the First Amendment by committing viewpoint discrimination against the pro-life student organization, Students for Life, when allocating grants from the university’s mandatory student fee.170 Recent victories in court cases by religious student groups against their public institutions for violating the First Amendment in denying them the same rights, benefits, and privileges as other student groups also persuaded the Department that regulatory action is necessary to address these problems.171 Even cases that have settled demonstrate the denial of free speech rights across American college campuses is a serious issue. For instance, the Yosemite Community College District and its administrators settled a First Amendment lawsuit filed by a student whom a constituent college of that District had stopped from handing out copies of the United States Constitution on Constitution Day in a public part of campus.172 And the University of California at Berkeley settled a high-profile lawsuit in December 2018 alleging that the university selectively had deployed its vague policies to prevent conservative groups from bringing to campus speakers harboring ideas the university administration just did not like.173 169 McAdams, 914 NW2d at 737 (holding private university breached its contract with a professor over a personal blog post because, by virtue of its adoption of the 1940 AAUP Statement of Principles on Academic Freedom, the post was ‘‘a contractually-disqualified basis for discipline’’). 170 See Apodaca v. White, 401 F. Supp. 3d 1040, 1057 (S.D. Cal. 2019). 171 InterVarsity Christian Fellowship/USA v. Univ. of Iowa, 408 F. Supp. 3d 960 (S.D. Iowa 2019), appeal docketed, No. 19–3389 (8th Cir. Nov. 5, 2019); Bus. Leaders in Christ v. Univ. of Iowa, 360 F. Supp. 3d 885 (S.D. Iowa 2019), appeal docketed, No. 19–1696, (8th Cir. Apr. 3, 2019).). 172 See Van Tuinen v. Yosemite Cmty. Coll. Dist., Case No. 1:13–at–00729, Doc. No. 1 (E.D. Cal. filed Oct. 10, 2013) (Complaint); Victory: Modesto Junior College Settles Student’s First Amendment Lawsuit, Foundation for Individual Rights in Education (FIRE) (Feb. 25, 2014), available at www.thefire.org/ victory-modesto-junior-college-settles-students-firstamendment-lawsuit/. 173 See Young America’s Found. v. Napolitano, Case No. 3:17–cv–02255, Doc. No. 32 (N.D. Cal. filed Apr. 24, 2017) (Amended Complaint); see also id. (Doc. No. 44) (Statement of Interest by the United States Department of Justice) (stating that the University of California at Berkeley’s policies violated the First Amendment); Jonathan Stempel, UC Berkeley Settles Lawsuit over Treatment of Conservative Speakers, Reuters (Dec. 3, 2018, available at www.reuters.com/article/us-californialawsuit-ucberkeley/uc-berkeley-settles-lawsuit-over- VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 A violation of the First Amendment at a public institution or a violation of stated institutional policies regarding freedom of speech, including academic freedom, at a private institution is egregious in education. The hallmark of education includes an opportunity to learn from diverse viewpoints and to consider and be challenged by ideas, opinions, theories, and hypotheses. In enacting the HEA, Congress expressly recognized that ‘‘an institution of higher education should facilitate the free and open exchange of ideas’’ 174 and that ‘‘no student attending an institution of higher education on a full- or part-time basis should, on the basis of participation in protected speech or protected association, be excluded from participation in, be denied the benefits of, or be subjected to discrimination or official sanction under any education program, activity, or division of the institution[.]’’ 175 These regulations align with and advance these legislative goals. The commenter also contended that there is not a need for regulation because the Department allegedly acknowledged that violations of the First Amendment or stated institutional policies on freedom of speech are rare, but the commenter takes the Department’s statements in the NPRM out of context. The Department acknowledged that it is ‘‘unaware of any prior instance in which a violation of the First Amendment or institutional policies regarding freedom of speech raised serious concerns about a grantee’s ability to effectively carry out a Department grant.’’ 176 We made this statement in the context of final, nondefault judgments because the proposed and final regulations state that an institution will only be found to have violated the material condition if there is a final, non-default judgment against that institution. We acknowledge that final, non-default judgments against a public or private institution may be infrequent, but the absence of such a judgment does not necessarily mean that public institutions are complying with the First Amendment or that private institutions are complying with their stated institutional policies regarding freedom of speech, including academic freedom. Individuals may experience a violation of the First Amendment or a stated institutional policy regarding freedom of speech and choose not to file a lawsuit to challenge treatment-of-conservative-speakersidUSKBN1O22K4. 174 20 U.S.C. 1011a(a)(2)(C). 175 20 U.S.C. 1011a(a)(1). 176 85 FR 3217–18. PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 a public institution or a private institution. A student or employee may risk their education or employment in filing such a lawsuit. They also may fear retaliation from the institution, their peers, their colleagues, or their supervisors. Additionally, many institutions may choose to settle such disputes such that a court never renders a final, non-default judgment. Accordingly, the lack of a final, nondefault judgment against an institution does not mean that a public institution has not violated the First Amendment or that a private institution has not violated its own stated institutional policies regarding freedom of speech, including academic freedom. It may mean that the institution remedied any problem before a lawsuit was filed or during any litigation. Remedying such a problem before a final, non-default judgment is rendered saves institutions the cost of litigation, and remedying any such problem during litigation saves the institution the continued cost of litigation. We believe these final regulations will have the additional benefit of increasing and incentivizing awareness about the importance of upholding the First Amendment for public institutions and of complying with stated institutional policies regarding freedom of speech, including academic freedom, for private institutions. Additionally, the Department stated that ‘‘available remedies for the violation [of a material condition of a grant], . . . can include suspension or termination of Federal awards or debarment’’ and that ‘‘decisions regarding appropriate remedies are made on a case by case basis.’’ 177 The Department further acknowledged that the ‘‘potential suspension or termination of a Federal award and potential debarment would, in the event that they occurred, represent real costs’’ but that ‘‘such outcomes would be generally unlikely and difficult to meaningfully predict.’’ 178 In this context, the Department stated that ‘‘such violations are rare,’’ meaning that such violations of a material condition of a grant that lead to potential suspension or termination of a Federal award and potential debarment are rare.179 However, the Department believes that violations of the First Amendment and of stated institutional policies regarding freedom of speech, including academic freedom, are a concern for the reasons stated in the NPRM, including the cases cited in the NPRM, and the comments 177 Id. 178 Id. 179 Id. E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations that we received about proposed regulations 34 CFR 75.500(b)–(c) and 34 CFR 76.500(b)–(c) confirm that such violations are a concern. The Department has not historically suspended or terminated a Federal award or debarred a grantee as the first measure in addressing a violation and instead attempts to secure voluntary compliance from the State, grantee, or subgrantee. Indeed, the Department’s regulations provide that the Department may suspend or terminate a Federal award or debar a grantee, if there is a continued lack of compliance and if imposing additional, specific conditions is not successful.180 The fact that historically we have rarely taken actions such as suspension or termination and that those instances may be rare and difficult to predict does not in any way detract from the concerns about violations of the First Amendment and stated institutional policies regarding freedom of speech that are addressed in case law, the NPRM, and comments. Changes: None. Comments: One commenter stated that the Department failed to consult Indian Tribal governments in violation of Executive Order 13175 and the Department’s consultation policy. The commenter stated that the proposed regulations’ imposition of the First Amendment on Tribally-controlled institutions creates Tribal implications and requires consultation under § 5(a) of Executive Order 13175. The commenter also noted that the Department of Housing and Urban Development, in its parallel NPRM, acknowledged that the proposal had Tribal implications and purported to engage in Tribal consultation on that ground. Commenters also stated that the Department’s federalism analysis in the NPRM was erroneous, or that the NPRM should have included such an analysis under Executive Order 13132. One commenter asserted that the proposed rules would have federalism implications, because by creating loopholes and upending the regulatory regime applicable to government-funded entities that espouse religious viewpoints, they would complicate the ability of State and local jurisdictions to safeguard their workforce and enforce generally applicable anti-discrimination laws such as sex discrimination laws, and that they also would cause economic hardships to State and local governments, in the forms of higher unemployment and greater demand for 180 See 34 CFR 75.901 (referencing 2 CFR 200.338); 2 CFR 200.338 (stating Federal awarding agency may suspend or terminate an award if noncompliance cannot be remedied by imposing additional conditions). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 State and city-funded services. Others asserted that the proposed rules would directly prohibit States from applying their nondiscrimination laws and constitutional protections in the public educational institutions that they fund, putting public schools in the position of having to choose between following State and Federal law as interpreted by the Department. Commenters also asserted that the NPRM was not in compliance with the Unfunded Mandates Reform Act of 1995 (UMRA) because it neither included the requisite analysis, nor qualified for an exemption. In the NRPM, the Department stated that the proposed regulations were exempt under section 4(2) of the UMRA, 2 U.S.C. 1503(2), which excludes any proposed or final Federal regulation that ‘‘establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability.’’ Commenters asserted that the NPRM instead would create new religious exemptions that surpass the protections found in existing statutes, including RFRA. They stated that the NPRM justified the religious exemptions based on case law, executive orders, and Department of Justice memoranda, and that the RFRA does not create a categorical right that prohibits discrimination. Therefore, they asserted that the exemption from the UMRA was not applicable, and the NPRM should have included a UMRA analysis. Discussion: With regard to Native American tribal consultation, we note that the comment we received was not from a commenter that identified as a Native American Tribe or from a representative of a Native American Tribe. Section 5(a) of Executive Order 13175 requires each agency to have an accountable process to ensure meaningful and timely input by Tribal officials in the development of regulatory policies that have tribal implications. In accordance with Executive Order 13175, Section IV of the Department’s Consultation and Coordination with American Indian and Alaska Native Tribal Governments policy,181 provides that the Department will conduct Tribal consultation regarding actions that have a substantial and direct effect on tribes. The policy lists specific programs that serve Native American students or that have a specific impact on Tribes and provides that for those programs, regulatory 181 U.S. Dep’t of Educ., Consultation and Coordination with American Indian and Alaska Native Tribal Governments, available at www2.ed.gov/about/offices/list/oese/oie/ tribalpolicyfinal.pdf. PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 59965 changes or other policy initiatives will often affect Tribes and, thus, may require Tribal consultation. It further provides that for other programs that affect students as a whole, but are not focused solely on Native American students, the Department will include Native American Tribes in the outreach normally conducted with other stakeholders who are affected by the action. Thus, given that the regulations do not have a substantial direct effect on Indian educational opportunities, we did not engage in Tribal consultation. Accordingly, Native American Tribes had the same opportunity to comment on the proposed rules as other stakeholders. Additionally, we have revised these final regulations to clarify that we are not imposing the First Amendment on any entity, including any institution controlled by a Tribal government, that is not already legally required to abide by the First Amendment to the U.S. Constitution. We note that generally the Bill of Rights, including the First Amendment, does not apply to Tribes and Tribal governments.182 The Department is revising § 75.500(b) to state: ‘‘Each grantee that is an institution of higher education, as defined in 20 U.S.C. 1002(a), that is public and that is legally required to abide by the First Amendment to the U.S. Constitution (hereinafter ‘public institution’), must also comply with the First Amendment to the U.S. Constitution . . . as a material condition of the Department’s grant.’’ Similarly, the Department is revising § 76.500(b) to state: ‘‘Each State or subgrantee that is an institution of higher education, as defined in 20 U.S.C. 1002(a), that is public and that is legally required to abide by the First Amendment to the U.S. Constitution (hereinafter ‘public institution’), must also comply with the First Amendment to the U.S. Constitution . . . as a material condition of the Department’s grant.’’ The Department notes that ‘‘[p]ublic, as applied to an agency, organization, or institution’’ in 34 CFR 77.1 ‘‘means that the agency, organization, or institution is under the administrative supervision or control of a government other than the Federal Government.’’ The Department further notes that in 34 CFR 77.1, ‘‘[p]rivate, as applied to an agency, organization, or institution means that it is not under Federal or public supervision or control.’’ Accordingly, if an institution 182 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). The Indian Civil Rights Act (ICRA) extended some of the Bill of Rights to tribes, but the ICRA is not the First Amendment to the U.S. Constitution, and the ICRA does not include an Establishment Clause. 25 U.S.C. 1302(a)(1). E:\FR\FM\23SER3.SGM 23SER3 59966 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations is a public institution that is not legally required to abide by the First Amendment to the U.S. Constitution, then that institution is not required to comply with the First Amendment to the U.S. Constitution as a material condition of the Department’s grant. The final regulations concerning the First Amendment, thus, do not apply to Tribal institutions that are not legally required to comply with the First Amendment to the U.S. Constitution. Similarly, § 106.12(c) in these final regulations clarifies the exemption for an educational institution which is controlled by a religious organization if the application of Title IX and its implementing regulations would not be consistent with the religious tenets of such organization pursuant to 20 U.S.C. 1681(a)(3). Indeed, the revisions to these final regulations with respect to parts 106, 606, 607, 608, and 609 of title 34 of the Code of Federal Regulations are consistent with the Indian Civil Rights Act, which contains language similar to almost the entire First Amendment to the U.S. Constitution except the Establishment Clause of the First Amendment. The Individual Civil Rights Act provides in relevant part: ‘‘No Indian tribe in exercising powers of self-government shall make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assembly and to petition for a redress of grievances.’’ 183 These final regulations are consistent with the First Amendment and, thus, do not pose federalism concerns because States are legally required to abide by the First Amendment.184 Requiring public institutions that are legally required to abide by the First Amendment to the U.S. Constitution to also comply with the First Amendment to the U.S. Constitution as a material condition of the Department’s grant does not pose any federalism concerns. Such a requirement does not preclude States from enforcing any antidiscrimination laws because any State anti-discrimination law, including laws that prohibit discrimination on the basis of sex, must be consistent with the First Amendment. Similarly, requiring private institutions to comply with their khammond on DSKJM1Z7X2PROD with RULES3 183 25 U.S.C. 1302(a)(1). Jonge v. Oregon, 299 U.S. 353, 364 (1937) (‘‘Freedom of speech and of the press are fundamental rights which are safeguarded by the due process clause of the Fourteenth Amendment of the Federal Constitution. . . . The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.’’); Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940); Near v. Minnesota, 283 U.S. 697, 707 (1931). 184 De VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 stated institutional policies regarding freedom of speech, including academic freedom, as a material condition of the Department’s grant, does not impose any federalism concerns. The Department does not dictate what a private institution’s stated institutional policies must be, and private institutions should comply with all applicable laws, including any State’s anti-discrimination laws. Additionally, the First Amendment does not allow public institutions to treat religious student organizations differently based on their status as a religious organization or on account of their sincerely held religious beliefs, and the Department’s regulation with respect to religious student organizations at public institutions is consistent with the First Amendment and also the Religious Freedom Restoration Act, 42 U.S.C. 2000bb, et seq. (‘‘RFRA’’), which applies to the Department and requires the Department not to substantially burden a person’s exercise of religion unless certain conditions are satisfied.185 As the Department explains in the ‘‘‘All Comers’ Policies for Student Organizations’’ subsection in the ‘‘34 CFR 75.500(d) and 34 CFR 76.500(d)— Religious Student Organizations’’ section, public institutions may choose to adopt a true ‘‘all-comers’’ policy as described in Christian Legal Society v. Martinez,186 as long as public institutions do not treat religious student organizations differently than other student organizations under any ‘‘all-comers’’ policy. The Department’s revision to 34 CFR 106.12 clarifies a statutory exemption under Title IX for institutions controlled by a religious organization and is consistent with the First Amendment and RFRA. Finally, the revisions to parts 606, 607, 608, 609 of title 34 of the Code of Federal Regulations concern programs under the HEA, that the Department is required to administer, and these revisions are consistent with the First Amendment and also the Religious Freedom Restoration Act, 42 U.S.C. 2000bb, et seq., which applies to the Department. These final regulations apply to entities that choose to apply for and accept a grant or subgrant, Federal financial assistance, or participate in the Developing Hispanic-Serving Institutions Program, Strengthening Institutions Program, Strengthening Historically Black Colleges and Universities Program, or Strengthening Historically Black Graduate Institutions Program. Any entity may choose not to accept such a grant or subgrant, Federal financial assistance, or forego participating in a program that the Department administers. The commenters do not provide any evidence to support that these final regulations will lead to increased unemployment or any other negative consequence such that States would bear a greater economic burden with respect to increased unemployment or an increased need for State or local services. Accordingly, these final regulations do not pose any federalism concerns. We disagree with some commenters’ characterization of Executive Order 13132.187 That Order’s goal was ‘‘to guarantee the division of governmental responsibilities between the national government and the States’’ and to ‘‘further the policies of the Unfunded Mandates Reform Act[.]’’ 188 The purpose of the Unfunded Mandates Reform Act is, in its own words, ‘‘to end the imposition, in the absence of full consideration by Congress, of Federal mandates on State, local, and Tribal governments without adequate Federal funding, in a manner that may displace other essential State, local, and tribal governmental priorities[.]’’ 189 In other words, when the Federal government imposed an unfunded mandate on the States (including local governments) and Tribal governments carrying federalism implications and had effects on State and local laws, this Order required the Federal government to consult with State and local authorities. However, these final regulations are entirely premised as a condition of receiving Federal funds, and the recipient has the right to forgo such funds if the recipient does not wish to comply with these final regulations. Additionally, this Order states: ‘‘To the extent practicable and permitted by law, no agency shall promulgate any regulation that has federalism implications, that imposes substantial direct compliance costs on State and local governments, and that is not required by statute’’ unless the agency takes a few steps.190 The use of ‘‘and’’ as well as ‘‘to the extent practicable’’ indicate that each of these requirements must be met before the agency is compelled to take those additional 185 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 719 (2014) (holding ‘‘person’’ within meaning of the Religious Freedom Restoration Act’s protection of a person’s exercise of religion includes for-profit corporations). 186 561 U.S. 661 (2010). 187 Exec. Order No. 13132, 64 FR 43255 (Aug. 10, 1999). 188 Id. 189 2 U.S.C. 1501(2). 190 Exec. Order 13132, section 6(b), 64 FR 43255 (Aug. 10, 1999) (emphasis added). PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations steps. These final regulations do not compel a recipient to accept grants or subgrants, Federal financial assistance, or any funds through programs under Title III and Title V of the HEA. Moreover, these final regulations are consistent with Title IX and other Federal statutory provisions. Thus, we do not believe that Executive Order 13132 is implicated by these final regulations. The Unfunded Mandates Reform Act expressly does not apply to ‘‘any provision in a proposed or final Federal regulation that enforces constitutional rights of individuals’’ 191 or that ‘‘establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability[.]’’ 192 These final regulations enforce the constitutional rights of individuals by requiring public institutions that are legally required to abide by the First Amendment to also comply with the First Amendment as a material condition of a grant or subgrant under 34 CFR 75.500, 34 CFR 75.700, 34 CFR 76.500, and 34 CFR 76.700. As explained more fully in the ‘‘34 CFR 75.500(d) and 34 CFR 76.500(d)— Religious Student Organizations’’ section, the First Amendment prohibits public institutions from treating religious student organizations differently than other student organizations on the basis of their status as religious organizations or on account of their sincerely held religious beliefs. As explained throughout this preamble and the NPRM, these final regulations help prohibit discrimination on the basis of religion, and these final regulations are consistent with both the First Amendment and RFRA. Additionally, 34 CFR 106.12(c), enforces a statutory exemption for educational institutions controlled by a religious organization with respect to Title IX, which prohibits discrimination on the basis of sex. Changes: The Department revised 34 CFR 75.500 and 34 CFR 76.500 to clarify that only public institutions that are legally required to abide by the First Amendment to the U.S. Constitution must also comply with the First Amendment to the U.S. Constitution as a material condition of the Department’s grant. Comments: Commenters asserted that the Department’s NPRM did not comply with other Executive orders and statutory requirements. One commenter disputed the Department’s treatment of the proposed regulations under 191 2 192 2 U.S.C. 1503(1). U.S.C. 1503(2). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 Executive Order 13771, stating that since it imposed costs, the Department should identify two deregulatory actions with cost savings. In addition, commenters stated that the proposed rule violated the Treasury and General Government Appropriations Act of 1999, note to 5 U.S.C. 601, because it failed to include a Family Policy Making Assessment, which would assess the proposed rules’ impact on family wellbeing. Discussion: The Office of Management and Budget’s guidance implementing Executive Order 13771 describes the offset required by the Executive Order as meaning that ‘‘at least two E.O. 13771 deregulatory actions have been taken per E.O. 13771 regulatory action and that the incremental cost of the E.O. 13771 regulatory action has been appropriately counterbalanced by incremental cost savings from E.O. 13771 deregulatory actions, consistent with the agency’s total incremental cost allowance.’’ 193 The memorandum defines a ‘‘13771 Regulatory Action’’ for relevant purposes as a ‘‘significant regulatory action as defined in Section 3(f) of E.O. 12866 that has been finalized and that imposes total costs greater than zero.’’ 194 The Department has revised its analysis and has determined that these final regulations impose net costs under Executive Order 13771. In accordance with Executive Order 13771, the Department will identify at least two deregulatory actions. The provision of the Treasury and General Government Appropriations Act of 1999 cited by commenters pertains to ‘‘policies and regulations that may affect family well-being.’’ 195 As the proposed regulations, and these final regulations, did not have a direct effect on families, such an analysis was not required. These final regulations affect institutions that receive a Direct Grant or subgrant from a StateAdministered Formula grant program of the Department, which does not have a direct bearing on individual families. Similarly, the revisions to parts 106, 193 Office of Mgmt. & Budget, Exec. Office of the President, M–17–21, Guidance Implementing Executive Order 13771 (OMB 13771 Guidance), at 4 (Q5) (Apr. 5, 2017), available at www.whitehouse.gov/sites/whitehouse.gov/files/ omb/memoranda/2017/M-17-21-OMB.pdf. 194 Id. at 3 (defining an E.O. 13771 Regulatory Action as ‘‘(i) A significant regulatory action as defined in Section 3(f) of E.O. 12866 that has been finalized and that imposes total costs greater than zero; or (ii) A significant guidance document (e.g., significant interpretive guidance) reviewed by OIRA under the procedures of E.O. 12866 that has been finalized and that imposes total costs greater than zero.’’). 195 ‘‘Assessment of Federal Regulations and Policies on Families,’’ paragraph (c), note to 5 U.S.C. 601. PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 59967 606, 607, 608, and 609, which are described at length in other sections of this preamble, affect institutions and not families. Therefore, the Department, in its assessment of these final regulations has concluded that they will not have a negative effect on families. Changes: The Department has revised its analysis and has determined that these final regulations impose net costs. Comments: Commenters asserted that various provisions of the proposed regulations and RIA were arbitrary and capricious, for reasons such as that the Department failed to provide a reasoned basis or justification for them, or because the proposed rule departed from the prior rules and positions without adequate explanation. Commenters cited various legal authorities to substantiate an agency’s responsibility to explain the basis for its decision-making, including when changing position on a given issue. Especially with respect to the religious exemption in proposed § 106.12(c), they asserted that, for instance, the proposed rule included reversal of previous Department positions, failed to provide a reasoned justification or adequate basis, did not provide adequate evidence of the need for the proposed rule or its benefits, and failed to provide an adequate regulatory analysis and consider important evidence regarding the rule’s impact. They also asserted that the Department failed to consider the impact of the proposed rules on various stakeholders. Discussion: We agree with commenters that an agency must give adequate reasons for its decisions and consider relevant factors,196 and that when an agency changes its position, it must display awareness that it is changing position and show that there are good reasons for the new policy. In explaining its changed position, an agency must be ‘‘cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account. . . . In such cases it is not that further justification is demanded by the mere fact of policy change; [ ] a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.197 On the other hand, the agency need not demonstrate . . . that the reasons for the 196 See, e,g., Motor Vehicle Mfrs. Ass’n. of United States, U.S., Inc. v. State Farm Mut. Automobile Auto. Ins. Co., 463 U.S. 29, 43 (1983). 197 See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–(2016) (quoting FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515–16 (2009)). E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 59968 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better.’’ 198 Throughout the NPRM and this preamble, we discuss the reasoned basis for these regulations, and include explanations for any changes in position regarding each provision in the relevant section, including those specifically mentioned by the commenters. Any changes from the proposed regulations are explained in the relevant sections of this preamble, including the Regulatory Impact Analysis (RIA) section. In particular, the ‘‘34 CFR 106.12 Educational Institutions Controlled by Religious Organizations’’ section of this preamble addresses many of these arguments in greater depth. We address comments concerning the RIA, including its legal sufficiency, in depth in the RIA section of this final rule. Changes: None. Comments: At least one commenter suggested that Secretary Elisabeth DeVos lacks the authority to issue the NPRM and to promulgate the final regulations because Vice President Michael Pence cast the deciding vote to confirm the Secretary after the Senators were equally divided on her confirmation.199 The commenter contended that the Vice President is not constitutionally authorized to break a tie for a cabinet member’s confirmation, thereby rendering Secretary DeVos’ Senate confirmation itself invalid and rendering her actions legally unauthorized. Discussion: We disagree with commenters’ concerns that Secretary DeVos might not be constitutionally empowered to issue the NPRM or the final regulations because the Vice President lacked the constitutional prerogative to cast the tie-breaking vote to confirm the Secretary. Because the Vice President is constitutionally empowered to cast the tie-breaking vote in executive nominations, President Trump’s nomination of Secretary DeVos properly was confirmed by the United States Senate; and Secretary DeVos therefore may function as the Secretary of Education. Article I, § 3, clause 4 of the Constitution confers on the Vice President the power to break ties when the Senators’ votes ‘‘be equally 198 Fox Television, 129 S. Ct. at 1811 (emphasis in original). 199 U.S. Senate, Vote: On the Nomination (Confirmation Elisabeth Prince DeVos, of Michigan, to be Secretary of Education), Feb. 7, 2017, available at https://www.senate.gov/legislative/LIS/ roll_call_lists/roll_call_vote_ cfm.cfm?congress=115&session=1&vote=00054. VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 divided.’’ Secretary DeVos’ service as the Secretary of Education has therefore been lawful and in accordance with the Constitution. A commenter largely relies on one piece of scholarship to advance this claim.200 But that source principally concerns the Vice President’s power to break Senate ties on judicial nominations, not Executive ones. Morse does not develop robustly an argument about the latter. Moreover, Morse acknowledges there is nothing ‘‘conclusive’’ about Executive nominations, and argues only that Vice Presidents are without constitutional authority to break ties in judicial nominations.201 Morse cites three examples from 1806 (Vice President George Clinton voted to confirm John Armstrong as the Minister to Spain), 1832 (Vice President Calhoun cast a tiebreaking vote that defeated the nomination of Martin Van Buren as Minister to Great Britain), and 1925 (Vice President Charles G. Dawes almost cast the tie-breaking vote to confirm President Calvin Coolidge’s nominee for attorney general), respectively.202 But even the evidence in this source points to the fact that the Vice President was always considered to hold the tiebreaking vote for Executive nominations (indeed for all Senate votes). Particularly the nineteenth century examples do seem to show that historically Vice Presidents have enjoyed this widely acknowledged power.203 Due to this time period’s chronological proximity to the Constitution’s ratifying generation, this is strong evidence that the original public meaning of the Constitution, left undisputed by intervening centuries of practice, confers the power of breaking Senate ties in executive nominations on Vice Presidents. As for the argument that the placement of this power in Article I, which generally deals with Congress, meant the power was limited to the legislative votes, this misconceives the context in which the provision exists: that section concerns length of Senate tenure, the roles of congressional personnel, and the Senate’s powers, including that of trying impeachments.204 It is not limited to what the Senate can accomplish but rather encompasses matters about who 200 See Samuel Morse, The Constitutional Argument Against the Vice President Casting TieBreaking Votes on Judicial Nominees, 2018 Cardozo L. Rev. de novo 142 (2018) (herein, ‘‘Morse,’’ ‘‘the source’’ or ‘‘the article’’). 201 See id. at 151. 202 See id. at 150–51. 203 See id. at 143–44 n.4. 204 See generally U.S. Const. art. I, sec. 3. PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 in the Senate gets to do what, concerning all Senate business. In this section of Article I, the Vice President, as President of the Senate, accordingly is given the power to break ties. This was the most logical section in which to put this prerogative of the Vice President. And given how the power to cast tie-breaking votes is left openended, the most natural inference is that it applies to all Senate votes in all Senate business. Consequently, this evidence refutes the commenter’s claim about Secretary DeVos’ confirmation because: (1) This section in Article I simply concerned the functions and prerogatives of the Senate and its various officers, including the Vice President’s general tie-breaking authority; and (2) that the Senate’s power to try impeachments is included in the same section means that this section is just as applicable to Executive nominations as to anything else (that neither the commenter nor the article is challenging).205 This analysis shows that Morse’s argument, and transitively that of the commenter, is flawed. Furthermore, one commenter’s reference to Senator King’s statement in 1850 as supporting a view that could lead anyone in the present day to conclude Secretary DeVos’s Senate confirmation is invalid is unhelpful because the overwhelming weight of text and history is against the merits of this pronouncement. Even at that time, King appears to have been one of a handful of people, if that, to express this view. It was not a widely accepted view, before or after. Finally, a commenter’s citation to John Langford’s Did the Framers Intend the Vice President to Have a Say in Judicial Appointments? Perhaps Not 206 and the reference to the Federalist Papers also misconceive the constitutional text, design, and history. To be sure, Alexander Hamilton in The Federalist No. 69 does contrast the New York council at the time,207 with the Senate of the national government the Framers were devising (‘‘[i]n the national government, if the Senate should be divided, no appointment could be made’’).208 The commenter’s overall point is unpersuasive. As an initial matter, the Federalist Papers were 205 But see Morse, supra note 196, at 144, 146. Langford, Did the Framers Intend the Vice President to Have a Say in Judicial Appointments? Perhaps Not, Balkanization (Oct. 5, 2018), available at https://balkin.blogspot.com/ 2018/10/did-framers-intend-vice-president-to.html. 207 See The Federalist No. 69, at 424 (Alexander Hamilton) (Bantam Classic ed., 2003) (‘‘[I]f the [New York] council should be divided the Governor can turn the scale and confirm his own nomination.’’). 208 Id. 206 John E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations persuasion pieces to convince the People (as sometimes addressed to ‘‘The People of New York,’’ etc.) to accept the Constitution. Therefore, while the Papers supply a framework and understanding closely linked to the Constitution’s text by some of the authors of that text, it does not supplant the original public meaning of that text itself. Moreover, all The Federalist No. 69 refers to is that the President himself may not cast the tie-breaking vote in the Senate. The Vice President, however, may do so, for he is not the Executive. For much of our Nation’s history, including when the Equally Divided Clause was written as part of the original Constitution, the President and the Vice President could be from different parties and fail to get along. This Clause gave the Vice President some power and authority independent of the President. There is an important context behind this. Prior to the Twelfth Amendment’s adoption, the Vice Presidency was awarded to the presidential candidate who won the second most number of votes, regardless of which political party he represented.209 In the 1796 election, for instance, voters chose the Federalist John Adams to be President.210 But they chose Thomas Jefferson, a DemocraticRepublican, as the election’s runner-up, so Jefferson became Adams’ Vice President.211 Under the Twelfth Amendment, however, usually Presidents and Vice Presidents are elected on the same ticket. But this does not change the Equally Divided Clause, preserving the Vice President’s authority to break Senate ties for executive and other nominations. As a result, any argument to the contrary necessarily ignores the constitutional text, design, and history. Langford and the commenter at issue also misunderstand what Hamilton actually stated in The Federalist No. 76, which was: ‘‘A man disposed to view human nature as it is . . . will see sufficient ground of confidence in the probity of the Senate, to rest satisfied not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members; but that the necessity of its co-operation in the business of appointments will be a considerable and salutary restraint upon the conduct of that magistrate.’’ 212 Langford reads this to mean that Alexander Hamilton was saying the 209 See U.S. Const. amend. XII. Jerry H. Goldfeder, Election Law and the Presidency, 85 Fordham L. Rev. 965, 974–(2016). 211 See id. 212 The Federalist No. 76, at 465 (Alexander Hamilton) (Bantam Classics ed., 2003). 210 See VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 Executive needs a majority of the voting Senators present to confirm nominations. Langford’s interpretation wrongly conflates the necessary with the sufficient, for Hamilton was saying only that it will suffice for a President to get a nominee confirmed with a majority of the Senate, not that he needs a Senate majority to get his nominee confirmed. This is all the more so because Senators may abstain from voting, so not every Senator will necessarily be voting. Doubtless Hamilton knew this because the Constitution gives the Senate the power to decide its own rules, including quorum, see U.S. Const. art. I, sec. 5, cl. 1, 2, and therefore, a President need not even ‘‘corrupt or seduce’’ a majority of the full Senate, The Federalist No. 76; all he needs is a majority of the voting Senators. Thus, Hamilton’s phrasing indicates not precision but a common parlance. It is, accordingly, too slender a reed (outside the constitutional text, at that) for Langford to base much of his thesis on, providing no support for the commenter’s argument. Langford is also incorrect in saying that ‘‘the Framers situated the Senate’s ‘advice and consent’ powers in Article II, not Article I,’’ where the Equally Divided Clause is located, means that the Vice President’s tie-breaking power does not apply to nominations. This argument fails because, as noted earlier, it made more sense for the original Constitution’s drafters and the ratifying generation to name the Vice President’s tie-breaking power right in the same section of Article I when they were spelling out that he would be the President of the Senate. It is a limitation on his role as President of the Senate as well as his prerogative. Article II, by contrast, says what the President can do; and as already noted, when the original Constitution was ratified, the President and the Vice President were two different and often conflicting entities. Langford assumes the modern view that President and Vice President work hand in hand; that was not the original Constitution’s presupposition, explaining why Langford’s argument (and the commenter’s) is flawed. Langford is also wrong to suggest that because ‘‘the Framers explicitly guarded against a closely divided Senate by requiring a two-thirds majority of Senators present to concur in order to consent to a particular treaty,’’ this might show that: ‘‘Perhaps the Framers assumed the default rule [of the Vice President’s tie-breaking power] would apply whereby a tie goes to the Vice President; perhaps, instead, the Framers meant to provide for the possibility of a divided Senate, in which case the PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 59969 nomination would fail.’’ However, the real reason for these placements is simple and has been alluded to earlier: The Treaty Clause belongs in Article II because the President is the first mover on treaties; the Senate’s role is reactive. Also, the Vice President is a different actor from the President under the Constitution. This placement, therefore, has nothing to do with the Vice President’s tie-breaking power, which remains universally applicable across Senate floor votes. And even Langford is inconclusive about the reason for this placement and structure of keeping the Treaty Clause separate from the Equally Divided Clause. Therefore, the Constitution permits the Vice President to cast the tiebreaking vote for executive nominations. Vice President Pence constitutionally cast the tie-breaking vote to confirm President Trump’s nomination of Secretary DeVos. The Secretary is a constitutionally appointed officer functioning in her present capacity and suffers from no want of authority to issue the NPRM or to promulgate the final regulations on this or any other matter pertaining to the Department of Education. Changes: None. Length of Public Comment Period/ Requests for Extension Comments: Several commenters asserted that the 30-day public comment period provided for the NPRM was inadequate. Commenters noted that the proposed regulatory changes were substantive, far-reaching, and complex, as opposed to technical, and requested comment periods of a minimum of 60 days. They noted that the implications of the proposed rules for universities and numerous other stakeholders were immense. One commenter stated this was particularly the case if the proposed rule forms the basis of further action by research agencies per Executive Order 13864, and others pointed out that it is a significant regulatory action. Some commenters asserted that the proposed rules reflected significant shifts in longterm legal interpretations and practices. One commenter noted that the rules, if finalized as proposed, would reject key recommendations that were the result of advisory council deliberations and would reverse rules that were proposed for 60-day comment periods. Commenters claimed that the 30-day comment period did not afford them a ‘meaningful opportunity to comment’’ as required by the APA and pointed to Executive Orders 12866 and 13563 and the regulatory timeline on Regulations.gov suggesting a comment period of 60 days. Commenters noted E:\FR\FM\23SER3.SGM 23SER3 59970 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations that the Department had received requests for extensions of the comment period and that failure to extend the comment period was arbitrary and capricious. Commenters stated that the Department did not include a required justification or finding of good cause or exigent circumstances for a comment period of less than 60 days. Some commenters cited to Housing Study Group v. Kemp,213 as authority for the proposition that a comment period should not be less than 60 days. One commenter stated that the proposed rule did not provide a meaningful cost-benefit analysis, estimates of the scope of the rule’s impact, or any evidence to support its conclusions, so the need for stakeholders to undertake an analysis of the rules was all the more essential. Discussion: We appreciate commenters’ concerns about the length of the comment period. We understand the importance of these final regulations to various stakeholder groups and have proceeded thoughtfully and carefully to develop final regulations that balance varying interests appropriately. The APA does not mandate a specific length for an NPRM comment period, but states that agencies must ‘‘give interested persons an opportunity to participate’’ in the proceeding.214 This provision has generally been interpreted as requiring a ‘‘meaningful opportunity to comment.’’ 215 Executive Orders 12866 and 13563, which are mirrored by the timeline commenters referenced on Regulations.gov, state that a meaningful opportunity to comment on any proposed regulation, in most cases, should include a comment period of not less than 60 days.216 However, 60 days is not a mandatory timeframe—case law interpreting the APA generally stipulates that comment periods should not be less than 30 days to provide adequate opportunity to comment.217 In addition, the designation of a regulatory action as ‘‘significant’’ does not automatically require a comment period of longer than 30 days. Contrary to commenters’ assertions, the APA does not require a showing of good cause or exigent circumstances for a comment period of less than 60 days,218 so the 213 736 F. Supp. 321 (D.D.C. 1990). U.S.C. 553(c). 215 E.g., Asiana Airlines v. F.A.A., 134 F.3d 393, 396 (D.C. Cir. 1998). 216 Exec. Order 12866, Section 6(a), 58 FR 51735 (Oct. 4, 1993); Exec. Order 13563, section 2(b), 76 FR 3821 (Jan. 1, 2011). 217 See, e.g., Nat’l Retired Teachers Ass’n v. U.S. Postal Serv., 430 F. Supp. 141, 147 (D.D.C. 1977). 218 Instead, 5 U.S.C. 553(b)(B) states that the notice and comment requirements of 553(b) do not apply ‘‘when the agency for good cause finds . . . khammond on DSKJM1Z7X2PROD with RULES3 214 5 VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 rule is not arbitrary and capricious or rendered invalid by the lack of such a showing in the NPRM. Commenters cited Housing Study Group v. Kemp to support the proposition that a 30-day comment period is inadequate. However, that case dealt with an interim final rule, which differs from these final regulations in that an interim final rule takes effect immediately or soon after publication, prior to an agency’s receipt and/or analysis of any solicited public comments.219 That is not the case for these final regulations, which we are promulgating through standard APA notice and comment procedures. We understand commenters’ concerns about having an adequate opportunity to comment on the proposed regulations, but believe that the comment period afforded them an adequate opportunity to do so, on all of the issues in the NPRM including those related to Executive Order 13864. The Department’s proposed regulations will not necessarily be determinative of other agencies’ implementation of Executive Order 13864; in fact, the other agencies’ proposals may differ with respect to implementation of that Executive Order. Further, the Department received over 17,000 comments on the proposed regulations, many representing large constituencies. The large number, complexity, and diversity of comments received indicates that the public had adequate time to comment on the Department’s proposals. The length of comment periods in past rulemaking proceedings is not necessarily determinative of the proper comment period length for the present rulemaking. Any shifts in policy or departures from prior practice are explained in the relevant sections of this preamble. In addition, we address comments about the sufficiency of the RIA in the applicable section of this preamble. Changes: None. Comments: In support of their requests for a longer comment period, several commenters noted that the Administration issued nine interconnected, but distinct proposed regulations on the same day. Given the complexity and wide-ranging impacts of the proposed regulations, commenters did not feel that they had sufficient time that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.’’ 219 736 F. Supp. at 334. Moreover, in that case, the court found the agency’s own regulations required that, absent good cause, ‘‘the public be afforded a minimum of 60 days to submit comments.’’ Hous. Study Grp. v. Kent, 739 F. Supp. 633, 635 n.6 (D.D.C. 1990) (citing 24 CFR 10.1). PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 to prepare and submit their comments. According to commenters, an individual or entity interested in commenting on one of the agencies’ rules would most likely be interested in commenting on all of them. They asserted that each rule required a unique analysis, which the length of the comment period would not allow, and that the short comment period indicated that the Administration was uninterested in public comments. Commenters also referred to an alleged White House statement that the agencies had been working in coordination for months on the proposed rules, and noted this was indicative of the complexity of the task, therefore requiring additional time for comment. One commenter noted that more time was especially appropriate if the Department is to become a model for other agency efforts. Commenters cited instances of other similar regulations that were published with a longer comment periods, including the related proposed rule published by the Department of Housing and Urban Development (HUD). Commenters stated that this indicates that the Department could have allowed a longer comment period on these proposed regulations and that, since other agencies will need to coordinate with HUD before finalizing their rules, that was another reason to extend the comment period. Other commenters pointed to past revisions of these or similar rules that provided for longer comment periods, including when the Department and other agencies proposed revisions to the same regulations in 2015 and included a 60day comment period. Discussion: The Department disagrees that the proposal of the agencies’ final regulations on the same timeline did not provide the public a meaningful opportunity to comment. The agencies’ proposals were very similar in some areas, such that comments on aspects of one agency’s regulations could be submitted in response to other agencies’ NPRMs with minor changes. The work undertaken by the various agencies to coordinate their NPRMs facilitated the preparation of more streamlined proposals on which the public could comment in a more efficient manner. Although we are not certain of the manner in which one commenter meant that the Department would be a model for other agencies, the Department’s proposal was not intended to lead or supersede that of other agencies. Further, any public statements about that work and preparation would have been reflective of the agencies’ efforts, not necessarily those required of public commenters. E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations The Department greatly values the public’s comments on the proposed regulations but does not believe that a longer comment period was necessary in this case. HUD’s regulations were proposed for a longer comment period due to its unique requirements. Specifically, HUD’s regulations state that it is HUD’s policy ‘‘that its notices of proposed rulemaking are to afford the public not less than sixty days for submission of comments.’’ 220 In addition, the length of comment periods in past rulemaking proceedings is not necessarily determinative of the proper comment period length for the present rulemaking; the Department evaluates the appropriate length of a comment period on an individualized basis for each proposed regulation. Changes: None. Comments: Commenters also noted that 20 U.S.C. 6511 was included in authority citations for the proposed regulations. They pointed out that there is no 20 U.S.C. 6511, and inferred that the Department instead intended to cite 20 U.S.C. 6571. Commenters noted that 20 U.S.C. 6571 requires negotiated rulemaking and a 60-day comment period, among other procedural requirements, and stated that the Department did not comply with those requirements. One commenter also questioned how the proposed regulations were authorized by 20 U.S.C. 6571. Another commenter contended that the Department has no statutory basis for the proposed regulations to require public institutions to comply with certain provisions of the U.S. Constitution, to require private colleges to comply with their own stated institutional policies regarding freedom of speech, including academic freedom, and to require public institutions to treat religious student organizations the same as secular student organizations. This commenter asserted that 20 U.S.C. 1221e–3 and 20 U.S.C. 3474 cannot legally support these proposed regulations. Discussion: The Department inadvertently included 20 U.S.C. 6511, which is currently cited as the authority for some of the Department’s existing regulations and is now obsolete, in the authority citations for some of the proposed regulations. We did not intend to cite that section, or 20 U.S.C. 6571, as authority for these regulations. Indeed, 20 U.S.C. 6571 is part of the Elementary and Secondary Education Act of 1965, as amended, which is not a source of authority for these regulations. We have corrected the 220 24 CFR 10.1. VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 authority citations in these final regulations and appreciate that the commenters brought this error to our attention. However, the negotiated rulemaking, 60-day comment period, and other requirements of 20 U.S.C. 6571 are inapplicable to these regulations, so the Department was not required to comply with them. The Department has authority to promulgate these final regulations under 20 U.S.C. 1221e–3 and 20 U.S.C. 3474, which give the Secretary general authority to make regulations governing the Department’s applicable programs and to manage the functions of the Department. These final regulations are consistent with the statutes that govern institutions of higher education. Congress expressly stated in the HEA that ‘‘no student attending an institution of higher education on a full- or parttime basis should, on the basis of participation in protected speech or protected association, be excluded from participation in, be denied the benefits of, or be subjected to discrimination or official sanction under any education program, activity, or division of the institution directly or indirectly receiving financial assistance[.]’’ 221 These final regulations also are consistent with the Equal Access Act, which concerns public secondary schools and states: ‘‘It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.’’ 222 As explained in more detail in ‘‘Part 1—Religious Liberty’’ and ‘‘Part 2—Free Inquiry’’ of the NPRM, these regulations also were proposed in response to Supreme Court case law, interpreting the First Amendment, such as the United States Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer,223 the Religious Freedom Restoration Act, the United States Attorney General’s October 6, 2017 Memorandum on Federal Law Protections for Religious Liberty,224 Executive Order 13798 (Promoting Free 221 20 U.S.C. 1011a(a)(1). U.S.C. 4071(a). 223 137 S. Ct. 2012 (2017). 224 Jeff Sessions, Federal Law Protections for Religious Liberty, Memorandum for All Executive Departments and Agencies (Oct. 6, 2017), https:// www.justice.gov/opa/press-release/file/1001891/ download. 222 20 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 59971 Speech and Religious Liberty),225 Executive Order 13831 (Establishment of a White House Office Faith and Opportunity Initiative),226 Executive Order 13864 (Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities).227 The Department notes that in 2016, the Department issued final regulations expressly to ‘‘implement Executive Order 13279, as amended by Executive Order 13559. . . . to guide the policies of Federal agencies regarding the participation of faith-based and other community organizations in programs that the Federal agencies administer.’’ 228 The Department cited the same authority, 20 U.S.C. 1221e–3 and 20 U.S.C. 3474, for its 2015 NPRM 229 and subsequent final regulations issued in 2016,230 as it did for the NPRM underlying this noticeand-comment rulemaking and these final regulations. Changes: We have revised the authority citations for the final regulations to cite 20 U.S.C. 1221e–3 and 20 U.S.C. 3474. Effective Date Comments: One commenter, a public university, requested that the Department delay the effective date sufficiently far in the future (at least eight months) because institutions may be required to revise their policies. This commenter suggested that the final rule should become effective eight months after publication for consistency with the Higher Education Act’s master calendar requirement. Discussion: The Department appreciates the commenter’s suggestion; however, the Department does not believe that institutions of higher education will need at least eight months to comply with this final rule. Public institutions of higher education that are already legally required to abide by the First Amendment to the U.S. Constitution will simply also comply with the First Amendment to the U.S. Constitution as a material condition of a grant from the Department under 34 CFR 75.500 and 34 CFR 76.500. Public institutions should not need to review 225 Exec. Order No. 13798, 82 FR 21675 (May 4, 2017). 226 Exec. Order No. 13831, 83 FR 20715 (May 8, 2018). 227 Exec. Order No. 13864, 84 FR 11401 (March 26, 2019). 228 Federal Agency Final Regulations Implementing Executive Order 13559: Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations, 81 FR 19355 (Apr. 4, 2016). 229 80 FR 47253. 230 81 FR 19405–09. E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 59972 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations and revise their policies and practices as a result of this final rule. If public institutions review and revise their policies and practices, then the First Amendment and not this final rule dictates whether their policies and practices should change. Similarly, private institutions of higher education must simply comply with their own stated institutional policies regarding freedom of speech, including academic freedom, as a material condition of a grant from the Department under 34 CFR 75.500 and 34 CFR 76.500, and private institutions are not required to adopt any particular policy regarding freedom of speech, including academic freedom. Institutions generally comply with their own stated institutional policies and are prepared to suffer consequences such as breach of contract claims or other complaints for failing to comply with their own stated institutional policies. The other regulations in this final regulatory action clarify the exemption in Title IX, 20 U.S.C. 1681(a)(3), for educational institutions controlled by a religious organization to the extent Title IX or its implementing regulations are not consistent with the religious tenets of such organization. Similarly, the revisions to 34 CFR parts 606, 607, 608, and 609 remove language that prohibits use of funds for otherwise allowable activities if they merely relate to ‘‘religious worship’’ and ‘‘theological subjects’’ and replace it with language that more narrowly defines the limitations. Such points of clarification do not require eight months of preparation on the part of an institution. As discussed previously, the master calendar requirements in Title IV of the HEA do not apply to these final regulations. The HEA provides that ‘‘any regulatory changes initiated by the Secretary affecting the programs under [Title IV] that have not been published in final form by November 1 prior to the start of the award year shall not become effective until the beginning of the second award year after such November 1 date.’’ 231 These regulations, however, are not promulgated under Title IV of the HEA, and the master calendar requirement does not apply here. Even though these final regulations do not constitute a ‘‘major rule’’ under the Congressional Review Act,232 such that they may not take effect until 60 days after the date of publication in the Federal Register,233 and even though institutions are not required to review and revise their policies and practices as 231 20 U.S.C. 1089(c)(1). U.S.C. 804(2). 233 5 U.S.C. 801(a)(3). 232 5 VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 a result of this final rule, the Department understands that institutions and recipients of Federal financial assistance may choose to review their existing policies and practices to ensure compliance with the First Amendment for public institutions and with their own stated institutional policies concerning freedom of speech, including academic freedom, for private institutions. In case institutions would like to review their existing policies and practices, the Department will set the effective date at 60 days after the date of publication in the Federal Register. Changes: None. Regulatory Impact Analysis Comments: A few commenters argued that the Department’s cost-benefit analysis was unsubstantiated by evidence and failed to consider broad economic and non-economic impacts, primarily discrimination. These commenters asserted that the Department did not conduct a meaningful cost-benefit analysis. Some commenters argued that the Department’s cost-analysis calculation was incomplete and violates the Administrative Procedure Act and Executive Orders 12866 and 13563. One commenter asserted that these legal requirements were violated because the Department did not assess all costs and benefits or select approaches that maximize net benefits. Another commenter asserted that the Department violated the Administrative Procedure Act and Executive Order 13563 by not releasing information relevant to the cost estimates. One commenter argued that the Department’s claim that the proposed regulations would impose zero costs is false and stated that accurate estimates cannot be developed in the absence of more information from the Department. One commenter asserted that the Department failed to assess the net economic and non-economic effects of the proposed changes, particularly costs for current and prospective students and for schools themselves. This commenter also contended that the Department must consider costs to current and prospective employees who may face higher rates of sex discrimination by religious schools due to these proposed regulations. This commenter asserted that such individuals may face lost wages, fewer future employment opportunities, and long-term health consequences, as well as the more indirect costs of increased discrimination. Another commenter asserted that the Department did not cite evidence to support the assertion that the number or PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 composition of entities asserting the exemption for educational institutions which are controlled by a religious organization would not substantially change and, thus, there would be no quantifiable costs for the proposed regulation, 34 CFR 106.12(c). One commenter expressed concern that proposed § 106.12(c), regarding the exemption for educational institutions which are controlled by a religious organization, would increase sex-based discrimination, particularly hurting students and employees. Another commenter asserted that the Department’s cost-benefit analysis is flawed because it did not consider direct health and financial costs to beneficiaries who may be prevented from accessing safety net programs, experience discrimination and decreased fairness and respect for their rights, the potential cost-shifting to other health or human service agencies, and more confusion and familiarization costs. This commenter contended that the proposed regulations are economically significant because they cover programs totaling hundreds of billions of dollars and expressed concern that the Department did not fulfill Executive Order 12866. This commenter also argued that the Department failed to consider the total effect on the economy and costs as well as potential costs to beneficiaries, families, communities, and funded organizations. Discussion: As an initial matter, we note that the NPRM and its associated Regulatory Impact Analysis (RIA) included two parts—Part 1 related to issues of Religious Liberty and Part 2 related to issues of Free Inquiry. However, this final rule only includes changes to a subset of the provisions originally included in Part 1 (specifically 34 CFR parts 106, 606, 607, 608, and 609) and all of the provisions originally included in Part 2. The analysis pertinent to the relevant provisions in Part 1 addressed proposed changes to 34 CFR 106.12, 606,10, 606.11, 607.10, 607.11, 608.10, 608.12, 609.10, and 609.12. Of those sections, four are severability clauses. We note that the analysis pertinent to part 2 addressed proposed changes to seven sections (34 CFR 75.500, 75.684, 75.700, 75.741, 76.500, 76.700, and 76.784). Of those sections, three are severability clauses and two are updated cross-references. While many commenters were not specific about the sources of their concerns, we do not believe commenters intended to imply that there were economic or non-economic impacts of the severability provisions or cross- E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations reference updates that were not considered. Severability clauses, generally, do not have any practical effect on the cost implications of any other provisions and only clarify the effectiveness of those provisions in certain circumstances. As such, we generally do not assume severability clauses to have cost implications and decline to do so in this instance. Similarly, updating cross-references does not have any practical effect on cost implications but rather serves only to improve the clarity of regulations. We decline to estimate additional effects from these clauses. With regard to changes to §§ 75.500 and 76.500, we disagree that there were economic or non-economic impacts, including discrimination, that we failed to consider, or that our analysis was otherwise not meaningful. As noted in the NPRM, the regulatory changes serve primarily to clarify that public institutions must comply with the First Amendment and to require that, in the event there is a final, non-default judgment against them in a State or Federal court alleging a violation thereof, such judgment must be submitted to the Department. Based on our active and ongoing monitoring of grantees, we have not yet been made aware of any significant issues with grantees resulting in final, non-default judgments that a grantee has failed to comply with the First Amendment in large part because grantees are not required to and do not report such judgments or violations to us. We specifically requested the public submit any evidence of such violations to inform our estimates and did not receive any information about the number of final, non-default judgments against a public institution, holding that the public institution violated the First Amendment, or the number of final, non-default judgments against a private institution, holding that the private institution violated a stated institution policy regarding freedom of speech, including academic freedom. In addition to our request about compliance with the First Amendment, we specifically asked the public to submit relevant information regarding the likely effects—both economic and non-economic—of these changes. In response to that request, members of the public cited potential economic and non-economic effects of increased discrimination. As discussed elsewhere, we did not find these arguments convincing. Despite the lack of persuasive comments, the Department did review our initial assumptions pursuant to commenters’ general concerns and were unable to identify VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 additional likely economic or noneconomic impacts. In the absence of additional, specific information regarding the types of impacts commenters believed we failed to consider, we decline to amend our initial assumptions and estimates related to these provisions. That being said, while we disagree with commenters that the issues they identified should be quantified and included in our analysis of the likely impacts of these final regulations, we do note that our analysis did not include time for grant recipients under 34 CFR parts 75 and 76 to review these final regulations or for a subset of those grantees to engage in a review of their policies as a result of these final rules. We have revised our cost estimates to include these items. With regard to changes to 34 CFR 106.12(c), which provide greater clarity regarding the statutory exemption in 20 U.S.C. 1681(a)(3) and reflected in 34 CFR 106.12(a), we disagree that there were economic or non-economic impacts, including discrimination, that we failed to consider, or that our analysis was otherwise not meaningful. One commenter alleged that the Department provided no basis on which to substantiate its assumption that this change would not substantially change the number or composition of entities claiming the exemption. However, as noted in the NPRM and this final rule, these changes only clarify and codify in regulations many long-standing practices of the Department. A number of the standards in 34 CFR 106.12(c)(1)– (5) are criteria that have been used by OCR for decades in adjudicating claims to the exemption under 20 U.S.C. 1681(a)(3) and reflected in 34 CFR 106.12(a) and, therefore, it is likely that any entities that contacted the Department about this exemption would have received guidance in accordance with these changes. Informed by public comment, the Department has no information to suggest that a substantial number of educational institutions will be newly eligible to assert a religious exemption under Title IX, where they could not before. We therefore have no evidence to refute and stand by the assumption that these changes would not result in a substantial change in the number or composition of entities asserting the exemption. Further, given that we do not believe that there would be a substantial change in the number or composition of entities asserting the exemption, we have no reason to believe that there would be a substantial increase in the number of individuals affected by the policies and practices of these entities. If an individual feels that PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 59973 the religious exemption under Title IX and these regulations does not apply to an educational institution, that individual may always file a complaint with OCR. Further, if the assertion of the exemption in 34 CFR 106.12(a) were likely to cause the harms cited by commenters, there should be ample evidence of those harms at the entities already asserting the exemption. We do not have evidence that those harms actually occurred, and commenters did not identify any examples of such. If we do not anticipate any change in the number of individuals affected by the policies and practices of these entities to which the religious exemption applies, and we have no evidence to suggest that the policies and practices of these entities actually generate the harms cited by commenters (including, among others, increased rates of intimate partner violence and psychological abuse and lower rates of cervical cancer screenings), we cannot reasonably attach costs associated with those harms to the changes being made herein. We therefore decline to include costs related to discrimination, lack of access to safety net programs, or costs associated with confusion or familiarization with new providers. With regard to changes to 34 CFR 606.10, 607.10. 608.10, and 609.10, we disagree that there were economic or non-economic impacts, including discrimination, that we failed to consider, or that our analysis was otherwise not meaningful. As noted in the NPRM, these changes would remove language that prohibits the use of funds for otherwise allowable activities that merely relate to sectarian instruction or religious worship and replace it with language more narrowly defining the limitation. In general, the Department does not estimate costs associated with regulatory changes that only affect the expenditure of Federal funds as all costs associated with compliance are subsidized with Federal grants. At most, such changes could result in transfers across eligible activities or recipients. The Department noted this potential for transfers in the NPRM and specifically requested public feedback on the extent to which these transfers were likely to occur. We received no information from the public on this matter. We therefore retain this as a potential, but unquantified transfer among allowable activities and recipients. Commenters also asserted potential violations of the Administrative Procedure Act and Executive Orders 12866 and 13563 with respect to additional information they believe the Department should have released to aid them in their review of these estimates, E:\FR\FM\23SER3.SGM 23SER3 59974 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations such as information about grants, grant recipients and effects on small entities. The only non-publicly-available information used in developing those estimates was the Department’s active monitoring of our grantees, and the relevant aspects of that information were discussed in the NPRM. We do not believe it would be necessary or appropriate for the Department to release all monitoring records for all grantees, nor would the provision of that information aid commenters in further assessing the reasonableness of our assumptions. Changes: We have revised our cost estimates to include time for grantees to read the rule and review their institutional policies. Executive Orders 12866, 13563, and 13771 khammond on DSKJM1Z7X2PROD with RULES3 Regulatory Impact Analysis Under E.O. 12866, the Office of Management and Budget (OMB) must determine whether this regulatory action is ‘‘significant’’ and, therefore, subject to the requirements of the Executive Order and subject to review by OMB. Section 3(f) of E.O. 12866 defines a ‘‘significant regulatory action’’ as an action likely to result in a rule that may— (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an ‘‘economically significant’’ rule); (2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles stated in the Executive Order. Under E.O. 12866, section 3(f)(1), this regulatory action is a significant regulatory action subject to review by OMB. Under E.O. 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under E.O. 12866 and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2020, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 deregulatory actions. The final regulations are a significant regulatory action under E.O. 12866, and impose total one-time costs of approximately $297,770. Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs designated this rule as not a ‘‘major rule,’’ as defined by 5 U.S.C. 804(2). We have also reviewed these final regulations under E.O. 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in E.O. 12866. To the extent permitted by law, E.O. 13563 requires that an agency— (1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify); (2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations; (3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and (5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices. E.O. 13563 also requires an agency ‘‘to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.’’ The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include ‘‘identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.’’ We are issuing these final regulations only on a reasoned determination that their benefits justify their costs. While the Department is required to estimate the benefits and costs of every regulation, and has considered those benefits and costs for these final regulations, our decision regarding the final regulations rely on legal and policy considerations discussed elsewhere, and not on the estimated cost likely to result PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 from these final regulations. The approach that the Department chooses upholds the First Amendment to the U.S. Constitution with respect to public institutions of higher education and holds private institutions of higher education accountable to their own stated institutional policies regarding freedom of speech, including academic freedom. The Department’s approach with respect to discretionary grant programs under Title III and Title V of the HEA aligns with the most current precedent from the U.S. Supreme Court. The Department also clarifies 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. We also have determined that this regulatory action does not unduly interfere with State, local, or Tribal governments in the exercise of their governmental functions. In this regulatory impact analysis, we discuss the need for regulatory action, the potential costs and benefits, assumptions, limitations, and data sources that we considered. Need for Regulatory Action The Department is revising its regulations in response to the United States Supreme Court’s decisions in Trinity Lutheran Church of Columbia, Inc. v. Comer 234 and consistent with Espinoza v. Montana Dep’t of Revenue 235 as well as Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania,236 RFRA, the United States Attorney General’s October 6, 2017, Memorandum on Federal Law Protections for Religious Liberty, E.O. 13798 (Promoting Free Speech and Religious Liberty),237 and E.O. 13831 (Establishment of a White House Faith and Opportunity Initiative). Additionally, the Department is revising its regulations to enforce E.O. 13864,238 Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities. The Department believes that even a single instance of a violation of the First Amendment at a public institution or a 234 137 S. Ct. 2012 (2017). S. Ct. 2246 (2020). 236 140 S. Ct. 2367 (2020). 237 Att’y Gen. Mem. nn Federal Law Protections for Religious Liberty, Memorandum for All Executive Departments and Agencies (Oct. 6, 2017), https://www.justice.gov/opa/press-release/file/ 1001891/download. 238 Exec. Order 13864, 84 FR 11401 (Mar. 21, 2019). 235 140 E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 single instance of a violation of stated institutional policies regarding freedom of speech, including academic freedom, at a private institution, as adjudicated by a court, is egregious with respect to Federal research or education grants. Such violations deny students the opportunity to learn and also deny teachers and faculty the opportunity to research and engage in rigorous academic discourse. The freedoms in the First Amendment for public institutions and stated institutional policies regarding freedom of speech, including academic freedom, for private institutions are fundamental for education. Additionally, these final regulations governing the Hispanic-Serving Institutions Program, Strengthening Institutions Program, Strengthening Historically Black Colleges and Universities Program, and Strengthening Historically Black Graduate Institutions Program provide consistency with current Supreme Court case law regarding the Free Exercise Clause and RFRA. These final regulations also help ensure that religious student organizations at public institutions do not have to choose between exercising their religion or participating in a publicly available government benefit program. Finally, the Department for the first time provides clarity through regulations as to how an educational institution may demonstrate that it is controlled by a religious organization such that Title IX and its implementing regulations would not apply pursuant to 20 U.S.C. 1681(a)(3). The Department previously addressed such matters through guidance which does not have the force and effect of law. These final regulations provide a non-exhaustive list of criteria that is consistent with RFRA and that institutions may choose to use in asserting an exemption under 20 U.S.C. 1681(a)(3). The Department’s need for regulatory action is explained more fully in the NPRM in ‘‘Background—Part 1 (Religious Liberty)’’ and ‘‘Background— Part 2 (Free inquiry).’’ 239 Discussion of Costs and Benefits The Department has analyzed the costs and benefits of complying with these final regulations. Due to the number of affected entities and recipients, we cannot estimate, with absolute precision, the likely effects of these regulations. However, as discussed below, we estimate that these final regulations will have a one-time net cost of approximately $297,770. 239 85 FR 3191–99. VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 Discussion of Costs, Benefits, and Transfers For purposes of these estimates, the Department assumes that approximately 1,500 institutions of higher education are grant recipients under 34 CFR parts 75 and 76. Of those, we assume that approximately 70 percent (1,050) are public institutions and 30 percent (350) are private institutions.240 We assume that most activities outlined below would be conducted by an attorney at a rate of $102.05 per hour.241 We assume that representatives of all 1,500 institutions receiving grants under 34 CFR parts 75 and 76 will review the final rule. We estimate that such review will take, on average, 1 hour per institution for a one-time cost of approximately $209,700. While the Department recognizes that some institutions may take longer to complete this review, we believe many institutions will take far less time, instead relying on high level summaries or overviews, such as those produced by a central office for an entire university system. 34 CFR Part 75—Direct Grant Programs and 34 CFR Part 76—StateAdministered Formula Grant Programs Changes to 34 CFR 75.500 and 34 CFR 76.500 clarify public institutions that are grantees or subgrantees and that already are legally required to abide by the First Amendment, must comply with the First Amendment as a material condition of the Department’s grant. Similarly, private institutions must comply with their own stated institutional policies regarding freedom of speech, including academic freedom, as a material condition of a grant. These final regulations assume that generally, a public institution makes a good faith effort to comply with this material condition unless a State or Federal court renders a final, non-default judgment against the institution or its employee acting in the employee’s official capacity, finding that the public institution or such an employee violated the First Amendment. Similarly, these final regulations assume that generally, a private institution makes a good faith effort to comply with its own stated institutional policies regarding freedom 240 Estimates based on analysis of grant awards made by the Department in fiscal year 2018. 241 Estimates based on a median hourly wage for lawyers employed by colleges, universities, and professional schools, State government owned from the May 2019 National Occupational Employment and Wage Estimates by ownership, published by the Bureau of Labor Statistics (www.bls.gov/oes/ current/611300_2.htm#23–0000). We have used loaded wage rates, assuming a factor of 2.0 to account for both the employer cost for employee compensation and overhead costs. PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 59975 of speech, including academic freedom, unless a State or Federal court renders a final, non-default judgment against the institution or its employee acting on its behalf, finding that the private institution or such an employee violated a stated institutional policy regarding freedom of speech, including academic freedom. These final regulations require grantees to submit to the Department a copy of any final, non-default judgment rendered against them by a State or Federal court, finding a violation of the First Amendment for public institutions or finding a violation of a stated institutional policy regarding freedom of speech, including academic freedom, for private institutions. Additionally, the changes prohibit public institutions of higher education from denying religious student organizations any rights, benefits, or privileges afforded to other student organizations because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs. Generally, the Department assumes that public institutions, to which the First Amendment already applies, make a good faith effort to comply with the First Amendment. As such, we do not believe the majority of institutions will conduct a review of their policies as a result of this final rule. We assume that approximately 15 percent of public institutions of higher education will review their policies to ensure compliance with the First Amendment. We believe such a review will take approximately four (4) hours. We do not assume a more comprehensive or burdensome review process because, as noted above, public institutions have always been required to comply with the First Amendment, and we assume that public institutions are making a good faith effort to comply. We further assume that no private institutions will conduct such a review given that they are only required to comply with their existing policies. However, to the extent that private institutions do choose to conduct such a review (for instance, to verify their continued support of all previously adopted policies), the costs noted herein will be underestimates of the actual costs generated by these final regulations. We therefore assume that approximately 158 institutions will conduct a review of their policies for a total one-time cost of $88,070. The Department recognizes that the number of final, non-default judgments holding that a public institution or an employee acting on its behalf has violated the First Amendment is unpredictable and may be infrequent. E:\FR\FM\23SER3.SGM 23SER3 khammond on DSKJM1Z7X2PROD with RULES3 59976 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations While the Department is choosing to take a measured approach in these final regulations in finding a public or private institution in violation of the newly added material conditions in §§ 75.500 and 76.500 only when there is a final, non-default judgment against an institution, we believe these final regulations will have the additional benefit of increasing and incentivizing awareness about the importance of compliance generally. These changes are qualitative in nature and, therefore, we have not quantified them as part of this analysis. We note that individuals may experience a violation of the First Amendment or a stated institutional policy regarding freedom of speech and choose not to file a lawsuit to challenge a public institution or a private institution. A student or employee may risk their education or employment in filing such a lawsuit. They also may fear retaliation from the institution, their peers, their colleagues, or their supervisors. Additionally, many institutions may choose to settle such disputes such that a court never renders a final, non-default judgment. Accordingly, the lack of a final, nondefault judgment against an institution does not mean that a public institution has not violated the First Amendment or that a private institution has not violated its own stated institutional policies regarding freedom of speech, including academic freedom. It may mean that the institution remedied any problem before a lawsuit was filed or during any litigation. Remedying such a problem before a final, non-default judgment is rendered saves institutions the cost of litigation, and remedying any such problem during litigation saves the institution the continued cost of litigation. A final, non-default judgment against a public institution for a violation of the First Amendment or against a private institution for stated institutional policies regarding freedom of speech, including academic freedom, may be rare, but such a judgment may signify that the institution refused to remedy any such problem until a State or Federal court ordered it to do so. The Department believes that a single instance of such a violation is egregious. First Amendment rights at public institutions and freedom of speech, including academic freedom, at private institutions are essential to learning and education. Even one violation may have a detrimental effect on students, faculty, and the educational environment. One such instance may chill students’, faculty’s, and others’ protected speech with respect to the First Amendment at VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 public institutions or permissible speech, including academic freedom, under stated institutional policies. The burden and cost of complying with the First Amendment for public institutions and with stated institutional policies regarding freedom of speech, including academic freedom, for private institutions is a burden and cost that these institutions already must bear. These final regulations do not add any such burden or cost beyond what is discussed above. To the extent that grantees do have such judgments rendered against them, we believe the cost of submitting a copy to the Department will be negligible. The final rule does not require grantees to submit the information in any particular format or venue, and we believe the requirement could easily and efficiently be addressed by grantees by forwarding a copy of the judgment via email to their project officer. Such an approach likely will take less than thirty minutes to accomplish for an estimated cost of no more than $50 (assuming the work is completed by a lawyer employed by the institution) per submission. Specifically, regarding the prohibition on denying religious student organizations the rights, benefits, and privileges afforded to other student organizations in §§ 75.500(d) and 76.500(d), we assume no costs associated with ensuring that all student organizations have equal access to generally available resources. To the extent that generally available resources are, as a result of this change, now made available to a wider range of student organizations, this change may result in a small transfer of benefits from existing student organizations to religious student organizations. We believe that the number of student organizations usually operating on each campus likely makes these transfer effects minimal for any given student organization. As noted above, grantees that are found to be in violation of the First Amendment or their stated institutional policies regarding freedom of speech, including academic freedom, will be considered to be in violation of a material condition of their grant and the Department will consider available remedies for the violation. We do not believe it is likely that such violations, if they do occur, would result in a substantial number of grants being terminated because the Department would first seek to acquire voluntary compliance from the institution with the First Amendment for public institutions or its own stated institutional policies regarding freedom of speech, including academic freedom, PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 for private institutions, or any special conditions that the Department may impose to achieve such compliance. Accordingly, we do not believe it is likely that such violations will result in any large number of grants being terminated. Further, as with all violations of the conditions of a particular grant, decisions regarding appropriate remedies are made on a case-by-case basis, and we therefore cannot reliably estimate the effects on any particular grantee’s awards, even if we assume a failure to comply with the First Amendment. Nonetheless, the potential suspension or termination of a Federal award and potential debarment would, in the event that they occurred, represent real costs to grantees. However, as noted above, we believe such outcomes are generally unlikely and difficult to meaningfully predict. We also note that some grantees or subgrantees may, in the event that they face a lawsuit alleging violations of the First Amendment or institutional policies regarding freedom of speech, shift their litigation strategies to avoid final, non-default judgments against them. To the extent that they did so, such actions could result in additional costs to grantees that would not occur in the absence of the rule. However, as noted above, although such violations do occur, we believe they are difficult to predict with certainty and any effect on the litigation strategy of grantees is case-dependent. As such, we continue to estimate negligible costs associated with this provision. The addition of 34 CFR 75.684 clarifies that the provisions of this section are severable. We do not anticipate this change to have any quantifiable cost. Changes to 34 CFR 76.700 add a crossreference to 34 CFR 76.500. We do not anticipate this change to have any quantifiable cost and may benefit the Department and the general public by improving the clarity of the regulations. The addition of 34 CFR 76.784 clarifies that the provisions of this section are severable. We do not anticipate this change to have any quantifiable cost. 34 CFR Part 106—Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance Changes to 34 CFR 106.12 help define the term ‘‘controlled by a religious organization’’ for purposes of asserting the exemption under 20 U.S.C. 1681(a)(3) and reflected in § 106.12(a). While these changes provide substantial clarity to regulated entities about how to demonstrate that an educational E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations institution is controlled by a religious organization, the Department does not believe that they substantially change the number or composition of entities asserting the exemption. To the extent that it would, we believe there could be an expansion of previously eligible entities beginning to assert the exemption due to an increased clarity regarding the regulatory standard for doing so. We do not anticipate this change to have any quantifiable cost. The addition of 34 CFR 106.12(d) clarifies that the provisions of this section are severable. We do not anticipate this change to have any quantifiable cost. khammond on DSKJM1Z7X2PROD with RULES3 34 CFR Part 606—Developing HispanicServing Institutions Program Changes to 34 CFR 606.10 removes language that prohibits the use of funds for otherwise allowable activities that merely relate to sectarian instruction or religious worship and replace it with language more narrowly defining the limitation. The Department also revises the definition of a ‘‘school or department of divinity’’ in a manner that is more consistent with the First Amendment and other Federal laws. We do not anticipate these changes to result in any quantifiable costs. However, it is possible that grantees may shift their use of funds to support activities that are currently prohibited under the broader, current limitation. In the NPRM, the Department noted that it had insufficient information available to quantify this potential transfer at that time and requested information from the public to help us do so. The commenters did not provide any such information and therefore, without sufficient information, we retain this as a potential unquantified transfer. The addition of 34 CFR 606.11 clarifies that the provisions of this section are severable. We do not anticipate this change to have any quantifiable cost. 34 CFR Part 607—Strengthening Institutions Program Changes to 34 CFR 607.10 removes language that prohibits the use of funds for otherwise allowable activities that merely relate to sectarian instruction or religious worship and replaces it with language more narrowly defining the limitation. The Department also revises the definition of a ‘‘school or department of divinity’’ in a manner that is more consistent with the First Amendment and other Federal laws. We do not anticipate these changes to result in any quantifiable costs. However, it is possible that grantees may shift their use of funds to support activities that VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 are currently prohibited under the broader, current limitation. In the NPRM, the Department noted that it had insufficient information available to quantify this potential transfer at that time and requested information from the public to help us do so. The commenters did not provide any such information and we therefore, without sufficient information, we retain this as a potential unquantified transfer. The addition of 34 CFR 607.11 clarifies that the provisions of this section are severable. We do not anticipate this change to have any quantifiable cost. 34 CFR Part 608—Strengthening Historically Black Colleges and Universities Program Changes to 34 CFR 608.10 removes language that prohibits the use of funds for otherwise allowable activities that merely relate to sectarian instruction or religious worship and replace it with language more narrowly defining the limitation. The Department also revises the definition of a ‘‘school or department of divinity’’ in a manner that is more consistent with the First Amendment and other Federal laws. We do not anticipate these changes to result in any quantifiable costs. However, it is possible that grantees may shift their use of funds to support activities that are currently prohibited under the broader, current limitation. The Department does not have sufficient information to quantify this potential transfer at this time. The addition of 34 CFR 608.12 clarifies that the provisions of this section are severable. We do not anticipate this change to have any quantifiable cost. 34 CFR Part 609—Strengthening Historically Black Graduate Institutions Program Changes to 34 CFR 609.10 removes language that prohibits the use of funds for otherwise allowable activities that merely relate to sectarian instruction or religious worship and replaces it with language more narrowly defining the limitation. The Department also revises the definition of a ‘‘school or department of divinity’’ in a manner that is more consistent with the First Amendment and other Federal laws. We do not anticipate these changes to result in any quantifiable costs. However, it is possible that grantees may shift their use of funds to support activities that are currently prohibited under the broader, current limitation. The Department does not have sufficient information to quantify this potential transfer at this time. PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 59977 The addition of 34 CFR 609.12 clarifies that the provisions of this section are severable. We do not anticipate this change to have any quantifiable cost. Regulatory Alternatives Considered The Department considered issuing guidance documents instead of regulations to address the issues discussed in the NPRM, including in ‘‘Part 1—Religious Liberty’’ and ‘‘Part 2—Free Inquiry.’’ The Department determined that guidance documents would prove insufficient because guidance documents are not binding and do not carry the force and effect of law.242 To address these issues in a clear and enforceable manner, a formal notice-and-comment rulemaking was the most appropriate approach. It also reinforces our commitment to the rule of law and robust public participation in the development of regulations that govern us. The Department considered whether the Department, itself, should adjudicate claims alleging that a public institution violated the First Amendment or alleging that a private institution violated its stated institutional policies regarding freedom of speech. The Department decided against this alternative as both State and Federal courts are adequate guardians of the First Amendment and have a welldeveloped body of case law concerning First Amendment freedoms. Relying on State and Federal courts to make these determinations decreases the administrative burden on the Department. If the Department were to determine whether First Amendment rights were violated, then the Department officials would have to become experts in the panoply of First Amendment issues, including guarding against any establishment of religion, the free exercise of religion, freedom of speech, freedom of association, freedom of petition, freedom of assembly, and freedom of the press. The Department also would have to become familiar with the governing case law regarding each aspect of the First Amendment that applies to the jurisdiction where a public institution is located. Unlike other Federal agencies, such as the Department of Justice, the Department does not routinely enforce or handle matters regarding the First Amendment and would like to rely on the courts for their expertise in such judgments. With respect to private institutions, the Department would have to become familiar with each private institution’s stated institutional policies regarding 242 Perez, E:\FR\FM\23SER3.SGM 575 U.S. at 97, 23SER3 59978 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations freedom of speech, including academic freedom, and each discrete issue that may be presented under such policies. State and Federal courts are well equipped to make necessary factual and legal determinations with respect to stated institutional policies regarding freedom of speech, including academic freedom, that private institutions choose to adopt. Regulatory Flexibility Act Pursuant to the Regulatory Flexibility Act, the Secretary certifies that these final regulations do not have a significant economic impact on a substantial number of small entities. The final rule affects all institutions of higher education receiving grants from the Department. In FY 2018, 1,548 IHEs received such awards, totaling approximately $3.3 billion. Approximately 130 of those IHEs qualify as small, receiving approximately $183 million.243 As described in the Discussion of Costs and Benefits section of this notice, the Department estimates that these final regulations will impose one-time costs of approximately $510 per institution that conducts a review of their policies. We do not believe this would represent a significant economic impact on small entities. Paperwork Reduction Act of 1995 Under the final regulations, a public or private institution must submit to the Secretary a copy of certain final, nondefault judgments by a State or Federal court. We believe such a submission will take no longer than 30 minutes per judgment. As discussed in the NPRM and in the Discussion of Costs, Benefits, and Transfers above, we do not estimate 10 or more parties will have such judgments to submit to the Department. Therefore, the Paperwork Reduction Act is not implicated. khammond on DSKJM1Z7X2PROD with RULES3 Intergovernmental Review The programs in parts 606, 607, 608, and 609 of title 34 of the Code of Federal Regulations may be affected by these regulations, and these programs, which include the Developing HispanicServing Institutions Program, Strengthening Institutions Program, Strengthening Historically Black Colleges and Universities Program, and 243 For purposes of this analysis, the Department defines a small IHE as a two-year institution with 500 FTE or less or a four-year institution with an enrollment of 1,000 FTE or less. VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 the Strengthening Historically Black Graduate Institutions Program, are subject to the requirements of Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive Order is to foster an intergovernmental partnership and a strengthened federalism. The Executive Order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. List of Subjects 34 CFR Part 75 Accounting, Copyright, Education, Grant programs—Education, Inventions and patents, Private schools, Reporting and recordkeeping requirements. 34 CFR Part 76 This document provides early notification of our specific plans and actions for these programs. Accounting, Administrative practice and procedure, American Samoa, Education, Grant programs—education, Guam, Northern Mariana Islands, Pacific Islands Trust Territory, Private schools, Reporting and recordkeeping requirements, Virgin Islands. Assessment of Educational Impact 34 CFR Part 106 In the NPRM we requested comments on whether the proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available. Education, Sex discrimination, Civil rights, Sexual harassment Based on the response to the NPRM and on our review, we have determined that these final regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available. 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. Free internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.gpo.gov/fdsys. You can view this document at that site, as well as all other documents of this Department published in the Federal Register, in text or 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. Through the advanced search feature at this site, you can limit your search to documents published by the Department. PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 34 Part 606 Colleges and universities, Grant programs—education, Reporting and recordkeeping requirements. 34 Part 607 Colleges and universities, Grant programs—education, Reporting and recordkeeping requirements. 34 Part 608 Colleges and universities, Grant programs—education, Reporting and recordkeeping requirements. 34 Part 609 Colleges and universities, Grant programs—education, Reporting and recordkeeping requirements. Betsy DeVos, Secretary of Education. For the reasons discussed in the preamble, the Secretary of Education amends parts 75, 76, 106, 606, 607, 608, and 609 of title 34 of the Code of Federal Regulations as follows: PART 75—DIRECT GRANT PROGRAMS 1. The authority citation for part 75 continues to read as follows: ■ Authority: 20 U.S.C. 1221e–3 and 3474, unless otherwise noted. 2. Section 75.500 is revised to read as follows: ■ § 75.500 Constitutional rights, freedom of inquiry, and Federal statutes and regulations on nondiscrimination. (a) Each grantee shall comply with the following statutes and regulations: E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations 59979 TABLE 1 TO § 75.500(a) Subject Statute Discrimination on the basis of race, color, or national origin. Discrimination on the basis of sex .................................... Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d through 2000d–4). Title IX of the Education Amendments of 1972 (20 U.S.C. 1681–1683). Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). The Age Discrimination Act (42 U.S.C. 6101 et seq.) .... Discrimination on the basis of handicap .......................... khammond on DSKJM1Z7X2PROD with RULES3 Discrimination on the basis of age. .................................. (b)(1) Each grantee that is an institution of higher education, as defined in 20 U.S.C. 1002(a), that is public and that is legally required to abide by the First Amendment to the U.S. Constitution (hereinafter ‘‘public institution’’), must also comply with the First Amendment to the U.S. Constitution, including protections for freedom of speech, association, press, religion, assembly, petition, and academic freedom, as a material condition of the Department’s grant. The Department will determine that a public institution has not complied with the First Amendment only if there is 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. A final judgment is a judgment that the public institution chooses not to appeal or that is not subject to further appeal. Absent such a final, non-default judgment, the Department will deem the public institution to be in compliance with the First Amendment. (2) Each grantee that is a public institution also must submit to the Secretary a copy of the final, nondefault judgment by that State or Federal court to conclude the lawsuit no later than 45 calendar days after such final, non-default judgment is entered. (c)(1) Each grantee that is an institution of higher education, as defined in 20 U.S.C. 1002(a), that is private (hereinafter ‘‘private institution’’) must comply with its stated institutional policies regarding freedom of speech, including academic freedom, as a material condition of the Department’s grant. The Department will determine that a private institution has not complied with these stated institutional policies only if there is 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. A final judgment is a judgment that the private institution chooses not to appeal or that is not subject to further appeal. Absent such a final, non-default judgment, the Department will deem the private institution to be in compliance with its stated institutional policies. (2) Each grantee that is a private institution also must submit to the Secretary a copy of the final, nondefault judgment by that State or Federal court to conclude the lawsuit no later than 45 calendar days after such final, non-default judgment is entered. (d) As a material condition of the Department’s grant, each grantee that is a public institution 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. (e) A grantee that is a covered entity as defined in 34 CFR 108.3 shall comply with the nondiscrimination requirements of the Boy Scouts of America Equal Access Act, 20 U.S.C. 7905, 34 CFR part 108. (Authority: 20 U.S.C. 1221e–3 and 3474) 3. Section 75.684 is added to subpart E to read as follows: ■ Regulation § 75.684 34 CFR part 100. 34 CFR part 106. 34 CFR part 104. 34 CFR part 110. Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. (Authority: 20 U.S.C. 1221e–3 and 3474) 4. Section 75.700 is revised to read as follows: ■ § 75.700 Compliance with the U.S. Constitution, statutes, regulations, stated institutional policies, and applications. A grantee shall comply with § 75.500, applicable statutes, regulations, and approved applications, and shall use Federal funds in accordance with those statutes, regulations, and applications. (Authority: 20 U.S.C. 1221e–3 and 3474) 5. Section 75.741 is added to subpart F to read as follows: ■ § 75.741 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. (Authority: 20 U.S.C. 1221e–3 and 3474) PART 76—STATE–ADMINISTERED FORMULA GRANT PROGRAMS 6. The authority citation for part 76 continues to read as follows: ■ Authority: 20 U.S.C. 1221e–3 and 3474, unless otherwise noted. 7. Section 76.500 is revised to read as follows: ■ § 76.500 Constitutional rights, freedom of inquiry, and Federal statutes and regulations on nondiscrimination. (a) A State and a subgrantee shall comply with the following statutes and regulations: TABLE 1 TO § 76.500(a) Subject Statute Discrimination on the basis of race, color, or national origin. Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d through 2000d–4). VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 E:\FR\FM\23SER3.SGM Regulation 23SER3 34 CFR part 100. 59980 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations TABLE 1 TO § 76.500(a)—Continued Subject Statute Discrimination on the basis of sex .................................... Title IX of the Education Amendments of 1972 (20 U.S.C. 1681–1683). Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). The Age Discrimination Act (42 U.S.C. 6101 et seq.) .... Discrimination on the basis of handicap .......................... khammond on DSKJM1Z7X2PROD with RULES3 Discrimination on the basis of age ................................... (b)(1) Each State or subgrantee that is an institution of higher education, as defined in 20 U.S.C. 1002(a), that is public and that is legally required to abide by the First Amendment to the U.S. Constitution (hereinafter ‘‘public institution’’), must also comply with the First Amendment to the U.S. Constitution, including protections for freedom of speech, association, press, religion, assembly, petition, and academic freedom, as a material condition of the Department’s grant. The Department will determine that a public institution has not complied with the First Amendment only if there is 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. A final judgment is a judgment that the public institution chooses not to appeal or that is not subject to further appeal. Absent such a final, non-default judgment, the Department will deem the public institution to be in compliance with the First Amendment. (2) Each State or subgrantee that is a public institution also must submit to the Secretary a copy of the final, nondefault judgment by that State or Federal court to conclude the lawsuit no later than 45 calendar days after such final, non-default judgment is entered. (c)(1) Each State or subgrantee that is an institution of higher education, as defined in 20 U.S.C. 1002(a), that is private (hereinafter ‘‘private institution’’) must comply with its stated institutional policies regarding freedom of speech, including academic freedom. The Department will determine that a private institution has not complied with these stated institutional policies only if there is 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 a material condition of the Department’s grant. A final judgment is a judgment that the private institution chooses not to appeal or that is not subject to further appeal. Absent such a VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 final, non-default judgment, the Department will deem the private institution to be in compliance with its stated institutional policies. (2) Each State or subgrantee that is a private institution also must submit to the Secretary a copy of the final, nondefault judgment by that State or Federal court to conclude the lawsuit no later than 45 calendar days after such final, non-default judgment is entered. (d) As a material condition of the Department’s grant, each State or subgrantee that is a public institution 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. (e) A State or subgrantee that is a covered entity as defined in 34 CFR 108.3 shall comply with the nondiscrimination requirements of the Boy Scouts of America Equal Access Act, 20 U.S.C. 7905, 34 CFR part 108. (Authority: 20 U.S.C. 1221e–3, 3474) 8. Section 76.684 is added to subpart F to read as follows: ■ § 76.684 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. (Authority: 20 U.S.C. 1221e–3, 3474) 9. Section 76.700 is revised to read as follows: ■ § 76.700 Compliance with the U.S. Constitution, statutes, regulations, stated institutional policies, and applications. A State and a subgrantee shall comply with § 76.500, the State plan, applicable statutes, regulations, and approved PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 Regulation 34 CFR part 106. 34 CFR part 104. 34 CFR part 110. applications, and shall use Federal funds in accordance with those statutes, regulations, plan, and applications. (Authority: 20 U.S.C. 1221e–3, 3474) 10. Section 76.784 is added to subpart I to read as follows: ■ § 76.784 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. (Authority: 20 U.S.C. 1221e–3 and 3474) PART 106—NON DISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE 11. The authority citation for part 106 continues to read as follows: ■ Authority: 20 U.S.C. 1681 et seq., unless otherwise noted. 12. Section 106.12 is amended by adding paragraphs (c) and (d) to read as follows: ■ § 106.12 Educational institutions controlled by religious organizations. * * * * * (c) Eligibility. Any of the following in paragraphs (c)(1) through (6) of this section shall be sufficient to establish that an educational institution is controlled by a religious organization, as contemplated under paragraph (a) of this section, and is therefore eligible to assert a religious exemption to the extent application of this part would not be consistent with its religious tenets: (1) That the educational institution is a school or department of divinity. (2) That the educational institution requires its faculty, students, or employees to be members of, or otherwise engage in religious practices of, or espouse a personal belief in, the religion of the organization by which it claims to be controlled. (3) That the educational institution, in its charter or catalog, or other official publication, contains an explicit statement that it is controlled by a religious organization or an organ thereof, or is committed to the doctrines E:\FR\FM\23SER3.SGM 23SER3 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations or practices of a particular religion, and the members of its governing body are appointed by the controlling religious organization or an organ thereof, and it receives a significant amount of financial support from the controlling religious organization or an organ thereof. (4) That the educational institution has a doctrinal statement or a statement of religious practices, along with a statement that members of the institution community must engage in the religious practices of, or espouse a personal belief in, the religion, its practices, or the doctrinal statement or statement of religious practices. (5) That the educational institution has a published institutional mission that is approved by the governing body of an educational institution and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings. (6) Other evidence sufficient to establish that an educational institution is controlled by a religious organization, pursuant to 20 U.S.C. 1681(a)(3). (d) Severability. If any provision of this section or its application to any person, act, or practice is held invalid, the remainder of this section or the application of its provisions to any person, act, or practice shall not be affected thereby. PART 606—DEVELOPING HISPANIC– SERVING INSTITUTIONS PROGRAM 13. The authority citation for part 606 continues to read as follows: ■ Authority: 20 U.S.C. 1101 et seq., unless otherwise noted. 14. Section 606.10 is amended by revising paragraphs (c)(3) and (4) to read as follows: § 606.10 What activities may and may not be carried out under a grant? khammond on DSKJM1Z7X2PROD with RULES3 * * * * * (c) * * * (3) Activities or services that constitute religious instruction, religious worship, or proselytization. (4) Activities provided by a school or department of divinity. For the purpose of this provision, a ‘‘school or department of divinity’’ means an institution, or a department of an institution, whose program is solely to prepare students to become ministers of religion or to enter into some other religious vocation. * * * * * § § 606.11 through 606.13 [Redesignated as §§ 606.12 through 606.14] 15. Sections 606.11 through 606.13 are redesignated as §§ 606.12 through 606.14. VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 § 606.11 § 608.10 What activities may be carried out under a grant? * Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. (Authority: 20 U.S.C. 1101 et seq.) PART 607—STRENGTHENING INSTITUTIONS PROGRAM 17. The authority citation for part 607 continues to read as follows: ■ Authority: 20 U.S.C. 1057–1059g, 1067q, 1068–1068h unless otherwise noted. 18. Section 607.10 is amended by revising paragraphs (c)(3) and (4) to read as follows: ■ § 607.10 What activities may and may not be carried out under a grant? * * * * * (c) * * * (3) Activities or services that constitute religious instruction, religious worship, or proselytization. (4) Activities provided by a school or department of divinity. For the purpose of this provision, a ‘‘school or department of divinity’’ means an institution, or a department of an institution, whose program is solely to prepare students to become ministers of religion or to enter into some other religious vocation. * * * * * § § 607.11 through 607.13 [Redesignated as §§ 607.12 through 607.14] ■ ■ 16. New § 606.11 is added to read as follows: ■ 59981 19. Redesignate §§ 607.11 through 607.13 as §§ 607.12 through 607.14. ■ 20. New § 607.11 is added to read as follows: * * * * (b) * * * (5) Activities or services that constitute religious instruction, religious worship, or proselytization. (6) Activities provided by a school or department of divinity. For the purpose of this provision, a ‘‘school or department of divinity’’ means an institution, or a department of an institution, whose program is solely to prepare students to become ministers of religion or to enter into some other religious vocation. * * * * * ■ 23. Section 608.12 is added to subpart B to read as follows: § 608.12 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. (Authority: 20 U.S.C. 1060 through 1063c, and 1068 through 1068h) PART 609—STRENGTHENING HISTORICALLY BLACK GRADUATE INSTITUTIONS PROGRAM 24. The authority citation for part 609 is revised to read as follows: ■ Authority: 20 U.S.C. 1060 through 1063c, and 1068 through 1068h, unless otherwise noted. 25. Section 609.10 is amended by revising paragraphs (b)(5) and (6) to read as follows: ■ ■ § 607.11 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. (Authority: 20 U.S.C. 1057 et seq.) PART 608—STRENGTHENING HISTORICALLY BLACK COLLEGES AND UNIVERSITIES PROGRAM 21. The authority citation for part 608 is revised as follows: ■ Authority: 20 U.S.C. 1060 through 1063c, and 1068 through 1068h, unless otherwise noted. 22. Section 608.10 is amended by revising paragraphs (b)(5) and (6) to read as follows: ■ PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 § 609.10 What activities may be carried out under a grant? * * * * * (b) * * * (5) Activities or services that constitute religious instruction, religious worship, or proselytization. (6) Activities provided by a school or department of divinity. For the purpose of this provision, a ‘‘school or department of divinity’’ means an institution, or a department of an institution, whose program is solely to prepare students to become ministers of religion or to enter into some other religious vocation. * * * * * ■ 26. Section 609.12 is added to subpart B to read as follows: § 609.12 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its E:\FR\FM\23SER3.SGM 23SER3 59982 Federal Register / Vol. 85, No. 185 / Wednesday, September 23, 2020 / Rules and Regulations provisions to any person, act, or practice shall not be affected thereby. (Authority: 20 U.S.C. 1060 through 1063c, and 1068 through 1068h) [FR Doc. 2020–20152 Filed 9–22–20; 8:45 am] khammond on DSKJM1Z7X2PROD with RULES3 BILLING CODE 4000–01–P VerDate Sep<11>2014 18:45 Sep 22, 2020 Jkt 250001 PO 00000 Frm 00068 Fmt 4701 Sfmt 9990 E:\FR\FM\23SER3.SGM 23SER3

Agencies

[Federal Register Volume 85, Number 185 (Wednesday, September 23, 2020)]
[Rules and Regulations]
[Pages 59916-59982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20152]



[[Page 59915]]

Vol. 85

Wednesday,

No. 185

September 23, 2020

Part III





Department of Education





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Office of the Secretary





34 CFR Parts 75 and 76





Office for Civil Rights

34 CFR Part 106





Office of Postsecondary Education

34 CFR Parts 606, 607, 608, and 609





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Direct Grant Programs, State-Administered Formula Grant Programs, Non 
Discrimination on the Basis of Sex in Education Programs or Activities 
Receiving Federal Financial Assistance, Developing Hispanic-Serving 
Institutions Program, Strengthening Institutions Program, Strengthening 
Historically Black Colleges and Universities Program, and Strengthening 
Historically Black Graduate Institutions Program; Final Rule

Federal Register / Vol. 85 , No. 185 / Wednesday, September 23, 2020 
/ Rules and Regulations

[[Page 59916]]


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DEPARTMENT OF EDUCATION

Office of the Secretary

34 CFR Parts 75 and 76

Office for Civil Rights

34 CFR Part 106

Office of Postsecondary Education

34 CFR Parts 606, 607, 608, and 609

[Docket ID ED-2019-OPE-0080]
RIN 1840-AD45


Direct Grant Programs, State-Administered Formula Grant Programs, 
Non Discrimination on the Basis of Sex in Education Programs or 
Activities Receiving Federal Financial Assistance, Developing Hispanic-
Serving Institutions Program, Strengthening Institutions Program, 
Strengthening Historically Black Colleges and Universities Program, and 
Strengthening Historically Black Graduate Institutions Program

AGENCY: Office for Civil Rights, Office of Postsecondary Education, 
Department of Education.

ACTION: Final rule.

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SUMMARY: In response to Executive Order 13864 (Improving Free Inquiry, 
Transparency, and Accountability at Colleges and Universities), the 
Department of Education revises 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 recent decisions from United States 
Supreme Court's decisions, the Department revises its current 
regulations regarding grant programs authorized under titles 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. The Department also revises 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.

DATES: This final rule is effective November 23, 2020.

FOR FURTHER INFORMATION CONTACT: Sophia McArdle, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 290-44, Washington, DC 20202. 
Telephone: 202-453-6318. Email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Purpose of this Regulatory Action: Through these final regulations, 
the Department reinforces First Amendment freedoms such as the freedom 
of speech and free exercise of religion. On March 21, 2019, President 
Trump signed Executive Order 13864, Improving Free Inquiry, 
Transparency, and Accountability at Colleges and Universities.\1\ In 
response to this Executive Order, as well as the First Amendment, and 
the Secretary's general authority under 20 U.S.C. 1221e-3, the 
Department endeavors to ensure that all institutions of higher 
education, as defined in 20 U.S.C. 1002(a), that receive Federal 
research or education grants \2\ from the Department ``promote free 
inquiry.'' \3\ Denying free inquiry is inherently harmful at any 
institution of higher education because students are denied the 
opportunity to learn and faculty members are denied the opportunity to 
freely engage in research and rigorous academic discourse.
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    \1\ 84 FR 11402.
    \2\ Exec. Order No. 13864, section 3(c) defines ``federal 
research or education grants'' as ``all funding provided by a 
covered agency directly to an institution but do not include funding 
associated with Federal student aid programs that cover tuition, 
fees, or stipends.''
    \3\ Id. section 3(a).
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    Both Executive Order 13864 and these final regulations are intended 
to promote the First Amendment's guarantees of free expression and 
academic freedom, as the courts have construed them; to align with 
Federal statutes to protect free expression in schools; \4\ and to 
protect free speech on campuses nationwide. Under the Supreme Court's 
First Amendment jurisprudence protecting the individual's right to his 
own ideas and beliefs, ``no official, high or petty, can prescribe what 
shall be orthodox in politics, nationalism, religion, or other matters 
of opinion or force citizens to confess by word or act their faith 
therein.'' \5\ As a result, officials at public institutions may not 
abridge their students' or employees' expressions, ideas, or 
thoughts.\6\
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    \4\ 20 U.S.C. 1011a; 20 U.S.C. 4071.
    \5\ W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 
(1943).
    \6\ Tinker v. Des Moines Ind. Comm. Sch. Dist., 393 U.S. 503, 
505-07 (1969).
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    In a significant opinion, Keyishian v. Board of Regents of the 
University of the State of New York, the Supreme Court observed, ``Our 
Nation is deeply committed to safeguarding academic freedom, which is 
of transcendent value to all of us and not merely to the teachers 
concerned. That freedom is therefore a special concern of the First 
Amendment, which does not tolerate laws that cast a pall of orthodoxy 
over the classroom.'' \7\ Consequently, the First Amendment right of 
free expression means that public officials may not discriminate 
against students or employees based on their viewpoints.\8\ For 
example, public institutions cannot charge groups excessive security 
costs ``simply because [these groups and their speakers] might offend a 
hostile mob.'' \9\ In a landmark opinion, Tinker v. Des Moines 
Independent Community School District, the Supreme Court acknowledged 
more than half a century ago that ``[i]t can hardly be argued that 
either students or teachers shed their constitutional rights to freedom 
of speech or expression at the schoolhouse gate.'' \10\ These final 
regulations help ensure that students and teachers will retain their 
constitutional rights to freedom of speech at public institutions.
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    \7\ 385 U.S. 589, 603 (1967).
    \8\ See, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 
515 U.S. 819, 829-30 (1995).
    \9\ Forsyth Cnty., Ga. v. Nationalist Mov't, 505 U.S. 123, 134-
35 (1992); see also College Republicans of the Univ. of Wash. v. 
Cauce, No. C18-189-MJP, 2018 WL 804497 (W.D. Wash. Feb. 9, 2018) 
(holding University of Washington Security Fee Policy violates the 
students' First Amendment rights to freedom of speech and 
expression).
    \10\ 393 U.S. at 506.
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    Academic freedom is another aspect of freedom of speech, as 
``[f]reedom of speech secures freedom of thought and belief.'' \11\ 
Academic freedom is an indispensable aspect of the ``freedom of thought 
and belief'' to which individuals across educational institutions, 
including private ones, may enjoy.\12\ It follows that academic freedom 
is intertwined with, and is a predicate to, freedom of speech itself; 
and injury to one is tantamount to

[[Page 59917]]

injury to both. Academic freedom's noble premise is that the vigilant 
protection of free speech unshackled from the demands and constraints 
of censorship will help generate new thoughts, ideas, knowledge, and 
even questions and doubts about previously undisputed ideas. Although 
academic freedom's value derives itself from the fact that its 
``results . . . are to the general benefit in the long run,'' academic 
freedom is also inherently important in a free society.\13\
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    \11\ Nat'l Inst. of Family and Life Advocates v. Becerra, 138 S. 
Ct. 2361, 2379 (2018) (NIFLA) (Kennedy, J., concurring).
    \12\ Id.
    \13\ Chairman's Letter to the Fellows of the Yale Corporation, 
Report of the Committee on Freedom of Expression at Yale, Yale 
University (Dec. 23, 1974) (Yale Report on Freedom of Expression).
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    Academic freedom, just like freedom of speech itself, is predicated 
on the principle that thoughts, arguments, and ideas should be 
expressed by individuals and assessed by listeners on their own merit, 
rather than the censor's coercion. Academic freedom insists on the 
freedom and power of speech so that the speaker has a fair opportunity 
to convince the listener of an idea and the listener a fair opportunity 
to be persuaded. The confluence of free speech and academic freedom is 
nothing new as far as the United States' educational institutions are 
concerned. As Yale University, a private American institution of higher 
learning, acknowledged almost half a century ago: Because ``[t]he 
primary function of a university is to discover and disseminate 
knowledge by means of research and teaching,'' ``the university must do 
everything possible to ensure within it the fullest degree of 
intellectual freedom.'' \14\ Yale further deduced that ``[t]he history 
of intellectual growth and discovery clearly demonstrates the need for 
unfettered freedom, the right to think the unthinkable, discuss the 
unmentionable, and challenge the unchallengeable.'' \15\ When free 
speech is suppressed, academic freedom is the casualty many times over, 
``for whoever deprives another of the right to state unpopular views 
necessarily also deprives others of the right to listen to those 
views.'' \16\ Neither harm is tolerable, and these regulations endeavor 
to protect academic freedom, as a part of free speech, at institutions 
of higher education.
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    \14\ Yale Report on Freedom of Expression, supra (emphasis 
added).
    \15\ Id.
    \16\ Id.
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    Executive Order 13864 and the final regulations also align with 
Federal statutes to protect free inquiry. Congress has expressed that 
``no student attending an institution of higher education . . . should, 
on the basis of participation in protected speech or protected 
association, be excluded from participation in, be denied the benefits 
of, or be subjected to discrimination or official sanction under 
[numerous] education program[s], activit[ies], or division[s] of the 
institution[s] directly or indirectly receiving financial assistance.'' 
\17\ Congress has also articulated that ``an institution of higher 
education should facilitate the free and open exchange of ideas,'' and 
``students should not be intimidated, harassed, discouraged from 
speaking out, or discriminated against'' on account of their speech, 
ideas or expression.\18\ And since 1871, Congress has made actionable 
violations of the First Amendment by those acting in an official 
government capacity, whether on campuses or elsewhere.\19\ Congress, 
thus, disapproves of the suppression of or discrimination against ideas 
in the academic setting.
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    \17\ 20 U.S.C. 1011a. In the same section, Congress has defined 
``protected speech'' as ``speech that is protected under the first 
and 14th amendments to the Constitution, or would be protected if 
the institution of higher education involved were subject to those 
amendments,'' 20 U.S.C. 1011a(c)(3); and has defined ``protected 
association'' as ``the joining, assembling, and residing with others 
that is protected under the first and 14th amendments to the 
Constitution, or would be protected if the institution of higher 
education involved were subject to those amendments,'' 20 U.S.C. 
1011a(c)(2).
    \18\ 20 U.S.C. 1011a(2)(C)-(D).
    \19\ 42 U.S.C. 1983.
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    To be certain, the Department will honor the institutional mission 
of private institutions, including their religious mission. To this 
end, the final regulations do not require a private institution to 
ensure freedom of speech, including academic freedom, unless it chooses 
to do so through its own stated institutional policies. Private 
institutions, however, cannot promise students, faculty, and others 
opportunities to engage in free speech, including academic freedom, in 
stated institutional policies without delivering on this promise. These 
private institutions must comply with whatever stated institutional 
policies regarding freedom of speech, including academic freedom, that 
they choose to adopt. Religiously affiliated institutions, in freely 
exercising their faith, may define their free speech policies as they 
choose in a manner consistent with their mission. The final regulations 
do not mandate that religiously affiliated institutions adopt any 
particular policies in order to participate in the Department's grants 
and programs. In other words, the final regulations do not require any 
private institution to adopt a campus free speech policy that complies 
with the First Amendment, and the Department cannot force any 
religiously affiliated school to compromise the free exercise of its 
religion.
    Indeed, these final regulations help protect the right to free 
exercise of religion for both institutions and students. Generally, the 
government may not force institutions and students to choose between 
exercising their religion or participating in a publicly available 
government benefit program.\20\ In accordance with this principle, no 
religious student organization should be forced to choose between their 
religion and receiving the benefits, rights, and privileges that other 
student organizations receive from a public institution. Religious 
student organizations should be able to enjoy the benefits, rights, and 
privileges afforded to other student organizations at a public 
institution. Similarly, institutions that participate in Federal 
programs under Title III and Title V of the HEA and their students 
should be able to freely exercise their religion in accordance with the 
First Amendment and RFRA.\21\ Laws and policies which provide public 
benefits in a way that is ``neutral and generally applicable without 
regard to religion'' do not ordinarily offend the First Amendment, but 
policies that ``single out the religious for disfavored treatment'' 
violate the Free Exercise Clause.\22\ The Free Exercise Clause `` 
`protect[s] religious observers against unequal treatment' '' \23\ and 
``guard[s] against the government's imposition of `special disabilities 
on the basis of religious views or religious status.' '' \24\ 
Accordingly, public institutions cannot exclude religious student 
organizations from receiving neutral and generally available government 
benefits.\25\ These final regulations help ensure that religious 
institutions as well as their students fully retain their right to free

[[Page 59918]]

exercise of religion with respect to the Department's programs under 
Title III and V of the HEA.
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    \20\ Trinity Lutheran, 137 S. Ct. at 2024.
    \21\ Little Sisters of the Poor Saints Peter and Paul Home v. 
Pennsylvania, 140 S. Ct. 2367 (2020); Espinoza v. Montana Department 
of Revenue, 140 S. Ct. 2246 (2020); Trinity Lutheran Church of 
Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017). The Department also 
considered the Religious Freedom Restoration Act (RFRA), 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).
    \22\ Trinity Lutheran, 137 S. Ct. at 2020.
    \23\ Id. at 2019 (quoting Church of Lukumi Babalu Aye, Inc. v. 
City of Hialeah, 508 U.S. 520, 533 (1993)).
    \24\ Id. at 2021 (quoting Emp't Div., Dep't of Human Res. of 
Ore. v. Smith, 494 U.S. 872, 877 (1990)).
    \25\ Id. at 2024-25.
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    Finally, Title IX provides that it shall not apply to an 
educational institution which is controlled by a religious organization 
if the application of Title IX or its implementing regulations would 
not be consistent with the religious tenets of such organization but 
does not directly address how educational institutions demonstrate 
whether they are controlled by a religious organization.\26\ Nor does 
the statute provide necessary clarity that a recipient can itself be a 
religious organization that controls its own operations, curriculum, or 
other features. These final regulations codify existing factors that 
the Assistant Secretary for Civil Rights uses when evaluating a request 
for a religious exemption assurance from the Office for Civil Rights 
and also address concerns that there may be other means of establishing 
the requisite control. Many of these factors that the Assistant 
Secretary considers, however, have been included in non-binding 
guidance dating back more than 30 years. Accordingly, the Department 
provides clear terms in these final regulations to provide recipients 
and other stakeholders with clarity regarding what it means to be 
``controlled by a religious organization.'' This clarity will create 
more predictability, consistency in enforcement, and confidence for 
educational institutions asserting the exemption.
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    \26\ 20 U.S.C. 1681(a)(3).
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    The Department recognizes that religious organizations are 
organized in widely different ways that reflect their respective 
theologies. Some educational institutions are controlled by a board of 
trustees that includes ecclesiastical leaders from a particular 
religion or religious organization who have ultimate decision-making 
authority for the educational institutions. Other educational 
institutions are effectively controlled by religious organizations that 
have a non-hierarchical structure, such as a congregational structure. 
The Department does not discriminate against educational institutions 
that are controlled by religious organizations with different types of 
structures. Indeed, the Department has long recognized exemptions for 
educational institutions that are controlled by religious organizations 
with hierarchical and non-hierarchical structures.
    The Department is constitutionally obligated to broadly interpret 
``controlled by a religious organization'' to avoid religious 
discrimination among institutions of varying denominations.\27\ The 
Department also must take into account RFRA in promulgating its 
regulations and must not substantially burden a person's exercise of 
religion through its regulations.\28\ The Department's non-exclusive 
list of criteria for an institution to demonstrate that it is 
controlled by a religious organization reflect some methods that its 
Office for Civil Rights has used to evaluate and respond to a 
recipient's assertion of a religious exemption under Title IX. The 
final regulations, thus, offer educational institutions different 
methods to demonstrate that they are eligible to assert an exemption to 
the extent application of Title IX and its implementing regulations 
would not be consistent with the institutions' religious tenets or 
practices.
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    \27\ Larson v. Valente, 456 U.S. 228, 244 (1982) (``The clearest 
command of the Establishment Clause is that one religious 
denomination cannot be officially preferred over another.''); see 
also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 
U.S. 171, 202 (2012) (Alito, J., concurring; joined by Kagan, J.) 
(arguing that a broad, functionalist interpretation of religious 
teachers for purposes of the ministerial exception is necessary to 
be inclusive of faiths like Islam and Jehovah's Witnesses).
    \28\ Little Sisters of the Poor Saints Peter and Paul Home, 140 
S. Ct. 2367, 2384 (2020) (stating that a federal agency would be 
susceptible to claims that a rule was arbitrary and capricious if it 
did not consider the requirements of RFRA in formulating 
administrative solutions, and further, that it is not error for a 
federal agency to look to RFRA as a guide when framing a religious 
exemption).
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    Summary of the Major Provisions of this Regulatory Action: The 
Department promulgates these final regulations to:
     Require public institutions of higher education that 
receive a Direct Grant or subgrant from a State-Administered Formula 
grant program of the Department to comply with the First Amendment, as 
a material condition of the grant;
     Require private institutions that receive a Direct Grant 
or subgrant from a State-Administered Formula Grant program of the 
Department to comply with their stated institutional policies on 
freedom of speech, including academic freedom, as a material condition 
of the grant;
     Require that a public institution receiving a Direct Grant 
or subgrant from a State-Administered Formula Grant program of the 
Department not deny 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;
     Add a non-exhaustive list of criteria that offers 
educational institutions different methods to demonstrate that they are 
controlled by a religious organization and, thus, eligible to claim an 
exemption to the application of Title IX and its implementing 
regulations to the extent Title IX and its implementing regulations 
would not be consistent with the institutions' religious tenets or 
practices; and
     Amend regulations governing the Developing Hispanic-
Serving Institutions Program, Strengthening Institutions Program, 
Strengthening Historically Black Colleges and Universities Program, and 
Strengthening Historically Black Graduate Institutions Program by 
defining ``school or department of divinity'' to be more consistent 
with the First Amendment and other Federal laws and by removing 
language that prohibits use of funds for otherwise allowable activities 
if they merely relate to ``religious worship'' and ``theological 
subjects'' and replace it with language that more narrowly defines the 
limitations in a manner consistent with the First Amendment and other 
Federal laws.
    Costs and Benefits: The Department estimates that these final 
regulations would result in one-time costs of approximately $297,770 
and would benefit the general public and grantees by improving the 
clarity of the regulations.

Timing, Comments, and Changes

    On January 17, 2020, the Secretary published a notice of proposed 
rulemaking (NPRM) for these parts in the Federal Register.\29\ The NPRM 
included proposed regulations that were the same as or substantially 
similar to regulations that other agencies proposed about the rights 
and obligations of faith-based organizations with respect to 
grants.\30\ The NPRM also included proposed regulations that other 
agencies did not include and that were specific to the Department of 
Education such as regulations regarding free inquiry, Title IX of the 
Education Amendments Act of 1972, and various programs such as the 
Developing Hispanic-Serving Institutions Program, Strengthening 
Institutions Program, Strengthening

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Historically Black Colleges and Universities Program, and Strengthening 
Historically Black Graduate Institutions Program. This Final Rule 
consists of the regulations that are unique to the Department of 
Education. The remainder of the proposed regulations in the NPRM, 
including proposed changes to 2 CFR 3474.15, 34 CFR 75.51, 34 CFR 
75.52, 34 CFR 75.712, 34 CFR 75.713, 34 CFR 75.714, Appendix A to Part 
75, Appendix B to Part 75, 34 CFR 76.52, 34 CFR 76.712, 34 CFR 76.713, 
and 34 CFR 76.714, as well as the addition of a severability clause in 
34 CFR 3474.21, 34 CFR 75.63, and 34 CFR 76.53, will be promulgated 
through a subsequent final rule. Consequently, there is a new 
Regulation Identification Number (RIN) for this rule (1840-AD45). Where 
a severability clause is being added to a subpart for which regulations 
are included in both final rules, the severability clause is included 
in only one of the two regulatory packages. However, the severability 
clauses will apply to all applicable rules, when published, and our 
explanation of the reasoning for the addition of these clauses in the 
NPRM continues to apply. This final rule contains changes from the 
NRPM, which are fully explained in the Analysis of Comments and Changes 
section of this document.
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    \29\ Uniform Administrative Requirements, Cost Principles, and 
Audit Requirements for Federal Awards, Direct Grant Programs, State-
Administered Formula Grant Programs, Developing Hispanic-Serving 
Institutions Program, and Strengthening Institutions Program, 85 FR 
3190 (proposed Jan. 17, 2020).
    \30\ Compare 85 FR 3190, with 85 FR 2889 (Department of Homeland 
Security), 85 FR 2897 (Department of Agriculture), 85 FR 2916 (U.S. 
Agency for International Development), 85 FR 2921 (Department of 
Justice), 85 FR 2929 (Department of Labor), 85 FR 2938 (Department 
of Veterans Affairs), 85 FR 2974 (Department of Health and Human 
Services), and 85 FR 8215 (Department of Housing and Urban 
Development).
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Public Comment

    In response to our invitation in the NPRM, we received more than 
17,000 comments on the proposed regulations. We discuss substantive 
issues under topical headings, and by the sections of the final 
regulations to which they pertain.

Analysis of Comments and Changes

    An analysis of the public comments and a discussion of changes made 
following publication of the NPRM follow below.

34 CFR 75.500(b)-(c) and 34 CFR 76.500(b)-(c)--Free Inquiry

General Support

    Comments: Several commenters expressed general support for the 
proposed rule's free inquiry provisions in 34 CFR 75.500 and 34 CFR 
76.500. Commenters stated that students should not be shielded from 
ideas that might offend them because that may leave them ill-prepared 
to compete in the global marketplace of ideas. These commenters 
expressed concern that policies that insulate students from different 
perspectives would undermine their ability to think critically. Some 
commenters stated that the proposed rule would produce beneficial 
effects because it would promote intellectually vibrant and 
ideologically diverse educational communities. Commenters commended the 
Department for recognizing that the First Amendment applies to public 
institutions of higher education but not to private institutions of 
higher education. One commenter emphasized the importance of the 
Department respecting the role of the courts in assessing the 
constitutionality of institutional policies and practices that may 
violate the First Amendment and asserted that the proposed rule 
appropriately leaves these determinations to the courts. The commenter 
also expressed support for the Department in leaving private 
institutions with the choice of whether to extend free speech 
protections to their students and faculty. This commenter suggested 
that for the Department to impose First Amendment obligations on 
private institutions could potentially violate their own First 
Amendment rights. One commenter expressed concerns regarding the rise 
of ``free speech zone'' policies that limit the physical areas where 
students may engage in demonstrations and other expressive activities, 
burdensome and potentially biased permitting processes, and overbroad 
discriminatory harassment policies that may have the effect of stifling 
free speech on college campuses and violating the First Amendment at 
public institutions. This commenter expressed some optimism that the 
proposed rule would alter institutions' risk-benefit analysis when 
setting and defending their policies and actions, which may result in a 
significant decrease in restrictive speech codes. Another commenter 
specifically supported the inclusion of language clarifying that 
private institutions are free to honor their institutional policies and 
stated missions, specifically religious missions, particularly as they 
relate to freedom of speech and academic freedom. They stated that 
recognizing the autonomy of private institutions in this way respects 
the freedom that allows for an array of rich, diverse educational 
options.
    Discussion: The Department appreciates the general support from 
commenters for the free inquiry provisions contained in Sec.  75.500(b) 
and (c), which apply to Direct Grant Programs, and Sec.  76.500(b) and 
(c), which apply to State-Administered Formula Grant Programs. The 
Department acknowledges the beneficial effects of requiring public 
institutions to comply with the First Amendment to the U.S. 
Constitution as a material condition for receiving grants from the 
Department and of requiring private institutions to comply with their 
own stated institutional policies regarding freedom of speech, 
including academic freedom, as a material condition for receiving 
grants from the Department. The beneficial effects may include 
encouraging both public and private institutions to foster environments 
that promote open, intellectually engaging, and diverse debate. Free 
inquiry is an essential feature of our Nation's democracy, and it 
promotes learning, scientific discovery, and economic prosperity. 
Indeed, the proposed regulations are intended to promote the First 
Amendment's guarantees of free expression and academic freedom, as the 
courts have construed them; to align with Federal statutes to protect 
free expression in schools; and to protect free speech on campuses 
nationwide. As one commenter observed, reinforcing intellectual 
diversity and freedom of speech on college campuses may be especially 
necessary, given the speech-restrictive policies and actions some 
institutions have taken in recent years.\31\ Furthermore, we agree with 
commenters who noted it is appropriate for the Department to rely on 
the judiciary as the primary arbiter of alleged violations of First 
Amendment freedoms concerning public institutions and alleged 
violations of free speech protections in stated institutional policies 
of private institutions. The courts have cultivated a well-developed 
and intricate body of relevant case law

[[Page 59920]]

and may serve as the primary decision-making body with respect to free 
speech matters under the final rule. As noted by commenters, the final 
regulations also accurately recognize that the First Amendment applies 
to public institutions and not private institutions, and that private 
institutions may choose stated institutional policies regarding freedom 
of speech that reflect their values. As explained later in this 
preamble, only public institutions that are legally required to abide 
by the First Amendment must do so as a material condition of a grant.
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    \31\ See In re Awad v. Fordham Univ., 2019 N.Y. Slip Op. 
51418(U) (N.Y. Sup. Ct. Jul. 29, 2019) (holding private university's 
refusal to recognize a chapter of Students for Justice in Palestine 
was contrary to the university's mission statement guaranteeing 
freedom of inquiry); McAdams v. Marquette Univ., 914 NW2d 708, 737 
(Wis. 2018) (holding private university breached its contract with a 
professor over a personal blog post because, by virtue of its 
adoption of the 1940 American Association of University Professors 
(AAUP) Statement of Principles on Academic Freedom, the post was ``a 
contractually-disqualified basis for discipline''); Young America's 
Found. v. Napolitano, Case No. 3:17-cv-02255 (N.D. Cal. Nov. 10, 
2017) (Amended Complaint); id. (Doc. No. 44) (Statement of Interest 
by the U.S. Department of Justice, stating that the University of 
California at Berkeley policies violated the First Amendment); Shaw 
v. Burke, Case No. 2:17-cv-02386 (C.D. Cal. Mar. 28, 2017) 
(Complaint); id. (Doc. No. 39) (Statement of Interest by the U.S. 
Department of Justice, stating that Pierce Community College's 
policies violated the First Amendment); see also Community College 
Agrees to Resolve Free Speech Lawsuit, Associated Press (Jan. 23, 
2018, 11:43 a.m.), https://www.detroitnews.com/story/news/local/michigan/2018/01/23/constitution-arrest-battle-creek-community-college/109735506/; Tal Kopan, Student stopped from handing out 
Constitutions on Constitution Day sues, Politico: Under the Radar 
(Oct. 10, 2013, 2:47 p.m.), https://www.politico.com/blogs/under-the-radar/2013/10/student-stopped-from-handing-out-constitutions-on-constitution-day-sues-174792.
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    Changes: None.

General Litigation Concerns

    Comments: Many commenters expressed concern that the proposed rule 
would encourage excessive and frivolous litigation that may have 
harmful effects on institutions of higher education and students. One 
commenter noted that litigation may not be the ideal way to resolve 
free speech issues and suggested that other forms of dispute resolution 
in the educational context may be more immediate and effective. 
Commenters argued that the proposed rule would result in an increasing 
number and frequency of speech-related litigation against both public 
and private institutions, and that this would only increase college and 
university costs for students. Institutions would have to devote more 
resources to lawyers and litigation personnel instead of on core 
educational functions of teaching, research, and service, which would 
ultimately harm students. One commenter asserted that by tying Federal 
grant money to the outcome of speech-related disputes, the proposed 
rule will incentivize plaintiffs' attorneys to add frivolous free 
speech claims to every lawsuit to pressure institutions to settle. This 
commenter reasoned that the proposed rule would undermine the 
Department's free speech goals by discouraging responsive and immediate 
resolution of free speech claims because institutions would have an 
incentive to appeal adverse court judgments instead of reaching a post-
trial and pre-appeal resolution with plaintiffs. This commenter also 
suggested that by exposing institutions to the risk of being deemed in 
violation of a material condition of their grant, the proposed rule 
would add more pressure on institutions to avoid final adverse 
judgments by either settling before trial or by appealing the judgment. 
The commenter expressed concern that the proposed rule may perversely 
encourage private institutions to eliminate or otherwise limit their 
stated institutional policies regarding free speech to make it easier 
to achieve compliance and reduce the risk of potentially losing Federal 
funding, and stated that this would have the effect of undermining the 
Department's goal of protecting free speech. One commenter argued that 
plaintiffs' attorneys could effectively threaten public institutions 
with potential loss of Federal funding if they do not agree to their 
demands, which may undermine the constitutional State sovereign 
immunity doctrine that is designed to protect States.
    Another commenter suggested that by raising the stakes of free 
speech litigation for institutions, the final regulations may have the 
unintended effect of pressuring courts not to find such violations. To 
avoid this potential problem, the commenter suggested an alternative 
framework where the Department would codify well-established First 
Amendment standards as set forth by the Supreme Court into the final 
regulations instead of tying the analysis to the outcome of litigation. 
This commenter argued that adopting this approach through a formal 
notice-and-comment regulation would have the added benefit of 
depoliticizing the enforcement of these rights without the possibility 
of adverse effects on litigation.
    Discussion: It is not the intent of the Department to subject 
public and private institutions to excessive and frivolous litigation, 
unfairly pressure institutions to change their litigation strategies to 
avoid unfavorable court judgments, discourage institutions from 
adopting alternative dispute resolution processes, discourage private 
institutions from adopting stated institutional policies regarding free 
speech, increase the costs of higher education and exacerbate 
affordability issues, distract institutions from their core educational 
functions, or to otherwise harm students. The Department disagrees that 
the proposed or final regulations encourage frivolous litigation. 
Institutions are not required to report any lawsuit against a public 
institution alleging a violation of First Amendment rights or any 
lawsuit against a private institution alleging a violation of stated 
institutional policies regarding freedom of speech, including academic 
freedom. Additionally, frivolous litigation does not result in a final, 
non-default judgment against the institution, and an institution's 
grant from the Department may only be in jeopardy under these final 
regulations if there is a final, non-default judgment against the 
institution or an employee acting on behalf of the institution. These 
final regulations clearly state in Sec. Sec.  75.500(b)(1) and 
76.500(b)(1): ``Absent such a final, non-default judgment, the 
Department will deem the public institution to be in compliance with 
the First Amendment.'' Similarly, these final regulations clearly state 
in Sec. Sec.  75.500(c)(1) and 76.500(c)(1): ``Absent such a final, 
non-default judgment, the Department will deem the private institution 
to be in compliance with its stated institutional policies.'' Rather 
than expose institutions to liability from frivolous litigation, the 
Department anticipates that State and Federal courts will continue to 
recognize and dismiss any frivolous claims and adjudicate meritorious 
claims to appropriately vindicate the free speech rights of students, 
faculty, administrators, and other stakeholders. Nothing in the final 
regulations prohibits institutions from adopting alternative dispute 
resolution processes to resolve claims. We acknowledge that some 
grantees may, in the event that they face a lawsuit alleging violations 
of the First Amendment or institutional policies regarding freedom of 
speech, shift their litigation strategies to avoid a final, non-default 
judgment by a Federal or State court against them. To the extent that 
they do so, such actions could result in additional costs to grantees 
that they would not incur in the absence of the rule. However, 
institutions may shift litigation strategies for other reasons, such as 
to conserve resources through settlement rather than seeking to prevail 
in court, or for public relations and reputational purposes. Such 
violations of the First Amendment or stated institutional policies 
ultimately result in harm to students with respect to the functions of 
teaching, research, and service because they will not be exposed to the 
marketplace of ideas that is essential to learning and education. With 
respect to any potential costs for failing to comply with the First 
Amendment or stated institutional policies, the Department does not 
terminate an institution's grant as a first resort. The Department has 
not historically suspended or terminated a Federal award or debarred a 
grantee as the first measure in addressing a violation and instead 
first attempts to secure voluntary compliance from the grantee. Indeed, 
the Department's regulations provide that the Department may suspend or 
terminate a Federal award or debar a grantee, if there is a continued 
lack of compliance and if imposing additional, specific conditions is 
not successful.\32\ We do not believe it

[[Page 59921]]

is likely that such violations, if they do occur, would result in a 
substantial number of grants being terminated unless the institution 
refuses after a final, non-default judgment to voluntarily comply with 
the First Amendment or its own stated institutional policies regarding 
freedom of speech, including academic freedom, or any special 
conditions that the Department may impose to achieve such compliance. 
Accordingly, we believe any effect on the litigation strategy of 
grantees is difficult to predict and would be contingent on the unique 
facts and circumstances of each case. The Department also wishes to 
emphasize that courts repeatedly have been called upon to vindicate the 
free speech rights of students, faculty, and other stakeholders on 
college campuses. The Department believes that State and Federal courts 
are appropriate adjudicators of free speech violations under the final 
rule, and we believe they adjudicate such matters fairly and 
dispassionately. The Department is the arbiter of the proper penalty, 
if any, with respect to a public institution that violates the First 
Amendment or a private institution that violates its own stated 
institutional policies regarding freedom of speech, including academic 
freedom. We note that one commenter who raised the issue of State 
sovereign immunity did not appear to explain exactly how that doctrine 
would be implicated by potentially withholding grant funds from public 
institutions for violating First Amendment rights, as determined in a 
final court judgment issued by a State or Federal court. States are 
subject to the First Amendment through the Fourteenth Amendment,\33\ 
and Congress may abrogate State sovereign immunity for violations of 
the First Amendment through legislation under section 5 of the 
Fourteenth Amendment. The Department's final regulations recognize that 
Congress provided a right of action in 42 U.S.C. 1983 for violations of 
the First Amendment by those acting in an official government capacity, 
whether on campuses or elsewhere.\34\ These final regulations do not in 
any way abrogate sovereign immunity and instead recognize that 
employees acting on behalf of a public institution are prone to be sued 
under 42 U.S.C. 1983, if they violate the First Amendment.
---------------------------------------------------------------------------

    \32\ See 34 CFR 75.901 (referencing 2 CFR 200.338); 2 CFR 
200.338 (stating Federal awarding agency may suspend or terminate an 
award if noncompliance cannot be remedied by imposing additional 
conditions); 34 CFR 76.401.
    \33\ De Jonge v. Oregon, 299 U.S. 353, 364 (1937) (``Freedom of 
speech and of the press are fundamental rights which are safeguarded 
by the due process clause of the Fourteenth Amendment of the Federal 
Constitution. . . . The right of peaceable assembly is a right 
cognate to those of free speech and free press and is equally 
fundamental.''); Cantwell v. Connecticut, 310 U.S. 296, 303-04 
(1940); Near v. Minnesota, 283 U.S. 697, 707 (1931).
    \34\ See, e.g., Edelman v. Jordan, 415 U.S. 651 (1974); Ex parte 
Young, 209 U.S. 123 (1908).
---------------------------------------------------------------------------

    The Department agrees with the general assertion made by one 
commenter that the formal notice-and-comment rulemaking process may 
have the benefit of de-politicizing regulatory enforcement. We, 
however, respectfully disagree with the propositions that First 
Amendment case law should be codified in the final regulations and that 
the Department should have responsibility for adjudicating violations. 
The reality is that First Amendment law is subject to change over time. 
We considered the possibility that the Department itself should 
adjudicate claims alleging that a public institution violated the First 
Amendment or alleging that a private institution violated its stated 
institutional policies regarding freedom of speech, and the Department 
ultimately decided against this alternative as both State and Federal 
courts have a well-developed body of case law concerning First 
Amendment freedoms as well as breach of contract cases or other claims 
that may be brought with respect to stated institutional policies.
    Changes: None.

Potential False Claims Act (FCA) Liability

    Comments: Some commenters stated that the proposed rule would 
result in a flood of frivolous FCA claims against private institutions 
under 31 U.S.C. 3729, et seq. Commenters were concerned that inaccurate 
certifications of compliance submitted to the Secretary by private 
institutions may give rise to FCA liability. One commenter noted that 
FCA actions may result in treble damages plus sizable penalties, which 
could create a significant incentive for private individuals or 
organizations to file qui tam cases. Commenters asserted that frivolous 
FCA litigation would impose substantial costs and disruption on private 
institutions and result in less, not more, protection of free inquiry 
and expression. One commenter argued that the preamble wrongly 
suggested that the Department will treat final judgments of non-
compliance with institutional policies on free inquiry and expression 
as per se FCA violations. This commenter suggested such legal reasoning 
is flawed because the FCA is a standalone statute with different 
elements that plaintiffs must satisfy by a preponderance of the 
evidence; these statutory requirements such as the defendant 
``knowingly'' submitting a false or fraudulent claim for payment or 
making false statements material to a false or fraudulent claim, apply 
regardless of a separate court judgment finding non-compliance. The 
commenter also stated that the proposed rule purportedly linking FCA 
liability to private institutional policies on free inquiry and 
expression would create an uneven playing field because FCA liability 
is generally tied to fairly uniform regulations, statutes, and 
contractual provisions. And the commenter asserted that the proposed 
rule failed to provide guidance on what type of conduct would be 
imputed to a private institution. The commenter cited Supreme Court 
precedent for the proposition that the government merely claiming a 
condition is material, as the Department purportedly did in the 
proposed rule, does not by itself satisfy the materiality requirement 
under the FCA. Because of these concerns, the commenter recommended 
that the Department remove language from the preamble that would 
require private institutions to certify to the Secretary their 
compliance with institutional policies on free speech as a material 
condition of an award. Requiring such certification may increase 
potential FCA exposure, result in a flood of baseless qui tam cases, 
and impose a substantial burden on private institutions. The commenter 
stated that if the Department opts to retain the certification 
requirement then it should explicitly clarify that the FCA is an 
independent statute with standalone requirements that must be proven by 
a preponderance of the evidence for a court to find a violation.
    Discussion: The Department wishes to clarify that, and as one 
commenter correctly observed, the FCA is a separate statute with 
distinct elements that must be established to prove liability. Indeed, 
the Department never stated that a private institution's failure to 
comply with its own stated institutional policies is a per se violation 
of the FCA. Rather, and as the Department clearly noted in the preamble 
of its NPRM, the Department considers the condition that private 
institutions comply with their stated institutional policies regarding 
freedom of speech to be a material condition of the Department's grant. 
Similarly, the Department considers the condition that public 
institutions comply with the First Amendment to the U.S. Constitution 
to be a material condition of the Department's grant. The Department 
has revised Sec. Sec.  75.500(b)-(c) and 76.500(b)-(c) to expressly 
state that such conditions are material conditions

[[Page 59922]]

of the Department's grant. The Department correctly noted in its NPRM 
and maintains its position that if private institutions fail to comply 
with their own stated institutional policies regarding freedom of 
speech, including academic freedom, then such noncompliance may satisfy 
the materiality requirement for FCA liability.\35\ The Department also 
noted in its NPRM that there are no cases directly on point under the 
False Claims Act because the Department and other Federal agencies have 
not previously required compliance with stated institutional policies 
on freedom of speech, including academic freedom, as a material 
condition of a grant.\36\ The Department clearly states that these 
conditions are material conditions in this final rule to place 
institutions on adequate notice of the Department's position. However, 
there are other elements that must be proven to establish FCA 
liability. A court, and not the Department, will ultimately be the 
arbiter of liability under the FCA.
---------------------------------------------------------------------------

    \35\ See, e.g., Universal Health Servs., Inc. v. United States 
ex rel. Escobar, 136 S. Ct. 1989, 2002-04 (2016).
    \36\ 85 FR 3213 n.137.
---------------------------------------------------------------------------

    The Department is not requiring a private institution to adopt any 
particular policy regarding freedom of speech, including academic 
freedom, and private institutions should comply with their stated 
institutional policies. Private institutions currently may face 
liability if they do not adhere to their own stated institutional 
policies.\37\ Potential liability under the FCA is another strong 
incentive for private institutions to comply with their own stated 
institutional policies, and the gravity of any potential consequence 
under the FCA serves as an adequate deterrent to guard against 
institutions making empty promises to its students and faculty. Private 
institutions should accurately represent their stated institutional 
policies regarding freedom of speech and adhere to such policies. 
Freedom of speech, including academic freedom, is of the utmost 
importance for education and learning, and a private institution's 
stated institutional policies reflect the values of that institution. 
Students may select institutions based on values reflected in stated 
institutional policies, and students pay tuition and other fees in 
anticipation that the institution will comply with its stated 
institutional policies.
---------------------------------------------------------------------------

    \37\ See Doe v. Univ. of the Sciences, No. 19-2966 (3d Cir. May 
29, 2020) (holding student sufficiently stated a breach of contract 
claim that the private institution failed to provide procedural 
fairness as promised in its policy); McAdams, 914 N.W.2d at 737 
(holding private university breached its contract with a professor 
over a personal blog post because, by virtue of its adoption of the 
1940 AAUP Statement of Principles on Academic Freedom, the post was 
``a contractually-disqualified basis for discipline''). The 
Department also noted in its NPRM that ``public and private 
institutions also may be held accountable to the Department for any 
substantial misrepresentation under the Department's borrower 
defense to repayment regulations. 34 CFR 668.71.'' 85 FR 3213 n.137.
---------------------------------------------------------------------------

    We do not wish to eliminate language that would require private 
institutions to comply with their stated institutional policies as a 
material condition of a grant and explain the Department's authority to 
issue such regulations in the ``Executive Orders and Other 
Requirements'' section of this preamble. Freedom of speech, including 
academic freedom, is an integral part of learning and education. 
Expressly requiring private institutions to comply with their stated 
institutional policies on freedom of speech, including academic 
freedom, as a material condition of the Department's grant reinforces 
the importance of compliance and reminds private institutions of the 
promises they chose to make to their students, faculty, and other 
stakeholders.
    Changes: The Department has revised these final regulations to 
expressly state in Sec. Sec.  75.500(b)-(c) and 76.500(b)-(c) that 
complying with the First Amendment is a material condition of the 
Department's grant for public institutions and that complying with 
stated institutional policies regarding freedom of speech, including 
academic freedom, is a material condition of the Department's grant for 
private institutions. The Department made a technical correction to 
Sec.  76.500(b)(2) to state ``State or subgrantee'' instead of 
``grantee'' to align with Sec.  76.500(b)(1). The Department also made 
a technical correction to Sec.  76.500(c)(2) to state ``State or 
subgrantee'' instead of ``grantee'' to align with Sec.  76.500(c)(1). 
These technical corrections also align Sec.  76.500(b)-(c) with the 
remainder of the regulations in Part 76 of Title 34 of the Code of 
Federal Regulations, as the regulations in that part refer to States or 
subgrantees.

Unequal Treatment Between Institutions

    Comments: A handful of commenters raised concerns that the proposed 
rule would result in unequal treatment of public and private 
institutions. One commenter asserted that to hold public institutions 
to the First Amendment while only holding private institutions to their 
own stated institutional policies is unfair and may raise 
constitutional concerns. This commenter suggested that application of 
the proposed rule could create an illogical scenario where a public 
institution would lose Federal funding for denying recognition to a 
student organization that promotes hate speech prohibited by the public 
institution's policies, but a private institution in the same situation 
would not.
    Commenters also emphasized that tying Federal funding for public 
institutions to First Amendment compliance and funding for private 
institutions to compliance with stated institutional policies could 
result in unfair treatment because different courts and jurisdictions 
have different jurisprudence. For example, the Department would create 
an unequal playing field where an institution could lose funding for 
engaging in the same underlying misconduct as another institution, but 
the latter did not lose funding because it was in a different 
jurisdiction. Commenters noted that the First Amendment is a 
particularly complex area of law, and cases may be decided by sharply 
divided courts.
    One commenter suggested it may be reasonable for public 
institutions to rely on dissenting First Amendment court opinions. This 
commenter argued that the Department is incorrectly assuming that First 
Amendment case law is obvious, that public institutions should 
anticipate potential developments, and that this unfairness is 
compounded by the fact that it can take years for appellate courts to 
resolve conflicting First Amendment jurisprudence.
    One commenter asserted that the proposed rule would create an 
uneven playing field between private institutions. In particular, this 
commenter reasoned, courts in different jurisdictions could reach 
different conclusions about whether private institutions violated their 
stated policies. And courts may also differ on the question of whether 
institutional policies are legally binding contracts such that 
violations may or may not give rise to legal remedies. The commenter 
expressed concern that this potential inconsistency could result in 
some private institutions losing Federal grant funding but not other 
private institutions even where the underlying misconduct at issue is 
fundamentally the same.
    Discussion: The Department wishes to emphasize that, as a matter of 
law, public institutions are subject to the First Amendment, but 
private institutions are not. Public institutions that are legally 
required to abide by the First Amendment cannot as a matter of law 
promulgate policies that are in violation of the First Amendment. We 
also note that the commenter who suggested that holding public 
institutions to their First Amendment obligations while holding private

[[Page 59923]]

institutions to their stated institutional policies may raise 
constitutional concerns did not provide an explanation as to how 
constitutional concerns would be implicated. Nothing in this final rule 
requires private institutions to adopt a particular stated 
institutional policy regarding freedom of speech, including academic 
freedom, or to adopt a stated institutional policy regarding free 
speech at all. As such, it may be possible depending on the unique 
facts and circumstances of a given case that public institutions and 
private institutions are treated differently under the final rule even 
where the alleged violation at issue is the same. Nothing prohibits the 
Department from treating public institutions differently than private 
institutions in this regard. Indeed, the Department's policy position 
aligns with the different treatment between public and private 
institutions reflected in the law; the law subjects public institutions 
but not private institutions to the First Amendment through the 
Fourteenth Amendment, while private institutions are legally subject to 
their own stated institutional policies.
    The Department agrees with commenters who noted that the First 
Amendment may be a particularly complex area of law. It is precisely 
for this reason, among others, that this regulation defers to courts as 
the adjudicators of free speech claims against public and private 
institutions. The Department believes our judicial system has the 
requisite expertise and impartiality to render such important 
decisions. We also acknowledge the reality raised by several commenters 
that different jurisdictions may have different interpretations of the 
First Amendment and different interpretations of private institutions' 
stated institutional policies. Accordingly, it is possible that courts 
may reach different conclusions with respect to institutions' free 
speech compliance even where the underlying alleged misconduct is 
fundamentally the same. Institutions, however, will be most familiar 
with the First Amendment jurisprudence as well as other case law in the 
Federal and State courts where they may be sued. Thus, it is fair to 
hold institutions accountable to the laws that already apply to them. 
The Department also wishes to remind commenters that nothing in the 
final rule would preclude the right of institutions to appeal adverse 
court judgments. This may be especially warranted and in the 
institution's best interests where, for example, the matter involves an 
especially complex area of First Amendment law or where there is a 
split among courts in the jurisdiction over how to interpret private 
institutions' stated institutional policies. Under the final rule, the 
Department cannot find an institution in violation unless and until a 
State or Federal court of law has rendered a final, non-default 
judgment against the institution. The final regulations in Sec. Sec.  
75.500(b)(1), (c)(1) and 76.500(b)(1), (c)(1) clearly state: ``A final 
judgment is a judgment that the . . . institution chooses not to appeal 
or that is not subject to further appeal.''
    Changes: None.

The Department's Approach Is Unnecessarily Punitive

    Comments: Some commenters contended that conditioning Federal 
funding on compliance with the First Amendment and stated institutional 
policies is too extreme a punishment. Commenters expressed concern that 
the proposed rule is too broad because it covers not only final non-
default court judgments against public institutions or private 
institutions but also against ``any of its employees acting in their 
official capacity'' for public institutions or ``employees acting on 
behalf of the private institution.'' Commenters asserted that this 
language could have the effect of potentially threatening institutional 
funding based on the conduct of a single rogue or unthinking employee, 
even where the institution terminated or otherwise disciplined the 
employee whose alleged misconduct resulted in an adverse court 
judgment. One commenter argued that because of this potential 
unfairness the Department should remove the phrase ``or an employee of 
the private institution, acting on behalf of the private institution'' 
from the final rule. Another commenter raised the example of millions 
of dollars of critical Federal funding being withheld from an 
institution because of a single employee's error or good-faith 
misinterpretation of institutional policy. This commenter emphasized 
the reality that an institution is comprised of many different 
individuals, including administrators, faculty, and employees, who may 
have different interpretations of the institution's values and 
principles, and that the mens rea requirement for institutional 
culpability under the proposed rule is far too low. The commenter 
reasoned that organizations cannot always prevent rogue employees from 
violating established policies and procedures.
    Another commenter believed it is unfair and illogical to suspend, 
terminate, or disbar public institutions from Federal research grants 
where, for example, the grants are wholly unrelated to First Amendment 
matters. The commenter expressed concern that students, researchers, 
and society as a whole may suffer if research and campus programs are 
ended because of First Amendment litigation unrelated to that program. 
For example, the commenter noted, a final judgment in a close First 
Amendment case arising from an unrelated area could lead to the 
termination of a TRIO grant designed to help first-generation students 
graduate from college.
    A few commenters expressed general concern that the proposed rule 
leaves the Department with too much latitude in determining how to 
punish institutions for noncompliance, which could include disbarment. 
One commenter suggested that the Department could reduce the risk of 
public backlash by ensuring the penalty for a violation is proportional 
to the offense, such as by setting the penalty on a sliding scale 
dependent on the number of full-time students enrolled at the 
institution.
    Discussion: The Department acknowledges the general concerns raised 
by commenters that conditioning grants on compliance with the First 
Amendment for public institutions and on compliance with stated 
institutional policies for private institutions may be unfair, 
excessively punitive, and harmful to society in some circumstances, and 
the more specific concerns raised by commenters regarding private 
institutional liability deriving from employee misconduct. With respect 
to concerns regarding holding institutions accountable for their 
employees' misconduct, the Department wishes to emphasize that, under 
the final regulations, State and Federal courts, and not the 
Department, will have primary responsibility for determining whether an 
employee acting in the employee's official capacity violated the First 
Amendment or whether an employee acting on behalf of a private 
institution violated its stated institutional policies. The reality is 
that institutions act through the people who work for them, and the 
final regulations make clear that institutions will only be held 
accountable for the actions taken by their employees if the employee 
was acting on behalf of the private institution. We therefore believe 
it is important and necessary to retain language in the final rule that 
would reflect that reality. These final regulations implicate employees 
that are acting on behalf of the private institution, and the private 
institution

[[Page 59924]]

always may argue that such an employee was not acting on their behalf 
in any litigation. Similarly, these regulations implicate employees 
that are acting in their official capacity for the public institution, 
and public institutions always may argue that such an employee was 
acting in the employee's personal or individual capacity and not in an 
official capacity in the litigation. Indeed, lawsuits under 42 U.S.C. 
1983 must be against an employee and cannot be against a public 
institution because public institutions, which are state agencies, have 
immunity under the Eleventh Amendment.\38\ Officials at public 
institutions may be sued in their official capacity for injunctive 
relief and not monetary relief,\39\ and may be sued in their personal 
or individual capacity for monetary relief.\40\ These regulations 
provide that public institutions will only be held to account for final 
judgments against the public institution or against an employee acting 
in the employee's official and not personal or individual capacity. 
Courts will consider and determine whether an employee was acting in 
the employee's official capacity or personal or individual capacity in 
determining whether a cause of action was properly stated under 42 
U.S.C. 1983 and what type of relief is available. With respect to 
private institutions, factors courts may consider in tort or contract 
litigation could include whether the violations carried out by the 
institution's employees were intentional or merely a mistake made in 
good-faith, whether there was a pattern of misconduct or an isolated 
incident, whether any breach constitutes a material breach, or whether 
the institution took prompt and effective remedial action to address 
the misconduct. The courts' analysis in any final, non-default 
judgment, thus, will aid the Department in determining whether and how 
to remedy a violation of the First Amendment with respect to public 
institutions and a violation of stated institutional policies regarding 
freedom of speech, including academic freedom, with respect to private 
institutions. The Department also believes that our judicial system has 
the requisite expertise and impartiality to render sound judgments that 
consider all the relevant facts and circumstances of a given case.
---------------------------------------------------------------------------

    \38\ Will v. Mich. Dep't of State Police, 491 U.S. 58, 65-66 
(1989); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97-
99 (1984); Ex Parte Young, 209 U.S. 123, 149 (1908); Collin v. 
Rector & Bd. of Visitors of Univ. of Va., 873 F. Supp. 1008, 1013 
(W.D. Va. 1995).
    \39\ Will, 491 U.S. at 70-71 & n.10; Cobb v. The Rector and 
Visitors of the Univ. of Va., 69 F. Supp. 2d 815, 823-24 (W.D. Va. 
1999).
    \40\ Kentucky v. Graham, 473 U.S. 159, 167-68 (1985); Ridpath v. 
Bd. of Governors of Marshall Univ., 447 F.3d 292, 306 (4th Cir. 
2006).
---------------------------------------------------------------------------

    We also wish to emphasize that an adverse court judgment against a 
public or private institution does not necessarily mean that the 
Department will implement a permanent or otherwise severe remedial 
action against the institution. As the proposed rule made clear, the 
Department has a broad range of remedial actions it may consider in the 
event a State or Federal court renders an adverse judgment against a 
public or private institution, and the remedies will be commensurate 
with the egregiousness of the violation. For example, the Department 
may impose special conditions aimed at remedying noncompliance, 
temporarily withhold cash payments pending correction of the 
institution's deficiency, suspend or otherwise terminate a Federal 
award, or potentially disbar the institution, as described in Subpart G 
of Part 75 and Subpart I of Part 76 of Title 34 of the Code of Federal 
Regulations.\41\ It is certainly not the intent of the Department to 
impede important and beneficial research activities undertaken by 
public institutions. However, we disagree with the proposition that the 
First Amendment is not implicated in research grants. Ensuring that 
public institutions respect the First Amendment, which includes 
academic freedom, is essential to ensuring the integrity of academic 
research and the fulfillment of public institutions' educational 
mission. The First Amendment, which includes academic freedom, may 
prohibit a public institution from preventing a professor from 
conducting research on a particular topic or subject matter. As 
explained in more detail in the ``Purpose of this Regulatory Action'' 
section, denying free inquiry is inherently harmful at any institution 
of higher education because students are denied the opportunity to 
learn and faculty members are denied the opportunity to freely engage 
in research and rigorous academic discourse. Securing First Amendment 
rights for students and faculty is fundamental to education at public 
institutions.
---------------------------------------------------------------------------

    \41\ 34 CFR 75.901 (cross-referencing 2 CFR 200.338); 34 CFR 
76.901; 2 CFR 180.800.
---------------------------------------------------------------------------

    Moreover, these potential remedial actions are optional in nature. 
The Department is not legally required to implement any such remedial 
action; rather, the final rule merely clarifies that we have the legal 
authority to do so. Depending on the unique facts and circumstances of 
a given case, it is possible that the Department would conclude that no 
remedial action following a final, non-default adverse court judgment 
against the institution is warranted. Furthermore, we respectfully 
disagree with one commenter's assertion that the proposed rule leaves 
the Department with excessive discretion in determining an appropriate 
remedial action. The NPRM lists several concrete factors that 
Department officials may consider, such as the actual or potential harm 
or impact that results or may result from the institution's wrongdoing, 
the frequency of incidents and/or duration of the wrongdoing, whether 
there is a pattern or prior history of wrongdoing or whether it was 
more isolated in nature, the relative positions within the institution 
of the individuals involved in the wrongdoing, or whether the 
institution's principals and other supervisory officials tolerated the 
misconduct.\42\ The list of factors debarring officials may consider is 
non-exhaustive and represents general factors relevant for officials to 
consider in tailoring potential remedial actions to the severity of an 
institution's misconduct.\43\ The reality is that determining an 
appropriate remedial action for institutional misconduct is a highly 
fact-specific inquiry. The Department believes these factors provide 
adequate notice to institutions and other stakeholders about our 
decision-making process. It is certainly not the Department's intention 
to excessively punish institutions or to harm broader societal 
interests by conditioning grants on public institutions' compliance 
with the First Amendment and private institutions' compliance with 
their stated institutional policies.
---------------------------------------------------------------------------

    \42\ 85 FR 3213.
    \43\ Id.; see also 2 CFR 180.860.
---------------------------------------------------------------------------

    The Department appreciates the suggestion offered by one commenter 
to consider penalties on a sliding scale relative to the enrollment 
size of the institution. Nothing precludes the Department from 
considering such a factor, if this factor is relevant to a 
determination of the appropriate remedy. The relative enrollment size 
of the institution, however, may not be relevant in every situation 
especially as section 3(c) of Executive Order 13864 defines ``Federal 
research or education grants'' as including ``all funding provided by a 
covered agency directly to an institution but do not include funding 
associated with Federal student aid programs that cover tuition, fees, 
or stipends.'' Accordingly, the Federal research or education grants at 
issue do

[[Page 59925]]

not affect Federal student aid programs such as programs under Title IV 
of the HEA.
    Changes: None.

Proposed Modifications

    Comments: Commenters proposed several modifications to the proposed 
rule. One commenter contended that requiring institutions to submit 
complaints, as distinct from court judgments, is unnecessary because 
complaints may be unsubstantiated allegations that are irrelevant. This 
commenter suggested that requiring submission of complaints assumes a 
level of institutional mens rea and culpability that may be unfair.
    This commenter also advised the Department to consider providing 
grants for security to institutions instead of conditioning Federal 
funding on compliance with the First Amendment or with stated 
institutional policies. The commenter reasoned that providing grants 
for security to institutions could effectively protect controversial 
and diverse speakers from being shut down by protesting students. 
According to this commenter, grants for security may be a more 
effective way to promote the Department's free speech goals because it 
is more narrowly focused on preserving the free speech rights of 
students and staff, as opposed to the proposed rule's 
disproportionately punitive approach.
    Another commenter urged the Department to avoid discouraging 
private institutions from adopting institutional policies on free 
speech by holding private institutions that promise free speech 
protections to the same standards that public institutions are held to 
under the First Amendment unless their application for Federal grants 
specifically explains how the private institutions' commitments to free 
speech deviate from First Amendment obligations. In short, this 
commenter believed the Department should require private institutions 
to clearly explain how and why they would like to be held to a lesser 
standard than public institutions under the First Amendment because 
that may discourage private institutions from watering down their free 
speech protections to avoid liability. The commenter argued that the 
Department should clarify in the final rule that a private 
institution's acceptance of Federal grant money constitutes a contract 
with the Department to honor commitments to free speech and academic 
freedom and specifically state that students and faculty, along with 
the Federal government, are the intended third-party beneficiaries of 
the institution's free speech contractual terms. This commenter 
reasoned such clarification would foreclose the argument in private 
lawsuits that an institution's general commitments to free speech and 
academic freedom are actually subject to undisclosed carve-outs that 
diverge from the principles of the First Amendment or the core tenets 
of academic freedom. The commenter also asserted that the Department 
should require private institutions to publish their certifications 
(and, if applicable, explain how their standards deviate from 
obligations imposed by the First Amendment) publicly and prominently on 
their websites where interested parties such as prospective students, 
current students, and faculty are likely to visit. According to the 
commenter, this certification disclosure requirement would have the 
benefit of enabling those interested parties to choose the school that 
best fits their values.
    Discussion: The Department appreciates the many suggested 
modifications to the final rule offered by commenters. We note that the 
final rule would not require institutions to submit complaints to the 
Department. Rather, institutions would have an affirmative obligation 
to submit only copies of any non-default, final judgment rendered 
against them in a State or Federal court that a public institution or 
an employee of the public institution, acting in his or her official 
capacity, violated the First Amendment or that a private institution or 
an employee of the private institution, acting in his or her official 
capacity, violated its stated institutional policy regarding freedom of 
speech, including academic freedom.
    With respect to the suggestion offered by one commenter to provide 
grants for security as an alternative to the final rule, we acknowledge 
that such funds may be effective in safeguarding fair opportunities for 
controversial speakers to present their ideas and for listeners to 
consider them. However, the Department believes that grants for 
security without further action will not go far enough to address the 
problem of the denial of free speech rights across American college 
campuses. Such grants for security will not prevent public institutions 
from violating the First Amendment or prevent private institutions from 
violating their own stated institutional policies regarding freedom of 
speech, including academic freedom. Moreover, it is not our intention 
to discourage private institutions from adopting stated institutional 
policies regarding free speech, including academic freedom. We respect 
private institutional autonomy and believe such institutions should 
retain flexibility to craft policies that best fit the values of their 
unique educational communities. Imposing an affirmative obligation on 
private institutions to explain how their stated institutional policies 
deviate from First Amendment obligations would be intrusive because 
private institutions are not legally required to abide by the First 
Amendment. The Department also believes our judicial system is well-
equipped to determine whether and in what way institutions' violations 
of their free speech obligations and commitments are legally actionable 
under the final regulations. As such, it would be improper for us to 
operate under the assumption that all commitments made by a private 
institution in connection with the Department's grants are only 
contractual in nature, and other laws such as State laws ultimately 
will determine whether any stated institutional policies constitute a 
contract. Even if the Department considered these stated institutional 
policies to constitute a contract, the governing State law or other 
laws may require a different result. We also note that a private 
institution's failure to adhere to its own institutional policies can 
be a contractual breach but it can also be a tort or more. 
Additionally, we do not wish to specify that only faculty and students 
are the intended third-party beneficiaries of a private institution's 
stated institutional policies regarding freedom of speech, including 
academic freedom. There may be other groups of people who also are 
third-party beneficiaries of a private institution's stated 
institutional policies regarding freedom of speech, including academic 
freedom, and the Department will defer to the State and Federal courts 
as well as the relevant case law to determine which groups of people 
are third-party beneficiaries of such stated institutional policies. We 
believe courts provide neutral, reasoned judgments, as they have long 
recognized contractual relationships between students and their 
institutions, and between employees and other stakeholders and their 
institutions.
    The Department carefully considered the potential value to 
students, employees, and the general public by imposing a disclosure 
requirement on private institutions to make publicly available their 
stated institutional policies regarding free speech, including academic 
freedom. We acknowledge that such a requirement may enable stakeholders 
to make informed choices and compare institutions. In addition,

[[Page 59926]]

we note that the commenter did not suggest a similar disclosure 
requirement for public institutions, nor provide an explanation as to 
why such a requirement should not apply. However, we did not propose 
imposing such a burden on either public institutions or private 
institutions and do not wish to do so now. Requiring either public or 
private institutions to post all of their policies regarding the First 
Amendment or freedom of speech, including academic freedom, 
respectively, is an enormous undertaking as institutions may have 
various policies for faculty and students such as policies on 
curriculum, employee codes of conduct, chalking, posting on bulletin 
boards, protesting, etc., and each school or department may have their 
own policies on freedom of expression. To gather all such policies and 
publicly post them on websites is a burden that the Department does not 
currently wish to impose at this juncture, although such a burden may 
be appropriate if private institutions seek to hide or obscure their 
stated institutional policies in the future. The Department wishes to 
emphasize that nothing in the final rule would prevent private or 
public institutions from publicly and prominently disclosing their free 
speech policies, should they choose to do so. Some institutions may 
even be required to do so under State laws.\44\
---------------------------------------------------------------------------

    \44\ See, e.g., Va. Code section 23.1-401.1(B).
---------------------------------------------------------------------------

    Changes: None.

``Academic Freedom'' Concerns

    Comments: One commenter contended that the Department should remove 
all reference to ``academic freedom'' from the final rule. The 
commenter noted that neither the President's Executive Order nor the 
Higher Education Act statutory provisions cited in the proposed rule 
explicitly referenced ``academic freedom'' or the concept of academic 
freedom, and argued that the Department appears to mistakenly assume 
that academic freedom and freedom of speech are coextensive. Academic 
freedom is a complex concept, and the commenter stated that the 
Department also failed to distinguish institutional academic freedom 
from individual academic freedom. For example, the commenter stated, 
institutions have their own academic freedom to hold their faculty 
accountable to certain professional standards and to require them to 
perform their duties with integrity. The commenter reasoned that 
purported violations of ``academic freedom'' are an inappropriate basis 
to withdraw grants. Instead, the commenter requested that the 
Department substitute the actual text of the Executive Order into the 
final rule's language or to otherwise make these changes through sub-
regulatory guidance.
    Discussion: The Department respectfully disagrees with the 
assertion made by the commenter that all reference to ``academic 
freedom'' should be removed from the final regulations. Executive Order 
13864 references ``stated institutional policies regarding freedom of 
speech for private institutions,'' \45\ and academic freedom is derived 
from and squarely rooted in freedom of speech.\46\ The Supreme Court of 
the United States has eloquently explained why respect for freedom of 
speech, which includes academic freedom, is so critical in higher 
education:
---------------------------------------------------------------------------

    \45\ 84 FR 11401.
    \46\ See 85 FR 3196-99.

    The essentiality of freedom in the community of American 
universities is almost self-evident. No one should underestimate the 
vital role in a democracy that is played by those who guide and 
train our youth. To impose any strait jacket upon the intellectual 
leaders in our colleges and universities would imperil the future of 
our Nation. . . . Teachers and students must always remain free to 
inquire, to study and to evaluate, to gain new maturity and 
understanding; otherwise our civilization will stagnate and die.\47\
---------------------------------------------------------------------------

    \47\ Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).

    As the Department explains in the ``Background--Part 2 (Free 
Inquiry) section'' of the NPRM,\48\ the courts have consistently viewed 
academic freedom as an important and distinct interest with respect to 
freedom of speech.
---------------------------------------------------------------------------

    \48\ 85 FR 3196-99.
---------------------------------------------------------------------------

    Faculty, staff, and other institutional stakeholders have academic 
freedom interests. This concept of academic freedom is widely 
recognized as a core value; for example, at least one commenter cited 
to the well-known and highly regarded American Association of 
University Professors (AAUP), 1940 Statement of Principles on Academic 
Freedom and Tenure with 1970 Interpretive Comments (AAUP's Statement of 
Principles on Academic Freedom).\49\ Indeed, courts have held private 
institutions accountable to the AAUP's Statement of Principles on 
Academic Freedom to the extent such a private school has adopted this 
statement.\50\ Academic freedom is an indispensable aspect of the 
freedom of thought and belief to which individuals across educational 
institutions, including private ones, are entitled. It is intertwined 
with, and is a predicate to, freedom of speech itself. For example, 
academic freedom may include faculty rights to choose curriculum, 
coursework, and other subject matter materials, and to explore avenues 
of thought in and out of the classroom. Academic freedom may also 
encompass students' right to pursue truth and knowledge relevant to 
their fields of study. The rigorous pursuit of truth and knowledge is 
central to the purpose of an educational institution, and the 
Department strongly believes that institutional violations of academic 
freedom rights are a legitimate basis for remedial action. As the 
President's Executive Order 13864 made clear, the Department is to 
``take appropriate steps'' to ``ensure institutions that receive 
Federal research or education grants promote free inquiry.'' \51\ 
Simply substituting the Executive Order's text into our final rule 
would not by itself accomplish the objectives set out by the President. 
Indeed, the Executive Order's very language contemplates that the 
Department would exercise at least some discretion in determining the 
most appropriate means of accomplishing its goals. After careful 
consideration, the Department believes the approach contained in the 
final rule, which would entail potential remedial action by the 
Department only in the event of a non-default and final adverse court 
judgment against an institution, would most effectively implement this 
Executive Order. Such an approach respects a private institution's 
academic freedom because the Department does not require a private 
institution to adopt any particular stated institutional policy 
regarding freedom of speech, including academic freedom, and will 
respect whatever stated institutional policies, if any, that a private 
institution chooses to adopt.
---------------------------------------------------------------------------

    \49\ Available at https://www.aaup.org/file/1940%20Statement.pdf.
    \50\ McAdams, 914 N.W.2d at 737 (holding private university 
breached its contract with a professor over a personal blog post 
because, by virtue of its adoption of the 1940 AAUP Statement of 
Principles on Academic Freedom, the post was ``a contractually-
disqualified basis for discipline'').
    \51\ 84 FR 11402.
---------------------------------------------------------------------------

    Lastly, we believe that free inquiry on our Nation's campuses is a 
fundamentally important subject that deserves a serious rulemaking 
process. As such, a formal notice-and-comment rulemaking, as opposed to 
non-binding sub-regulatory guidance, is the most appropriate approach. 
It also reinforces the Administration's commitment to the rule of law 
and robust public participation in the development of regulations that 
govern us.
    Changes: None.

[[Page 59927]]

Departmental Discretion Over Remedial Actions

    Comments: One commenter argued that the trigger for noncompliance 
under the proposed rule is far too low and urged the Department to 
establish a higher threshold. The commenter believed that a single 
adverse court judgment should not by itself justify a loss of Federal 
funding; the impact of such a penalty is disproportionate. Instead, the 
Department should deem an institution out of compliance only if there 
is a pattern of final, non-default judgments finding serious violations 
of the First Amendment or stated institutional policies. Alternatively, 
the Department could modify the trigger to only apply where the 
institution failed to immediately comply with an adverse final court 
ruling. This commenter also recommended that the Department more 
clearly define the circumstances under which it may terminate or 
suspend grant funding. The commenter expressed concern that 
institutions may not have adequate guidance or sufficiently clear 
precedent to understand when free speech violations can result in lost 
funding. The commenter acknowledged that the preamble listed factors 
that the Department may consider, including: The ``actual or potential 
harm or impact that results or may result from the wrongdoing,'' the 
``frequency of incidents and/or duration of the wrongdoing,'' ``whether 
there is a pattern or prior history of wrongdoing,'' ``whether the 
wrongdoing was pervasive within [the institution of higher 
education],'' and whether the institution's ``principals tolerated the 
offense.'' However, the commenter contended that the Department still 
has too much discretion in determining appropriate sanctions. According 
to the commenter, this may result in politicized judgments and unfair 
treatment of institutions who engage in the same underlying misconduct. 
The commenter asserted that the Department should more precisely define 
the amount of discretion it has in determining sanctions. The commenter 
suggested, for example, that the Department be allowed to suspend or 
terminate grant funding only where certain aggravating factors are 
present, such as a systematic pattern or practice of violations or 
deliberate indifference by an institution. This commenter also believed 
that the Department should first be required to work with a given 
institution to achieve compliance before imposing any sanctions. 
Another commenter expressed concern that the proposed rule would deem 
institutions in violation of a material condition of their Department 
grant even if the institution cured or otherwise remedied the violation 
before the court entered an adverse ruling. This commenter urged the 
Department to consider whether the institution had taken steps to 
voluntarily cure the underlying violation as a relevant factor in 
determining appropriate remedies for an institution's non-compliance.
    Discussion: The Department wishes to emphasize that the final rule 
will not compel the Secretary to take any particular remedial action 
with respect to a grant in the event of a final, non-default judgment 
by a State or Federal court that a public institution violated the 
First Amendment or a private institution violated its stated 
institutional policies regarding freedom of speech, including academic 
freedom. As a matter of course, the Department attempts to secure 
compliance by voluntary means or by imposing special conditions before 
turning to more serious remedies, and the Department's final 
regulations state as much.\52\ The final rule includes a broad range of 
pre-existing potential remedial actions described in subpart G of Part 
75 and Subpart I of Part 76 of Title 34 of the Code of Federal 
Regulations, including imposing special conditions, temporarily 
withholding cash payments pending correction of the deficiency, 
suspension or termination of a Federal award, and disbarment. Indeed, 
the Secretary would retain discretion to, for example, take remedial 
action where the institution has demonstrated a pattern of non-
compliance or deliberate indifference, or opt not to take remedial 
action where the institution promptly implemented appropriate 
corrective measures to remedy the violation. The Department also must 
abide by the Administrative Procedure Act and cannot act in an 
arbitrary or capricious manner with respect to any institution without 
facing liability.\53\ The Department acknowledges the concerns raised 
by one commenter that the factors elucidated in the preamble of the 
NPRM that debarring officials may consider might not provide adequate 
guidance to institutions in some circumstances and could lead to 
inconsistent treatment of institutions for engaging in the same 
misconduct. The Department will use the same regulatory rubric that it 
uses to take other remedial actions for violations of a grant condition 
for the conditions in Sec. Sec.  75.500(b)-(c) and 76.500(b)-(c), and a 
violation of the First Amendment for a public institution or a 
violation of stated institutional policies for a private institution 
does not merit a completely different regulatory scheme for remedial 
action. All the same concerns that the commenter raises may be raised 
about existing grant conditions and the Department's discretion to 
address them, and experience has not borne out these concerns. The 
Department uses the existing regulatory scheme to determine the most 
appropriate remedial action for egregious violations such as fraud or 
criminal actions such as theft, and the Department examines the unique 
factual circumstances of each violation before determining what, if 
any, remedial action is appropriate. Similarly, we believe that, as 
with all violations of the conditions of a particular grant, decisions 
regarding appropriate remedies must be made on a case-by-case basis. As 
a practical matter it is therefore impossible to provide comprehensive 
and exact guidance to institutions and stakeholders as to precisely how 
the Department will act in all future cases. The Department needs to 
retain some flexibility to determine appropriate remedial actions, if 
any, given the unique facts and circumstances of each case. We also 
wish to remind commenters that the fundamental question of whether an 
institution violated free speech rights in the first instance will be 
decided by the courts, and not the Department. This approach has the 
additional benefit of de-politicizing the process.
---------------------------------------------------------------------------

    \52\ See 34 CFR 75.901 (cross-referencing 2 CFR 200.338 
(Remedies for noncompliance)); 2 CFR 200.338 (``If the Federal 
awarding agency or pass-through entity determines that noncompliance 
cannot be remedied by imposing additional conditions, the Federal 
awarding agency or pass-through entity may take one or more of the 
following actions, as appropriate in circumstances. . . .'').
    \53\ 5 U.S.C. 706(2)(A).
---------------------------------------------------------------------------

    Changes: None.

Timeframe for Submission of Adverse Court Judgments

    Comments: One commenter requested that the Department extend the 
applicable timeframe for institutions to submit notice of a final 
adverse court judgment to the Department. The commenter noted that in 
Federal courts, parties generally have 30 days to submit an appeal on a 
judgment but that there are circumstances when this window should be 
extended. Some State courts permit longer time periods for submitting 
appeals. The commenter concluded that the Department should amend the 
final rule to require institutions to submit notice of any final, non-
default court judgment no later than 30 days following the expiration 
of the period for filing a notice of appeal.

[[Page 59928]]

    Discussion: The Department is sympathetic to the idea that 
institutions should have more time to submit copies of final court 
judgments. However, applicable appeals periods may vary across 
jurisdictions, and therefore tying the window for submitting adverse 
court judgments to such periods may result in conflicting timelines and 
make it more challenging for the Department to ensure compliance. As a 
result, the Department is extending the applicable timeframe from the 
30 days proposed in the NPRM, to 45 calendar days. As the commenter 
noted, most Federal courts provide at least 30 days for a party to file 
an appeal, and allowing an institution 45 days to provide the 
Department with a copy of the final, non-default judgment will help 
ensure that the institution has adequate time to decide whether to 
appeal the judgment. The Department believes that applying a uniform 
timeline of 45 calendar days for all institutions would serve the 
interests of clarity, consistency, and ease of administration. 
Institutions will have 45 calendar days, as opposed to 45 business 
days, because business days are not uniform across the country. For 
example, there may be regional holidays that apply for some 
institutions but not others. As such, the Department believes that 
using calendar days instead of business days is clearer, more 
consistent, and will make it easier to ensure compliance.
    Changes: We have extended the applicable timeframe for institutions 
to submit copies of final adverse court judgments to the Department 
from 30 days to 45 calendar days.

Questions on ``Stated Institutional Policies''

    Comments: One commenter submitted several requests for 
clarification regarding the phrase ``stated institutional policies 
regarding freedom of speech, including academic freedom'' contained in 
the proposed rule. In particular, the commenter noted that the 
Department did not clearly define what types of documents constitute 
``stated institutional policies.'' For example, it is unclear to what 
extent a particular document must address ``academic freedom'' or 
``free speech'' such that compliance with it constitutes a material 
condition for Federal research and education grants. The commenter also 
expressed uncertainty as to what makes a given document 
``institutional.'' For example, it is unclear whether any department or 
school within an institution can have its own ``institutional'' policy 
or whether the policy must be institution-wide. The commenter also 
questioned whether the proposed rule would require private institutions 
that do not have stated institutional policies to adopt them and, if 
so, whether the protections offered by their stated institutional 
policies must be coextensive with First Amendment rights. Lastly, the 
commenter requested clarity as to whether a private institution's 
compliance with its stated institutional policies regarding freedom of 
speech and academic freedom is a material condition even where the 
institution states that its policies are legally unenforceable. The 
commenter sought to know whether the proposed rule would require such 
policies to be enforceable through contract or tort, or at least 
prohibit private institutions from explicitly framing them as legally 
unenforceable.
    Discussion: The Department appreciates the substantive requests for 
clarification regarding the scope of the phrase ``stated institutional 
policies regarding freedom of speech, including academic freedom'' in 
the proposed rule. We note that whether a given institutional policy is 
covered by the final rule will be clarified by State and Federal courts 
first because these courts will determine whether the stated 
institutional policies concern freedom of speech, which includes 
academic freedom. The Department will determine that a private 
institution has not complied with its stated institutional policies 
only if there is 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.
    We note that nothing in the final rule necessarily limits covered 
policies to those that are institution-wide, or requires covered 
policies to be presented in a particular format. For example, covered 
policies may include, but do not necessarily have to be presented as, 
circulars, bulletins, or catalogues. Stated institutional policies also 
may be in the form of representations made by an institution's 
employees who are acting on behalf of the institution. For example, an 
employee acting on behalf of an institution may state that reservations 
are required to reserve an outdoor space for a demonstration or a 
protest, and these representations may constitute a stated 
institutional policy. And it may be possible for a covered policy to be 
department-specific, or to apply only to students or to employees. 
Further, and as stated in the preamble of the NPRM, these regulations 
would not compel private institutions to adopt a particular stated 
institutional policy, or to adopt any policy at all. If a private 
institution chooses to adopt a stated institutional policy regarding 
free speech, which includes academic freedom, then nothing in the final 
rule would compel that institution to make its protections coextensive 
with the First Amendment. And the question of what effect, if any, a 
statement that a given institutional policy is not legally enforceable 
has is a matter to be decided by State and Federal courts through 
litigation.
    Changes: None.

34 CFR 75.500(d) and 34 CFR 76.500(d)--Religious Student Organizations

Comments in Support

    A significant number of commenters advocated that universities 
should be diverse and inclusive spaces for all students, including 
religious students. These commenters also stated that religious student 
organizations make their best contribution to campus life when they 
retain their distinct religious identity and character and that the 
proposed regulations would protect religious student organizations' 
identity and character. Most of these same commenters thanked the 
Department for the proposed regulations to promote the equal treatment 
of religious student groups \54\ so they can continue to serve their 
campuses. The Department appreciates the comments in support of these 
final regulations and includes the comments in support of these final 
regulations based on the various topics the commenters addressed in 
describing the benefits of religious student organizations as well as 
the struggles that religious student organizations face.
---------------------------------------------------------------------------

    \54\ The Department refers to ``religious student 
organizations'' interchangeably as ``religious student groups.''
---------------------------------------------------------------------------

    Comments:
Pluralism and Diversity
    Many former participants in religious student groups expressed how 
religious student groups enhanced their experience at universities 
because they were given the opportunity to explore personal beliefs and 
experience and contribute to diversity on campus.
    One commenter shared their experience serving in their forty-first 
year as a campus minister at several different universities and is a 
member of an association of campus ministers at the university where 
they serve and in this capacity met and collaborated with university 
presidents, deans, and a variety of student service departments 
throughout their time in ministry. This same commenter explained how

[[Page 59929]]

campus ministers mediate between university governance and student 
groups to contribute to campus diversity and added that religious 
groups strive to broaden diversity and enhance inclusivity on college 
campuses.
    One commenter recalled their experience serving in student 
government at their university, how allowing religious student groups 
to participate in campus life contributed to mutual understanding and 
appreciation among a diverse student body. The commenter stated that 
such diversity makes universities thrive.
    Another commenter recalled their experience as a leader of a 
religious student group where students benefitted from the diversity 
and inclusivity fostered by religious groups on campus. Students were 
able to explore faiths and practice their beliefs which many commenters 
affirmed.
    One commenter noted how religious groups are often excluded from 
conceptions of diversity on college campuses, yet religious 
organizations contribute to campus diversity. The commenter observed 
that organizations can only achieve this diversity by organizing with 
the integrity and conviction afforded by the proposed regulations.
    Several students from religious legal societies noted how they were 
able to fellowship with those in their faith traditions in addition to 
explore different belief systems in the diverse, intense environment of 
law school. One of these commenters noted how having a greater variety 
of religious student groups would have only further increased diversity 
to benefit the campus.
    One commenter observed that religious student groups provide 
support and opportunities for students. This commenter was able to 
connect with students of other faiths in this environment and suggested 
that religious organizations allow students to connect with the 
``outside world'' beyond the university. Another commenter noted how 
religious student groups contribute to students' needs from a variety 
of backgrounds--including non-religious students--offering students 
access to food, finding housing for homeless students, and supported 
lonely or suicidal students.
    One former participant of a religious student group noted how their 
group especially encouraged multiethnic diversity on campus and how 
this initiative led to religious student group leaders assisting with 
training of university dorm leaders on this topic.
    Commenters also observed how religious student organizations were 
inclusive of the broader campus communities. A commenter recalled that 
all students were invited to participate in the religious 
organization's discussions and service projects. The commenter 
clarified that while this religious group worked alongside groups with 
different beliefs, the commenters' organization was necessarily led by 
leaders with a distinctive religious perspective. Another commenter 
shared that the religious organization's religious integrity was 
essential to its inclusivity as the organization coordinated with other 
student groups to serve the campus community.
Personal Edification From Religious Student Organizations
Student Health and Well Being
    A commenter stated that a religious student group contributed to 
their health and life trajectory in addition to maturing their own 
beliefs in college. Another commenter expressed that participation in a 
religious student group offered social and emotional maturity 
throughout the commenter's experience. Many commenters described 
participation in religious student groups as life-changing, 
transformative, or with great impact on their day-to-day life. Other 
commenters shared how participation in religious student groups allows 
for academic, social, and psychological growth. One commenter shared 
how numerous studies conclude that religion and spirituality predict 
mental health, self-esteem, and constructive social activities, and at 
the same time, non-involvement is negatively associated with 
destructive behaviors such as drug and alcohol abuse, risk-taking, and 
crime. One commenter shared a story of how they were struggling with 
substance addiction as a freshman entering university, but 
participation in a religious student group helped them get clean and 
become healthy and involved in the university. Another commenter shared 
how participation in religious student groups has enabled good stress 
management while in school, enhanced this commenter's holistic thinking 
and leadership skills, formed life-long friendships, and facilitated 
positive opportunities to serve the campus and community.
    Several commenters shared how religious student groups allow 
students to thrive in a rigorous environment. A commenter expressed how 
religious student groups brought healing and helped students through 
challenges posed by post-graduate studies. Another commenter added that 
religious student groups are important for students in a time of 
anxiety.
    One commenter shared how they attended a college where religious 
conversations were encouraged, and they participated in a small group 
where they talked about real life and real religion. They shared how 
they were so grateful to have had the opportunity to mature in that 
environment. They stated that they were not allowed to rest on what 
they thought might be true, but rather had to discover what was true. 
They also stated that today's youth are the most anxious generation 
ever due to a lack of agreed-upon truths that provide a framework for 
living well, and that the freedom to explore faith in college let them 
hear about religious thought and the opportunity to find peace there.
Community
    A number of supportive commenters were former or current 
participants in religious student groups expressing how those groups 
are valuable because they are spaces where community and healthy, 
wholesome relationships can be formed, and mentorship opportunities are 
available.
    Another commenter shared how participation in a religious student 
group developed a broader array of relationships across gender, ethnic, 
cultural, and sexuality lines than any other season of their life and 
it was specifically because of their involvement with a religious 
student group. One commenter described religious student groups as 
unique places in the world where people from any walk of life, social 
setting, socio-economic background, faith background, sexual 
orientation, etc., can come together to learn with and from one 
another.
    One commenter described their religious organization as welcoming 
and creating an open atmosphere in which conversation could be held. 
Another commenter found that participation in a religious student group 
made them a more compassionate citizen and informed discussions about 
justice and faith on campus.
    A commenter shared that when they were a college student, the 
religious groups on their campus contributed the most to campus life, 
community service, and social justice. The commenter stated that the 
Black Campus Ministries group, because of their convictions, influenced 
the university's President to make changes that made the university 
more accessible for students of color. One commenter shared how being a 
minority on campus was an intimidating experience, but a religious

[[Page 59930]]

student group offered a safe space for building relationships and 
community.
    Several commenters expressed how a religious student group was 
integral to incorporating this commenter into the campus community and 
acclimating to a large student body. One commenter expressed how access 
to a religious student organization provided access to resources that 
would have been difficult to obtain without a vehicle, in addition to 
creating a community.
    Many commenters described how religious student groups unify and 
heal campuses. Several commenters noted how religious student groups 
worked to unify and support campuses after tragic on-campus events. 
Another commenter expressed that religious student groups provided a 
place for racial harmony. Another commenter stated that religious 
student groups preserve diversity when campuses are politically 
polarized, since the groups welcome students across political lines. A 
commenter explained how a religious student group initiated a campus-
wide debate series which was beneficial to the community beyond just 
religious students.
    One commenter expressed how a religious student group allowed the 
commenter to form a likeminded community and face challenges posed by 
law school. One commenter noted how religious student groups provided 
sanctuary and a safe haven for individuals in law school. A commenter 
recalled experiences from a religious student group at law school which 
offered mentorship to first-year law students. Religion was able to 
inform these students' legal studies, and students were able to explore 
their beliefs through religious student groups. Additionally, one 
commenter expressed that participation in a religious sports 
organization provided support through uniquely challenging experiences 
presented to student athletes.
    Another commenter added that learning how to respect religious 
beliefs made them a better global citizen. Several commenters recalled 
programs through their religious student groups which would reach out 
to and incorporate international students into the student body, and 
some offered mentorship opportunities.
    Several commenters noted that religious student groups create a 
place for religious students to gather when faculty did not appear 
welcoming or were hostile towards religious beliefs. Another commenter 
noted that religious student groups were silenced, hampered, and 
discriminated against on campus which hurt religious student groups and 
the greater campus community as a whole.
    According to another commenter, the community formed by religious 
student groups is paramount during transitional periods in students' 
lives and that some religions are centered around relationships with 
members of the same faith tradition. A commenter noticed how religious 
student groups particularly helped at-risk students. A commenter 
observed how religious student groups provide support to students who 
are adjusting to and navigating life beyond the guidance of their 
families. Religious student groups provide spiritual and life guidance 
with warmth and compassion for students who are settling into their new 
campus environments, according to several commenters. A commenter noted 
how religious student groups provide mentorship and emotional support 
and companionship for students struggling with their home lives or 
personal challenges.
    According to commenters, religious student groups afforded students 
alternative social opportunities to develop healthy relationships on 
campus. One commenter shared that participation in a religious student 
group helped them long for a vision in which the Greek system was 
healthier and restored to its original intent. They stated that the 
Greek system has a bad public image and persona, but the commenter 
believes at its roots was a desire to better men and women around a 
common set of core ideas and values. Their time with Greek InterVarsity 
helped them want to advance Greek life on campus that more holistically 
reflected these original ideas and values than living into the 
perceived public image of just partying. The commenter believes that 
those in the Greek system are grown and challenged in this stage of 
life in such a way that it helps prepare and equip them to serve their 
communities at large after graduation.
Service
    A significant number of commenters discussed the community service 
that religious student groups perform, including many stories from 
current and former students about service projects through their 
religious student organizations. Many commenters shared how they were 
able to partner with other campus organizations or lead campus 
initiatives. One Christian campus organization was even given an award 
for forming successful partnerships with local, national, or 
international organizations in an effort to make a positive impact on 
society, according to a commenter from a public university. Religious 
student groups were where one commenter learned the power of ``us'' as 
opposed to ``me'' as an individual, and how much positive impact a 
group with the same mission can have. One commenter expressed how 
religious student groups build students up to empower them to do good 
in their communities.
    One commenter stated that participation in a religious student 
group set a foundation for charity and civic duties as a citizen. 
Another commenter believed that participation in a religious student 
group helped them to become a more intentional, compassionate person to 
care for others around them. Several commenters expressed that 
religious student groups taught them how to care and advocate for the 
marginalized in society. One commenter shared about how involvement 
with religious student groups exposed the student to topics related to 
their major of study such as systemic injustices, caring for the 
homeless and the marginalized, and how to care for the environment.
    Another commenter shared how religious groups would provide 
services to their campuses like cleaning up after fraternity campuses 
and working in soup kitchens. One commenter shared how participation 
enhanced their hospitality skills and ability to contribute to the 
campus environment.
    One former participant in a religious student group shared how a 
Christian group hosted a collective drive where they could engage the 
entire campus community to serve called ``Love Puerto Rico'', in which 
they collected supplies like generators, tarps, and extension cords 
that were sent to Puerto Rico to assist in Hurricane Maria relief 
efforts. Another commenter shared that their religious student group 
organized activities like serving the homeless, tutoring children, 
raising money for cancer research, and more similar service projects 
because of their religious beliefs. One commenter shared how their 
religious student group set up welcome events during the first weeks of 
school so students can get to know other students and build 
relationships on a campus where 95 percent of students commute from 
around the city. A commenter shared how a religious student group 
taught them to care about the global issues of the world and played a 
key role in educating them about fighting human trafficking and 
partnering broadly within the university to work together to create 
programs to help others fight human trafficking.
Soft Skills
    Multiple commenters shared how participation in religious student 
organizations can provide opportunities

[[Page 59931]]

to lead and enhance leadership and other practical skills. A commenter 
shared that they would not have developed as a leader if they had not 
joined a religious student group, since other leadership activities 
such as sororities were selective organizations with limited 
opportunities. One commenter recounted their experience with leadership 
in religious student groups which uniquely provided an opportunity to 
lead in their local community. Another commenter experienced lifelong 
benefits from the leadership training provided by religious student 
groups. Multiple commenters noted how involvement with religious 
student groups improved communication and organizational, in addition, 
to leadership skills. Another commenter noted how participation in a 
religious organization was an asset to the campus, as it increased 
their critical thinking skills, knowledge base, exposure to cultures, 
and provided a community. A commenter found that participation in a 
religious student group informed some students' career paths.
    Commenters noted the improvement to their educational environment 
from participation in religious student groups. One commenter noted how 
religious groups' participation provides a holistic education for 
students. One commenter recalled how participation in a legal student 
group throughout law school taught the commenter how to practice the 
law in the context of their faith, and another law student shared how 
participation in a religious student group created a forum in which law 
students could address related topics like the separation of church and 
state. Another commenter shared they learned to read religious texts 
and interpret them for themselves.
    One commenter added to the discussion on social benefits of 
religious student groups by noting how they learned to listen and value 
the perspectives of a diverse group of people--a skill the commenter 
stated was not taught inside the classroom. Multiple commenters 
observed how religious student groups provided forums for students to 
debate ideas. Another commenter described religious student groups as a 
safe environment to ask hard and meaningful questions. Another 
commenter elaborated that religious student groups were a space to 
explore questions of meaning and purpose and learn how to pursue things 
like social justice, racial reconciliation, and environmental 
stewardship on the commenter's campus and in the commenter's community. 
One commenter shared that, during the 1970s, a religious student group 
guided them to think about social issues like race and class.
    One commenter recalled how, although there were sometimes conflicts 
among groups, allowing student groups to have membership requirements 
allowed diversity that was a helpful preparatory experience for life. 
Another commenter added that their experience in a religious student 
group taught them how to respect others' beliefs and to engage 
congenially with those who have different religions. One commenter 
shared how exploring their faith in a Christian student group allowed 
them to grow to be more accepting of religious differences, more aware 
of the failings and strengths of their own faith tradition, and more 
desirous of genuine dialogue between differently-believing students on 
campus.
    One university professor who teaches political science and 
philosophy described their courses on ``church and state'' issues, 
where the class would debate this very issue as it has been a current 
event for the past few years. The professor was regularly unable to get 
their students to debate from the side of public universities that wish 
to discriminate against faith-based groups by requiring them to adopt 
``university standards'' for student leadership of their clubs. The 
students, whether for faith-based reasons or not, were virtually 100 
percent in agreement that clubs should be free to choose their own 
leaders and write their own constitutions without conforming to the 
university's requirements.
Administrative Burden on Religious Student Organizations
    Several religious student group representatives and commenters 
expressed relief that State legislatures had passed legislation to 
protect the integrity of religious student groups and therefore 
supported these regulations to apply federally. One commenter noted 
that the Department's adoption of the provision for religious student 
organizations would bring Federal policy in line with at least 15 
States that have enacted laws to this effect.\55\
---------------------------------------------------------------------------

    \55\ Commenter cited: 2019 Ala. Laws 396 (2019); Ariz. Rev. 
Stat. Ann. section 15-1863 (2019); Ark. Code Ann. section 60-60-1006 
(2019); Idaho Code section 33-107D (2019); S.F. 274, 88th Gen. Ass. 
1st Sess. (Iowa 2019); Kan. Stat. Ann. section 60-5311-5313 (2019); 
Ky. Rev. Stat. Ann. section 164.348(2)(h) (LexisNexis 2019); La. 
Stat. Ann. section 17:3399.33 (2018); N.C. Gen. Stat. section 115D-
20.2, 116-40.12; Ohio Rev. Code Ann. section 3345.023 (LexisNexis 
2019); Okla. Stat. tit. 70, section 70-2119.1 (2014); H.B. 1087, 
94th Leg. Assemb., Reg. Sess. (S.D. 2019); Tenn. Code Ann. section 
49-7-156 (2017); S.B. 18, 86th Leg. (Tex. 2019); Va. Code Ann. 
section 23.1-400 (2013).
---------------------------------------------------------------------------

Derecognition
    One university student shared their story of administrative 
interference in which a State university system refused to allow 
religious groups to have any faith-based qualifications for their 
leaders, prompting concern among religious groups that their leaders 
would not be required to agree with their mission or teach their faith. 
The commenter explained how the university's rules forced their 
religious organization to choose between getting registered and risking 
their specific beliefs being watered down or having strong leaders who 
could authentically teach the faith while losing their status as a 
registered group for nearly one year. The group chose not to compromise 
their beliefs and accept a non-registered status which lost them 
benefits granted by the university. The group was unable to host all of 
its usual events since they had to pay for a space on campus in which 
to hold their meetings at an unsustainable cost.
    One commenter shared that well-intended anti-discrimination 
policies at both public and private universities can be used in an 
``indiscriminate'' manner that nearly undermined the ability of the 
campus ministry in which the commenter participated. Their group was 
threatened with de-recognition if they had any faith criteria for their 
leaders.
    A university professor who serves on the national board of a 
student-focused ministry organization, shared how at their university 
within the last three years, student groups have been told that they 
cannot be recognized as a student group because ``there are too many 
Christian groups'' on campus or because their leadership is unable to 
confirm that they will comply with university non-discrimination 
requirements which directly contravene the religious tenets that the 
religious groups embrace. Although these decisions were appealed and 
mostly reversed, the student groups experienced weeks of delay arising 
from prejudice or misconceptions. The commenter shared that even when 
the decision was eventually reversed, it unnecessarily exacerbated 
polarization which discourages discussion and debate of important ideas 
on campuses.
    A college denied the application of a religious student 
organization because the university alleged that there were ``enough of 
those'' religious student organizations. This organization was denied 
official recognition so it could not use college facilities or be 
listed as a resource for students.

[[Page 59932]]

    A religious student organization at a public university's school of 
law explained how their student organization, along with other 
religious organizations, were threatened with exclusion from campus 
because of their religious beliefs. The university eventually rescinded 
its proposed policy change that threatened these groups, but the 
university failed to adopt a written policy to assure religious groups 
that it would not someday adopt the detrimental policy. This commenter 
expressed how Federal regulations would help make a final decision for 
universities.
    A representative from an on-campus religious student organization 
shared how they were actively involved with university service projects 
and complied with all university requirements set by the university. 
Yet twice, the organizations faced de-recognition because the religious 
student group required students to agree with the beliefs and mission 
of the religious organization. The group spent a year negotiating with 
the university to resolve the question, and the second time, it was 
necessary to procure help from State legislators to pass religious 
protections. This commenter supported expansion of these regulations on 
the Federal level.
    One commenter recalled their involvement with a religious student 
group and how it was harassed by complaints and even kicked off many 
college campuses. The people complained that since the religious group 
required leaders to believe in their way of life that the religious 
group leaders were discriminating against other religions, so that 
religious groups would not be able to choose leaders who share their 
authentic religious beliefs. The commenter wants to see religious 
student groups treated equally.
    One commenter shared that they learned that a public university's 
student government tried to de-recognize several religious student 
groups because the groups expected their leaders to agree with their 
beliefs. While the issue was forgotten for some time, it resurged and 
distracted the student group leadership from investing in their 
community.
    A former member of a religious student group at a public university 
shared how the organization submitted its constitution for approval as 
a registered student organization, but it was rejected because the 
constitution suggested that student leaders had to agree with the 
group's fundamental beliefs. The commenter expressed that it appeared 
the administration was singling out this group because the purpose of 
the organization is religious. The university did allow the 
organization to register after a year of effort and forced the 
organization to change the wording of its constitution.
    A current student at a public university shared how the commenter's 
university student government tried to stop religious student 
organizations from having faith-based criteria for their leaders. 
Several groups expressed concern that such a requirement would lead to 
singling out religious groups because other organizations could expect 
leaders to agree with their purposes, but religious groups could not 
because their purposes were religious. The administration had to 
override the student government and agreed that religious student 
groups could have religious requirements for their leaders.
    One commenter, whose husband served as the staff sponsor for a 
campus Christian fellowship student club at a public university, 
recalled how their religious student group was banned from campus 
because of a State university system regulation that forbade student 
clubs from imposing ideological requirements on their student leaders. 
After communicating with the religious student group's parent 
organization, the chancellor of the university system recognized the 
unconstitutionality of its arbitrary requirement and allowed the club 
back on campus the following year.
Administrative Delay
    A commenter from a public university's school of law shared that it 
took one year for the university to recognize the commenter's religious 
student group as a registered student organization; the delay was 
largely caused by confusion surrounding the organization's desire to 
have a statement of faith requirement for their board members. The 
organization felt this was necessary because many of its board members' 
duties outlined in the by-laws involved leading the group in prayer, 
worship, Bible studies, and fostering members' spiritual growth. The 
administration prolonged the decision because it stated that it would 
have to amend the school's organizational policies to permit faith-
based student organizations to require such a statement of faith for 
board members. The organization was forced to navigate a bureaucratic 
maze to amend the university's underlying organizational documents and 
risked the inability to be recognized.
    A student leader in a religious student group at a public 
university recalled how the university announced it was changing its 
policy so that religious student organizations could not require their 
leaders to agree with their religious beliefs. Only through official 
recognition, the commenter recalled, were religious groups able to 
partner with the atheist club, for example, to host events like public 
debates. After some struggle, the campus organization collaborated with 
the university to pass a policy which allowed religious groups to 
uphold standards for their leaders.
    A member of a religious student organization at a law school 
commented that they attended an event at another local law school with 
students who had to change the name of their organization because of 
administrative hurdles.
Denying Access to Resources
    A commenter from a public university shared how, on top of facing 
public criticism because of their beliefs, their religious student 
group faced administrative hurdles like a lengthy appeal process to get 
funding for an event that non-religious groups have never struggled to 
fund. A commenter who worked with a Catholic student group on more than 
100 campuses across the U.S. shared how they have encountered 
resistance while bringing viewpoint diversity to college campuses. 
Their organizations had often been deprived from accessing campus 
facilities, funding, free speech, and even approval from the university 
based on their orthodox beliefs, even though these chapters help 
students to think critically and better prepare them for life.
    A commenter shared how their religious sorority was allowed to 
collectively profess its faith while some sister chapters were unable 
to do so. They stated that difficulties have been caused by the 
organization's requirements for members to affirm basic religious 
beliefs, so the national organization had to eliminate the requirement 
that chapters achieve campus recognition. They stated that this was 
done to maintain the religious groups' convictions, but the 
consequences included organization members being unable to acquire 
space reservations on campus without fees, unable to advertise, and 
unable to affiliate themselves with the brand name of the university, 
among other complications.
    A community member and advisor for a student organization at a 
public liberal arts college shared how some of the student leaders were 
told not to approach students on campus because of a solicitation 
policy which was enacted to restrict commercial speech or canvassing. 
The commenter stated that the university rewrote the policy based

[[Page 59933]]

on the religious organization's activities to target the group. The 
religious organization sent a letter from legal counsel to get the 
university to correct the overbreadth of its solicitation policy.
Other
    A legal practitioner who has represented Christian ministries that 
have faced pressure or exclusion from the campus community because of 
the group's beliefs and the application of these beliefs to membership 
and leadership expressed concern about the ongoing confusion about 
religious organizations' rights.
    A campus minister expressed support for the rule because, even 
though they worked at a private institution, they had seen their 
colleagues be discriminated against under the guise of 
nondiscrimination.
    A commenter shared that religious student ministry at a public 
university was an outstanding example of contributing to the campus, 
yet religious student groups had been discriminated against for 
upholding and practicing religious teachings that the group espoused.
    An attorney shared that they had heard many examples of student 
groups at the secondary, college and graduate levels who had 
encountered arbitrary and unfounded opposition from administrators and 
educators, including two cases reviewed by the U.S. Supreme Court. The 
commenter observed that the value of diversity has been used to 
disadvantage religious groups while it is applied more favorably to 
other groups. This commenter shared that confronting universities about 
discriminatory policies is expensive, confrontational and time-
consuming which depletes resources that could be better used.
    A political science professor wrote that they served as a faculty 
advisor for many of these organizations and had suffered through 
administrative discrimination and denial of privileges on campus.
Equal Treatment
    A commenter expressed support because students need a sanctuary 
where they can practice their religious beliefs, like the sanctuary 
that other organizations afford. The commenter worried that culture 
exempts religious organizations from teachings about tolerance, and 
that religious organizations are not being treated equally according to 
the U.S. Constitution.
    Commenters overwhelmingly stated that universities should provide 
services, spaces, and access to diverse student groups, including 
religious student groups, on an equal basis. Many commenters expressed 
that religious students must have equal rights in order for public 
universities to remain truly tolerant of all people and to protect 
diversity on campuses.
    A commenter shared that universities should safeguard the 
environment in which students are supposed to express themselves 
freely, especially regarding freedom of religion. The commenter 
clarified that separation of church and state as conceived by America's 
Founding Fathers was not intended to silence religious expression.
    A commenter stated that if religious student groups are not being 
treated equally, then this is discrimination and oppositional to the 
U.S. Constitution's protection of religious freedom.
Harms Suffered as a Result of Unequal Treatment
    Several commenters wrote that stripping students' religious groups 
of their distinctiveness or kicking them off campus brings hardship and 
mental stress to students, making universities hostile to these 
students. Another commenter warned that when these religious groups are 
threatened by the university for their religious convictions, great 
stress and anxiety plague student members who then need to use their 
energy and resources not for studying but instead for fighting for 
space to exist on campus without harassment. This commenter also 
described how religious groups provide support and help for their 
members to be able to thrive as students. Another commenter added that 
religious student groups allow students to manage stress, while denying 
equal treatment to religious student groups brings hardship and mental 
stress. Another commenter wrote that religious student groups can 
develop students' moral compasses that can decrease depression, drug 
use, and anxiety that are so common on campus today. A licensed 
psychologist who formerly participated in a religious student group 
wrote that these organizations offer critical stress relief through 
community and provide support, care, and mentorship to the college 
students.
    A commenter wrote that denying religious student groups equal 
treatment would disadvantage individuals of faith in their formation, 
expression and service with no benefit to those outside of the faith 
other than stunting their awareness of the diverse faith culture in 
which they participate. Another commenter wrote that to deprive and 
limit campus access is to ensure an education that will lack a capacity 
for compassion that has always stood ready to care for the nation's 
poor and to serve others in time of national calamity or regional 
crisis.
    A national campus ministry wrote of the tremendous loss when a 
religious student group is refused registered status. They stated that 
such a group becomes essentially a second-class group, becomes more 
isolated, and loses credibility with students. It also often 
experiences considerable (and often prohibitive) financial costs, 
required to pay for the use of campus facilities that are made 
available to registered organizations at no cost. The campus community 
is harmed as well, because diversity is most rich when authentic 
belief-based expression by both individuals and groups is allowed to 
flourish.
Contribution to Diversity
    Many commenters expressed support for the regulations because they 
would increase ideological diversity which contributes to a more robust 
university environment. Some commenters noted the significance of this 
since public institutions are taxpayer-funded. A significant number of 
commenters, including organizations that represent various religions 
stated that universities should be diverse and inclusive spaces for all 
students and should treat religions equally. These organizations 
supported the regulations so that religious student groups will be 
treated fairly. Several commenters clarified that diversity is only 
achieved when all religions are respected. Some commenters added that 
religious student groups have a distinctive need to be protected so 
that organizations can operate with integrity. Many commenters shared 
that allowing religious student groups to fully express their 
convictions uniquely contributes to campus diversity.
    Many commenters expressed the value of diversity on campuses. One 
commenter stated that universities should be places where students 
grapple with different viewpoints, so allowing the diversity that 
religious student organizations bring would enhance cross-cultural and 
conflict conversation competencies. A commenter asserted that more 
diversity leads to a more balanced perspective at universities. A 
commenter shared that diversity and inclusion are fundamental to 
students' education and development and granting equal access to these 
religious student groups would aid diversity and inclusion on campuses. 
Additionally, a commenter added that diversity and inclusion are 
measured by how well an institution tolerates students whose opinions 
and life principles the

[[Page 59934]]

institution may disagree with and how they are allowed to practice 
those principles. Another commenter noted that religious diversity 
increases tolerance.
    One commenter contended that an institution prevents diversity on 
campuses by not allowing religious student groups to practice their 
religion with integrity. One commenter stated that beliefs cannot be 
uniform among a freethinking people, so valuing safety over free 
expression will have a disparate impact on the nation's intelligence.
    Many commenters supported the regulation to prevent discrimination 
against religious student groups seeking to live out their values. One 
commenter expressed concern over certain ideologies silencing 
religious, conservative ones. The commenter advocated for more 
diversity, fed by religious student groups' activity, to create greater 
diversity of belief, experience, and opinion ultimately to create a 
more robust university environment for the free exchange of ideas. One 
commenter expressed concern over their children's college environment 
where conservative students could face bullying, isolation, among other 
social repercussions, and emphasized that truly inclusive diversity is 
needed. Another commenter warned that religious student organizations 
should not be marginalized simply because other prominent ideologies in 
society disagree with them. One national women's organization expressed 
concern over discrimination against religious student groups and 
emphasized that religious student groups should be treated equally. 
They supported the new rule because they stated it would bring the 
Department in line with the President's Executive Order on Improving 
Free Inquiry, Transparency, and Accountability at Colleges and 
Universities to protect the First Amendment rights of students of all 
faiths at public post-secondary institutions.
Social Benefits
    A non-profit law firm stated that religion and the social networks 
and organizations surrounding it are crucial in transmitting civic 
norms and habits, such as belonging to a community organization, 
especially a health-related one, youth-serving organizations, 
neighborhood and civic associations, fraternal and service 
organizations, and even professional and labor groups.
    A commenter wrote these clubs bring vibrancy and diversity of 
belief, opinion, and experience, creating a more robust university 
environment to engage in the free exchange of ideas. One commenter 
expressed the need for free speech and First Amendment protections and 
shared a 2010 survey of college students which found that only 36 
percent agreed with the statement that ``it is safe to hold unpopular 
views on campus.'' This number drops to 30 percent for seniors, and 
only 16.7 percent of faculty agreed with the statement. The commenter 
elaborated that the free market of ideas sharpens students' critical 
thinking skills. They stated that protecting the First Amendment will 
save students and universities from costly litigation.
    A commenter whose daughter participated in a religious student 
group shared that religious student groups are places where belief 
systems and cultures can be explored along with other intellectual 
pursuits. Another commenter noted how religious student groups afford 
students the opportunity to explore faith, examine and choose, as an 
adult, a path they may want to follow. An additional commenter wrote 
that the university experience is a key time for intellectual 
development and character formation, so diversity added from religious 
student groups is profitable to students. Many commenters underscored 
that students ought to be allowed to learn from a multiplicity of 
viewpoints to form their own convictions while forming common ground 
with and respect for other beliefs. They stated that all students need 
to be taught critical thinking and be exposed to all intellectual and 
religious ideas so that they can be intelligent, wise, and fair-minded 
individuals.
    Other commenters emphasized how spiritual maturity is important in 
an educational environment where students are pursuing their future 
vocations.
    A retired university professor supported the proposed regulations 
because they saw much growth in young people based on the open exchange 
of ideas, both in the classroom and through extra-curricular 
activities. The commenter advocated that the Department adopt these 
regulations so that religious student groups will have the ability to 
contribute to this exchange from their own religious identity and 
character.
    A commenter wrote how religious student groups increase belonging 
on campuses. Religious student groups provide students with great 
encouragement and a place to feel they belong--this is especially 
needed and true for freshman that have left home and now have 800 
people in their history class or 30,000 students on their campus. These 
religious student groups provide mentorship, leadership, and training. 
A different commenter stated these activities occur because of the 
religious organization's unique characteristics. Many commenters shared 
personal testimonies of how religious student groups created community 
and life-long friendships, especially amid stress. Another commenter 
clarified that these institutions are not riddled with hazing, sexual 
abuse, or similar scandals as are other college organizations. A 
commenter noted that groups like Hillel and InterVarsity serve 
important constituencies well in an increasingly polarized society. 
Another commenter wrote that student's religious and spiritual beliefs 
are a key part of their identity, and many have a strong desire to 
connect with other students who share their same identity, yet 
oftentimes religious student organizations are the most active 
organizations on campus, and the most welcoming to people of all (or 
no) spiritual background to their events and activities on campus.
    Many commenters unpacked the benefits of spiritual development on 
students and the campus as a whole. One commenter observed spiritual 
development is critical to ensuring a stable future for our country. A 
commenter explained that spiritual development contributes to students' 
whole moral, conscious, and character growth. Another commenter shared 
how participation in a religious student group creates spiritual habits 
that often result in a lifetime of community service. Many commenters 
observed the community contributions religious student groups make 
through charity activities, giving, volunteerism, outreach to engage in 
civil services, etc. Other commenters shared the values that are 
promulgated by religious student groups including caring for others, 
community, temperance, leadership, community, justice, gratitude, 
prudence, and actually much more tolerance than those trying to 
eliminate them.
    Another commenter who serves as a non-profit leader who works 
predominantly with students of color stated that they believe the 
community afforded by campus religious organizations significantly aid 
in the social and academic flourishing of all college students and 
especially those from historically marginalized communities. A 
commenter recalled how they had seen a religious student group help 
homeless students find shelter and food, emotionally hurting students 
find truth and healing, over-

[[Page 59935]]

achieving and perfectionistic students find grace, students who lack 
confidence become leaders of their peers, students take risks to start 
groups that encourage and support other students who were hurting, and 
students in general become more loving, competent, and contributing 
individuals.
Improvements to Educational Environment
    One commenter supported the regulations because they stated they 
would inherently enhance the total cause of public education, and 
another commenter shared how university cultures are greatly enhanced 
by the presence of religious organizations. More specifically, a 
commenter believed one of the most important functions of our 
universities is to expose students to diverse ideas in order to 
understand the world and as a means of helping them learn to think 
logically and rigorously about ideas. Additionally, they stated that 
universities should help equip students to better discern truth from 
falsehood, fact from fiction, and wish from reality. Furthermore, a 
commenter shared that a thriving institution is one that supports a 
student's moral integrity, which is based upon religious beliefs and 
not simply academia, which would support student morale and campus 
well-being. Another commenter echoed the value of diversity, stating 
that universities are precisely a forum for exploring different and new 
ideas, and for deepening knowledge in areas of interest. Developing 
one's own spirituality helps human beings cope better with life's 
stresses, and religious groups may provide just that support to 
students on campus.
Concerns With Government Interference or Entanglement
    A commenter observed that universities denying religious 
organizations the ability to impose moral criteria effectively bans the 
organization. Another commenter expressed discontent over State 
university administrators deciding which religious student groups are 
allowed or excluded.
    Another commenter stated that these regulations would support the 
constitutional rights guaranteed under the Establishment Clause--
government officials never should be allowed to dictate to religious 
groups their leadership standards, and government officials should 
never be able or allowed to penalize religious groups because of their 
religious beliefs and speech. Commenters stated that a national 
standard, codified by these regulations, would provide consistent 
protection for students' speech and religious freedom regardless of 
which State a student chooses to move to in order to attend college. 
Another commenter expanded on the argument that universities should not 
be picking which groups can receive equal treatment, since public 
university administrators and faculty are on the public payroll. The 
commenter stated that they administer public funds, yet they use 
taxpayer money against members of the public when they (a) deny 
approval for a group of Christian students to meet in a building on 
campus, (b) revoke approval to post notices of their events on campus 
bulletin boards, (c) require sponsorship by a member of the faculty in 
order to exist on campus, or (d) exclude the group from receiving a 
share of the distribution of student activity fee revenues because of 
the group's religious nature. Another religious student group expressed 
support that the proposed regulations would emphasize that no religion-
based discrimination against faith-based entities will be accepted at 
any stage of the funding process.
    Many commenters expressed concern over increasing intolerance of 
free speech and religious viewpoints which may deviate from mainstream 
thought on college campuses, noting that many colleges have shown 
intolerance towards religious organizations by driving them off 
campuses. Many commenters identified Jewish, Muslim, Catholic, and 
Protestant organizations, in particular, as targets of religious 
discrimination. Several commenters posed that university officials were 
penalizing religious groups specifically because of their beliefs and 
speech, so they were dictating their leadership standards to the 
religious groups. A commenter argued that such penalization and 
dictation of leadership standards violated the Establishment Clause. A 
few other commenters suggested that students were physically at risk 
when speaking controversial viewpoints and are not always protected by 
campus security, so they supported these regulations to provide support 
and protection to these groups. Another commenter shared that among 
many other clubs that select leadership based on the alignment with a 
code of conduct or set of beliefs, people of faith, alone, have been 
singled out by universities and harassed on the basis of those beliefs. 
A commenter stated that seemingly offensive speech is not a 
justification for institutions of higher education which receive 
Federal funds to disrespect fundamental First Amendment rights and that 
the State cannot choose which morality and ideologies it allows. 
Another commenter added government should neither favor nor oppose 
religion, so public academic institutions should be handling religious 
issues exactly the same way as the government, in a completely neutral 
fashion.
    One non-profit organization that supports campus ministries across 
the United States supported non-discrimination policies and believes 
that they should be used to protect against invidious discrimination. 
They stated that non-discrimination requirements should protect, rather 
than penalize, religious groups that want to retain their distinct 
religious character. This organization strongly supported the proposed 
regulations because student organizations need protection from 
administrative overreach by universities and colleges. According to 
this organization, the proposed regulations, thus, strengthen current 
non-discrimination policies.
    Another commenter expressed that for a college to kick a group off 
campus unless they allow leaders who contest the very principles for 
which the group stands, is a surefire way to destroy religious liberty 
on campus. The commenter stated that not only are such campus policies 
unfair to religious groups (and such policies have typically arisen 
from a desire to single out such groups), but such policies deprive 
people of their First Amendment rights.
    A commenter wrote that denying a religious organization access to a 
public campus may impede growth toward religion while growth away from 
religion continues unfettered; this creates a bias against religion and 
impedes students' religious freedoms. This commenter stated that 
derecognition is a punitive action and derecognizing religious 
organizations on public college campuses is a violation of religious 
freedom.
    One commenter expressed strong concerns about anti-conservative, 
religious bias in America that is being manifested on U.S. campuses, 
including destruction of property and heckling, among other problems.
Religious Integrity
    A significant number of commenters shared that universities do 
themselves and their students a disservice when a religious student 
group's ability to retain their distinct religious identity and 
character is hindered and the group is discriminated against on the 
basis of religious conviction. The commenters stated that religious 
student groups make their best contribution to campus

[[Page 59936]]

life when they retain their distinct religious identity and character. 
They contended that the proposed regulations would make that possible 
on every public campus.
    Many commenters expressed that a religious institution should be 
allowed the freedom to uphold the values it holds close in regard to 
who it hires, fires, and what activities are allowed on campus based on 
the particular tenets of their faith practice, corresponding with the 
value that America places on freedom of religion. They stated that 
student organizations on college and university campuses should be able 
to select leaders who share the organizations' goals and mission. But 
they also noted that religious groups, including Jewish, Muslim, and 
Catholic student organizations, have been discriminated against for 
requiring that their leaders uphold and practice the religious 
teachings that the group espouses.
    Many commenters drew analogies regarding organizations' right to 
choose leadership that reflects their values, priorities, or skills. 
For example, one commenter drew the analogy that a male football team 
would not be led by a woman, a female acapella group is not led by a 
man, Phi Beta Kappa is not led by someone with poor grades. Further, 
this commenter observed that groups like Phi Beta Kappa are not 
criticized for discriminating based on intelligence nor fraternities or 
acapella groups for excluding membership based on sex, so religious 
organizations should not be considered any differently.
    Another commenter supported these proposed regulations and noted 
that under Title VII of the Civil Rights Act of 1964 (``Title VII''), 
if a factor such as religion, sex, or national origin, etc., is 
reasonably necessary in the normal operation of an organization to 
carry out a particular job function, then that factor is bona fide 
occupational qualification, and the use of such a factor is not 
considered discriminatory. A commenter supported the proposed 
regulations because setting standards for the leaders of our 
organizations, whether religious or secular, is the best measure to 
protect the core values, character and mission of such organizations. 
This commenter stated that a scientific society would quickly lose 
effectiveness and credibility if it allowed its leadership to be 
infiltrated by those who do not believe or subscribe to the 
``scientific method'' as the best course for research and scientific 
discovery. Another commenter noted that leaders sharing basic 
convictions of the religious organization allowed the commenter to 
understand the organization and expect consistency. According to this 
commenter, leadership sharing these convictions allows for the 
organization to build upon common ground and grow. The national 
director of a major nonprofit and interdenominational campus ministry 
operating hundreds of groups at campuses across the U.S. supported the 
proposed regulations for reasons related to religious integrity because 
these proposed regulations recognize the value of association around 
common interests, reflect protections afforded other associative groups 
at universities, and affirm that an associative group can and should be 
led by those who fully agree with the purpose(s) of the group.
    A non-profit law firm elaborated that because personnel is policy, 
any organization dedicated to advancing a particular cause must ensure 
that those who lead it are actually committed to that cause. Thus, 
organizations dedicated to advancing a particular cause, whether the 
College Democrats, the College Republicans, the Christian Medical 
Association, Chabad on Campus, or any other group formed around a 
common cause or belief should be permitted to maintain membership and 
leadership standards that ensure the common cause is furthered.
    Another commenter shared that religious organizations' values and 
beliefs, particularly, make them positive contributors to campus life, 
so the proposed regulations, which would extend equal treatment to 
religious student groups, would make the public campus a welcoming 
environment for all.
    A commenter wrote that, based on many conversations they had over 
the past few years, the ability of each group to retain that its unique 
religious identity can only be truly protected by regulations such as 
this--to once and for all end the discrimination that too often happens 
and lessen the fear of lawsuits if institutions try to protect groups 
that others want to keep off campus. Another commenter added that 
further legal protection is needed for religious student groups, given 
the polarized climate.
    Another commenter reflected that faith and interfaith groups have 
become increasingly sponsored and promoted in the workplace as a part 
of a larger diversity and inclusion measure. Since universities educate 
tomorrow's workers, universities should mirror these trends and provide 
students the opportunity to explore faith during their formative years.
    A commenter stated that having a diversity of groups requires 
organizations being able to elect their own leaders. This commenter 
also stated that the Establishment Clause is violated when government 
officials dictate to religious groups their leadership standards or 
when such officials penalize religious groups because of their 
religious beliefs and speech.
    One commenter reasoned that denying religious groups their 
identities makes every organization equal if it is not able to express 
its core values and beliefs and that having such groups increases 
understanding and acceptance while allowing college students to grow.
    One particular religious group strongly supported the regulations 
because they support the right of student organizations to maintain 
core religious beliefs as necessary for group membership and 
leadership. They contended that students do not lose constitutional 
rights simply because they step onto a college campus. Public 
university officials abridge the guarantees of the First Amendment when 
they limit students' ability to freely assemble and gather around their 
most deeply held beliefs.
    One commenter wrote in support of the proposed rules because 
education is an area of significant importance in Judaism, and they 
believe that these proposed rules would help foster a better 
environment in which Jewish Americans can educate their children. They 
argued that the proposed regulations would also play an important role 
in safeguarding the rights of Jewish student organizations on public 
college campuses.
    One commenter reasoned that removing membership/leadership 
qualifications gives space for leaders with dangerous motives (such as 
someone seeking to manipulate others) to enter a leadership position, 
posing a risk to belief-based organizations.
Clarity
    A significant number of commenters expressed support for the 
proposed regulations because they would clarify longstanding confusion 
over religious organizations' role and rights on university campuses. 
They noted how these regulations would add clarity for both religious 
organizations and campus administrators by instituting clear standards.
    Discussion: The Department appreciates these comments in support 
and agrees that religious student organizations play an important role 
at public institutions of higher education. The Department revises 
Sec. Sec.  75.500(d) and 76.500(d) to expressly note that the 
provisions, concerning religious student

[[Page 59937]]

organizations, constitute material conditions of the Department's 
grants. The Department consistently characterized the provisions in 
Sec. Sec.  75.500(d) and 76.500(d) in the NPRM as material 
conditions.\56\ The tremendous amount of support for these provisions 
demonstrates that these regulations are indeed material and necessary 
to reinforce First Amendment freedoms at public institutions. The 
Department has revised its other provisions in Sec. Sec.  75.500(b)-(c) 
and 76.500(b)-(c) regarding compliance with the First Amendment for 
public institutions and freedom of speech, including academic freedom, 
for private institutions to reflect that these provisions are material 
conditions, consistent with the characterization of these provisions in 
the NPRM. The Department wishes to note that all of the provisions in 
Sec. Sec.  75.500 and 76.500 promulgated through these final 
regulations are material conditions.
---------------------------------------------------------------------------

    \56\ See, e.g., 85 FR 3191, 3199, 3214.
---------------------------------------------------------------------------

    Additionally, commenters described a myriad of ways in which public 
institutions may treat religious student organizations differently than 
other student organizations. In response to these comments, the 
Department revised the parenthetical in Sec. Sec.  75.500(d) and 
76.500(d) that includes a non-exhaustive list of examples of how a 
public institution may deny a religious organization a right, benefit, 
or privilege that is otherwise afforded to other student organizations 
at the public institution. As commenters raised the issue of public 
institutions denying religious student organizations student fee funds 
provided to other student organizations and as the Supreme Court of the 
United States decisively ruled on the distribution of student fee funds 
to religious student organizations in Rosenberger v. Rector & Visitors 
of the University of Virginia,\57\ the Department revises the 
parenthetical to include distribution of student fee funds as one way 
in which a public institution may treat a religious student 
organization differently than other student organizations.
---------------------------------------------------------------------------

    \57\ 515 U.S. 819 (1995).
---------------------------------------------------------------------------

    Changes: The Department revises Sec. Sec.  75.500(d) and 76.500(d) 
to state that the provisions related to religious student organizations 
at public institutions constitute a material condition of the grant. 
The Department also revises the parentheticals in Sec. Sec.  75.500(d) 
and 76.500(d) that include a non-exhaustive list of examples of how a 
public institution may deny a religious organization a right, benefit, 
or privilege that is otherwise afforded to other student organizations 
at the public institution. The Department specifically includes 
distribution of student fee funds in this non-exhaustive list. The 
Department makes a technical correction in Sec.  75.500(d) to refer to 
grantees that are public institutions to align with the language in the 
remainder of Sec.  75.500. The Department makes a technical correction 
to Sec.  76.500(d) to refer to States or subgrantees that are public 
institutions to align with the language in the remainder of Sec.  
76.500(d).

Comments in Opposition

Separation of Church and State & Concerns Under the Establishment 
Clause of the First Amendment
    Comments: Several commenters asserted that the proposed regulation 
pertaining to religious student organizations violates the 
Establishment Clause. One commenter argued that the Establishment 
Clause bars the government from making accommodations for religion that 
impose significant burdens on third parties, such as students or 
nonreligious organizations. Another commenter stated that the final 
regulation would expand the allowable use of Federal financial 
assistance to support religious instruction, worship, and 
proselytization. The commenter noted that the First Amendment prohibits 
the government from directly funding religious instruction, worship, 
and proselytization, as the Supreme Court held in Locke v. Davey.\58\ 
Other commenters maintained that any organization that makes the choice 
to exclude classes of people based on religion, race, gender identity, 
or sexual orientation should not receive public tax dollars.
---------------------------------------------------------------------------

    \58\ Locke v. Davey, 540 U.S. 712 (2004).
---------------------------------------------------------------------------

    One commenter who identified as a former Episcopal chaplain at a 
large public university stated that this commenter's campus ministry 
included a student organization recognized by the university. This 
commenter noted, however, that there was no expectation that the 
university help fund the chaplain's ministry and that the funding came 
entirely through the Episcopal church. This commenter further noted 
that other campus ministries at that university used this same approach 
to separation of church and state and advocated that the Department 
maintain such a separation. Commenters also argued that, because we 
live in a pluralistic society, it is inappropriate for publicly funded 
institutions to fund religious student organizations at all. Commenters 
maintained that no public funds should support religious student 
organizations, but rather, churches alone should fund such student 
groups. These commenters argued that Thomas Jefferson's ``wall of 
separation'' is more important than ever in our diverse world. 
Commenters also stated that the Constitution demands that our 
children's ability to get an education must never depend on whether 
they share the religious beliefs of any government-funded organization.
    Commenters also contended that the religious exemption violates the 
Establishment Clause's prohibition on government promotion or 
advancement of religion. According to this commenter, in Corporation of 
Presiding Bishop v. Amos, the Supreme Court explained that the Title 
VII exemption allows ``churches to advance religion,'' which does not 
violate the Constitution.\59\ The commenter contended that the case 
would have been different had ``the government itself . . . advanced 
religion through its own activities and influence.'' \60\ The commenter 
concluded that unlike in Amos, here the government itself is involved.
---------------------------------------------------------------------------

    \59\ 483 U.S. 327, 337 (1987).
    \60\ Id.
---------------------------------------------------------------------------

    Discussion: The Department disagrees with commenters who state that 
the regulation violates the Establishment Clause. It is a well-
established principle that public institutions may provide benefits to 
religious student organizations without running afoul of the First 
Amendment. Indeed, ``[i]f the Establishment Clause barred the extension 
of general benefits to religious groups, a church could not be 
protected by the police and fire departments, or have its public 
sidewalk kept in repair.'' \61\ More specifically, ``the guarantee of 
neutrality is not offended where, as here, the government follows 
neutral criteria and evenhanded policies to extend benefits to 
recipients whose ideologies and viewpoints, including religious ones, 
are broad and diverse[.]'' \62\
---------------------------------------------------------------------------

    \61\ Widmar v. Vincent, 454 U.S. 263, 274-75 (1981) (internal 
quotation marks and citation omitted); Espinoza v. Montana Dep't of 
Revenue, 140 S. Ct. 2246, 2254 (2020) (``We have repeatedly held 
that the Establishment Clause is not offended when religious 
observers and organizations benefit from neutral government 
programs.'').
    \62\ Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 
819, 820-21 (1995) (citation omitted); see also Widmar, 454 U.S. at 
274 (internal quotation marks removed) (``[A]n open forum in a 
public university does not confer any imprimatur of state approval 
on religious sects or practices. As the Court of Appeals quite aptly 
stated, such a policy would no more commit the University . . . to 
religious goals than it is now committed to the goals of the 
Students for a Democratic Society, the Young Socialist Alliance, or 
any other group eligible to use its facilities.'').

---------------------------------------------------------------------------

[[Page 59938]]

    Not only is providing benefits to religious student organizations 
permitted under the Establishment Clause, but withholding benefits from 
religious student organizations because of their viewpoint or religious 
character is forbidden under the First Amendment, as the Supreme Court 
has repeatedly recognized in cases involving institutions of higher 
education.\63\
---------------------------------------------------------------------------

    \63\ Rosenberger, 515 U.S. at 846; Healy v. James, 408 U.S. 169, 
194 (1972); Widmar, 454 U.S. at 277; see also Martinez, 561 U.S. at 
685.
---------------------------------------------------------------------------

    Moreover, Sec. Sec.  75.500(d) and 76.500(d) strengthen the wall of 
separation between church and state by preventing public university 
administrators from violating the First Amendment by interfering with 
religious beliefs or becoming entangled with religion. The Supreme 
Court has found this kind of interference unconstitutional, like in the 
case of Widmar v. Vincent,\64\ in which the Court struck down a 
university policy excluding all religious groups from using school 
facilities. The Court observed that ``the University would risk greater 
`entanglement' '' between church and state because ``the University 
would need to determine which words and activities fall within 
`religious worship and religious teaching.' '' \65\ Similarly, it is 
improper for universities to decide what constitutes religious 
qualifications, or to determine which religious qualifications are 
acceptable. Indeed, ``[a]ccording the state the power to determine 
which individuals will minister to the faithful also violates the 
Establishment Clause.'' \66\
---------------------------------------------------------------------------

    \64\ Widmar, 454 U.S. at 274-75.
    \65\ Id. at 272, n.11.
    \66\ Hosanna-Tabor Evangelical Lutheran Church & Sch. v. 
E.E.O.C., 565 U.S. 171, 188-89 (2012).
---------------------------------------------------------------------------

    The Department notes that the final rule will not impose 
constitutionally significant burdens on third parties. First, the rule 
mandates equal treatment for religious student organizations as 
compared to their secular counterparts; these final regulations do not 
favor or disfavor religious student organizations or any particular 
religion. Second, the U.S. Constitution does not prohibit religious 
student organizations from excluding students from leadership because 
they do not meet an organization's religious qualifications, even 
though such exclusion may be potentially inconvenient or disappointing. 
Such exclusion under these final regulations is a permissible 
distinction based on religious belief or conduct. The alternative--
requiring faith-based groups to forgo their religious tenets when 
selecting leadership--violates their freedoms of speech, association, 
and free exercise. The First Amendment requires public institutions of 
higher education to refrain from infringing on this ecosystem of 
liberties unless a public institution adopts a true all-comers policy 
as explained in the ``All-Comers' Policies for Student Organizations'' 
section, below.
    Additionally, Sec. Sec.  75.500(d) and 76.500(d) support, rather 
than hinder, pluralism, as these regulations prevent public 
institutions from suppressing or discriminating against ideas in an 
academic setting. These final regulations ensure that institutions of 
higher education comply with Congress' mandate to ``facilitate the free 
and open exchange of ideas'' and prevent students from being 
``intimidated, harassed, [or] discouraged from speaking out, or 
discriminated against'' on account of their speech, ideas or 
expression.\67\ The Department thus disagrees with commenters who 
opined that the rule requires children to share the religious beliefs 
of a government-funded organization in order to obtain an education. 
Instead, Sec. Sec.  75.500(d) and 76.500(d)--which deal exclusively 
with student organizations, not the school's curriculum--increases the 
range of religious and ideological diversity to which students are 
exposed.
---------------------------------------------------------------------------

    \67\ 20 U.S.C. 1011a(2)(C)-(D).
---------------------------------------------------------------------------

    The Department notes that existing Sec. Sec.  75.532 and 76.532 
strictly prohibit any State, grantee, or subgrantee from using its 
grant to pay for religious worship, instruction, or proselytization. 
These final regulations do not alter Sec. Sec.  75.532 and 76.532 in 
any way. Assuming arguendo that the holding in Locke v. Davey requires 
such restrictions, the Department's existing regulations are consistent 
with the restrictions that the commenter believes Locke requires. The 
Department's existing regulations, thus, ensure that grants are not 
used in violation of the Establishment Clause.
    Lastly, these final regulations are not contrary to the 
Establishment Clause principles established in Corporation of the 
Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos 
because the government is not using its activities or influence to 
advance or promote religion, but is instead requiring public 
institutions not to deny to religious student organizations any right, 
benefit, or privilege that is otherwise afforded to other student 
organizations at the public institution. It accomplishes exactly what 
Corporation of the Presiding Bishop ruled was permissible: Allowing a 
religious group to exercise its religion without government 
interference.\68\ As the Supreme Court stated: ``A law is not 
unconstitutional simply because it allows churches to advance religion, 
which is their very purpose.'' \69\
---------------------------------------------------------------------------

    \68\ Corp. of Presiding Bishop of Church of Jesus Christ of 
Latter-day Saints v. Amos, 483 U.S. 327, 337 (1987).
    \69\ Id.
---------------------------------------------------------------------------

    Changes: None.
``All-Comers'' Policies for Student Organizations
    Comments: Several commenters opposed the changes to Sec. Sec.  
75.500(d) and 76.500(d) because they contended colleges have the right 
to require all student organizations, religious or nonreligious, to 
comply with nondiscrimination policies to receive funding or 
recognition in accordance with the holding in Christian Legal Society 
v. Martinez.\70\ Other commenters contended that the Department should 
not bar schools from applying neutral, generally applicable policies to 
religious student organizations. Commenters argued that it is 
inappropriate for the executive branch to foreclose all-comers policies 
by public colleges and universities. These commenters argued that these 
policy decisions are best left to institutions as informed by their own 
State laws.
---------------------------------------------------------------------------

    \70\ 561 U.S. 661 (2010).
---------------------------------------------------------------------------

    Many commenters noted that in Martinez, the Supreme Court upheld as 
constitutional a public university's all-comers policy that required 
student groups seeking official recognition to allow any student to 
join and participate in that group, including in elections for 
leadership positions. The Court held that such policies do not violate 
the free speech, expressive association, and free exercise rights of 
the students.\71\ The Court also concluded that all-comers policies do 
not violate the Free Exercise Clause.\72\ Rejecting the argument that 
such policies target religion, the Court explained that exempting 
religious groups from all-comers policies would provide them 
``preferential, not equal, treatment.'' \73\
---------------------------------------------------------------------------

    \71\ Id. at 683.
    \72\ Id. at 697 n.27.
    \73\ Id.
---------------------------------------------------------------------------

    Commenters also remarked that the proposed regulations would 
mandate the very same preferential treatment for religious student 
organizations that the Supreme Court held was not necessary in 
Martinez. Commenters noted that in Martinez, the Supreme Court held 
that where a school implements a nondiscrimination policy requiring

[[Page 59939]]

official, school-funded student groups to accept ``all-comers,'' the 
policy is a reasonable, viewpoint neutral condition governing the 
formal recognition of student organizations.\74\ According to 
commenters, in Martinez the Christian Legal Society argued that being 
required to accept members who did not share the organization's core 
beliefs about religion and sexual orientation violated First Amendment 
rights to free speech, expressive association, and free exercise of 
religion.\75\ The commenters asserted the Court recognized that it is 
``hard to imagine a more viewpoint-neutral policy than one requiring 
all student groups to accept all comers'',\76\ and that what the group 
actually sought was ``not parity with other organizations, but a 
preferential exemption from [the school's] policy.'' \77\
---------------------------------------------------------------------------

    \74\ Id. at 669.
    \75\ Id. at 668.
    \76\ Id. at 694.
    \77\ Id. at 669.
---------------------------------------------------------------------------

    Discussion: In Christian Legal Society v. Martinez, the Supreme 
Court considered a policy that ``mandated 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 [her] status or beliefs.' '' \78\ The 
Department emphasizes that Sec. Sec.  75.500(d) and 76.500(d) are 
consistent with the holding in Martinez, as these regulations do not 
prohibit public colleges and universities from implementing all-comers 
policies, nor do they bar these institutions from applying neutral, 
generally applicable policies to religious student organizations. By 
its very definition, a neutral policy of general applicability binds 
all organizations, and thus is permissible under Sec. Sec.  75.500(d) 
and 76.500(d); therefore, an authentic all-comers policy would be 
neutral and generally applicable.
---------------------------------------------------------------------------

    \78\ Id. at 671 (citations omitted).
---------------------------------------------------------------------------

    Under the stipulated facts of Martinez, the 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).'' \79\ The implications of such a 
policy were that ``the . . . Democratic Caucus cannot bar students 
holding Republican political beliefs from becoming members or seeking 
leadership positions in the organization.'' \80\ With respect to a true 
all-comers policy, pro-choice groups could not bar leadership positions 
from pro-life individuals; Muslim groups could not bar leadership 
positions from non-Muslims; the feminist group could not bar leadership 
positions from misogynists; and so on. Such a policy is constitutional 
under Martinez, but is not required by the U.S. Constitution or under 
the holding in Martinez. Indeed, many public institutions of higher 
education elect not to implement true all-comers policies due to these 
obvious practical difficulties.
---------------------------------------------------------------------------

    \79\ Id. at 709.
    \80\ Id. at 675.
---------------------------------------------------------------------------

    The final regulations would not, as one commenter suggested, 
mandate preferential treatment for religious student organizations. In 
Martinez, the religious student organization sought ``not parity with 
other organizations, but a preferential exemption from [the 
institution's all-comers] policy.'' \81\ Here, the Department requires 
parity among all organizations. A public institution of higher 
education may adopt a generally applicable policy, such as an authentic 
all-comers policy, which applies equally to all student organizations 
and which requires all student organizations to allow any student to 
participate, become a member, or seek leadership positions in the 
organization, regardless of the student's status or beliefs. A public 
institution also may adopt a generally applicable policy that allows 
all student organizations to set their own qualifications for 
membership and leadership. A public institution also may adopt other 
types of generally applicable policies with respect to student 
organizations as long as such policies apply equally to all student 
organizations, including religious student organizations. None of these 
scenarios give religious student organizations an exemption or 
preferential treatment, but merely equal treatment, which is required 
under the First Amendment.
---------------------------------------------------------------------------

    \81\ Id. at 669.
---------------------------------------------------------------------------

    Ultimately, Sec. Sec.  75.500(d) and 76.500(d) clarify that public 
institutions allowing student organizations to restrict membership or 
hold certain standards for leadership may not implement non-neutral 
policies that single out religious student organizations for 
unfavorable treatment. Numerous public commenters described instances 
in which disfavored treatment of religious student organizations occurs 
daily on college campuses nationwide, demonstrating the need for such a 
rule. Public institutions remain free to adopt generally applicable 
membership policies, such as an all-comers policy, but a public 
institution may not selectively enforce its policies to target 
religious student organizations so as to deny them any right, benefit, 
or privilege that is otherwise afforded to other student organizations 
at the public institution.
    Changes: None.
Religious Student Organizations Should Not Receive Special Protection 
or Receive Preferential Treatment
    Comments: Several commenters opposed the final regulations because, 
by not expanding the exception to other groups with specific viewpoints 
such as political or affinity groups, they stated the proposed 
regulations would allegedly grant faith-based student organizations 
preferential treatment. One commenter noted that student organizations 
at public colleges and universities constitute a public forum, and 
that, while these institutions may not discriminate based on viewpoint, 
they also cannot favor some viewpoints by granting special exemptions 
only to religious organizations.
    Numerous commenters also contended that schools should fund only 
those groups that serve ``the common good'' on their campus. Several 
commenters opined that ``strict sectarian groups'' do not support the 
common good. One commenter opined that a religious student group that 
believes in creationism or a flat Earth should not be equally eligible 
for money as a physics club. Another commenter contended that, by 
promulgating this regulation, the Department is attacking science, and 
the commenter predicted that such attacks will ultimately damage the 
nation's economy. Commenters also stated that the Department must not 
require colleges and universities to fund groups that contradict 
accepted science or discriminate against select groups of students such 
as LBGTQ+ individuals, racial minorities, or any other recognized 
group. Other commenters suggested that religious students are not the 
students that government programs are ``actually intended'' to help, 
that religious student groups should refrain from proselytization, and 
that religious groups experience disfavored treatment because they do 
not truly work ``for the good of all humanity.''

[[Page 59940]]

    Commenters opined that the final regulations would allow any 
religiously affiliated student organization to blackmail universities 
by claiming to be discriminated against if they did not receive money 
from their university each time they requested it. Several commenters 
remarked that schools should be able to discipline student 
organizations that practice exclusion and bias. Commenters also claimed 
that, if religious student organizations truly work for the good of all 
humanity as they say they do, such groups would not proselytize or 
discriminate against anyone, and therefore they would have no need for 
these final regulations.
    Discussion: The Department reiterates that the final regulations do 
not mandate preferential treatment for faith-based student 
organizations; instead, the regulatory text requires that religious 
student organizations not be denied benefits given to any other student 
group because of their religious nature. Therefore, rather than giving 
religious student organizations special treatment, the regulation 
explicitly requires the opposite outcome--that religious student 
organizations at public institutions be afforded equal treatment.
    Indeed, the substance of the numerous oppositional comments 
confirmed the need for a final rule requiring equal treatment for 
religious groups. First, contrary to the commenters who opined that 
religious student organizations do not contribute to the common good, 
the Department received a tremendous number of comments from students 
who had benefited personally, academically, and professionally because 
of participation in religious student groups. These commenters also 
described numerous ways in which their communities benefited because of 
service projects carried out by these religious student groups.
    Second, while the Department understands that not everyone agrees 
with the mission or beliefs of religious student organizations, the 
First Amendment requires public institutions of higher education to 
refrain from content-based or viewpoint discrimination under the Free 
Speech Clause and to protect the free exercise of religion under the 
Free Exercise Clause. Indeed, the Supreme Court has held that ``[s]tate 
power,'' which public institutions wield, ``is no more to be used so as 
to handicap religions than it is to favor them.'' \82\ Likewise, the 
Constitution ``forbids hostility'' toward ``all religions,'' \83\ and 
discrimination in response to the exercise of a fundamental right--
here, by religious student organizations--triggers strict scrutiny 
under the Equal Protection Clause.\84\ Making religious student groups' 
funding contingent on whether they believe in creationism--or any other 
religious belief--is forbidden, as the Supreme Court has repeatedly 
held.\85\ Thus, contrary to the arguments of these commenters, 
religious student organizations, regardless of their religious beliefs, 
are entitled to the same general benefits as other secular 
organizations under the First Amendment. Neither the religious group 
nor the science club should be silenced.
---------------------------------------------------------------------------

    \82\ Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947).
    \83\ Lynch v. Donnelly, 465 U.S. 668, 673 (1984).
    \84\ See Clark v. Jeter, 486 U.S. 456, 461 (1988).
    \85\ Rosenberger, 515 U.S. at 846; Healy, 408 U.S. at 194; 
Widmar, 454 U.S. at 277.
---------------------------------------------------------------------------

    Further, Sec. Sec.  75.500(d) and 76.500(d) do not enable religious 
student organizations to discriminate on the basis of protected 
classes, such as race or sex. It simply allows them to create 
leadership or membership qualifications based on religious tenets or 
standards of conduct informed by their religion. Disciplining these 
organizations for exercising their First Amendment rights, as suggested 
by one commenter, is forbidden by the Constitution. Further, whether or 
not a religious group engages in proselytization is not relevant to 
whether there is a need for these final regulations. The overwhelming 
number of comments in support of these final regulations demonstrate 
that there are instances in which religious student organizations are 
treated unequally and discriminated against on college campuses, and 
support our determination that these final regulations are necessary to 
remedy such discrimination against religious student organizations.
    Religious student organizations would not be empowered to 
``blackmail'' universities by ``claiming'' discrimination each time 
they failed to receive money. If, in fact, a public institution of 
higher education does not provide religious student organizations a 
public benefit that is generally available to secular organizations 
because of the religious character of the student organization, then it 
is engaging in discrimination prohibited by these final regulations and 
the principles established by the Supreme Court in Trinity \86\ and 
Espinoza.\87\ However, withholding funds from any student organization 
under a neutral rule of general applicability is not constitutionally 
suspect or prohibited under these final regulations.\88\
---------------------------------------------------------------------------

    \86\ Trinity Lutheran, 137 S. Ct. at 2021-22 (holding 
unconstitutional a policy forcing a religious institution to choose 
between ``participat[ing] in an otherwise available benefit program 
or remain[ing] a religious institution'').
    \87\ Espinoza, 140 S. Ct. at 2261 (application of State's no-aid 
provision violated the Free Exercise Clause by ``cutting families 
off from otherwise available benefits if they choose a religious 
private school rather than a secular one'').
    \88\ RFRA applies to the Department when there is a substantial 
burden, even if the burden results from a rule of general 
applicability. 42 U.S.C. 2000bb-1.
---------------------------------------------------------------------------

    Finally, the Department disagrees that these final regulations will 
damage the economy. As discussed comprehensively in the NPRM, the 
Department has analyzed the costs and benefits of complying with these 
regulations. We concluded that the regulations impose approximately 
$297,770 in costs in Year 1, and we are issuing them on a reasoned 
determination that their benefits justify their costs. Further, we do 
not believe that the final regulations will result in any significant 
costs to the Federal government, general public, or recipients of 
support under the affected programs. If public institutions treat 
religious student organizations and other student organizations 
equally, then these public institutions will avoid liability for First 
Amendment violations, which may even result in a cost savings.
    Changes: None.
The Proposed Regulations Will Allow Discrimination Against Certain 
Groups of Students
    Comments: Several commenters maintained that the proposed 
regulations are ``dangerous'' and ``harmful'' to LGBTQ+ students, women 
and girls, religious minority students, and ``many others.'' One 
commenter stated that the changes proposed by the Department are un-
Christian and would reward bigotry and hatred by creating a religious 
right to discriminate against vulnerable groups. Some commenters who 
identified as parents of LGBTQ+ students opposed these proposed 
regulations. These commenters were concerned that powerful religious 
groups in the U.S. would persecute and harm their children openly 
because these groups fear no reprisal from the government. These 
commenters also noted that LGBTQ+ students should have the same rights 
as other students and not be pushed back into more separation.
    Commenters also asserted that the proposed regulations fail to 
address the harm that such an exemption would pose for students who 
would face discrimination by school-sanctioned student groups. These 
commenters noted that, because of the central role that access to 
education plays in

[[Page 59941]]

personal and professional development, eliminating discrimination in 
education has long been recognized as a governmental interest of the 
utmost importance. They cited Supreme Court precedent to support their 
positions.\89\ One commenter stressed the long history of student 
groups serving as vehicles for discrimination, preventing marginalized 
students from being fully integrated into student life on university 
campuses across the country.\90\ The commenter claimed that the 
Department's proposed regulations would return public university 
campuses to a shameful era in which public universities broadly 
countenanced discrimination against vulnerable groups of students.
---------------------------------------------------------------------------

    \89\ See, e.g., Norwood v. Harrison, 413 U.S. 455, 469 (1973) 
(holding that Mississippi could not give textbooks to students 
attending racially segregated private schools because 
``discriminatory treatment exerts a pervasive influence on the 
entire educational process''); see also, e.g., Bob Jones Univ. v. 
United States, 461 U.S. 574, 604 (1983) (footnote omitted) (``[T]he 
Government has a fundamental, overriding interest in eradicating 
racial discrimination in education. . . .'')
    \90\ Commenter cited the Brief of Amicus Curiae of the ACLU et 
al. at 10-12, Christian Legal Soc'y, 561 U.S. 661 (Mar. 15, 2010).
---------------------------------------------------------------------------

    Several commenters opined that the Department is using religious 
liberty as an excuse to discriminate or hurt other students. Commenters 
suggested that the Department seems to have proposed these regulations 
because the Department desires to attack LGBTQ+ students and promote 
bigotry on university campuses. A commenter suggested that the 
employees at the Department who helped work on the proposed regulations 
should move to a theocratic government overseas such as Saudi Arabia or 
Israel. Several commenters remarked that the Department, by proposing 
these regulations, is forcing the beliefs of older, white, upper-middle 
class conservative Christians onto the rest of America.
    One commenter stated that the government should never fund 
discrimination, and that allowing such discrimination raises 
constitutional concerns. This commenter asserted that the government 
has a ``constitutional obligation'' to ``steer clear, . . . of giving 
significant aid to institutions that practice racial or other invidious 
discrimination.'' \91\
---------------------------------------------------------------------------

    \91\ Norwood, 413 U.S. at 465-66.
---------------------------------------------------------------------------

    Discussion: The Department disagrees with commenters who state that 
the final regulations will promote discrimination, bigotry, and hate on 
college campuses. The Department is not espousing any religious beliefs 
and is instead requiring public institutions not to discriminate 
against religious student organizations, no matter what their religious 
beliefs may be. These final regulations apply to religious student 
organizations, including religious minorities and religious groups that 
have endured persecution. The overwhelming number of comments received 
in support of these final regulations regarding religious student 
organizations and recent case law about religious student organizations 
being denied the rights and benefits afforded to other student 
organizations at public institutions demonstrate these final 
regulations are indeed necessary.\92\
---------------------------------------------------------------------------

    \92\ InterVarsity Christian Fellowship/USA v. Univ. of Iowa, 408 
F. Supp. 3d 960 (S.D. Iowa 2019) (currently on appeal to the U.S. 
Court of Appeals for the 8th Circuit); Bus. Leaders in Christ v. 
Univ. of Iowa, 360 F. Supp. 3d 885, 899 (S.D. Iowa 2019) (currently 
on appeal to the U.S. Court of Appeals for the 8th Circuit).
---------------------------------------------------------------------------

    Religious freedom, by its definition, promotes tolerance and 
pluralism because it protects the right of individuals and groups to 
obey their conscience even when their conscience is at odds with 
popular beliefs and practices. Additionally, religious freedom 
constrains State action that would otherwise seek to enforce uniformity 
of thought or silence dissent. Thus, requiring public institutions to 
recognize students' First Amendment rights to speech, association, and 
free exercise will foster a culture that is more welcoming of various 
viewpoints and lifestyles, not less. Accordingly, the Department does 
not desire to attack any group but instead intends to encourage 
coexistence among a wide variety of organizations and viewpoints. This 
will help, not harm, LGBTQ+ students, women, religious minorities, and 
student organizations of all kinds. Indeed, LGBTQ+ students would be 
able to organize student organizations that limited membership to only 
students who identify as LGBTQ+, if a public institution of higher 
education adopted a generally applicable policy that allowed all 
student organizations to promulgate membership criteria.
    The Department remains committed to eliminating invidious 
discrimination in the educational setting and vigorously enforces Title 
VI of the Civil Rights Act of 1964, which prohibits discrimination on 
the basis of race, color, and national origin, as well as Title IX of 
the Education Amendments of 1972, which prohibits discrimination on the 
basis of sex. However, the Department clarifies that excluding 
individuals from leadership in a student group because of their beliefs 
or conduct is not comparable to using the ``constitutionally suspect 
criteria'' of a protected characteristic such as race when forming 
school policies--which is what the Supreme Court struck down in Norwood 
and Bob Jones University.\93\ As noted above in the comments in support 
of these final regulations, many commenters described policies in which 
their religious student organizations required leaders, regardless of 
their race or sex, to either espouse certain religious beliefs or to 
conduct themselves according to the tenets of their faith. 
Nevertheless, many of these groups were denied recognition by their 
institutions because of alleged ``discrimination.'' These comments 
demonstrate that, rather than using religious liberty to further 
discrimination, institutions are using ``tolerance'' as an excuse to 
hurt religious organizations. Depriving student groups of their rights 
in the name of ``anti-discrimination'' furthers religious 
discrimination itself, which the Constitution does not tolerate.
---------------------------------------------------------------------------

    \93\ Norwood, 413 U.S. at 469; Bob Jones Univ., 461 U.S. at 604.
---------------------------------------------------------------------------

    The Department does not agree with commenters who suggest that the 
final regulations reflect a theocratic form of government or are an 
attempt to force the beliefs of older, white, upper-middle class 
conservative Christians onto the rest of America. The purpose of the 
final rule is not to favor a certain viewpoint, but to reestablish 
neutrality on campuses, which is what the First Amendment requires. 
Moreover, with neutrality comes ideological and religious pluralism, 
which is healthy for a democratic society.
    The final regulations are intended to protect religious 
organizations from unconstitutional action stemming from the 
disapproval of a particular religion or of religion in general.\94\ 
Bias against religion and religious student organizations is a growing 
problem as many commenters noted that public institutions have become 
increasingly less diverse and more hostile towards religious student 
organizations. This trend is caused by institutions moving away from 
the First Amendment and seeking to establish viewpoint uniformity, 
which is not good for those in the minority or the majority.
---------------------------------------------------------------------------

    \94\ Lukumi, 508 U.S. at 532 (``[T]he First Amendment forbids an 
official purpose to disapprove of a particular religion or of 
religion in general.'').
---------------------------------------------------------------------------

    Ultimately, the final regulations will ensure that religious 
student organizations will not be coerced by university administrators 
to abandon their sincerely held beliefs in lieu of prevailing opinions 
on college campuses. It will restore to religious student organizations 
the ability to

[[Page 59942]]

participate at public institutions of higher education on equal footing 
with all student organizations without disadvantaging or harming any 
students or organizations.
    Changes: None.
The Proposed Regulations Are Not Required by Law or Allegedly Violate 
the Law
    Comments: Many commenters stated that the Department does not 
explain the need for what they characterize as a broad exemption for 
religious student organizations on college campuses. Several commenters 
argued that no laws, including the Free Exercise Clause, require these 
final regulations. These commenters noted that, in CLS v. Martinez, the 
Court held that CLS, in seeking an exemption from Hastings' across-the-
board all-comers policy, sought preferential, not equal treatment; the 
group therefore could not moor its request for accommodation to the 
Free Exercise Clause.\95\ Commenters also stressed that the regulation 
is not required under Title IV of the HEA. Commenters argued that the 
proposed regulations violate the clear directive of Executive Order 
13864, namely that agencies ``take appropriate steps, in a manner 
consistent with applicable law[.]'' \96\
---------------------------------------------------------------------------

    \95\ Martinez, 561 U.S. at 697 n.27.
    \96\ 84 FR 11402.
---------------------------------------------------------------------------

    One commenter maintained that the proposed regulations could 
conflict with State and/or Federal civil rights laws that require 
campus all-comers or non-discrimination policies. This commenter noted 
that Title IX and other Federal and State civil rights laws prohibit 
public institutions of higher education from discriminating on the 
basis of sex and other protected characteristics. According to this 
commenter, public universities also may choose to advance State-law 
goals through the school's educational endeavors. The commenter opined 
that in order to ensure full compliance with State and Federal civil 
rights laws, public colleges and universities often have in place 
robust non-discrimination policies that apply neutrally to all student 
organizations. Similarly, another commenter asserted that the proposed 
regulations offer some public institutions a choice between aligning 
with State and local non-discrimination laws and maintaining 
eligibility for Federal grant funding. This commenter contended that 
colleges and universities that choose to maintain eligibility for 
Departmental grants by revising their protocols to allow for 
recognition of faith-based student organizations without all-comers 
policies would, in some jurisdictions, expose themselves to a legal 
challenge grounded in State and local nondiscrimination laws.
    One commenter also opined that the proposed regulations include 
language that is worrisome in its vagueness, as it prohibits public 
institutions from denying rights to a religious student organization 
based on the group's ``practices, policies, . . . and leadership 
standards.'' \97\ This commenter contended that this language is 
untethered to religious beliefs or religious speech. This commenter 
asserted that the Department should not want colleges and universities 
to abdicate their responsibility to set reasonable and appropriate 
standards for student organizations, and it certainly ought not to 
compel that abdication. This commenter gave the example that no college 
or university should be encouraged or compelled to turn a blind eye to 
hazing because it is occurring within a religious student organization.
---------------------------------------------------------------------------

    \97\ This commenter quotes from Sec. Sec.  75.500(d) and 
76.500(d), as proposed in the NRPM.
---------------------------------------------------------------------------

    Another commenter expressed concerns that the proposed regulations 
may create a scenario in which a public institution of higher education 
could lose Federal funding for denying recognition to a student 
organization that promotes hate speech barred by school policies, while 
a private institution receiving funding under the identical program 
could censor speech otherwise protected by the First Amendment but 
which violates the school's internal speech policies. The commenter 
argued that such an outcome defies reason and would likely not survive 
constitutional scrutiny.
    Discussion: The Department disagrees with commenters who state that 
the Department does not explain the need for the rule. The NRPM noted 
that courts repeatedly have been called upon to vindicate the rights of 
dissident campus speakers who do not share the views of the majority of 
campus faculty, administrators, or students. It also provided numerous 
examples of cases in which Federal courts found that public 
universities discriminated against religious student organizations in 
violation of the First Amendment by withholding funding or denying 
other rights, benefits, and privileges afforded to secular student 
organizations.
    Sections 75.500(d) and 76.500(d) are wholly consistent with 
applicable law, including but not limited to Supreme Court precedent, 
the First Amendment, Title IX, and the HEA. First, regarding Supreme 
Court precedent, the Department clarifies that Sec. Sec.  75.500(d) and 
76.500(d) do not, as several commenters stated, prevent institutions 
from implementing all-comers policies which were upheld in Martinez, 
nor does it constitute an ``exemption'' for religious student groups 
from all-comers policies. Instead, these final regulations reinforce 
the First Amendment's mandate that public institutions treat religious 
student organizations the same as other student organizations. As such, 
a university does not have to choose between compliance with State law 
and securing Federal funding in the form of grants; it is free to 
enforce an all-comers policy, which is permissible under Martinez, in 
order to comply with any State anti-discrimination laws as long as it 
applies that policy equally to all student organizations as stipulated 
in Martinez. If a public institution chooses not to adopt an all-comers 
policy, which is also permissible, then the institution cannot require 
a student organization, including a religious student organization, to 
open eligibility for membership and leadership to all students. 
Ultimately, a university has the discretion to choose what kind of 
policy will best comply with its own State and local anti-
discrimination laws.
    Additionally, these final regulations are consistent with the U.S. 
Constitution and governing case law.\98\ ``The Free Exercise Clause 
`protect[s] religious observers against unequal treatment' and subjects 
to the strictest scrutiny laws that target the religious for `special 
disabilities' based on their `religious status.' '' \99\ The Supreme 
Court has ``repeatedly confirmed'' that ``denying a generally available 
benefit solely on account of religious identity imposes a penalty on 
the free exercise of religion that can be justified only by a state 
interest of the highest order.'' \100\ Most recently in Espinoza, the 
Supreme Court confirmed again: ``This rule against express religious 
discrimination is no doctrinal innovation. Far from it. As

[[Page 59943]]

Trinity Lutheran explained, the rule is `unremarkable in light of our 
prior decisions.' '' \101\ Sections 75.500(d) and 76.500(d) are 
designed to bolster these protections and prevent public institutions 
from denying rights, benefits, and privileges to religious student 
organizations because of their religious character. The First Amendment 
protects religious student organizations' right to free exercise of 
religion in addition to the freedoms of speech and association, and 
these final regulations are consistent with the First Amendment, 
including the Free Exercise Clause, which requires equal treatment of 
secular and religious student organizations. Given the abundant 
evidence noted by commenters regarding schools ``denying generally 
available benefits'' to religious groups ``solely on account of 
religious identity,'' these regulations are necessary to make the 
guarantees in the First Amendment, including the Free Exercise Clause, 
a reality at public institutions.\102\ Similarly, a public institution 
does not violate Title IX by allowing religious student organizations 
to have faith-based criteria for their leaders or to otherwise engage 
in the free exercise of their religion. These final regulations 
reinforce freedoms guaranteed by the First Amendment. Additionally, the 
Title IX Final Rule, which became effective on August 14, 2020, 
expressly states that none of the regulations implementing Title IX 
requires a recipient of Federal financial assistance to ``[r]estrict 
any rights that would otherwise be protected from government action by 
the First Amendment of the U.S. Constitution.'' \103\
---------------------------------------------------------------------------

    \98\ These final regulations also are consistent with and in 
furtherance of the Religious Freedom Restoration Act (RFRA). 20 
U.S.C. 2000bb, et seq.; Little Sisters of the Poor Saints Peter & 
Paul Home v. Pennsylvania, 140 S. Ct., at 2383-84 (U.S. July 8, 
2020). RFRA ``provide[s] very broad protection for religious 
liberty.'' Burwell v. Hobby Lobby, 573 U.S. 682, 693 (2014). RFRA 
applies to the Department, and some of the Department's grantees may 
essentially act on behalf of the Department in awarding subgrants or 
administering formula-grant programs. These final regulations as 
material conditions of a Department's grant under Sec. Sec.  
75.500(d) and 76.500(d) will help ensure that any entity, acting on 
behalf of the Department with respect to a grant, does not 
substantially burden a person's free exercise of religion.
    \99\ Trinity Lutheran, 137 S. Ct. at 2019 (quoting Lukumi, 508 
U.S. at 533).
    \100\ Id.
    \101\ Espinoza, 140 S. Ct. at 2260 (quoting Trinity Lutheran, 
137 S. Ct. at 2021) (internal quotation marks and citation omitted).
    \102\ Lukumi, 508 U.S. at 532 (``At a minimum, the protections 
of the Free Exercise Clause pertain if the law at issue 
discriminates against some or all religious beliefs or regulates or 
prohibits conduct because it is undertaken for religious 
reasons.'').
    \103\ 85 FR 30573 (the Title IX final regulations provide this 
express statement at 34 CFR 106.6(d)(1)).
---------------------------------------------------------------------------

    With respect to the HEA, the Department acknowledges that these 
final regulations are not a condition of participation in programs 
under Title IV of the HEA. These final regulations are consistent with 
the HEA, which expressly states that ``an institution of higher 
education should facilitate the free and open exchange of ideas'' \104\ 
and ``students should be treated equally and fairly.'' \105\ Further 
and as explained more fully in the ``Executive Orders and Other 
Requirements'' section, the Department is authorized under 20 U.S.C. 
1221e-3, 20 U.S.C. 3474, and E.O. 13864 to promulgate these final 
regulations.
---------------------------------------------------------------------------

    \104\ 20 U.S.C. 1011a(a)(2)(C).
    \105\ 20 U.S.C. 1011a(a)(2)(E). Congress also stated in 20 
U.S.C. 1011a(a)(2)(F) that ``nothing in this paragraph shall be 
construed to modify, change, or infringe upon any constitutionally 
protected religious liberty, freedom, expression, or association.''
---------------------------------------------------------------------------

    Lastly, the Department acknowledges that under these final 
regulations, a public institution may lose Federal funding for 
violating the First Amendment--by, for example, prohibiting hate 
speech,\106\ if such hate speech constitutes protected speech under the 
First Amendment, while a private institution may not lose its funding 
for engaging in the same conduct. But this distinction between public 
and private institutions is not unique to these final regulations. It 
is a well-established principle that private institutions are not bound 
by the First Amendment.\107\ Such an outcome is contemplated by the 
very text of the First Amendment, which prohibits ``Congress'' from 
violating fundamental freedoms and which was later made applicable to 
the States through the Fourteenth Amendment.\108\ Despite this 
constitutionally mandated distinction, the Department emphasizes that 
private institutions are still bound by their own ``stated 
institutional policies regarding freedom of speech, including academic 
freedom'' under Sec. Sec.  75.500(c) and 76.500(c) of these final 
regulations.
---------------------------------------------------------------------------

    \106\ Matal v. Tam, 137 S. Ct. 1744, 1765 (2017) (``it is a 
fundamental principle of the First Amendment that the government may 
not punish or suppress speech based on disapproval of the ideas or 
perspectives the speech conveys.'').
    \107\ Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 
1926 (2019) (``The Free Speech Clause of the First Amendment 
constrains governmental actors'').
    \108\ First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 778 
(1978).
---------------------------------------------------------------------------

    Additionally, these final regulations would not interfere with an 
institution's ability to enforce an anti-hazing policy, because such a 
policy would be a neutral, generally applicable rule applied to all 
student groups. These final regulations are instead intended to address 
policies that single out religious groups for disparate treatment. To 
clarify that religious student organizations may not be treated 
differently on account of their religion, the Department revises 
Sec. Sec.  75.500(d) and 76.500(d) to state that public institutions 
shall not deny to any student organization whose stated mission is 
religious in nature any right, benefit, or privilege that is otherwise 
afforded to other students organizations at 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. These revisions 
clarify which student organizations may be considered religious by 
noting that the student organization's own stated mission is religious 
in nature. These revisions also clarify that beliefs, practices, 
policies, membership standards, or leadership standards, which are 
informed by sincerely held religious beliefs, must not constitute the 
basis for differential treatment from other student organizations, 
which is consistent with the First Amendment.
    Changes: The Department revised Sec. Sec.  75.500(d) and 76.500(d) 
to clarify that religious student organizations include any student 
organization whose stated mission is religious in nature. The 
Department further revised these regulations to clarify that a public 
institution cannot deny any right, benefit, or privilege that is 
otherwise afforded to other student organizations at 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.
Whether Public Institutions Discriminate Against Religious 
Organizations
    Comments: Numerous commenters shared specific instances in which 
faith-based student organizations were discriminated against because of 
their religious status. As noted in more detail in the ``Comments in 
Support'' subsection of the ``34 CFR 75.500(d) and 34 CFR 76.500(d)--
Religious Student Organizations'' section, many different commenters 
reported, for example, that universities refused to recognize or 
outright banned religious organizations that used faith-based 
qualifications to select leadership. As a result, these organizations, 
if they were even allowed on campus at all, were stripped of university 
benefits such as funding or facilities, faced bureaucratic hurdles that 
were not applied to secular organizations, and in one case, could not 
even approach students on campus because of the university's biased 
solicitation policy. Commenters noted that even when these institutions 
reversed their policies, religious student organizations were still 
subject to administrative delays of up to a year in some cases, faced 
prejudice and misconceptions, and experienced increased polarization, 
which discouraged debate.
    Conversely, some commenters maintained that religious student

[[Page 59944]]

organizations are already treated equally under the current rules, and 
the Department failed to include even anecdotal evidence that religious 
student organizations who wish to restrict their membership or 
leadership have been treated differently from other types of private 
groups. A commenter argued that this ``fix'' is the very definition of 
a solution in search of a problem. A commenter also stated that 
unofficial student groups often have access to the school's facilities 
to conduct meetings and the use of chalkboards and generally available 
bulletin boards to advertise events. According to this commenter, even 
the Supreme Court, in CLS v. Martinez, found that the CLS chapter was 
being treated the same as other private groups on campus, including 
fraternities, sororities, social clubs and secret societies, which 
maintained a presence at the university without official status.\109\
---------------------------------------------------------------------------

    \109\ Martinez, 561 U.S. at 691.
---------------------------------------------------------------------------

    Discussion: The Department notes the numerous comments recounting 
instances of discrimination against religious student organizations, in 
which they were deprived of recognition, funding, or facilities, among 
other benefits, due to their religious status or character. The 
Department is revising Sec. Sec.  75.500(d) and 76.500(d) specifically 
to remedy these issues of disparate treatment.
    We disagree with the commenters who suggest that religious student 
organizations are always treated equally with respect to secular 
organizations under the current regulations, and that the Department 
included no evidence to the contrary. For example, the NPRM cited to 
Rosenberger v. Rector & Visitors of the University of Virginia,\110\ in 
which the Supreme Court held that a public institution denying funding 
to a religious student newspaper but not other secular student 
newspapers amounted to unlawful viewpoint discrimination under the 
First Amendment. In addition, the NPRM cited Business Leaders in Christ 
v. University of Iowa,\111\ in which the Federal district court very 
recently held that treating a religious student organization 
differently than other student organizations violated the religious 
student organization's First Amendment rights to free speech, 
expressive association, and free exercise of religion. Further, the 
Department received a tremendous number of comments replete with 
examples of the differential treatment that faith-based organizations 
suffer compared to secular student organizations, only some of which 
are described above. These anecdotes concerned religious student 
organizations at hundreds of schools across the country; came from 
national nonprofit organizations, professors, faculty advisors, 
students, and lawyers; and described experiences that occurred over 
decades.
---------------------------------------------------------------------------

    \110\ 515 U.S. 819, 845, 829-30 (1995).
    \111\ 360 F. Supp. 3d 885, 899 (S.D. Iowa 2019).
---------------------------------------------------------------------------

    The Department acknowledges that there may be instances when 
unofficial student groups are granted access to some of an 
institution's facilities or resources, as was the case in 
Martinez.\112\ Nevertheless, such access to limited benefits does not 
cure the constitutional infirmities under the First Amendment when 
religious student organizations are denied benefits afforded to other 
student organizations or unequally burdened as compared to other 
student organizations. And often religious student organizations are 
denied access to any of an institution's facilities or resources, 
which, as one commenter expressed, relegates them to second-class 
status. Singling out religious student organizations for disfavored 
treatment because of their religious nature or religious viewpoints is 
precisely what the Supreme Court held impermissible in Rosenberger v. 
Rector & Visitors of University of Virginia \113\ and Widmar v. 
Vincent.\114\ Thus, these final regulations are consistent with Supreme 
Court case law. As explained in more detail in the `` `All-Comers' 
Policies for Student Organizations'' section, these final regulations 
are consistent with the holding in Martinez, which permitted but did 
not require public institutions to adopt all-comers policies.\115\
---------------------------------------------------------------------------

    \112\ Martinez, 561 U.S. at 673 (finding school withheld 
official recognition from Christian Legal Society but allowed it the 
use of facilities, chalkboards, and generally available campus 
bulletin boards).
    \113\ 515 U.S. 819, 845 (1995).
    \114\ 454 U.S. 263, 277 (1981).
    \115\ 561 U.S. at 698.
---------------------------------------------------------------------------

    Changes: None.

Proposed Modifications & Requests for Clarification

    Comments: One commenter expressed the need for private colleges to 
be included under the regulations for public institutions because of 
concerns regarding a policy at one private institution requiring 
student groups to open leadership to any student or lose school 
recognition. This commenter noted that a loss of recognition results in 
a loss of access to student activity fee money, low-cost or free 
university spaces, and recruiting tools.
    Discussion: This commenter describes what is known as an all-comers 
policy which, while uncommon in practice, was upheld by the Supreme 
Court of the United States in CLS v. Martinez.\116\ It is permissible 
for an institution to implement such a policy under the Department's 
final regulations, since it is a neutral rule of general applicability. 
However, absent such an all-comers policy, Sec. Sec.  75.500(d) and 
76.500(d) prevents public institutions from failing to recognize 
religious student organizations because of their faith-based membership 
or leadership criteria.
---------------------------------------------------------------------------

    \116\ 561 U.S. 661 (2010).
---------------------------------------------------------------------------

    The Department further responds that Sec. Sec.  75.500(d) and 
76.500(d)--which are rooted in the First Amendment--do not apply to 
private institutions because private institutions are not bound by the 
First Amendment.\117\ Private institutions are, however, obligated to 
uphold their ``stated institutional policies regarding freedom of 
speech, including academic freedom,'' through Sec. Sec.  75.500(c) and 
76.500(c) of these final regulations. Institutions that violate their 
own stated institutional policies regarding freedom of speech, 
including academic freedom, will be found in violation of the material 
conditions in Sec. Sec.  75.500(c) and 76.500(c) if there is a final, 
non-default judgment by a State or Federal court to the effect that the 
private institution violated such stated institutional policies.\118\
---------------------------------------------------------------------------

    \117\ Manhattan Cmty. Access Corp., 139 S. Ct. at 1926.
    \118\ 34 CFR 75.500(c)(1); 34 CFR 76.500(c)(1).
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter noted that Sec. Sec.  75.500(d) and 
76.500(d) provide no indication of how the Department will determine 
that a public college or university has violated the regulation's 
requirement to treat religious organizations and secular organizations 
the same. The commenter guessed that, absent indications to the 
contrary, the Department will make this determination entirely by 
itself. The commenter opined that this type of inquiry is inappropriate 
for the Department to engage in and one it is ill-equipped to make.
    Discussion: The Department has the resources and expertise to 
determine the narrow issue as to whether a public university has 
violated the regulation's requirement to not deny a religious student 
organization any of the rights, benefits, and privileges afforded to 
other student organizations. Whether religious student organizations 
are denied the rights, benefits, and privileges as other student 
organizations is a discrete issue

[[Page 59945]]

that the Department may easily investigate. This issue does not involve 
the full panoply of First Amendment issues that the other regulations 
in Sec. Sec.  75.500(b)-(c) and 76.500(b)-(c) present. The Department 
would only determine whether other student organizations indeed 
received the right, benefit, or privilege that the religious student 
organization was allegedly denied because of the religious student 
organization's beliefs, practices, policies, speech, membership 
standards, or leadership standards, which are informed by sincerely 
held religious beliefs. The Department routinely investigates 
violations of its regulations, and attorneys within the Department's 
Office of General Counsel regularly advise the relevant office within 
the Department on any legal issues that arise in an investigation. 
Unlike investigations of any potential violation of any provision of 
the First Amendment or any stated institutional policy regarding 
freedom of speech, including academic freedom, an investigation of the 
treatment of religious student organizations as compared to other 
student organizations is limited in scope and presents a discrete 
issue. An investigation to determine whether religious student 
organizations are being treated differently than other student 
organizations is similar to the types of investigations that the 
Department currently conducts. The Department has developed expertise 
in investigating, for example, the discrimination or different 
treatment on the basis of sex under Title IX or on the basis of race, 
color, and national origin under Title VI. Additionally, Sec. Sec.  
75.500(d) and 76.500(d) expressly indicate ways in which a public 
institution may treat a religious organization differently from a 
secular organization, such as by failing to provide full access to the 
facilities of the public institution, withholding funds from a 
religious organization, or denying official recognition to a religious 
organization.
    Changes: None.

34 CFR 75.700 and 34 CFR 76.700--Compliance With the U.S. Constitution, 
Statutes, Regulations, Stated Institutional Policies, and Applications

    Comments: One commenter asserted that under Sec. Sec.  75.700 and 
76.700, grantees must comply with all relevant statutes, regulations, 
and approved applications. However, the Department would limit 
compliance requirements to only specific sections of four statutes and 
related regulations. The commenter noted the Department's stated 
rationale that this modification would provide greater specificity and 
clarity, however, given the broad range of relevant statutes, 
regulations, and individual grant program requirements, the commenter 
believed there is no rational justification to modify these 
requirements. The commenter did not provide further explanation or 
clarification for this position.
    Discussion: The Department wishes to clarify that the current 
language of Sec. Sec.  75.700 and 76.700 already requires grantees and 
subgrantees to comply with all applicable laws, regulations, and 
approved applications. Statutory and regulatory requirements to which 
grant recipients must comply already include the prohibition on race 
discrimination under Title VI, the prohibition on sex discrimination 
under Title IX, the prohibition on discrimination on the basis of 
handicap under Section 504 of the Rehabilitation Act of 1973, and the 
prohibition on age discrimination under the Age Discrimination Act. 
Section 75.700, as proposed and as promulgated in these final 
regulations, would clarify that grantees participating in Direct Grant 
Programs must comply with all of the statutes and provisions in Sec.  
75.500, including Sec.  75.500(b) and Sec.  75.500(d) if they are 
public institutions and Sec.  75.500(c) if they are private 
institutions. Similarly, Sec.  76.700 would clarify that States and 
subgrantees participating in State-Administered Formula Grant Programs 
must comply with all of the statutes and provisions in Sec.  76.500, 
including Sec.  76.500(b) and Sec.  76.500(d) if they are public 
institutions and must comply with Sec.  76.500(c) if they are private 
institutions.
    Changes: None.

34 CFR 106.12 Educational Institutions Controlled by Religious 
Organizations

    During the public comment period, the Department received comments 
both in support of and in opposition to the proposed regulations about 
the religious exemption under Title IX. Below, we discuss substantive 
issues under topical headings, and by the sections of the final 
regulations to which they pertain.

General Support for Proposed Changes to 34 CFR 106.12

    Comments: Some commenters expressed strong support for the proposed 
changes to Sec.  106.12. One commenter, for instance, believed that the 
proposed changes were necessary to ensure the continued protection of 
religious liberty for religious educational institutions, contending 
that the proposed regulations, if finalized, would make clear that 
Title IX provides institutions with an affirmative defense against 
accusations of discrimination. Commenters also noted that Title IX does 
not require permission or recognition from the government before an 
institution asserts its eligibility for a religious exemption as a 
defense for a religious belief or the practice dictated by that belief.
    Similarly, one commenter supported the Department's acknowledgement 
of the various ways that an institution may establish its eligibility 
for a religious exemption under Title IX, and noted that, in prior 
administrations, responses to letters claiming the religious exemption 
were significantly delayed. According to the commenter, this caused 
religious institutions to worry that the Department's Office for Civil 
Rights (OCR) was considering whether to deem the schools ineligible for 
the exemption, despite their thoroughly religious character.
    One commenter believed that the ``application'' for an assurance 
that a school could invoke or maintain a religious exemption had 
previously been misconstrued by the Department, to the detriment of 
religious schools and universities, and to the detriment of the values 
protected by the United States Constitution. The commenter contended 
that there is no ``application process'' set forth in the Title IX 
statute for a religious exemption. The commenter further contended that 
the Department has no power or authority to review and rule upon a 
school's religious tenets, or whether a school is justified on the 
basis of those tenets to invoke an exemption. The commenter stated that 
not only does the Title IX statute not require such review before a 
school may invoke a religious exemption, but that the First Amendment 
would not permit such review.
    Discussion: The Department appreciates and agrees with the comments 
that religious liberty must be preserved and protected.\119\ In 
promulgating this regulation, the Department took into account the RFRA 
\120\ and the United States Attorney General's October 6, 2017 
Memorandum

[[Page 59946]]

on Federal Law Protections for Religious Liberty.\121\ Further, the 
Department believes that its view of the religious exemption provisions 
within Title IX avoids unconstitutional discrimination against faith-
based entities that would otherwise occur if OCR required that 
educational institutions fit one specific organizational structure 
before they can become eligible for a religious exemption.
---------------------------------------------------------------------------

    \119\ See Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 
1754 (2020) (stating, in the Title VII religious exemption context, 
``We are also deeply concerned with preserving the promise of the 
free exercise of religion enshrined in our Constitution; that 
guarantee lies at the heart of our pluralistic society.'').
    \120\ 42 U.S.C. 2000bb-2(4) (referring to 42 U.S.C. 2000cc-
5(7)(A) (defining ``religious exercise'' as ``any exercise of 
religion, whether or not compelled by, or central to, a system of 
religious belief'')). See also Little Sisters of the Poor Saints 
Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020); Burwell 
v. Hobby Lobby, 573 U.S. 682 (2014).
    \121\ Available at https://www.federalregister.gov/documents/2017/10/26/2017-23269/federal-law-protections-for-religious-liberty.
---------------------------------------------------------------------------

    The Department agrees with the commenter who stated that there is 
no ``application process'' set forth in the Title IX statute. No part 
of the statute requires that recipients receive an assurance letter 
from OCR, and no part of the statute suggests that a recipient must be 
publicly on the record as a religious institution that claims a 
religious exemption before it may invoke a religious exemption in the 
context of Title IX. While the implementing regulations at 34 CFR 
106.12 set forth a process for recipients to ``claim'' the exemption by 
submitting a letter, in writing, to the Assistant Secretary, the 
Department has eliminated that requirement in the Title IX Final Rule, 
effective on August 14, 2020, which permits but does not require 
recipients to submit a letter claiming a religious exemption from Title 
IX.\122\
---------------------------------------------------------------------------

    \122\ Nondiscrimination on the Basis of Sex in Education 
Programs or Activities Receiving Federal Financial Assistance, 85 FR 
30026, 30573 (May 19, 2020).
---------------------------------------------------------------------------

    The Department further acknowledges that the final regulation 
promulgated through this rulemaking with respect to Sec.  106.12 
provides a non-exhaustive list of criteria that offer educational 
institutions different methods to demonstrate that they are eligible to 
claim an exemption to the application of Title IX, 20 U.S.C. 1681, and 
its implementing regulations, to the extent Title IX and its 
implementing regulations would not be consistent with the institutions' 
religious tenets or practices. Title IX, 20 U.S.C. 1681(a)(3), does not 
directly address how educational institutions demonstrate whether they 
are controlled by a religious organization. The criteria in 34 CFR 
106.12(c) codify existing factors that the Assistant Secretary for 
Civil Rights uses when evaluating, on a case-by-case basis, a request 
for a religious exemption assurance from OCR, and also addresses 
concerns that there may be other means for establishing the necessary 
control.
    While several commenters argued that the best course for OCR is to 
require educational institutions to seek an assurance letter describing 
their religious exemption before a complaint is filed against them, the 
Department notes that the reasons for the changes to 34 CFR 106.12(b) 
were addressed in the November 29, 2018 Title IX NPRM,\123\ and the 
recently released Title IX Final Rule, effective August 14, 2020.\124\ 
As explained in the Title IX NPRM and Final Rule, the current version 
of 34 CFR 106.12(b) could suggest that recipients are required to write 
a letter to the Assistant Secretary for Civil Rights, and argue that 
parts of the regulation conflict with a specific tenet of the religious 
institution. The Department has determined that such a requirement is 
unnecessary in order to assert certain exemptions, and the Title IX 
final regulation seeks to codify the Title IX statute's broad statement 
that ``this section shall not apply to an educational institution which 
is controlled by a religious organization if the application of this 
subsection would not be consistent with the religious tenets of such 
organization.'' The NPRM for these regulations did not propose any 
changes to 34 CFR 106.12(b). However, some commenters expressed strong 
agreement with the Department's proposed changes to Sec.  106.12(b) in 
the November 29, 2018 Title IX NPRM addressing sexual harassment and 
other topics, especially when coupled with the proposed changes 
outlined in this January 17, 2020 NPRM for these final regulations. The 
Department has determined that, in the aggregate, these changes better 
align the Title IX regulations with the Title IX statute, the First 
Amendment, and the Religious Freedom Restoration Act, 42 U.S.C. 2000bb, 
et seq. The Department understands the often complex relationships 
between recipients and controlling religious organizations.
---------------------------------------------------------------------------

    \123\ Nondiscrimination on the Basis of Sex in Education 
Programs or Activities Receiving Federal Financial Assistance, 83 FR 
61462 (Nov. 29, 2018).
    \124\ See 85 FR 30573.
---------------------------------------------------------------------------

    The Department acknowledges that its practices in the recent past 
regarding assertion of a religious exemption, including delays in 
responding to inquiries about the religious exemption, may have caused 
educational institutions to become reluctant to exercise their rights 
under the Free Exercise Clause of the First Amendment. The Department 
would like to make sure its regulations are consistent with educational 
institutions' ability to fully and freely enjoy rights guaranteed under 
the Free Exercise Clause of the U.S. Constitution and Federal statutes. 
Accordingly, the Department chose to engage in notice-and-comment 
rulemaking to clarify the religious exemption under Title IX.
    Changes: None.

General Opposition to Proposed Changes to 34 CFR 106.12

    Comments: Many commenters expressed opposition to the proposed 
changes to Sec.  106.12 because they believed that the changes would 
allow schools to claim sweeping, almost unlimited religious exemptions 
to Title IX. These commenters asserted that the proposed rule would 
make it easier for a broader range of schools to claim a religious 
exemption, which the commenters often described as a right to 
discriminate while nevertheless still receiving Federal monies. Some of 
these commenters stated that the Department should find a Title IX 
violation in every case of sex discrimination, and protect all students 
in all schools receiving Federal funds, instead of allowing schools to 
find ways to shield themselves from liability for discriminatory 
practices.
    Commenters also expressed general opposition to the proposed 
changes to Sec.  106.12 by way of sharing their personal experiences of 
being educators, female students, LGBTQ students, parents of LGBTQ 
students, victims of sexual assault, and students at religious schools. 
These commenters stated that students who go to religious schools 
should be equally protected against sex discrimination as all other 
students, even if the discrimination stems from a religious practice. 
Commenters argued that sex-based discrimination can result in students 
like them being disciplined, mistreated, or forced out of school. These 
commenters asserted that as a result of the proposed changes to Sec.  
106.12, female students who were either pregnant or parenting, LGBTQ 
students, and religious minority students could face enormous costs, 
such as having to interrupt or end their degree program due to 
expulsion, losing their tuition payments made up until that point, and 
missing out on subsequent professional opportunities. Some of these 
commenters further suggested that religious schools are sometimes the 
only or best higher education option for these students, even for 
people who do not identify with the tenets of the religion of the 
school.
    Commenters also expressed specific concerns about potential 
situations that could result from the proposed changes to Sec.  106.12, 
including a student who is sexually assaulted on an abstinence-only 
campus being expelled due to engaging in sexual activity; a school

[[Page 59947]]

being unable to stop another student from forming a club based on 
hatred of women or LGBTQ students based on purported religious 
principles, or a school being required to equally offer school 
resources to such a group on equal terms as other student groups. Other 
examples posed by the commenters included a student raped on a ``dry'' 
campus after drinking being expelled after reporting the rape, due to 
consumption of alcohol in violation of school policies. Alternatively, 
a school might expel the same student, asserted commenters, for not 
reporting the rape, and allowing the rapist to continue to pose a 
threat on campus, even if the failure to report was out of fear of 
retaliation for drinking. According to commenters, this posed a dilemma 
for students, who might be disciplined whether or not they reported 
sexual assault. Commenters described scenarios where schools could not 
stop a student group or faculty member from bringing a speaker to 
campus who is known for hate speech and inciting violence; or a gay 
student at a religious institution who is being harassed, and discloses 
his sexual orientation as part of his report of the harassment, and who 
is subsequently expelled by his school, purportedly for his own safety.
    One commenter believed that the proposed changes to Sec.  106.12 
would condone schools that receive Federal funding looking the other 
way toward sex discrimination, and would in fact replicate the 
predatory and violent types of behavior against students that these 
schools should be working to prevent and respond to. The commenter also 
asserted that the Department should not allow schools to discriminate 
against students who are victims and survivors of sexual violence.
    Another commenter asserted that expanding or providing religious 
exemptions under Title IX will allow religious beliefs and religiously-
motivated acts to be weaponized against students and families. The 
commenter believed that schools using religious exemptions will use 
them to harm and damage the students that they want to target, and 
religious people and schools will be able to do whatever they want 
without common sense and oversight. The commenter also questioned 
whether religious exemptions are automatically reviewed by the 
Department's Office of the General Counsel or its OCR on an annual 
basis, or for reasonableness, so that religious exemptions that 
conflict with recent developments in the law or case law are revoked.
    Some commenters expressed agreement with the basic principle that 
religious freedom is an important part of the First Amendment, but also 
expressed opposition to the proposed rule. Other commenters asserted 
that, as a legal matter, schools receiving money from the Federal 
government are not allowed to discriminate because of the separation of 
church and State as required by the Constitution.
    One commenter expressed concern that the proposed changes to Sec.  
106.12 would create a separate, federally funded system of religious 
schools that are allowed to define who makes up their student body in 
narrow, discriminatory ways that undermine the ethics and intent of 
publicly-funded schools.
    Discussion: As the Department stated in the NPRM for this 
rulemaking, the purpose of these proposed amendments is to implement 
Executive Order 13831 and conform more closely to the Supreme Court's 
current First Amendment jurisprudence; relevant Federal statutes such 
as Title IX and RFRA; Executive Order 13279, as amended by Executive 
Orders 13559 and 13831; and the Attorney General's Memorandum on 
Religious Liberty.\125\ The regulations in 34 CFR part 106 address 
discrimination on the basis of sex in education programs or activities 
receiving Federal financial assistance, and the Secretary has authority 
to regulate with regard to discrimination on the basis of sex in such 
programs under 20 U.S.C. 1682. The proposed changes to Sec.  106.12(c) 
of the Title IX regulations will eliminate the need for schools and 
other stakeholders to consult non-binding guidance to help discern 
whether an institution is controlled by a religious organization for a 
religious exemption under Title IX and provides a non-exhaustive list 
of criteria that is sufficient to establish that an institution is 
controlled by a religious organization.
---------------------------------------------------------------------------

    \125\ 85 FR 3190-01.
---------------------------------------------------------------------------

    The Department understands that some commenters opposed the 
proposed regulation because they feel that institutions should never be 
permitted to discriminate on the basis of sex in education programs or 
activities receiving Federal financial assistance. Many of these 
commenters characterized the religious exemption under Title IX as the 
right to discriminate on the basis of sex, which these individuals felt 
violated the principle of separation of church and State.
    In response to these comments, the Department notes that the Title 
IX statute expressly provides for multiple exceptions to the 
application of Title IX to certain entities, including 20 U.S.C. 
1681(a)(3) (titled, ``Educational institutions of religious 
organizations with contrary religious tenets''). While the 
Establishment Clause is an important part of the Constitution, 
implementing the religious exemption language expressly contemplated by 
the Title IX statute does not violate the Constitution or its 
Establishment Clause. Where, as here, a statute expressly provides for 
a religious exemption from statutory provisions, the recipient of 
Federal funds' free exercise of religion, which also is guaranteed 
under the Constitution, may be infringed by failing to recognize that 
exemption under the statute.
    The Department acknowledges that some commenters felt that proposed 
Sec.  106.12(c) would allow recipients to shield themselves from losing 
Federal funds over their discriminatory practices. In response, the 
Department again reiterates that the Title IX statute, at 20 U.S.C. 
1681(a)(3), created an express exemption from the requirements of Title 
IX for ``educational institutions of religious organizations with 
contrary religious tenets.'' While our revised Sec.  106.12(c) seeks to 
clarify eligibility for claiming a religious exemption, the Department 
will evaluate and respond to all complaints filed with OCR that allege 
discrimination under Title IX, including allegations that the religious 
exemption in 20 U.S.C. 1681(a)(3) does not apply to an institution.
    The Department understands that some commenters were concerned that 
religious schools are sometimes the best or only higher education 
option for students, even for students who do not identify with the 
tenets of the religion of the school. While the Department is 
sympathetic to this point, a recipient that meets the criteria for a 
religious exemption is entitled to the protections that the statute 
affords it.
    The Department recognizes that several commenters remarked upon the 
``broad'' language utilized in multiple subsections of proposed Sec.  
106.12(c). While the Department does not agree with the assessment by 
one commenter that the Department is opening the floodgates to ``almost 
unlimited'' religious exemptions under Title IX, the Department 
appreciates the thoughtful comments about the ``moral beliefs or 
practices'' language used in proposed Sec.  106.12(c)(5),\126\ and 
acknowledges that

[[Page 59948]]

the language could be interpreted in an overly broad manner. In 
response to these and other concerns raised about the ``moral beliefs 
or practices'' language, the Department has removed the entirety of 
proposed Sec.  106.12(c)(5) in the final regulation. This change is 
discussed in more detail in the ``Proposed 34 CFR 106.12(c)(5)'s 
reference to moral beliefs'' section of this preamble.
---------------------------------------------------------------------------

    \126\ See proposed 34 CFR 106.12(c)(5) (``A statement that the 
educational institution subscribes to specific moral beliefs or 
practices, and a statement that members of the institution community 
may be subjected to discipline for violating those beliefs or 
practices.'').
---------------------------------------------------------------------------

    As discussed in more detail in the ``Proposed 34 CFR 106.12(c)(7)'' 
section of this preamble, the Department also received comments that 
expressed concern about the ``other evidence'' language used in 
proposed Sec.  106.12(c)(7). Specifically, some commenters expressed 
that an educational institution could attempt to meet the criteria of 
Sec.  106.12(c)(7) with very minimal evidence that they are controlled 
by a religious institution. In the final regulation, the Department 
added qualifiers to Sec.  106.12(c)(7) to make clear that ``other 
evidence'' must be sufficient to establish that an educational 
institution is controlled by a religious organization, pursuant to 20 
U.S.C. 1681(a)(3). In doing so, the Department clarifies that there has 
to be sufficient ``other evidence'' to establish control.
    The Department notes, in response to commenters who allege that 
this provision exceeds the scope of the statute by requiring almost no 
evidence of control by a religious organization, that the ``other 
evidence'' must itself establish control by a religious organization, 
and not merely a tenuous tie to a religious organization. This 
provision does not expand the permissible scope of the statute to mean 
that literally any evidence--regardless of the amount of evidence, its 
relevance, or its persuasiveness--is sufficient to establish a 
religious exemption.
    With respect to arguments that raised concerns about the proposed 
regulation permitting students to form hate groups on campus, or 
concerns that schools would be unable to control which speakers are 
brought to campus, the final regulations do no such thing. A school's 
ability to assert a religious exemption from Title IX does not affect a 
school's rights to permit student groups or speakers from forming or 
speaking on campus. The issues of invited speakers, freedom of 
association, and campus speech, generally, are complex issues that are 
evaluated in light of the First Amendment and associated case law.\127\ 
Section 106.12(c) does not address those complex issues, and it should 
not be construed as affecting the recipient's rights to address First 
Amendment issues on their campuses.
---------------------------------------------------------------------------

    \127\ See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) 
(freedom of association); Bd. of Regents of Univ. of Wis. Sys. v. 
Southworth, 529 U.S. 217, 233 (2000) (free speech and free 
association on a college campus); Rosenberger v. Rector and Visitors 
of Univ. of, Va., 515 U.S. 819 (1995) (viewpoint neutrality and the 
First Amendment).
---------------------------------------------------------------------------

    The Department thanks the many commenters who shared their personal 
experiences in attending institutions controlled by religious 
organizations. Some of these commenters expressed general opposition to 
the proposed rule because of their fear of the possible consequences to 
certain groups of individuals attending such institutions, including 
LGBTQ students, pregnant and parenting students, students who have 
experienced sexual violence while intoxicated, students who have 
engaged in sexual activity that is against their religion's teachings, 
and religious minority students. In particular, one commenter suggested 
that the Department should not permit educational institutions to 
discriminate against students who have experienced sexual violence. The 
Department reiterates that a religious exemption under Title IX is not 
a wholesale exemption from all provisions pertaining to sex-based 
discrimination, and that any assertion of an exemption must be based on 
the religious tenets of a religious organization that controls the 
educational institution. In this regard, the Department is skeptical 
that schools will be eligible to assert exemptions from the requirement 
to respond appropriately to sexual harassment under Title IX or from 
the prohibition on retaliation against individuals who invoke their 
rights under Title IX.
    One commenter specifically asked if the Department (either OCR or 
the Office of the General Counsel) would automatically review religious 
exemptions for reasonableness, on an annual basis. In response, the 
Department states that it will review assertions of religious 
exemptions, like all Title IX matters, pursuant to its enforcement 
authority under Title IX. However, the Department has never, and will 
not begin now, ``automatically reviewing'' all religious exemptions 
under Title IX, on an annual basis. If a complaint is filed, and the 
complaint alleges that a recipient improperly applied a religious 
exemption or any other exemption under Title IX, OCR will carefully 
consider the complaint, evaluate compliance with the statute and 
regulations, and respond accordingly. Finally, the Department notes 
that anyone who believes that a recipient institution has engaged in 
sex discrimination in violation of Title IX may file a complaint with 
OCR. Details about filing a complaint are available on OCR's website at 
www.ed.gov/ocr/complaintintro.html. Additional resources on Title IX 
are available on OCR's website at www.ed.gov/ocr/frontpage/pro-students/sex-pr.html.
    Changes: In the final regulation, the Department is removing 
proposed Sec.  106.12(c)(5) from the non-exhaustive list of criteria 
for establishing a religious exemption.
    In addition, the Department is adding two qualifiers to proposed 
Sec.  106.12(c)(7), which is Sec.  106.12(c)(6) in the final 
regulations, to make clear that the other evidence used to meet this 
final criterion must be sufficient to establish that an educational 
institution is controlled by a religious organization, pursuant to 20 
U.S.C. 1681(a)(3).

Proposed Changes to 34 CFR 106.12 and Relationship to Title IX 
Generally

    Comments: Some commenters asserted that the proposed changes to 
Sec.  106.12 ignore the purpose of Title IX. These commenters further 
argued that the proposed changes undermine the mission of OCR by 
letting institutions allow discrimination by student groups and staff, 
even when doing so means that the institution would not meet the 
general duties it would have under Title IX. Some commenters even 
suggested that OCR was forcing institutions to invoke exemptions from 
Title IX, in the sense that religious institutions might be forced to 
invoke a religious exemption, even if they wanted to comply with the 
general non-discrimination duties of Title IX.
    One commenter noted the impact of what happens when students' Title 
IX rights are ignored. The commenter believed that the proposed changes 
to Sec.  106.12 would put all students at risk because when one student 
is affected, it also affects their peers who may witness harassment, be 
subjected to increased harassment themselves, and may become anxious 
and unable to concentrate in school. Another commenter was concerned 
that the proposed changes would require public institutions to fund 
religious student organizations, even when they discriminate against 
students protected under Title IX. The commenter believed this 
contradicts the Supreme Court's opinion in Christian Legal Society v. 
Martinez,\128\ and would force public

[[Page 59949]]

institutions to fund discrimination prohibited by Title IX.
---------------------------------------------------------------------------

    \128\ 561 U.S. 661 (2010).
---------------------------------------------------------------------------

    Some commenters expressed general opposition to the proposed 
changes to Sec.  106.12 and asserted that the Department did not 
explain how the proposed changes are consistent with the Title IX 
statute. A commenter asserted that the Department did not explain why 
the proposed changes are needed to assist qualifying institutions. 
Finally, a commenter asserted that the Department did not explain why 
any alleged benefits of the proposed changes are greater than the 
discriminatory harm faced by students and employees at educational 
institutions.
    Discussion: The religious exemption provision of Title IX, 20 
U.S.C. 1681(a)(3), does not directly address how educational 
institutions demonstrate whether they are controlled by a religious 
organization. As the comments in response to the proposed rule 
demonstrate, some commenters have taken this lack of clarity to mean 
that an educational institution can never be controlled by a religious 
organization, unless the religious organization takes the form of a 
separate corporate or other legal entity. The criteria in Sec.  
106.12(c) helpfully codify existing factors that the Assistant 
Secretary for Civil Rights uses when evaluating, on a case-by-case 
basis, requests for a religious exemption assurance from OCR, and while 
addressing concerns that there may be other means of establishing the 
necessary control.
    Additionally, because many of these factors are contained in non-
binding guidance issued to OCR personnel dating back more than 30 
years, enacting clear regulatory provisions will provide recipients and 
other stakeholders with clarity regarding what it means to be 
``controlled by a religious organization.'' Here, the Department has 
authority to regulate with regard to discrimination on the basis of sex 
under 20 U.S.C. 1682, and the Department has determined it is necessary 
to regulate given the statutory silence and genuine ambiguity in regard 
to the criteria for obtaining a religious exemption under Title IX. 
These regulations are consistent with the Title IX statute in that they 
do not contradict, but attempt to clarify, an explicit exception 
provided for in the Title IX statute.
    Of course, no educational institution controlled by a religious 
organization is required to assert any religious exemption at all. Nor 
does Sec.  106.12 alter the ability of individual students to pressure 
a school into asserting a religious exemption to Title IX or declining 
to assert such an exemption. Commenters' fears that Sec.  106.12, as 
proposed, will permit students or student groups to obligate their 
schools to distribute monies or services in a different manner, based 
on a religious exemption to Title IX, are incorrect. To the extent that 
individual students may not be protected by non-discrimination 
obligations if they attend an educational institution controlled by a 
religious organization, such a consequence is a result of the Title IX 
statute itself, and not the regulations.
    The Department acknowledges that some commenters felt that the 
Department did not sufficiently articulate why the proposed changes are 
needed to assist institutions controlled by religious organizations. As 
explained above, these proposed revisions conform more closely to the 
intent of Executive Order 13831 and to the Supreme Court's current 
First Amendment jurisprudence; relevant Federal statutes such as RFRA; 
Executive Order 13279, as amended by Executive Orders 13559 and 13831; 
and the Attorney General's Memorandum on Religious Liberty. The 
Department has determined that the codification of the factors utilized 
by OCR in analyzing a religious exemption from Title IX will promote 
transparency and remove barriers to recipients exercising their First 
Amendment rights. Further, enacting clear regulations will provide 
recipients and other stakeholders with clarity regarding what it means 
to be ``controlled by a religious organization.'' As some commenters 
argued, some educational institutions were concerned that they might 
not be eligible for a religious exemption because their religious and 
organizational structure did not include an external controlling 
organization. This provision's clarity--which also enshrines specific 
criteria for ``control'' into regulations with the force and effect of 
law, as opposed to non-binding guidance--will create more 
predictability, consistency in enforcement, and confidence for 
educational institutions asserting the exemption. The Department 
carefully considered comments about weighing the anticipated benefits 
of the proposed regulation against the potential discriminatory harm 
that may be experienced by students and employees. While the Department 
appreciates that many commenters were concerned about potential harm to 
vulnerable populations, the Department asserts that Congress enacted 
Title IX with explicit exceptions to the requirements of Title IX, and 
these final regulations do not create new exceptions to the Title IX 
statute. Instead, the Department is providing much-needed clarity to 
the meaning of vague terminology utilized in the statute.
    Finally, the Department notes that it has addressed a commenter's 
concerns pertaining to public institutions funding student 
organizations that discriminate on the basis of sex, and the Supreme 
Court's decision in Christian Legal Society v. Martinez,\129\ in the 
``All-Comers' Policies for Student Organizations'' section of this 
preamble. In short, the Department clarifies that this regulation does 
not prevent institutions from implementing all-comers policies, which 
were upheld in Martinez, nor does it constitute an ``exemption'' for 
religious student groups from all-comers policies. Instead, these final 
regulations reinforce the First Amendment's mandate that public 
institutions treat religious student organizations the same as other 
student organizations. As such, a university does not have to choose 
between compliance with State law and securing Federal funding in the 
form of grants; it is free to enforce an all-comers policy in order to 
comply with any State anti-discrimination laws as long as it applies 
that policy equally to all student organizations. If a public 
institution chooses to not adopt an all-comers policy, which is also 
permissible under Martinez, then the institution cannot require a 
student organization, including a religious student organization, to 
open eligibility for membership and leadership to all students. 
Ultimately, a university has the discretion to choose what kind of 
policy will best comply with its own State and local anti-
discrimination laws. In any event, whether a school meets the 
definition of an educational institution controlled by a religious 
organization in Sec.  106.12, and further, whether it opts to invoke an 
exemption from Title IX, do not affect its rights under the First 
Amendment.
---------------------------------------------------------------------------

    \129\ 561 U.S. 661 (2010).
---------------------------------------------------------------------------

    Changes: None.

Impact of Proposed Changes to 34 CFR 106.12 on LGBTQ Individuals

    Comments: Many commenters expressed specific concerns that the 
proposed changes to Sec.  106.12 would create barriers for and cause 
harm to LGBTQ students, parents, and school employees. Some commenters 
articulated specific concerns related to LGBTQ students, including 
direct financial costs like lost tuition for students who are forced to 
leave their schools; lost wages for employees who are fired for reasons 
that otherwise would violate Title IX; and, health-

[[Page 59950]]

related costs like the impact of stress on mental and physical health. 
One commenter noted that policies that extend equal rights and legal 
protections are associated with decreased stress levels and improved 
health outcomes among sex and gender minorities.
    Some commenters asserted that the proposed changes to Sec.  106.12 
would harm LGBTQ students by referencing specific statistics regarding 
the experiences of LGBTQ youth in school, including statistics from 
GLSEN's 2017 National School Climate Survey (GLSEN Survey), to support 
their assertions. These commenters noted that the GLSEN Survey found 
that the vast majority of LGBTQ students experienced harassment or 
assault based on personal characteristics, including sexual 
orientation, gender expression, gender, religion, race and ethnicity, 
and disability; seven in ten LGBTQ students experienced verbal 
harassment based on sexual orientation; more than half of LGBTQ 
students experienced verbal harassment based on gender expression; more 
than a third of LGBTQ students missed at least a day of school in the 
last month because of feeling unsafe at school, and at least two in 
five students avoided bathrooms and locker rooms because they felt 
unsafe or uncomfortable; the frequency of verbal harassment based on 
gender expression increased from 2015 to 2017; and LGBTQ students who 
experienced high-levels of anti-LGBTQ victimization were nearly twice 
as likely to report that they do not plan to pursue postsecondary 
education; and these students had lower GPAs, lower self-esteem, and 
higher levels of depression.
    Other commenters provided statistics related to LGBTQ youth without 
referencing a specific study, noting that LGBTQ youth are more likely 
to attempt suicide than heterosexual youth; that almost two-thirds of 
LGBTQ youth report being personally affected by anti-LGBTQ policies and 
practices; that 18 percent of LGBTQ students report leaving a school 
because they felt unsafe or uncomfortable; and that among LGBTQ 
students who make it to college, 31 percent have experienced a hostile 
campus environment.
    Some commenters noted that a recent assessment of schools seeking 
religious exemptions found that the vast majority of requesting 
institutions sought exemptions from Title IX that were related to 
sexual orientation and gender identity. Commenters contended that these 
exemptions were invoked in order to facilitate sex discrimination by 
the institutions. According to these commenters, it is reasonable to 
expect the trend to continue under the proposed changes to Sec.  
106.12.
    One commenter argued that employment discrimination based on sex, 
including sexual orientation and gender identity, remains a grave 
problem in the United States. The commenter asserted that although 
Federal law currently prohibits discrimination based on sex, the 
proposed changes to Sec.  106.12 would embolden Federal contractors to 
cite religious beliefs in order to justify religious discrimination.
    One commenter expressed concern that, as a practical matter, the 
proposed changes mean that a student who identifies as LGBTQ or who is 
a child of LGBTQ parents could be confronted with open anti-LGBTQ 
hostility by a Department-funded social service program partnering with 
public schools to provide healthcare screening, transportation, 
shelter, clothing, or new immigrant services. The commenter also 
believed that the proposed changes increase the likelihood that these 
harms will result by requiring the Department to issue special notices 
informing potential grantees that they can apply to be exempt from 
generally applicable civil rights laws.
    Discussion: The Department acknowledges that the religious 
exemptions sought by some educational institutions have involved the 
application of Title IX to complex issues involving sexual orientation, 
gender identity, or transgender status. These educational institutions 
have often cited their religious texts and tenets when articulating 
conflicts with Title IX in correspondence with OCR. While the 
Department understands that some commenters believe that religious 
exemptions should not be granted when there is a conflict with Title IX 
stemming from a religious tenet addressing sexual orientation, gender 
identity, or transgender status, the Department enforces Title IX 
consistent with applicable statutes, including RFRA, and case law. 
Title IX does not require the Department to deny otherwise valid 
religious exemption requests if they relate to sexual orientation, 
gender identity, or transgender status.
    Further, the Department disagrees that these proposed regulations 
will have a significantly increased negative impact upon LGBTQ 
individuals, because the final regulations clarify existing statutory 
exemptions to Title IX and the recipients' eligibility for claiming 
such exemptions. The religious exemption contained in Title IX has 
existed since the statute's enactment in 1972.\130\ Since that time, 
the Department has issued a number of letters in response to 
educational institutions' correspondence asserting eligibility for a 
religious exemption, and the Department has stated publicly that it 
utilizes many of the criteria contained in this proposed regulation 
when considering such correspondence.\131\ The Department cannot 
predict whether the number of recipients claiming the exemption will 
increase because (1) OCR's past practice has been to allow recipients 
to claim a religious exemption even after a complaint has been filed 
against the recipient, and thus, OCR has never had a concrete number of 
recipients who are claiming a religious exemption at a given time; and 
(2) after August 14, 2020 (the effective date of the Title IX Final 
Rule), it is clear that the recipient is under no obligation to 
affirmatively notify OCR that they are claiming a religious exemption. 
In any event, based on public comment, the Department does not believe 
that there are a significant number of educational institutions who 
have not previously sought a religious exemption, but would be eligible 
to do so as a result of these final regulations, which include existing 
factors from OCR's non-binding guidance.
---------------------------------------------------------------------------

    \130\ Title IX of the Education Amendments of 1972, Public Law 
92-318, 373, 86 Stat. 235 (signed into law on June 23, 1972).
    \131\ See, e.g., U.S. Dep't of Educ., Office for Civil Rights, 
Memorandum from William Smith, Acting Assistant Sec'y for Civil 
Rights, to OCR Senior Staff regarding Title IX Religious Exemption 
Procedures and Instructions for Investigating Complaints at 
Institutions with Religious Exemptions (Oct. 11, 1989), available at 
https://www2.ed.gov/about/offices/list/ocr/docs/smith-memo-19891011.pdf.
---------------------------------------------------------------------------

    With respect to commenters alleging that Federal contractors will 
now be able to discriminate on the basis of sex, the Department notes 
that this provision only applies to educational institutions that are 
controlled by a religious organization. The Department is committed to 
the rule of law and robust enforcement of Title IX's non-discrimination 
mandate. As a statutory exemption to certain provisions of Title IX 
exists for educational institutions controlled by a religious 
organization, the Department must acknowledge and practically 
administer such an exemption.
    Changes: None.

Impact of Proposed Changes to 34 CFR 106.12 on Pregnant and Parenting 
Individuals

    Comments: Many commenters expressed specific concerns that the 
proposed changes to Sec.  106.12 would negatively impact pregnant and

[[Page 59951]]

parenting students. Some of these commenters also expressed specific 
concerns that the proposed changes would permit discrimination based on 
seeking reproductive health care, including those who have had an 
abortion or are unmarried and pregnant. One commenter asserted that the 
proposed rule would allow colleges and universities to discriminate 
against a significant portion of the population given that one in four 
women will have an abortion in their lifetime.
    Discussion: The Department appreciates and has considered the 
comments raising concerns that the proposed changes may negatively 
impact pregnant and parenting students. However, the Department 
reiterates its disagreement with the contention that the proposed 
changes will have a significant increased impact on certain students, 
given that the process to assert eligibility for a religious exemption 
already exists, and the final rule does not significantly change the 
scope of educational institutions who are eligible to assert a 
religious exemption. The Title IX implementing regulations regarding 
the religious exemption were initially issued on May 9, 1980,\132\ and 
the Department has issued a number of letters addressing religious 
exemptions on the basis of pregnancy and/or familial status since that 
time.\133\
---------------------------------------------------------------------------

    \132\ The Department notes that the Title IX regulations were 
amended on November 13, 2000, to include provisions pertaining to 
single-sex education.
    \133\ See ``Other Correspondence.'' Office for Civil Rights, 
Department of Education, https://www2.ed.gov/about/offices/list/ocr/correspondence/other.html.
---------------------------------------------------------------------------

    In any event, if an educational institution controlled by a 
religious organization seeks a religious exemption from Title IX for 
the purposes of treating students differently on the basis of pregnancy 
or familial status, or having previously sought or obtained an 
abortion, and the criteria described in Sec.  106.12 are met, the 
school would have stated a valid religious exemption under Title IX, 
regardless of the practical consequences of such a finding. These final 
regulations do not create a religious exemption where there was none.
    Changes: None.

Opposition to Religious Exemptions Generally

    Comments: Some commenters expressed opposition to the concept of 
religious exemptions in general. One commenter stated that when a 
person signs up to a certain profession and to conduct business, like 
an institution of higher education, they accept certain obligations, 
including nondiscrimination on the basis of gender and sexual 
orientation. The commenter also stated that the concept of religious 
exemptions is irrational and unworkable and inherently subjective. The 
commenter asserted that we would not entertain people indulging a 
religious belief to discriminate against racial groups, and to allow 
discrimination against sexual groups is equally absurd.
    Discussion: The Department understands that several commenters' 
opposition to the proposed changes stemmed from their opposition to 
religious exemptions generally. However, the Title IX statute 
explicitly provides for an exception to Title IX for an educational 
institution which is controlled by a religious organization if the 
application of Title IX would not be consistent with the religious 
tenets of that organization. This is one of nine specific exemptions to 
the prohibition against discrimination on the basis of sex that 
Congress included in Title IX before adopting the statute.\134\ The 
Department is charged with implementing and administering this law, but 
it did not create the religious exemption from Title IX, and it has no 
authority to disregard the statutory text.\135\
---------------------------------------------------------------------------

    \134\ See 20 U.S.C. 1681.
    \135\ Additionally, the RFRA applies to the Department and 
``operates as a kind of super statute, displacing the normal 
operations of other federal laws,'' often mandating religious 
accommodations and exemptions. Bostock v. Clayton County, Georgia, 
140 S. Ct. 1731, 1754 (2020).
---------------------------------------------------------------------------

    Changes: None.

Advance Notice of Religious Exemptions

Require Advance Notice
    Comments: Some commenters asserted that the proposed changes to 
Sec.  106.12 were particularly concerning because students' rights may 
be denied at exempt institutions with no prior notice, since a school 
may use the exemption as a defense to a Title IX complaint without ever 
having officially requested the exemption from the Department. One 
commenter asserted that the proposed changes to Sec.  106.12 would 
eliminate the advance notice requirement for religious exemptions. 
Another commenter opposed the proposed changes to Sec.  106.12 and 
stated that the current process for obtaining an assurance of an 
exemption under Title IX is (1) minimally burdensome, (2) provides 
notice to the public as to what schools are requesting exemptions, and 
(3) ensures that religion as a basis for the exemption mirrors what is 
legally permissible.
    On the other hand, other commenters expressed support for the 
Department's position that ``[a]n institution's exempt status is not 
dependent upon its submission of a written statement to OCR.'' One 
commenter felt that, although the proposed rule did not propose changes 
to Sec.  106.12(b), clarification should be added to Sec.  106.12(b) 
that the law does not require the submission of a letter to claim the 
religious exemption. One commenter suggested that the Department ought 
to clarify that schools may inherently assert the religious exemption, 
rather than having to apply for it. The commenter suggested that the 
Department modify or eliminate existing Sec.  106.12(b):

    Exemption. An educational institution which wishes to claim the 
exemption set forth in paragraph (a) of this section, shall do so by 
submitting in writing to the Assistant Secretary a statement by the 
highest ranking official of the institution, identifying the 
provisions of this part which conflict with a specific tenet of the 
religious organization.

    The commenter expressed concern that the phrase ``shall do so'' 
implies a form of application; whereas, the institution should be able 
to assert that they have the exemption when they meet the criteria in 
proposed Sec.  106.12(c). Accordingly, the commenter suggested the 
following revision:

    Exemption. An educational institution may assert the exemption 
set forth in paragraph (a) without prior written assurance from the 
Department. An educational institution may request such written 
assurance from the Assistant Secretary but is not required to do so.

    One commenter suggested a ``tightening'' of the language in 
proposed Sec.  106.12(c) to clarify that government approval is not 
needed for a religious exemption. The commenter believed that the 
phrases ``sufficient to establish'' and ``is eligible to assert'' could 
be used to claim that an institution must receive the Department's 
permission to exercise its right to a religious exemption. The 
commenter suggested that this section be rephrased to clearly indicate 
that requests by institutions for Department review and opinion are 
entirely voluntary in nature.
    Discussion: The Department has reviewed and considered the comments 
urging the Department to require advanced publication of an educational 
institution's religious exemption under Title IX before the institution 
may claim the exemption. However, the Department declines to adopt a 
new requirement mandating that educational institutions controlled by 
religious organizations publicize their invocation

[[Page 59952]]

of a religious exemption to students, employees, or other individuals. 
The Department is not persuaded that such a mandate would be consistent 
with the Title IX statute, or beneficial overall.
    With respect to some commenters' suggestions that the Department 
modify Sec.  106.12(b), the Department states that the NPRM for these 
final regulations did not propose, nor do we make here, changes to 
Sec.  106.12(b). However, the Department's November 29, 2018, 
NPRM,\136\ and the recently released Title IX Final Rule,\137\ both 
address changes to Sec.  106.12(b).
---------------------------------------------------------------------------

    \136\ 83 FR 61482, 61496.
    \137\ 85 FR at 30475-82, 30573-74.
---------------------------------------------------------------------------

    In regard to the comment requesting that the Department clarify 
that government approval is not needed in order for a recipient to 
claim a religious exemption, the Department again reiterates that 
recipients are not required to request a religious exemption from 
specific provisions of Title IX. If they meet the criteria for a 
religious exemption, recipients may simply assert the religious 
exemption at any time, whether before or after an investigation has 
been opened. The Department's position and interpretation is clear on 
this point, especially when coupled with the Title IX Final Rule, and 
further clarification is not needed.
    Changes: None.

Other Concerns Related to Proposed Changes to 34 CFR 106.12

    Comments: One commenter expressed concern that the Department did 
not obtain approval of the proposed rule from the Attorney General, in 
violation of Executive Order 12250. According to the commenter, 
Executive Order 12250 requires any NPRM that addresses sex 
discrimination under Title IX to be reviewed by the Attorney General 
prior to its publication in the Federal Register.\138\ The commenter 
noted that the aforementioned authority (although not the authority to 
approve final regulations) had been delegated to the Assistant Attorney 
General for Civil Rights.\139\
---------------------------------------------------------------------------

    \138\ Citing sections 1-202, 1-402 of Executive Order 12250; see 
also Memorandum from John Gore, Acting Assistant Attorney General, 
to Federal Agency Civil Rights Directors regarding Clearance 
Requirements for Title VI, Title IX, Section 504, and Related 
Nondiscrimination Regulations and Policy Guidance Documents (Apr. 
24, 2018).
    \139\ 28 CFR 0.51(a).
---------------------------------------------------------------------------

    One commenter asserted that any changes to the Department's Title 
IX regulations should be done in coordination with the other Federal 
agencies that have Title IX regulations. The commenter stated that the 
proposed changes to Sec.  106.12 focus on the Department of Education 
only, even though there are 25 other Federal agencies with Title IX 
regulations, and most of those agencies provide financial assistance to 
the same private schools, colleges, and universities that the 
Department of Education funds. The commenter also asserted that the 
Department must work with all other Federal agencies to adopt a common 
set of standards on this common question of which entities are eligible 
for exemptions to Title IX. The commenter believed that the Regulatory 
Flexibility Act requires the Department to identify and address all 
relevant Federal rules that may duplicate, overlap, or conflict with 
the proposed rule. The commenter also believed that Executive Order 
12866 requires the Department to avoid regulations that are 
inconsistent, incompatible, or duplicative with those of other Federal 
agencies. The commenter contended that it is not sufficient to merely 
predict that other agencies will amend their Title IX regulations to 
comport with the Department's proposed changes to Sec.  106.12 in the 
future. According to the commenter, dissimilarity in Title IX 
regulations leads to confusion about how different agency Title IX 
regulations interact among courts and recipients, as has been the case 
with single-sex schools and classes and dress codes. The commenter 
stated that the Department may also struggle with inconsistencies 
because it has entered into delegation agreements with other Federal 
agencies to handle complaints of discrimination under Title IX and 
complaints filed with other agencies may be referred to the Department 
for handling. According to the commenter, this means that the 
Department may have to investigate, on behalf of another agency, a 
Title IX complaint at a private school that the Department believes is 
exempt from Title IX.
    Another commenter was concerned that the proposed rule would 
eliminate religious freedom protections for college preparation and 
work-study programs intended to help high school students from low 
income families prepare for college, and would impact federally funded 
afterschool and summer learning programs for students in high-poverty, 
low performing schools.
    Discussion: First, Executive Order 12250 was signed by President 
Jimmy Carter on November 2, 1980.\140\ This Executive Order states that 
the Attorney General shall coordinate the implementation and 
enforcement by Executive agencies of various nondiscrimination 
provisions of the following laws:
---------------------------------------------------------------------------

    \140\ Exec. Order No.12250, Leadership and Coordination of 
Nondiscrimination Laws, 45 FR 72995 (Nov. 2, 1980), https://www.justice.gov/crt/executive-order-12250.

    (a) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 
seq.).
    (b) Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 
et seq.).
    (c) Section 504 of the Rehabilitation Act of 1973, as amended 
(29 U.S.C. 794).
    (d) Any other provision of Federal statutory law which provides, 
in whole or in part, that no person in the United States shall, on 
the ground of race, color, national origin, handicap, religion, or 
sex, be excluded from participation in, be denied the benefits of, 
or be subject to discrimination under any program or activity 
receiving Federal financial assistance.\141\
---------------------------------------------------------------------------

    \141\ See id.

---------------------------------------------------------------------------
    Specifically, section 1-202 of the Executive Order 12250 states:

    In furtherance of the Attorney General's responsibility for the 
coordination of the implementation and enforcement of the 
nondiscrimination provisions of laws covered by this Order, the 
Attorney General shall review the existing and proposed rules, 
regulations, and orders of general applicability of the Executive 
agencies in order to identify those which are inadequate, unclear or 
unnecessarily inconsistent.\142\
---------------------------------------------------------------------------

    \142\ Id. Sec.  1-202.

    As it pertains to the aspects of this NPRM that propose changing 
the Title IX regulations, the Department is in compliance with 
Executive Order 12250 because the Department submitted this proposed 
rule for consideration to the Office of Management and Budget (OMB), 
and OMB initiated a clearance process with the Department of Justice. 
Pursuant to this OMB clearance process, the Department of Justice has 
had an opportunity to review the proposed changes to Sec.  106.12. 
Additionally, the Department is aware that, pursuant to Executive Order 
12250, the Attorney General of the United States must approve the final 
text of any changes to regulations pertaining to Title IX before they 
take effect.\143\
---------------------------------------------------------------------------

    \143\ Id. section 1-1.
---------------------------------------------------------------------------

    Next, with respect to the concerns about the Department of 
Education's Title IX regulations diverging from other Federal agency 
regulations pertaining to Title IX, we begin by noting that the 
Department of Education's implementing regulations for Title IX are 
available at 34 CFR 106.1, et seq. In contrast, the Title IX common 
rule, published on August 30, 2000, covers education program providers 
or recipients that are funded by other Federal agencies, including the 
Nuclear Regulatory Commission, the Small Business Administration, the 
National

[[Page 59953]]

Aeronautics and Space Administration, the Department of Commerce, the 
Tennessee Valley Authority, the Department of State, the Agency for 
International Development, the Department of Housing and Urban 
Development, the Department of Justice, the Department of the Treasury, 
the Department of Defense, the National Archives and Records 
Administration, the Department of Veterans Affairs, the Environmental 
Protection Agency, the General Services Administration, the Department 
of the Interior, the Federal Emergency Management Agency, the National 
Science Foundation, the Corporation for National and Community Service, 
and the Department of Transportation.\144\
---------------------------------------------------------------------------

    \144\ Title IX Final Common Rule for 21 Federal agencies: 
Nondiscrimination on the Basis of Sex in Education Programs or 
Activities Receiving Federal Financial Assistance (65 FR 52857).
---------------------------------------------------------------------------

    However, the Department of Education is in a unique position with 
respect to Federal agencies implementing and enforcing Title IX 
because, as the common rule acknowledges, the Department is (and has 
historically been) the lead agency for enforcement of Title IX through 
its guidance, interpretations, technical assistance, investigative 
expertise, and the amount of resources that the Department commits to 
enforcement of Title IX. Despite the assertions of some commenters, 
there is no requirement that there be perfect parity in Title IX 
regulations across the Federal agencies. Indeed, differences between 
the Department's regulations and the common rule exist even apart from 
this rule.
    Given the Department's historical role as a leader in Title IX 
administration and enforcement, it is appropriate that substantive 
changes to the Title IX regulations originate with the Department. Once 
the Department's proposed changes to Title IX are in effect, other 
Federal agencies may consider whether the Department's changes should 
be reflected in their own regulations. However, the assertion that the 
Department is prohibited from amending, or that it would be unworkable 
to amend, the Department's Title IX regulations because other Federal 
agencies have Title IX regulations that differ slightly from the 
Department's regulations is simply not a correct statement of law or 
policy. We do not believe these final regulations would be 
inconsistent, incompatible, or duplicative with those of other 
agencies, and have engaged in the interagency review process through 
OMB's Office of Information and Regulatory Affairs to help ensure that 
this is the case. Further, we discuss our compliance with the 
Regulatory Flexibility Act in the ``Executive Orders and Other 
Requirements'' section of this preamble. The Department acknowledges 
that it has previously entered into delegation agreements with other 
Federal agencies to review and enforce complaints filed with those 
agencies, although OCR has suspended several of these interagency 
agreements. In any event, if OCR were to accept complaints filed with 
other agencies as part of a delegation arrangement, OCR would make the 
necessary coordination efforts to ensure compliance with all laws, 
including Title IX.
    Last, with respect to one commenter who was concerned that the rule 
would eliminate religious freedom protections for college preparation 
and work-study programs, Sec.  106.12 would not eliminate existing 
religious freedom protections for any individual or program. Instead, 
Sec.  106.12 is designed to codify in part existing OCR guidance with 
respect to the definition of an educational institution controlled by a 
religious organization and clarify when such entities are eligible to 
assert an exemption.
    Changes: None.

Proposed 34 CFR 106.12(c)--Definition of ``Controlled by'' a Religious 
Organization

    Comments: Some commenters expressed general support for Sec.  
106.12, noting that a recipient can itself be a religious organization 
that controls its own operations, curriculum, and other features. One 
commenter asserted that many of the schools in the Jewish community are 
entities that are wholly independent from a synagogue or other 
hierarchical body, and thus are not controlled by a religious 
organization that maintains a separate legal form. The commenter felt 
that the list of non-exhaustive factors for claiming a religious 
exemption represented an understanding that religious institutions may 
be controlled by religion in different ways, yet they are no less 
religious. In the same vein, another commenter supported the changes 
because they stated that some Christian and other religious educational 
institutions are organized and governed by a local board or body of 
religious leaders, rather than being operated under a hierarchical 
organization. According to the commenter, for many of these 
organizations, local control, free of any denominational or 
hierarchical organization, is a deeply held religious belief and 
practice.
    One commenter was supportive of the proposed changes to Sec.  
106.12(c) because, according to the commenter, these changes would 
preclude the Department from engaging in unconstitutional 
differentiation among religious institutions based on their connection 
(or lack thereof) with any outside entity such as a denomination or 
religious order.
    One commenter expressed gratitude for the six added provisions in 
proposed Sec.  106.12(c) to help explain the ``controlled by'' 
language. The commenter felt that the list would add clarity for 
schools and stakeholders. Another commenter also believed that the 
proposed changes to Sec.  106.12(c)(1)-(7) clarified what constitutes 
an institution that is ``controlled by a religious organization.'' One 
commenter supported the proposal to clarify the eligibility to assert 
religious exemptions under Title IX because it will give students clear 
parameters for whether the institutions they apply to and attend are 
eligible for religious exemptions. The commenter also argued, 
separately, that the proposed rule would expand the limited exemption 
for religious schools in Title IX to a broader range of schools that 
can claim their First Amendment rights, and suggested that such an 
expansion could lead to equality for all schools.
    One commenter believed that the criteria in proposed Sec.  
106.12(c) would prevent the imposition of a government standard of what 
constitutes a religious identity on institutions established for a 
religious educational purpose, and protect an individual's and an 
institution's free exercise and assembly rights. One commenter 
supported what they called a broad reading of what could qualify as a 
religious institution because according to the commenter, it would 
ensure that the freedom of all types of religious institutions are 
protected.
    In addition, some commenters expressed general concern that the 
Department's proposal would expand the definition in Sec.  106.12(c) of 
schools controlled by a religious organization in ways that have 
nothing to do with religion, which would lead to increased 
discrimination by schools that were not truly religious, and against 
the students that Title IX was intended to protect.
    Some commenters asserted that the proposed changes to the 
definition of ``controlled by'' a religious organization in Sec.  
106.12(c) would strip the word ``control'' of its intended meaning, and 
would virtually adopt an expanded religious exemption for schools 
``closely identified with the tenets of a religious organization,'' 
which the commenter

[[Page 59954]]

argued was previously rejected by Congress. These commenters believed 
that if Congress had intended to allow exemptions for educational 
institutions without regard to the existence of an outside, external 
religious organization, it would have modeled the language in Title IX 
on Title VII of the Civil Rights Act of 1964, which allows an exemption 
for educational institutions without regard to the existence of a 
religious organization, but instead Congress restricted the religious 
exemption in Title IX to schools ``controlled by'' a ``religious 
organization.''
    One commenter believed that the Department's statement that it is 
``constitutionally obligated'' to broadly interpret the phrase 
``controlled by a religious organization'' to avoid religious 
discrimination among institutions of varying denominations is an 
incorrect interpretation of the cannon of statutory avoidance, which 
does not permit an agency to rewrite a statute. The commenter referred 
to Jennings v. Rodriguez,\145\ when discussing this proposition. The 
commenter asserted that if a statutory exemption that is limited to 
educational institutions ``controlled by a religious organization'' 
unconstitutionally discriminates against religious organizations with 
different types of structures, then the Department's only choice is not 
to apply the unconstitutional exemption to anyone. The commenter 
contended that Congress, in 1972 when Title IX was originally passed, 
and in 1988 when it was amended, would have wanted to enact Title IX 
without a religious exemption, if a court were to hold that the limited 
religious exemption it enacted was unconstitutional. The commenter 
noted that there is no statutory language in Title IX that can be 
excised from the religious exemption itself if the ``controlled by a 
religious organization'' is unconstitutionally limiting, because 
without this language, the exemption makes no sense. The commenter also 
asserted that even without the religious exemption in Title IX, an 
educational institution can invoke the Religious Freedom Restoration 
Act if it can show that Title IX substantially burdens its exercise of 
religion.
---------------------------------------------------------------------------

    \145\ 138 S. Ct. 830, 836 (2018).
---------------------------------------------------------------------------

    The commenter further asserted that, if the religious exemption in 
Title IX as written is unconstitutional, the longstanding course of 
conduct by Congress demonstrates that it would have wanted Title IX to 
remain in effect. The commenter noted that Title IX was modeled on 
Title VI of the Civil Rights Act of 1964, but that Title VI does not 
have a religious exemption, and neither do Section 504 of the 
Rehabilitation Act of 1973 or the Age Discrimination Act of 1975, which 
were both enacted after Title IX. Thus, the commenter contended that 
Congress did not think that a religious exemption was necessary in 
order to place non-discrimination conditions on recipients of Federal 
financial assistance, even when the type of discrimination was not 
subject to heightened constitutional scrutiny. The commenter also noted 
that Congress confronted the question when it reauthorized the statute 
in 1988 and rejected expanding the religious exemption in Title IX. The 
commenter also stated that the majority of statutes enacted by Congress 
addressing sex discrimination by recipients of financial assistance 
have consistently prohibited sex discrimination without any religious 
exemptions, including statutes enacted around the same time as Title 
IX.
    One commenter noted that several other Federal statutes enacted 
around the same time as Title IX provide an exemption involving looser 
or more informal relationships with religious organizations that do not 
rise to the level of actual control, which demonstrates that Congress 
intentionally limited the exemption in Title IX to only instances where 
an educational institution is controlled by an outside religious 
organization. This commenter also stated that although courts have not 
yet interpreted the language ``controlled by'' in Title IX, cases 
interpreting similar language in other statutes are instructive. The 
commenter referenced cases interpreting the Federal Unemployment Tax 
Act (FUTA) and Fair Housing Act (FHA), where courts have demanded a 
showing of actual or legal control of an entity's governing body to 
establish that an entity is ``controlled by'' a religious organization. 
According to the commenter, the language of the FHA religious exemption 
is narrower than that of Title IX and, thus, the courts' narrow 
interpretation of the FHA exemption demands an even narrower 
interpretation in the Title IX context.
    One commenter asserted the suggestion that one component of an 
educational institution can be the religious organization has no basis 
in the statutory text. The commenter stated that this would make 
language that Congress has specifically included in other statutes 
redundant and noted that, in authorizing Federal funds to go to private 
schools after Hurricane Katrina, Congress exempted ``a non-public 
school that is controlled by a religious organization or organized and 
operated on the basis of religious tenets.'' The commenter asserted 
that the Department has no authority to rewrite Title IX to include 
language that Congress included elsewhere, but not in Title IX.
    One commenter contended that while there may be varied methods of 
establishing control, it cannot be enough that an educational 
institution has elected to subscribe to or adopt a particular doctrinal 
statement or practices because the term ``control'' suggests a more 
coercive, two-party relationship. The commenter noted that Congress has 
defined a ``tribally controlled college or university'' to mean ``an 
institution of higher education which is formally controlled or has 
been formally sanctioned, or chartered, by the governing body of an 
Indian tribe or tribes.'' The commenter also noted that under ERISA, a 
pension plan qualifies for the ``church plan'' exemption if the 
organization maintaining it is either ``controlled by or associated 
with a church.'' The commenter further explained that courts use a 
multi-factor test for determining whether an organization is 
``associated with'' a church, but both the IRS and courts have used the 
commonsense definition of organizational control: ``the ability of 
church officials to appoint the majority of the trustees or directors 
of an organization.'' Thus, the commenter asserted, there is no ground 
to deviate from such a commonsense definition in interpreting the same 
language in Title IX.
    One commenter asserted that when Congress wants to permit an 
exemption from non-discrimination laws for educational institutions 
that have relationships with religious organizations not based solely 
on control, it knows how to do it, but has done so only rarely. The 
commenter explained that in other situations, for example, Congress has 
permitted exemptions for ``a non-public school that is controlled by a 
religious organization or organized and operated on the basis of 
religious tenets;'' \146\ for ``any educational institution that is 
affiliated with a religious organization or closely associated with the 
tenets of a religious organization;'' \147\ for ``a school that is 
operated by, supervised by, controlled by, or connected to a religious 
organization;'' \148\ and for ``an institution which is controlled by 
or

[[Page 59955]]

which is closely affiliated with the tenets of a particular religious 
organization.'' \149\
---------------------------------------------------------------------------

    \146\ Elementary and Secondary Education Hurricane Relief Act, 
Public Law 109-148, section 107, 119 Stat 2680 (2005).
    \147\ District of Columbia Appropriations Act, 1990, Public Law 
101-168, section 141(b), 103 Stat 1267 (Nov. 21, 1989).
    \148\ Department of Defense and Full-Year Continuing 
Appropriations Act, 2011, Public Law 112-10, section 3008, 125 Stat 
38.
    \149\ Higher Education Amendments of 1992, Public Law 102-325, 
section 724, 106 Stat 448.
---------------------------------------------------------------------------

    One commenter noted that Congress considered changes to the 
religious exemption language in Title IX to expand it beyond 
``control'' in 1988 when it expanded the coverage of Title IX in the 
Civil Rights Restoration Act. The commenter explained that at that 
time, proponents of an expanded religious exemption in Title IX, 
including the Department, urged that the language in Title IX be 
changed to include educational institutions ``closely identified with 
the tenets of a religious organization.'' \150\ The commenter further 
explained that Congress rejected the proposal to broaden the religious 
exemption in Title IX, and President Reagan stated that one reason for 
his veto of the Civil Rights Restoration Act was the ``failure to 
protect the religious freedom of private schools that are closely 
identified with the religious tenets of, but not controlled by, a 
religious organization.'' \151\ The commenter believed that the 
Department has no authority to rewrite Title IX to treat ``controlled 
by'' as if it encompassed any other types of relationships because 
Congress considered and rejected this idea.
---------------------------------------------------------------------------

    \150\ S. Rep. 100-64, at 27 (1987).
    \151\ 134 Cong. Rec. H1037 (Mar. 22, 1988).
---------------------------------------------------------------------------

    One commenter believed that the religious exemption in Title IX 
must be interpreted narrowly to give effect to the statute's primary 
purpose to protect students and ensure equal access to education 
through the vigorous enforcement of civil rights. The commenter stated 
that the Title IX regulations therefore must, as a default rule, aim 
primarily to realize Title IX's purpose for preventing and addressing 
sex discrimination in federally funded entities, and if the Department 
chooses to change this default expectation, it must provide an 
extremely compelling justification for doing so. The commenter asserted 
that the Department offered little justification for its broad 
interpretation of Title IX's religious exemption in the proposed 
changes to Sec.  106.12(c). The commenter further asserted that the 
limited nature of Title IX's religious exemption is further underscored 
by its legislative history, in both its initial drafting and 
negotiations over later amendments, which make clear that legislators 
intended and understood the exemption to be narrow.
    One commenter was concerned that, contrary to the plain text of the 
statute, the proposed changes to Sec.  106.12(c) would allow a broad 
range of schools that are not controlled by a religious organization to 
discriminate against students and employees based on sex. According to 
the commenter, approximately one fifth of Maryland colleges and 
universities describe themselves as having a religious affiliation, 
regardless of whether they are controlled by a religious organization. 
The commenter contended that the proposed changes would enable these 
institutions to use Federal funds to legally discriminate against 
teachers and students, and such an expansion would leave thousands of 
Maryland students and teachers vulnerable to sexual harassment, 
retaliation, and unwarranted disciplinary actions.
    One commenter asserted that the proposed changes to Sec.  106.12(c) 
represent an unwarranted expansion of Title IX's religious exemption. 
The commenter explained that the Title IX statute includes important 
limitations about which schools can qualify for an exemption and in 
particular the school needs to be ``controlled by a religious 
organization.'' According to the commenter, this means that it is not 
sufficient for a school to be affiliated with a religion or to follow 
certain religious principles; the school needs to be controlled by 
another organization, one that has specific religious tenets and is 
capable of exerting control over a school.
    One commenter generally stated that the Department has no authority 
to violate or rewrite unambiguous law, citing Chevron v. NRDC,\152\ and 
contended that the expansion of ``controlled by'' violates the 
statutory text of Title IX and thus the proposed rule must be withdrawn 
in its entirety.
---------------------------------------------------------------------------

    \152\ 467 U.S. 837 (1984).
---------------------------------------------------------------------------

    Discussion: The Department appreciates comments that the rule 
ensures that educational institutions that are controlled by religious 
organizations will be protected by Sec.  106.12. However, to be clear, 
the Department does not agree with the commenter who supported the 
proposed regulation because, in the commenter's view, the proposed 
changes to Sec.  106.12 impliedly expanded the eligibility for 
religious exemptions to all schools, or to all schools that are 
associated with religious beliefs. That is not the case, and the 
Department's regulation only addresses those educational institutions 
that are controlled by a religious organization. Further, the 
Department agrees with commenters who stated that it would pose 
challenges, and perhaps constitutional questions, to offer religious 
exemptions to some institutions that are controlled by religious 
organizations but not others, on the sole basis that some religions are 
required by their tenets not to be associated to an external entity 
that controls their operations.
    The Department understands that some commenters felt that the 
proposed addition of Sec.  106.12(c) was a departure from a long-
established agency protocol pertaining to religious exemptions. 
However, the Department notes that the provisions in proposed Sec.  
106.12(c)(1)-(5) are factors consistent with the Department's past 
practice in acknowledging an educational institution's religious 
exemption. For instance, provisions (c)(1) through (c)(3) are 
consistent with guidance issued by former Assistant Secretary for Civil 
Rights Harry Singleton to Regional Civil Rights Directors on February 
19, 1985.\153\ To guide attorneys within OCR as to whether an 
educational institution may establish ``control'' by a religious 
organization, the guidance relied on the March 1977 version of HEW Form 
639A, which was issued by the former U.S. Department of Health, 
Education, and Welfare. Proposed provisions (c)(4) and (5) also are 
consistent with a letter from Acting Assistant Secretary for Civil 
Rights William L. Smith to OCR Senior Staff.\154\
---------------------------------------------------------------------------

    \153\ U.S. Dep't of Educ., Office for Civil Rights, Memorandum 
from Harry Singleton, Assistant Sec'y for Civil Rights, to Regional 
Civil Rights Directors regarding Policy Guidance for Resolving 
Religious Exemption Requests (Feb. 19, 1985), available at 
www2.ed.gov/about/offices/list/ocr/docs/singleton-memo-19850219.pdf.
    \154\ U.S. Dep't of Educ., Office for Civil Rights, Memorandum 
from William Smith, Acting Assistant Sec'y for Civil Rights, to OCR 
Senior Staff regarding Title IX Religious Exemption Procedures and 
Instructions for Investigating Complaints at Institutions with 
Religious Exemptions (Oct. 11, 1989), available at https://www2.ed.gov/about/offices/list/ocr/docs/smith-memo-19891011.pdf.
---------------------------------------------------------------------------

    The Department received both comments in support of and in 
opposition to the Department's position that, consistent with prior OCR 
guidance, an educational institution may itself be the controlling 
religious organization under Title IX. Section 106.12(c)(6), as 
proposed, is consistent with longstanding OCR practice in recognizing 
this principle. For example, OCR has long recognized that a school or 
department of divinity is an educational institution controlled by a 
religious organization, without any requirement that the school or 
department of divinity be controlled by a religious organization that 
is organized as a separate legal entity from the educational 
institution itself.
    While the Department understands the assertions raised by some

[[Page 59956]]

commenters that an educational institution must be controlled by a 
separate legal entity in the form of an external religious organization 
in order to qualify for a religious exemption, those assertions are 
atextual, and the Department's final regulations recognizes that some 
educational institutions are organized and governed by a local board or 
body of religious leaders, rather than being operated under a 
hierarchical organization. The Title IX statute does not require that 
an educational institution and a controlling religious organization be 
separate and distinct entities. Further, the Department has long 
recognized that these entities can be one and the same, such as in the 
case of schools of divinity.
    Additionally, the Department acknowledges that the statutory text 
leads to potential ambiguities as to which educational institutions are 
eligible for exemptions, and over the years, the Department has had to 
develop a system for evaluating what is sufficient to establish that an 
educational institution is ``controlled by a religious organization.'' 
The Department has previously shared the parameters of this system with 
the public through (1) issuing non-binding agency memoranda \155\ and 
(2) publicly posting the Department's responses to letters seeking a 
religious exemption from Title IX.\156\ These procedures left 
educational institutions in the difficult position of digging through 
agency memoranda from the 1980s, and reading dozens of letters from 
OCR, in order to assess their eligibility for asserting a religious 
exemption under Title IX. Notably, however, many of these documents--
including the document that referenced divinity schools being eligible 
for religious exemptions--were issued before the events described by 
one of the commenters above occurred, such as the passage of a statute 
addressing Hurricane Katrina recovery, or President Ronald Reagan's 
veto of the Civil Rights Restoration Act. The Department thus disagrees 
with this commenter, who suggested that OCR lacks regulatory authority 
for Sec.  106.12 because Congress, in other statutes, suggested a 
distinction between maintaining religious tenets and being controlled 
by another legal entity that maintains religious tenets. That a 
different Congress drafted legislation in a different way does not 
alter the fact that the Title IX statute, as written, does not contain 
an independent requirement that the controlling religious organization 
be a separate legal entity than the educational institution. Indeed, 
the difference between these two categories of educational institutions 
appears to be a legal formality, in the sense that this comment could 
imply that forming a new legal entity on paper, and merely having that 
entity ``control'' the educational institution would, in fact, be 
sufficient to establish eligibility under the control test. Yet under 
this rationale, even a school of divinity would need to be controlled 
by an outside organization that is also a religious organization, 
contrary to over 30 years of OCR practice. Why Congress would desire 
such an outcome, even as a policy matter--to say nothing of the 
constitutional questions that might arise by privileging some religious 
structures over others--is left unaddressed by the commenter.
---------------------------------------------------------------------------

    \155\ See U.S. Dep't of Educ., Office for Civil Rights, 
Memorandum from William Smith, Acting Assistant Sec'y for Civil 
Rights, to OCR Senior Staff regarding Title IX Religious Exemption 
Procedures and Instructions for Investigating Complaints at 
Institutions with Religious Exemptions (Oct. 11, 1989), available at 
https://www2.ed.gov/about/offices/list/ocr/docs/smith-memo-19891011.pdf; U.S. Dep't of Educ., Office for Civil Rights, 
Memorandum from Harry Singleton, Assistant Sec'y for Civil Rights, 
to Regional Civil Rights Directors regarding Title IX Religious 
Exemptions (Aug. 2, 1985), available at https://www2.ed.gov/about/offices/list/ocr/docs/singleton-memo-19850802.pdf; U.S. Dep't of 
Educ., Office for Civil Rights, Memorandum from Harry Singleton, 
Assistant Sec'y for Civil Rights, to Regional Civil Rights Directors 
regarding Policy Guidance for Resolving Religious Exemption Requests 
(Feb. 19, 1985), available at https://www2.ed.gov/about/offices/list/ocr/docs/singleton-memo-19850219.pdf; Assurance of Compliance 
with Title IX, HEW Form 639-A (Mar. 18, 1977), available at https://www2.ed.gov/about/offices/list/ocr/docs/hew-form-639-a-1977.pdf.
    \156\ See Department website at https://www2.ed.gov/about/offices/list/ocr/correspondence/other.html.
---------------------------------------------------------------------------

    The Department agrees with commenters who have asserted that the 
Department has no authority to change the language in the Title IX 
statute. The Department does not endeavor to change the language of the 
statute, or to expand it beyond the scope of its text. The Department 
sees no textual reason that would require limiting 20 U.S.C. 1681(a)(3) 
exclusively to schools that are controlled by external religious 
organizations. Accordingly, it will continue to recognize that an 
educational institution may, in some cases, also be the controlling 
religious organization.
    Moreover, as a separate and independent basis for interpreting the 
text in the manner above, and as the Department explained in the NPRM, 
and consistent with many comments described above, the Department 
recognizes that religious organizations are organized in widely 
different ways that reflect their respective theologies. Some 
educational institutions are controlled by a board of trustees that 
includes ecclesiastical leaders from a particular religion or religious 
organization who have ultimate decision-making authority for the 
educational institutions. Other educational institutions are 
effectively controlled by religious organizations that have a non-
hierarchical structure, such as a congregational structure. The 
Department does not discriminate against educational institutions that 
are controlled by religious organizations on the sole basis that they 
are organized with different types of internal structures. Indeed, the 
Department has long recognized exemptions for educational institutions 
that are controlled by religious organizations with hierarchical and 
non-hierarchical structures.
    As the Supreme Court explained in Jennings v. Rodriguez,\157\ under 
the constitutional-avoidance canon of statutory interpretation, when 
statutory language is susceptible to multiple interpretations, a court 
may avoid an interpretation that raises serious constitutional doubts, 
and instead may adopt an alternative that avoids those problems. 
However, the Supreme Court cautioned that, ``a court relying on that 
canon still must interpret the statute, not rewrite it.'' Here, the 
Department is not re-writing the statute. The regulatory language is 
clearly in line with the text of the statute. The Department does 
recognize, however, that the phrase ``controlled by a religious 
organization,'' could potentially give rise to different meanings. In 
that sense, Chevron v. NRDC does not preclude an agency from adopting a 
reasonable interpretation that is both consistent with the text of the 
statute, and that also, avoids potential constitutional conflicts with 
the First Amendment. Opting to ``level down,'' however, and having the 
Department enforce Title IX without regard for any assertion of a 
religious exemption, would require re-writing the statute that Congress 
passed. If Congress prefers an outcome where no educational institution 
is allowed to claim a religious exemption from Title IX, as opposed to 
all educational institutions controlled by a religious organization, it 
can amend the relevant statute, but the Department of Education cannot 
act unilaterally.
---------------------------------------------------------------------------

    \157\ 138 S. Ct. 830, 836 (2018).
---------------------------------------------------------------------------

    The Department proposed Sec.  106.12(c)(7) in recognition that 
neither Congress nor OCR could ever promulgate an exhaustive and 
exclusive list of criteria by which an educational institution may 
assert an exemption under Title IX. This provision is consistent with 
the Department's

[[Page 59957]]

established position that an educational institution may show that it 
is ``controlled by a religious organization'' through innumerable facts 
and circumstances that are unique to that educational institution and/
or the controlling religious organization.
    Finally, the Department has changed the first sentence of proposed 
Sec.  106.12(c) to clarify and reiterate that an educational 
institution must be controlled by a religious organization to be 
eligible to assert a religious exemption from Title IX, and that it is 
the tenets of the religious organization that are referenced in 20 
U.S.C. 1681(a)(3). A few commenters pointed out that the proposed 
language in Sec.  106.12(c) of the NPRM did not explicitly mention that 
the recipient must be controlled by a religious organization. The 
Department understands and appreciates the points raised by these 
commenters, and the Department has amended the language of Sec.  
106.12(c) to include the ``controlled by a religious organization'' 
language, and to clarify that the tenets referenced in 20 U.S.C. 
1681(a)(3) are those of the religious organization.
    Changes: The Department has changed the first sentence of proposed 
Sec.  106.12(c) to further clarify that an educational institution must 
be controlled by a religious organization, as contemplated under 
subsection (a), to be eligible to assert a religious exemption.
Change to Longstanding Policy/Need for Such a Change
    Comments: One commenter asserted that there is no evidence that the 
proposed changes to the definition of ``controlled by'' a religious 
organization in Sec.  106.12(c) are needed. The commenter stated that 
hundreds of schools have requested religious exemptions under Title IX, 
and not a single request has been denied. Another commenter asserted 
that even under the existing criteria for seeking an exemption under 
Title IX, schools with loose ties to religious organizations have 
claimed to satisfy the test and sought exemptions.
    Some commenters were concerned that the proposed changes would 
alter the standard for religious exemptions under Title IX, which has 
been in place for more than 30 years. One of these commenters also was 
concerned that the proposed changes to Sec.  106.12(c) would replace 
the longstanding test with a sweeping and vague standard that will 
create more, rather than less, ambiguity about which schools are 
eligible for a religious exemption under Title IX, which will create 
confusion for students and schools. Another of these commenters also 
expressed general concern that the new test would add a range of new 
bases that a school can rely on to claim the exemption.
    Discussion: The Department does not agree with commenters' 
arguments that the new provisions create more ambiguity about which 
educational institutions may assert a religious exemption. The new 
provisions spell out specific requirements--many of which have been 
interpreted and applied for decades by OCR--for educational 
institutions to refer to when considering whether to assert a religious 
exemption. Additionally, with respect to Sec.  106.12(c)(5), the 
language references a specific accreditation regulatory provision that 
educational institutions will be able to review and consider before 
asserting a religious exemption.
    The Department appreciates commenters' concerns but reiterates that 
the final rule is designed to put into place clear parameters for when 
an educational institution can be determined to be controlled by a 
religious organization. Commenters' argument that no educational 
institution has previously been denied a religious exemption is not a 
reason to avoid having clear parameters for how to establish control, 
or to avoid embracing the value of enshrining into regulations, which 
have the force and effect of law, standards that have only been 
expressed in non-binding guidance. To be clear, a school that merely 
has loose ties to religious teachings or principles, without 
establishing ``control'' by a religious organization, is not eligible 
to assert a religious exemption.
    Changes: None.

Proposed 34 CFR 106.12(c)--Tenets of the Religious Organization

    Comments: Some commenters expressed concern that proposed Sec.  
106.12(c) is inconsistent with Title IX because it would permit an 
educational institution to assert an exemption when application of 
Title IX would not be consistent with merely its practices (not 
tenets). The commenters asserted that the term ``practices'' is vague 
and ambiguous. The commenters further asserted that the Department has 
no authority to rewrite the Title IX statute via regulation.
    One commenter contended that the exemption in the Title IX statute 
addresses the religious tenets of the religious organization and not, 
as the proposed changes to Sec.  106.12(c) would have it, the tenets of 
the educational institution. The commenter asserted that when Congress 
wants a school to be exempt based on its own religious tenets, it knows 
how to do it. The commenter pointed to the religious exemption 
provision for the Federal voucher program for DC, which exempts a 
participating private school ``to the extent that the application of'' 
the prohibition against sex discrimination ``is inconsistent with the 
religious tenets or beliefs of the school.'' The commenter stated that 
the Department has no authority to rewrite the exemption in Title IX to 
include language that Congress included elsewhere, but not in Title IX.
    Discussion: Following review of comments on the NPRM, the 
Department has re-evaluated whether Sec.  106.12(c) should state that 
the criterion in Sec.  106.12(c) shall be sufficient to establish that 
an educational institution may assert a religious exemption to the 
extent that application of this part would not be consistent with its 
religious ``tenets or practices.'' After further consideration, the 
Department has opted to use only the word ``tenets,'' which mirrors the 
language of the statute.
    The Department understands that some commenters asserted that the 
religious exemption under Title IX only exists when a Title IX 
obligation conflicts with the religious tenets of a controlling 
religious organization. As the Department has explained in both the 
NPRM and throughout this discussion of comments, OCR has long 
recognized that an educational institution may itself be the 
controlling religious organization. Thus, an educational institution 
that itself is a religious organization that controls its own 
operations may point to its own religious tenets when claiming a 
religious exemption under Title IX.
    Changes: The Department removed the word ``practices'' from the 
first sentence of Sec.  106.12(c).

Proposed 34 CFR 106.12(c)(1)-(4)'s Inclusion of the Phrase ``a 
Statement.''

    Comments: One commenter was concerned that the language in Sec.  
106.12(c)(1)-(4) put a burden on the recipient to taken action in 
claiming the religious exemption by submitting a statement to the 
Assistant Secretary for Civil Rights. This commenter felt that the 
recipient should be able to assert the exemption when the recipient 
meets the criteria, not when they submit a statement to the Assistant 
Secretary, and that the language implied that a statement would need to 
be submitted to OCR for consideration.
    Discussion: The Department seeks to clarify that educational 
institutions claiming a religious exemption do not need to submit any 
such statements to OCR. To highlight this point, in the final

[[Page 59958]]

regulation, the Department removed the words ``a statement'' from the 
beginning of subsections Sec.  106.12(c)(1)-(4).
    Changes: The Department removed the words ``a statement'' from 
Sec.  106.12(c)(1)-(4).

Proposed 34 CFR 106.12(c)(4)

    Comments: One commenter asserted that proposed Sec.  106.12(c)(4) 
would substantially expand the eligibility for a religious exemption to 
schools that are not, in fact, controlled by religious organizations. 
This commenter was concerned that there is no requirement in this 
subsection that a statement of doctrines or religious practices be 
derived from a religious organization, or that the educational 
institution have any relationship with a religious organization.
    Discussion: As the Department has explained in both the NPRM and 
throughout this discussion of comments, OCR has long recognized that an 
educational institution may itself be the controlling religious 
organization in the case of schools of divinity.\158\ Thus, an 
educational institution may point to its own religious tenets when 
claiming a religious exemption under Title IX.
---------------------------------------------------------------------------

    \158\ See, e.g., U.S. Dep't of Educ., Policy Guidance for 
Resolving Religious Exemption Requests (Feb. 19, 1985), available at 
www2.ed.gov/about/offices/list/ocr/docs/singleton-memo-19850219.pdf.
---------------------------------------------------------------------------

    Under this proposed subsection, there is no requirement that the 
doctrinal statement or statement of religious practices be derived from 
an external religious organization. The Department recognizes that 
religious organizations are organized in different ways that may 
reflect their respective theologies. The Department does not 
discriminate against educational institutions that are controlled by 
religious organizations with different types of structures, including 
educational institutions that are their own controlling religious 
organization.
    Although these educational institutions may not have a formal legal 
relationship with another entity that controls their operations, they 
are nonetheless eligible for a religious exemption under Title IX. The 
Department does not find the arguments that there must be a specific 
relationship between the educational institution and an external 
religious organization to be persuasive, given that nothing in the text 
indicates such a requirement, and the fact that the requirement would 
seem to impose a legal hurdle that would differently affect different 
religions, and would have little or no practical policy benefit. These 
commenters never explain why Congress would have wanted, as a policy 
matter, to encourage educational institutions to form external legal 
entities, and then have those entities ``control'' the educational 
institution, before an exemption could be asserted. Additionally, and 
as a separate basis for Sec.  106.12, the Department is 
constitutionally obligated to broadly interpret ``controlled by a 
religious organization'' to avoid religious discrimination among 
institutions of varying denominations that have different governance 
structures.\159\
---------------------------------------------------------------------------

    \159\ Larson v. Valente, 456 U.S. 228, 244 (1982) (``The 
clearest command of the Establishment Clause is that one religious 
denomination cannot be officially preferred over another.''); see 
also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 
U.S. 171, 202 (2012) (Alito, J., concurring; joined by Kagan, J.) 
(arguing that a broad, functionalist interpretation of religious 
teachers for purposes of the ministerial exception is necessary to 
be inclusive of faiths like Islam and Jehovah's Witnesses).
---------------------------------------------------------------------------

    Changes: As discussed above, the Department removed the words ``a 
statement'' from Sec.  106.12(c)(1)-(4).

Proposed 34 CFR 106.12(c)(5)'s Reference to Moral Beliefs

    Comments: Many commenters were concerned that, under proposed Sec.  
106.12(c)(5), a religious exemption may be granted to an institution 
that ``subscribes to specific moral beliefs'' without that institution 
being ``controlled'' by a religious organization. Some commenters felt 
that this was a substantial expansion of the religious exemption under 
Title IX.
    Some commenters argued that establishing a ``control'' test based 
on moral beliefs would open the door for many more schools--beyond 
those that are actually controlled by a religious organization--to 
demand an exemption. Many commenters contended that proposed Sec.  
106.12(c)(5) would allow institutions to claim a religious exemption 
from Title IX, even if they had no meaningful relationship at all with 
a religious organization. One commenter argued that, under the proposed 
language, educational institutions may receive religious exemptions 
even if they believe in secular moral principles.
    Some commenters felt that the proposed expansion of the religious 
exemption under Title IX was unwarranted. One commenter felt that 
proposed Sec.  106.12(c)(5) would distort the boundaries of the 
religious exemption beyond any resemblance to the statutory language.
    One commenter expressed concern that institutions did not need to 
identify any particular religion that controls them, or a religion from 
which their beliefs stem, to qualify for a religious exemption under 
proposed Sec.  106.12(c)(5). The commenter felt that, if institutions 
are not required to tie the religious exemption to a specific religion 
or religious belief, this proposed subsection would undermine Title 
IX's protections.
    One commenter asserted that proposed Sec.  106.12(c)(5) was the 
most concerning part of the proposed changes to Sec.  106.12, because 
it would allow schools to simply state that they ``subscribe to 
specific moral beliefs or practices'' to claim a religious exemption, 
without the institution subscribing to a specific religious belief or 
being controlled by a specific religious institution. The commenter was 
worried that this scenario would give any institution carte blanche to 
expel pregnant or parenting students, ignore sexual harassment in the 
classroom, or deny women scholarships or jobs based solely on their 
sex, without having to establish anything related to religious tenets 
or affiliation.
    Some commenters believed that proposed Sec.  106.12(c)(5), in 
conjunction with other parts of the proposed changes to Sec.  106.12, 
would render the phrase ``controlled by a religious organization'' 
meaningless. One commenter explained that, under proposed Sec.  
106.12(c)(5), institutions would no longer be required to demonstrate 
any connection to a religious organization, let alone that they are 
controlled by a religious organization.
    One commenter asserted that the Department has no authority to 
transform the religious exemption in Sec.  106.12 into a ``moral'' 
exemption, or to extend it to any organization not ``controlled by a 
religious organization.'' In that vein, one commenter contended that 
the proposed ``moral beliefs'' provision was the one that most 
exemplified the objection that the rule relaxed the requirements for 
educational institutions to claim an exemption, arguing that a school 
need not even subscribe to a religious belief to be exempt.
    One commenter expressed concern that, if the proposed changes to 
Sec.  106.12 were adopted, the Department's position would be that 
schools meet the ``controlled by a religious organization'' test simply 
by saying that they ``subscribe to specific moral beliefs or 
practices.'' The commenter noted that schools seeking an exemption 
under proposed Sec.  106.12 do not need to point to any particular 
religious organization that controls them, or a religious organization 
that those moral beliefs or

[[Page 59959]]

practices come from. Further, the commenter contended that the proposed 
Sec.  106.12(c)(5) does not even say that those moral beliefs or 
practices have to be connected to religion at all. Thus, as proposed, 
according to the commenter, Sec.  106.12 could allow a school with only 
a tenuous relationship with religion to claim an exemption.
    One commenter stated that the ``moral beliefs and practices'' 
language in proposed Sec.  106.12(c)(5) is ``strikingly ambiguous and 
wholly unconnected to religion altogether.'' The commenter stated that 
moral beliefs are difficult to define and may not have grounding in 
religious practice; some may be indirectly inspired by religion, but 
not tied to religion explicitly. The commenter stated that, by 
conflating moral beliefs with religion, the proposed changes to Sec.  
106.12 would open the religious exemption to widespread abuse by 
institutions with no religious connection that want to limit their 
obligations and liability under Title IX.
    One commenter asserted that the broad language in proposed Sec.  
106.12(c)(5) does not clarify the religious exemption, but rather 
muddles it. This commenter urged the Department to remove the ``moral 
belief'' language from this subsection because moral institutions are 
not the same as religiously-owned institutions, and because the 
commenter suggested that seeking permission to discriminate on the 
basis of sex is never an expression of morality.
    Other commenters were concerned that proposed Sec.  106.12(c)(5) 
did not require the governing body of an institution, or a controlling 
religious organization, to approve the statement of moral beliefs or 
practices upon which the religious exemption is claimed. One commenter 
was concerned that the statement of moral beliefs and principles in 
proposed Sec.  106.12(c)(5) did not have to be included in any official 
document, it did not have to be enforced consistently, and it did not 
have to be available to students before an institution could claim the 
religious exemption. One commenter was concerned that the statement of 
moral beliefs and principles did not have to be reflected in any 
official school documents or policies or accompanied by any evidence of 
prior positions on the stated moral principles. One commenter expressed 
concern that an educational institution could submit a ``statement that 
the educational institution subscribes to specific moral beliefs or 
practices, and a statement that members of the institution community 
may be subjected to discipline for violating those beliefs or 
practices,'' without a requirement that these statements need to be 
``written, published, or otherwise made available to the institution's 
community, approved prior to a discriminatory act, or otherwise 
enforced by the school.'' One commenter was concerned that proposed 
Sec.  106.12(c)(5) applies to schools whose ``moral beliefs and 
practices'' do not appear in writing, are not consistently enforced, or 
are simply a post-hoc rationalization asserted to rebut discrimination 
claims in the context of litigation.
    One commenter posited that the statement of moral beliefs and 
principles would not even need to exist until a student filed a 
complaint of discrimination, at which time an institution may claim a 
religious exemption from Title IX based on non-religious moral beliefs. 
One commenter was concerned that students and employees would have no 
notice that their school believes itself exempt from Title IX's 
requirements until after they are harmed by discrimination and ask 
their school to take protective or remedial action.
    One commenter believed that students would feel that that they were 
protected from sex-based discrimination until they experience such 
discrimination and try to file a complaint. The commenter was concerned 
that institutions would then make a disclosure that they are exempt 
from Title IX requirements.
    Discussion: As outlined above, the Department received considerable 
comment on the inclusion of proposed Sec.  106.12(c)(5) in the NPRM. 
Most of these commenters expressed concern that the ``moral beliefs or 
practices'' language would significantly increase the number of 
institutions that could seek a religious exemption from Title IX. Some 
commenters opined that the ``moral beliefs or practices'' language 
could even apply to secular educational institutions, resulting in an 
outcome that a secular institution would be claiming a religious 
exemption from compliance with certain provisions of Title IX.
    As stated in the NPRM, the proposed paragraph (c)(5) was based in 
part on a letter from Acting Assistant Secretary for Civil Rights 
William L. Smith to OCR Senior Staff.\160\ That letter details examples 
of certain information that schools provided in the past to assist 
OCR's analysis as to whether a religious exemption assurance request is 
supported, and it specifically includes the ``moral belief and 
practices'' language in proposed Sec.  106.12(c)(5). However, after 
further consideration, the Department agrees with the commenters who 
have expressed that this language is too expansive. The Department can 
envision a scenario wherein an educational institution would attempt to 
utilize Sec.  106.12(c)(5) to avoid Title IX obligations based upon 
``moral beliefs and practices'' that are not even tangentially tied to 
religion. We believe this criterion is too broad as written and agree 
with the commenters who expressed concern that this provision could 
exceed the scope of the statutory text.
---------------------------------------------------------------------------

    \160\ U.S. Dep't of Educ., Office for Civil Rights, Memorandum 
from William Smith, Acting Assistant Sec'y for Civil Rights, to OCR 
Senior Staff regarding Title IX Religious Exemption Procedures and 
Instructions for Investigating Complaints at Institutions with 
Religious Exemptions (Oct. 11, 1989), available at https://www2.ed.gov/about/offices/list/ocr/docs/smith-memo-19891011.pdf.
---------------------------------------------------------------------------

    The Department acknowledges the concerns that schools could invoke 
pretextual moral beliefs or quickly develop moral beliefs once they are 
accused of discrimination. We believe our removal of the provision 
regarding moral beliefs from the final regulations addresses these 
commenters' concerns.
    Changes: The Department removed proposed Sec.  106.12(c)(5) from 
the non-exhaustive list of criteria for establishing a religious 
exemption.

Proposed 34 CFR 106.12(c)(6)

General Opposition
    Comments: One commenter expressed concern that proposed Sec.  
106.12(c)(6) would permit a religious exemption upon a statement that 
``the educational institution is asserting that the educational 
institution is itself the controlling religious organization,'' 
provided that the statement ``includes, refers to, or is predicated on 
religious tenets, beliefs, teachings.''
    One commenter contended that proposed Sec.  106.12(c)(6) would 
exempt a school from Title IX's requirements when a governing body of a 
school approves a statement that ``includes, refers to, or is 
predicated upon religious tenets, beliefs, or teachings.'' The 
commenter stated that approval of such a statement does not transform a 
school's governing body into a controlling religious organization as 
required by Title IX.
    One commenter asserted that, under an expansive reading of proposed 
Sec.  106.12(c)(6), an institution's statement to claim a religious 
exemption could include a secular statement on any topic, as long as it 
is simply ``predicated upon''--that is, it draws from or is inspired 
by--religious teachings.

[[Page 59960]]

    One commenter asserted that, if proposed Sec.  106.12(c)(6) is 
implemented, ``a single, post hoc board-approved statement referring to 
any religious beliefs would permit an institution to disregard Title 
IX's prohibitions against sex discrimination.'' The commenter expressed 
concern that the statement would not even need to be included in any 
official document, be enforced consistently, or made available to 
students. The commenter was also concerned that the statement would not 
even need to exist until after a student files a complaint for 
discrimination.
    One commenter contended that under proposed Sec.  106.12(c)(6), an 
institution would be able to get an exemption if it makes a statement 
that is loosely inspired by religious teachings, even if that statement 
does not mention religion explicitly.
    On the other hand, one commenter supported the clarity added to 
proposed Sec.  106.12 by the Department, specifically to proposed Sec.  
106.12(c)(6) to expressly acknowledge that a recipient can itself be a 
religious organization that controls its own operations, curriculum, or 
other features. This commenter noted that it represented many different 
denominations, as well as non-denominational schools, and that all of 
the schools are distinctly Christian, but the hierarchy and structure 
vary. The commenter believed that the non-exhaustive factors in 
proposed Sec.  106.12(c) represent an understanding that religious 
institutions may be controlled by religion in different ways, yet are 
no less religious.
    Discussion: Proposed Sec.  106.12(c)(6) provided that an 
educational institution was eligible to assert the exemption if the 
educational institution had a statement that is approved by its 
governing board and that includes, refers to, or is predicated upon 
religious tenets, beliefs, or teachings. This provision echoes the 
discussion above, stating that a recipient can itself be a religious 
organization that controls its own operations, curriculum, or other 
features. In short, an educational institution's assertion of an 
exemption pursuant to Sec.  106.12(c)(6), is not, without more, a 
concession that it is controlled by an external religious organization. 
Instead, the educational institution is asserting that the educational 
institution is itself the controlling religious organization.
    The Department acknowledges some commenters' general disagreement 
with the proposition that an educational institution could be its own 
controlling religious organization. However, proposed Sec.  
106.12(c)(6) is consistent with longstanding OCR practice in 
recognizing that the educational institution may itself be the 
controlling religious organization. For example, OCR has long 
recognized that a school or department of divinity is an educational 
institution controlled by a religious organization without any 
requirement that the school or department of divinity be controlled by 
an external religious organization. Additionally, Sec.  106.12(c)(6) 
aligns well with the Department's recently published definition of 
``religious mission'' in 34 CFR 600.2.\161\ In that provision, a 
``religious mission'' is defined as ``[a] published institutional 
mission that is approved by the governing body of an institution of 
postsecondary education and that includes, refers to, or is predicated 
upon religious tenets, beliefs, or teachings'' in the context of 
regulations about eligibility for Federal student aid under Title IV of 
the Higher Education Act of 1965, as amended. Where an educational 
institution has a religious mission, as defined in Sec.  600.2, it may 
choose to assert an exemption to the extent application of Title IX and 
its implementing regulations would not be consistent with the 
institution's religious tenets.
---------------------------------------------------------------------------

    \161\ 84 FR 58834, 58914 (Nov. 1, 2019) (revising definition in 
34 CFR 600.2).
---------------------------------------------------------------------------

    While one commenter asserted that, under an expansive reading of 
proposed Sec.  106.12(c)(6), an institution's statement to claim a 
religious exemption could include a secular statement on any topic, as 
long as it is simply ``predicated upon'' religious tenets, beliefs, or 
teachings, the Department notes that this provision is not meant to be 
read ``expansively'' or ``narrowly.'' It is meant to be read for what 
it is: an example of an educational institution that is controlled by a 
religious organization, because it maintains a religious mission. That 
a school has and maintains a religious mission, as defined in 34 CFR 
600.2, is sufficient to establish that it is an educational institution 
controlled by a religious institution. Of course, if the school does 
not meet the definition of an institution with a religious mission, it 
cannot avail itself of this provision. And with respect to commenters 
who argued that educational institutions might avail themselves of this 
provision after a complaint with OCR has been filed, the Department 
thinks that it is unlikely that educational institutions will--
consistent with the changes being made to this provision--publish an 
institutional religious mission merely for the purpose of defending 
themselves from an OCR complaint. In any event, no part of the 20 
U.S.C. 1681(a)(3) suggests that adopting a religious mission after an 
OCR complaint is filed is impermissible, or that schools may not assert 
a religious exemption once OCR receives a complaint involving an 
educational institution. Indeed, OCR's practice is to evaluate 
assertions of religious exemptions even after a complaint has been 
filed with OCR. If OCR receives a complaint involving a recipient's 
adoption of a religious mission after a complaint was filed, or a 
complaint involving a recipient's assertion of a religious exemption 
after a complaint was filed, OCR will carefully evaluate and consider 
the facts and circumstances of that complaint and respond 
appropriately.
    After careful consideration of the comments pertaining to the 
various structures utilized by the religious institutions and/or the 
controlling religious organizations, the Department has opted to make 
changes to the final regulation to even further bring it into line with 
the Department's recently published definition of ``religious 
mission.'' The Department's definition of ``religious mission'' in 34 
CFR 600.2 defines ``religious mission'' as ``[a] published 
institutional mission that is approved by the governing body of an 
institution of postsecondary education and that includes, refers to, or 
is predicated upon religious tenets, beliefs, or teachings'' in the 
context of regulations about eligibility for Federal financial student 
aid under Title IV of the Higher Education Act of 1965, as amended. An 
educational institution that has a religious mission, as defined in 
Sec.  600.2, may choose to assert an exemption to the extent 
application of Title IX and its implementing regulations would not be 
consistent with the institution's religious tenets. Here, the 
Department sees merit in aligning this portion of the regulation with 
the recently adopted definition of ``religious mission'' in 34 CFR 
600.2 in order to promote congruency in the language referencing these 
same types of recipients across the Department's regulations.
    Changes: The provision is revised to refer to a ``published 
institutional mission that is approved by the governing body of an 
educational institution and that includes, refers to, or is predicated 
upon religious tenets, beliefs, or teachings.'' The Department will re-
number proposed Sec.  106.12(c)(6) to reflect the deletion of proposed 
Sec.  106.12(c)(5). Accordingly, proposed Sec.  106.12(c)(6) will 
appear as Sec.  106.12(c)(5) in the final regulation.

[[Page 59961]]

Proposed 34 CFR 106.12(c)(7)

    Comments: Some commenters expressed concern about the use of the 
phrase ``other evidence,'' suggesting that this would lead to an even 
lower threshold for obtaining a religious exemption under proposed 
Sec.  106.12(c)(7). One commenter was concerned that proposed Sec.  
106.12(c)(7) would invite institutions to seek a religious exemption 
even when they cannot meet the ``demonstrably low'' threshold of 
proposed Sec.  106.12(c)(1)-(6) or identify religious tenets that 
conflict with Title IX. One commenter expressed concern that proposed 
Sec.  106.12(c)(7) is a catch-all provision, and that it would permit 
institutions to establish religious control via any ``other evidence,'' 
and does not define or otherwise delineate what this ``other evidence'' 
may be, or how much of this evidence must exist.
    One commenter believed that the proposed Sec.  106.12(c)(7) would 
provide an avenue by which institutions can incorporate any religious 
belief to justify non-compliance with Title IX regulations. According 
to the commenter, if proposed Sec.  106.12(c)(7) is adopted, the end 
result would likely be that institutions with little-to-no connection 
to religion would be empowered to engage in federally unchecked sex 
discrimination with no Federal recourse for harmed individuals.
    Some commenters were also concerned that proposed Sec.  
106.12(c)(7) would substantially expand the religious exemption 
language in Title IX to include institutions that are not actually 
controlled by religious organizations. Some of these commenters were 
concerned that even schools with only a tenuous connection to a 
religious institution would request religious exemptions. One commenter 
asserted that, by interpreting the exemption so broadly and departing 
so far from Title IX's language, the Department would open the door for 
many more schools--beyond those that are actually controlled by a 
religious organization--to demand an exemption.
    One commenter opposed proposed Sec.  106.12(c)(7) because, under 
the expanded criteria proposed for religious exemptions, by its own 
admission, the Department creates a potential unquantifiable expansion 
of schools that can claim religious exemptions. According to the 
commenter, this would increase the likelihood that students and 
residents will attend schools where discrimination on the basis of sex 
is permitted.
    One commenter stated that, by significantly expanding opportunity 
to receive an exemption, and therefore expanding the numbers of 
private, charter, and other schools legally permitted to not comply 
with Title IX's requirements, the proposed changes would plainly 
undermine Congress's objective.
    Some commenters believed that the proposed changes ignored a long-
standing test for religious exemption requests and added an overly 
broad range of new bases that a school can rely on to claim the 
exemption.
    Discussion: The Department appreciated the insightful comments 
pertaining to the language of Sec.  106.12(c)(7). The Department 
especially appreciated those comments directed at potential confusion 
about whether ``other evidence,'' meant any other evidence, regardless 
of how much or how persuasive the evidence might be.
    The Department proposed Sec.  106.12(c)(7) in recognition that 
Congress did not promulgate an exclusive list of criteria by which an 
educational institution may assert an exemption under Title IX. 
Further, the Department acknowledges that there may be ways for an 
educational institution to establish that it is controlled by a 
religious organization beyond the criteria articulated in proposed 
Sec.  106.12(c)(1)-(6). The Department merely seeks to provide 
flexibility for institutions to assert a religious exemption since 
there may be innumerable facts and circumstances that an educational 
institution may wish to use to show that it is ``controlled'' by a 
religious organization.
    The Department's intent in drafting the proposed Sec.  
106.12(c)(7), however, was not to empower schools with tenuous 
relationships to religious organizations to utilize this ``other 
evidence'' criterion to claim an exemption under Title IX. The concerns 
pertaining to Sec.  106.12(c)(7) have been duly noted by the 
Department, and in the final regulation, the Department emphasizes that 
the ``other evidence'' criterion must include sufficient evidence to 
establish that the educational institution is, in fact, controlled by a 
religious organization, pursuant to 20 U.S.C. 1681(a)(3). Indeed, while 
the point of the provision is to avoid unnecessarily limiting the scope 
of what type of evidence could establish control by a religious 
organization, this ``other evidence'' must be more than, for instance, 
a scintilla of evidence.
    The Department disagrees with the commenters asserting that Sec.  
106.12(c)(7) would substantially expand the religious exemption from 
Title IX. As discussed above, Sec.  106.12(c)(7) was included in this 
regulation because the Department recognizes that there could be a 
variety of ways for a recipient to establish that it is eligible for a 
religious exemption. The Department has always carefully considered the 
evidence submitted when evaluating a religious exemption from Title IX, 
and given the wide array of recipients with different structures and 
belief systems, the Department has determined that it is appropriate to 
provide some flexibility in the types of evidence that would be 
sufficient to establish eligibility for the religious exemption. This 
is not an unquantifiable expansion of the religious exemption, as one 
commenter asserted. It is, however, an acknowledgment that recipients 
may use many forms of evidence, including evidence that is not 
specifically outlined in the other criteria of Sec.  106.12(c), to 
establish eligibility for the religious exemption. This flexibility is 
appropriate given the broad religious exemption language in the Title 
IX statute and given that the Department is subject to the U.S. 
Constitution, including the Free Exercise Clause, as well as RFRA.
    As to the comment that this regulation will allow institutions to 
incorporate any religious belief into their operations to justify non-
compliance with Title IX regulations, and that this will result in 
institutions with little-to-no connection to religion being empowered 
to engage in federally unchecked sex discrimination, the Department 
rejects the assertion that educational institutions will adopt 
religious beliefs, perhaps as a pretext, in order to avoid their Title 
IX obligations. Based on public comments, however, the Department has 
no information to suggest that there are educational institutions that 
are not currently eligible for a religious exemption, but which will 
become eligible as a result of this final rule. Additionally, the 
Department seeks to make clear that abuses of the religious exemption 
provisions of this regulation will not be unchecked. Individuals who 
contend that a recipient has improperly claimed a religious exemption 
from Title IX may file a complaint with OCR. Further, the Department's 
criteria still require that the recipient to be controlled by a 
religious organization and, thus, recipients with little-to-no 
connection to religion would not meet the eligibility standard for 
claiming the exemption.
    Changes: The Department has clarified that ``other evidence'' in 
Sec.  106.12(c)(6) must be ``sufficient to establish'' that the 
educational institution is controlled by a religious

[[Page 59962]]

organization, pursuant to 20 U.S.C. 1681(a)(3). In addition, due to the 
deletion of proposed Sec.  106.12(c)(5), proposed Sec.  106.12(c)(7) is 
re-designated as Sec.  106.12(c)(6) in the final regulation.

Severability

    Comments: None.
    Discussion: We believe that each of the regulations discussed in 
this preamble would serve one or more important, related, but distinct 
purposes. We also believe that each of the paragraphs and provisions in 
34 CFR 106.12 would serve one or more important, related, but distinct 
purposes. Each provision in 34 CFR 106.12 provides a distinct value to 
the Department, recipients, elementary and secondary schools, 
institutions of higher education, students, employees, the public, 
taxpayers, the Federal Government, and other recipients of Federal 
financial assistance separate from, and in addition to, the value 
provided by the other provisions. To best serve these purposes and 
parallel to the severability clauses proposed in the NPRM and included 
in these final regulations, we include a severability provision in 34 
CFR 106.12(d) in the final regulations to make clear that these final 
regulations are designed to operate independently of each other and to 
convey the Department's intent that the potential invalidity of one 
provision should not affect the remainder of the provisions. Similarly, 
the validity of any of the regulations, which were proposed in ``Part 
1--Religious Liberty'' of the NPRM, should not affect the validity of 
any of the regulations, which were proposed in ``Part 2--Free Inquiry'' 
of the NPRM.
    Changes: The Department adds a severability clause in 34 CFR 
106.12(d).

34 CFR 606.10 (Developing Hispanic-Serving Institutions Program); 34 
CFR 607.10 (Strengthening Institutions Program); 162 34 CFR 608.10 
(Strengthening Historically Black Colleges and Universities Program); 
34 CFR 609.10 (Strengthening Historically Black Graduate Institutions 
Program)
---------------------------------------------------------------------------

    \162\ The Department notes that 34 CFR 607.10 applies to the 
Strengthening Institutions Program umbrella, which includes the 
American Indian Tribally Controlled Colleges and University (TCCU) 
program and the Alaska Native- and Native Hawaiian-Serving 
Institutions (ANNH) program.
---------------------------------------------------------------------------

    Comments: One commenter expressed support for these proposed 
regulations because the existing regulation may be seen as excluding 
any school that teaches its students about theology, and, if 
interpreted in such a manner, the regulation would violate the First 
Amendment. According to this commenter, the proposed regulations align 
with a singular exception in current Supreme Court case law that a 
government entity may exclude a school or a department whose function 
is to prepare students to become ministers from an otherwise generally 
available scholarship program.
    One commenter contended that proposed Sec. Sec.  606.10, 607.10, 
and 608.10 demonstrate that the Department would allow Federal 
financial assistance to support religious instruction, religious 
worship, and proselytization. According to this commenter, the 
Department is concerned that the current regulations inhibit the 
ability of institutions to use Federal funds for such activities. This 
commenter asserted that using Federal funds for such activities is 
prohibited by the Establishment Clause of the First Amendment and cited 
Locke v. Davey \163\ to support this assertion.
---------------------------------------------------------------------------

    \163\ 540 U.S. 712 (2004).
---------------------------------------------------------------------------

    Discussion: We appreciate the comment in support. The commenter who 
opposed the proposed regulations misunderstood the Department's 
proposed changes to Sec. Sec.  606.10, 607.10, and 608.10, which 
expressly address unallowable activities or activities that a grantee 
may not carry out under a development grant. The Department proposed 
revising Sec. Sec.  606.10(c)(3), 607,10(c)(3), and 608.10(c)(3) to 
expressly prohibit a grantee from using a development grant for 
``activities or services that constitute religious instruction, 
religious worship, or proselytization.'' The Department also proposed 
revising Sec.  609.10(c)(3) in this same manner. The Department's 
revisions align Sec. Sec.  606.10(a)(3), 607.10(a)(3), 608.10(a)(3), 
and 609.10(a)(3) with the Department's other regulations such as 34 CFR 
75.532 and 34 CFR 76.532 that prohibit grants, subgrants, or state-
administered formula grants to be used for religious worship, religious 
instruction, or proselytization. Accordingly, the Department's proposed 
revisions do not violate the Establishment Clause of the First 
Amendment or Supreme Court precedent interpreting the Establishment 
Clause.
    Changes: None.
    Comments: None.
    Discussion: Sections 606.10(a)(4), 607.10(a)(4), 608.10(a)(4), and 
609.10(a)(4) provide in relevant part that a ``school or department of 
divinity'' means ``an institution, or a department of an institution, 
whose program is solely to prepare students to become ministers of 
religion or solely to enter into some other religious vocation.'' The 
Department is omitting the second instance of ``solely'' in the 
definition of ``school or department of divinity'' in Sec. Sec.  
606.10(a)(4), 607.10(a)(4), 608.10(a)(4), and 609.10(a)(4) because the 
second instance of ``solely'' is redundant. This revision is technical 
in nature to improve clarity and does not change the meaning of the 
proposed or final regulation.
    Changes: The Department omitted the second instance of ``solely'' 
in Sec. Sec.  606.10(a)(4), 607.10(a)(4), 608.10(a)(4), and 
609.10(a)(4).

Executive Orders and Other Requirements

    Comments: A commenter argued that the NPRM is unlawful because 20 
U.S.C. 1098a (Sec.  492 of the Higher Education Act of 1965, as amended 
(HEA)) requires the Department to engage in negotiated rulemaking for 
the proposed regulations, which it did not do. In that section, 
Congress used the phrase ``pertaining to this subchapter'' when 
describing regulations for which negotiated rulemaking was required, 
which the commenter interpreted broadly. The commenter also asserted 
that the HEA's negotiated rulemaking requirement was particularly 
relevant in this case because the NPRM's RIA stated that ``some of the 
changes proposed in this regulatory action would materially alter the 
rights and obligations of recipients of Federal financial assistance 
under Title IV of the HEA.'' The commenter also argued that the HEA's 
master calendar requirement (20 U.S.C. 1089(c)(1)) should apply to 
these regulations, meaning that regulations that have not been 
published by November 1 prior to the start of the award year will not 
become effective until the beginning of the second award year after 
such November 1 date, July 1.
    Discussion: The negotiated rulemaking requirement in section 492 of 
the HEA applies only to regulations that implement the provisions of 
Title IV of the HEA, all of which relate to student aid programs or 
specific grants designed to prepare individuals for postsecondary 
education programs. Specifically, Title IV contains seven parts: (1) 
Part A--Grants to Students at Attendance at Institutions of Higher 
Education; (2) Part B--Federal Family Education Loan Program; (3) Part 
C--Federal Work-Study Programs; (4) Part D--William D. Ford Federal 
Direct Student Loan Program; (5) Part E--Federal Perkins Loans; (6) 
Part F--Need Analysis; and (7) Part G--General Provisions Relating to 
Student Financial Assistance Programs.
    The requirements of section 492 do not apply to every Department 
regulation that impacts institutions of

[[Page 59963]]

higher education; instead, they apply exclusively to regulations that 
implement Title IV of the HEA, in other words, that ``pertain to'' 
Title IV of the HEA. Section 492 of the HEA does not apply to 
regulations implementing programs authorized by other titles of the 
HEA, such as the discretionary grant programs in Title VI, or the 
institutional aid programs in titles III and V, all of which impact 
many institutions that also participate in the Title IV student aid 
programs.
    The statement in the RIA that the proposed regulations ``would 
materially alter the rights and obligations of recipients of Federal 
financial assistance under Title IV of the HEA'' was included in error, 
and we have corrected the RIA in these final regulations. Because the 
programs that are the subject of this rulemaking are not implementing 
the provisions of title IV of the HEA, the negotiated rulemaking 
requirement does not apply.
    Similarly, the title IV master calendar requirements do not apply 
to these regulations. The HEA provides that ``any regulatory changes 
initiated by the Secretary affecting the programs under [title IV] that 
have not been published in final form by November 1 prior to the start 
of the award year shall not become effective until the beginning of the 
second award year after such November 1 date.'' \164\ While the 
Department has acknowledged that these regulations would impact 
institutions that participate in the title IV student assistance 
programs, among others, that impact does not trigger the master 
calendar requirement. These final regulations are not part of a 
``program under Title IV,'' and the master calendar requirement 
therefore does not apply.
---------------------------------------------------------------------------

    \164\ 20 U.S.C. 1089(c)(1).
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter stated that the Department did not properly 
notify and consult with the Small Business Administration early in the 
rulemaking process, and also that it violated the Regulatory 
Flexibility Act (5 U.S.C. 601, et seq.) (RFA) by failing to identify 
the costs of the proposed regulations on small entities and businesses 
or to identify alternatives, and that its treatment of small entities 
also violated Executive Order 13272. The commenter also asserted that 
the Department failed to provide the public with information about its 
regulatory flexibility analysis, specifically how many grant recipients 
are small entities. The commenter cited data provided in a prior 
rulemaking about the number of HEA Title IV recipients that were small 
institutions and stated that the failure to address or incorporate that 
data violated both the APA and Executive Order 13563. The commenter 
also stated that the Department was required to consider and address 
alternatives for small entities.
    Discussion: Section 605(b) of the RFA states that an agency need 
not include an initial regulatory flexibility analysis (5 U.S.C. 603) 
and final regulatory flexibility analysis (5 U.S.C. 604) if it can 
certify in the notice of proposed rulemaking or final regulations that 
the rule does not have a significant economic impact on a substantial 
number of small entities. Consistent with 5 U.S.C. 605, we can and do 
make this certification in the final rule. Therefore, the requirements 
in sections 603 and 604 that the commenter cites, including those 
related to identification of alternatives for small entities, are not 
applicable to the NPRM or these final regulations, and the Department 
has met its obligations under the RFA and Executive Order. The 
notification requirement the commenter referenced in Executive Order 
13272 also does not apply, as it applies to ``any draft rules that may 
have a significant economic impact on a substantial number of small 
entities.'' \165\ Further, because the certification under 5 U.S.C. 605 
that this rule does not have a significant economic impact on a 
substantial number of small entities is based on the fact that this 
rule does not result in quantifiable costs, the information the 
commenter refers to from a prior rulemaking related to the number of 
HEA Title IV recipients that are small entities was not necessary for 
the Department's compliance with the RFA and related Executive Order, 
or the public's understanding of and ability to comment on our RFA 
certification.
---------------------------------------------------------------------------

    \165\ Exec. Order No. 13272, section 3(b), 67 FR 53461 (Aug. 16, 
2002).
---------------------------------------------------------------------------

    Changes: None.
    Comments: A commenter contended that the Department did not comply 
with Executive Order 12866 because the NPRM only identified 
alternatives relating to adopting different regulations and did not 
identify why the status quo required additional regulation. According 
to the commenter, the Department acknowledged in the NPRM that the 
Department has not identified any significant issues with grantees 
related to a failure to comply with the First Amendment or stated 
institutional policies regarding freedom of speech, undercutting the 
Department's argument that these regulations are necessary.
    Discussion: The Department sufficiently identified the alternatives 
it considered in the NPRM.\166\ Issuing guidance documents instead of 
regulations to address the issues discussed in the NPRM, including in 
``Part 1--Religious Liberty'' and ``Part 2--Free Inquiry,'' would prove 
insufficient because guidance documents are not binding and do not 
carry the force and effect of law.\167\ To address these issues in a 
clear and enforceable manner, a formal notice-and-comment rulemaking 
was the most appropriate approach. The Department places conditions on 
its grants through its regulations, and the Department would not be 
able to implement the directive in Executive Order 13864 ``to ensure 
institutions that receive Federal research or education grants promote 
free inquiry, including through compliance with all applicable Federal 
laws, regulations, and policies'' without promulgating regulations. 
Notice-and-comment rulemaking reinforces our commitment to the rule of 
law and robust public participation in the development of regulations 
that govern us.
---------------------------------------------------------------------------

    \166\ 85 FR 3219.
    \167\ Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 97 (2015).
---------------------------------------------------------------------------

    Despite the guarantees of the First Amendment which applies to 
public institutions, and despite the ability to choose stated 
institutional policies at private institutions, courts have been called 
upon to vindicate the rights of dissident campus speakers, who do not 
necessarily share the views of the majority of campus faculty, 
administrators, or students. Without these lawsuits and the added 
incentive that these final regulations provide, the censorship and 
suppression of the speech of faculty, other employees, and students 
could go unredressed. For instance, when a public university, the 
University of North Carolina Wilmington, denied a promotion to a 
professor because he had authored newspaper columns about academic 
freedom, civil rights, campus culture, sex, feminism, abortion, 
homosexuality, and religion, he sued the university and prevailed. The 
United States Court of Appeals for the Fourth Circuit concluded that 
the professor's ``speech was clearly that of a citizen speaking on a 
matter of public concern'' and, thus, was entitled to constitutional 
protection.\168\ Similarly, the Supreme Court of Wisconsin recently 
held that a private university breached its contract with a professor 
over a personal blog post because, by virtue of the adoption of the 
1940 AAUP Statement of

[[Page 59964]]

Principles on Academic Freedom, the post was ``a contractually-
disqualified basis for discipline.'' \169\
---------------------------------------------------------------------------

    \168\ Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 
550, 565 (4th Cir. 2011).
    \169\ McAdams, 914 NW2d at 737 (holding private university 
breached its contract with a professor over a personal blog post 
because, by virtue of its adoption of the 1940 AAUP Statement of 
Principles on Academic Freedom, the post was ``a contractually-
disqualified basis for discipline'').
---------------------------------------------------------------------------

    Additionally, the United States District Court for the Southern 
District of California recently held that California State University 
San Marcos had violated the First Amendment by committing viewpoint 
discrimination against the pro-life student organization, Students for 
Life, when allocating grants from the university's mandatory student 
fee.\170\ Recent victories in court cases by religious student groups 
against their public institutions for violating the First Amendment in 
denying them the same rights, benefits, and privileges as other student 
groups also persuaded the Department that regulatory action is 
necessary to address these problems.\171\
---------------------------------------------------------------------------

    \170\ See Apodaca v. White, 401 F. Supp. 3d 1040, 1057 (S.D. 
Cal. 2019).
    \171\ InterVarsity Christian Fellowship/USA v. Univ. of Iowa, 
408 F. Supp. 3d 960 (S.D. Iowa 2019), appeal docketed, No. 19-3389 
(8th Cir. Nov. 5, 2019); Bus. Leaders in Christ v. Univ. of Iowa, 
360 F. Supp. 3d 885 (S.D. Iowa 2019), appeal docketed, No. 19-1696, 
(8th Cir. Apr. 3, 2019).).
---------------------------------------------------------------------------

    Even cases that have settled demonstrate the denial of free speech 
rights across American college campuses is a serious issue. For 
instance, the Yosemite Community College District and its 
administrators settled a First Amendment lawsuit filed by a student 
whom a constituent college of that District had stopped from handing 
out copies of the United States Constitution on Constitution Day in a 
public part of campus.\172\ And the University of California at 
Berkeley settled a high-profile lawsuit in December 2018 alleging that 
the university selectively had deployed its vague policies to prevent 
conservative groups from bringing to campus speakers harboring ideas 
the university administration just did not like.\173\
---------------------------------------------------------------------------

    \172\ See Van Tuinen v. Yosemite Cmty. Coll. Dist., Case No. 
1:13-at-00729, Doc. No. 1 (E.D. Cal. filed Oct. 10, 2013) 
(Complaint); Victory: Modesto Junior College Settles Student's First 
Amendment Lawsuit, Foundation for Individual Rights in Education 
(FIRE) (Feb. 25, 2014), available at www.thefire.org/victory-modesto-junior-college-settles-students-first-amendment-lawsuit/.
    \173\ See Young America's Found. v. Napolitano, Case No. 3:17-
cv-02255, Doc. No. 32 (N.D. Cal. filed Apr. 24, 2017) (Amended 
Complaint); see also id. (Doc. No. 44) (Statement of Interest by the 
United States Department of Justice) (stating that the University of 
California at Berkeley's policies violated the First Amendment); 
Jonathan Stempel, UC Berkeley Settles Lawsuit over Treatment of 
Conservative Speakers, Reuters (Dec. 3, 2018, available at 
www.reuters.com/article/us-california-lawsuit-ucberkeley/uc-berkeley-settles-lawsuit-over-treatment-of-conservative-speakers-idUSKBN1O22K4.
---------------------------------------------------------------------------

    A violation of the First Amendment at a public institution or a 
violation of stated institutional policies regarding freedom of speech, 
including academic freedom, at a private institution is egregious in 
education. The hallmark of education includes an opportunity to learn 
from diverse viewpoints and to consider and be challenged by ideas, 
opinions, theories, and hypotheses. In enacting the HEA, Congress 
expressly recognized that ``an institution of higher education should 
facilitate the free and open exchange of ideas'' \174\ and that ``no 
student attending an institution of higher education on a full- or 
part-time basis should, on the basis of participation in protected 
speech or protected association, be excluded from participation in, be 
denied the benefits of, or be subjected to discrimination or official 
sanction under any education program, activity, or division of the 
institution[.]'' \175\ These regulations align with and advance these 
legislative goals.
---------------------------------------------------------------------------

    \174\ 20 U.S.C. 1011a(a)(2)(C).
    \175\ 20 U.S.C. 1011a(a)(1).
---------------------------------------------------------------------------

    The commenter also contended that there is not a need for 
regulation because the Department allegedly acknowledged that 
violations of the First Amendment or stated institutional policies on 
freedom of speech are rare, but the commenter takes the Department's 
statements in the NPRM out of context. The Department acknowledged that 
it is ``unaware of any prior instance in which a violation of the First 
Amendment or institutional policies regarding freedom of speech raised 
serious concerns about a grantee's ability to effectively carry out a 
Department grant.'' \176\ We made this statement in the context of 
final, non-default judgments because the proposed and final regulations 
state that an institution will only be found to have violated the 
material condition if there is a final, non-default judgment against 
that institution. We acknowledge that final, non-default judgments 
against a public or private institution may be infrequent, but the 
absence of such a judgment does not necessarily mean that public 
institutions are complying with the First Amendment or that private 
institutions are complying with their stated institutional policies 
regarding freedom of speech, including academic freedom. Individuals 
may experience a violation of the First Amendment or a stated 
institutional policy regarding freedom of speech and choose not to file 
a lawsuit to challenge a public institution or a private institution. A 
student or employee may risk their education or employment in filing 
such a lawsuit. They also may fear retaliation from the institution, 
their peers, their colleagues, or their supervisors. Additionally, many 
institutions may choose to settle such disputes such that a court never 
renders a final, non-default judgment. Accordingly, the lack of a 
final, non-default judgment against an institution does not mean that a 
public institution has not violated the First Amendment or that a 
private institution has not violated its own stated institutional 
policies regarding freedom of speech, including academic freedom. It 
may mean that the institution remedied any problem before a lawsuit was 
filed or during any litigation. Remedying such a problem before a 
final, non-default judgment is rendered saves institutions the cost of 
litigation, and remedying any such problem during litigation saves the 
institution the continued cost of litigation. We believe these final 
regulations will have the additional benefit of increasing and 
incentivizing awareness about the importance of upholding the First 
Amendment for public institutions and of complying with stated 
institutional policies regarding freedom of speech, including academic 
freedom, for private institutions. Additionally, the Department stated 
that ``available remedies for the violation [of a material condition of 
a grant], . . . can include suspension or termination of Federal awards 
or debarment'' and that ``decisions regarding appropriate remedies are 
made on a case by case basis.'' \177\ The Department further 
acknowledged that the ``potential suspension or termination of a 
Federal award and potential debarment would, in the event that they 
occurred, represent real costs'' but that ``such outcomes would be 
generally unlikely and difficult to meaningfully predict.'' \178\ In 
this context, the Department stated that ``such violations are rare,'' 
meaning that such violations of a material condition of a grant that 
lead to potential suspension or termination of a Federal award and 
potential debarment are rare.\179\ However, the Department believes 
that violations of the First Amendment and of stated institutional 
policies regarding freedom of speech, including academic freedom, are a 
concern for the reasons stated in the NPRM, including the cases cited 
in the NPRM, and the comments

[[Page 59965]]

that we received about proposed regulations 34 CFR 75.500(b)-(c) and 34 
CFR 76.500(b)-(c) confirm that such violations are a concern. The 
Department has not historically suspended or terminated a Federal award 
or debarred a grantee as the first measure in addressing a violation 
and instead attempts to secure voluntary compliance from the State, 
grantee, or subgrantee. Indeed, the Department's regulations provide 
that the Department may suspend or terminate a Federal award or debar a 
grantee, if there is a continued lack of compliance and if imposing 
additional, specific conditions is not successful.\180\ The fact that 
historically we have rarely taken actions such as suspension or 
termination and that those instances may be rare and difficult to 
predict does not in any way detract from the concerns about violations 
of the First Amendment and stated institutional policies regarding 
freedom of speech that are addressed in case law, the NPRM, and 
comments.
---------------------------------------------------------------------------

    \176\ 85 FR 3217-18.
    \177\ Id.
    \178\ Id.
    \179\ Id.
    \180\ See 34 CFR 75.901 (referencing 2 CFR 200.338); 2 CFR 
200.338 (stating Federal awarding agency may suspend or terminate an 
award if noncompliance cannot be remedied by imposing additional 
conditions).
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter stated that the Department failed to 
consult Indian Tribal governments in violation of Executive Order 13175 
and the Department's consultation policy. The commenter stated that the 
proposed regulations' imposition of the First Amendment on Tribally-
controlled institutions creates Tribal implications and requires 
consultation under Sec.  5(a) of Executive Order 13175. The commenter 
also noted that the Department of Housing and Urban Development, in its 
parallel NPRM, acknowledged that the proposal had Tribal implications 
and purported to engage in Tribal consultation on that ground.
    Commenters also stated that the Department's federalism analysis in 
the NPRM was erroneous, or that the NPRM should have included such an 
analysis under Executive Order 13132. One commenter asserted that the 
proposed rules would have federalism implications, because by creating 
loopholes and upending the regulatory regime applicable to government-
funded entities that espouse religious viewpoints, they would 
complicate the ability of State and local jurisdictions to safeguard 
their workforce and enforce generally applicable anti-discrimination 
laws such as sex discrimination laws, and that they also would cause 
economic hardships to State and local governments, in the forms of 
higher unemployment and greater demand for State and city-funded 
services. Others asserted that the proposed rules would directly 
prohibit States from applying their nondiscrimination laws and 
constitutional protections in the public educational institutions that 
they fund, putting public schools in the position of having to choose 
between following State and Federal law as interpreted by the 
Department. Commenters also asserted that the NPRM was not in 
compliance with the Unfunded Mandates Reform Act of 1995 (UMRA) because 
it neither included the requisite analysis, nor qualified for an 
exemption. In the NRPM, the Department stated that the proposed 
regulations were exempt under section 4(2) of the UMRA, 2 U.S.C. 
1503(2), which excludes any proposed or final Federal regulation that 
``establishes or enforces any statutory rights that prohibit 
discrimination on the basis of race, color, religion, sex, national 
origin, age, handicap, or disability.'' Commenters asserted that the 
NPRM instead would create new religious exemptions that surpass the 
protections found in existing statutes, including RFRA. They stated 
that the NPRM justified the religious exemptions based on case law, 
executive orders, and Department of Justice memoranda, and that the 
RFRA does not create a categorical right that prohibits discrimination. 
Therefore, they asserted that the exemption from the UMRA was not 
applicable, and the NPRM should have included a UMRA analysis.
    Discussion: With regard to Native American tribal consultation, we 
note that the comment we received was not from a commenter that 
identified as a Native American Tribe or from a representative of a 
Native American Tribe. Section 5(a) of Executive Order 13175 requires 
each agency to have an accountable process to ensure meaningful and 
timely input by Tribal officials in the development of regulatory 
policies that have tribal implications. In accordance with Executive 
Order 13175, Section IV of the Department's Consultation and 
Coordination with American Indian and Alaska Native Tribal Governments 
policy,\181\ provides that the Department will conduct Tribal 
consultation regarding actions that have a substantial and direct 
effect on tribes. The policy lists specific programs that serve Native 
American students or that have a specific impact on Tribes and provides 
that for those programs, regulatory changes or other policy initiatives 
will often affect Tribes and, thus, may require Tribal consultation. It 
further provides that for other programs that affect students as a 
whole, but are not focused solely on Native American students, the 
Department will include Native American Tribes in the outreach normally 
conducted with other stakeholders who are affected by the action. Thus, 
given that the regulations do not have a substantial direct effect on 
Indian educational opportunities, we did not engage in Tribal 
consultation. Accordingly, Native American Tribes had the same 
opportunity to comment on the proposed rules as other stakeholders.
---------------------------------------------------------------------------

    \181\ U.S. Dep't of Educ., Consultation and Coordination with 
American Indian and Alaska Native Tribal Governments, available at 
www2.ed.gov/about/offices/list/oese/oie/tribalpolicyfinal.pdf.
---------------------------------------------------------------------------

    Additionally, we have revised these final regulations to clarify 
that we are not imposing the First Amendment on any entity, including 
any institution controlled by a Tribal government, that is not already 
legally required to abide by the First Amendment to the U.S. 
Constitution. We note that generally the Bill of Rights, including the 
First Amendment, does not apply to Tribes and Tribal governments.\182\ 
The Department is revising Sec.  75.500(b) to state: ``Each grantee 
that is an institution of higher education, as defined in 20 U.S.C. 
1002(a), that is public and that is legally required to abide by the 
First Amendment to the U.S. Constitution (hereinafter `public 
institution'), must also comply with the First Amendment to the U.S. 
Constitution . . . as a material condition of the Department's grant.'' 
Similarly, the Department is revising Sec.  76.500(b) to state: ``Each 
State or subgrantee that is an institution of higher education, as 
defined in 20 U.S.C. 1002(a), that is public and that is legally 
required to abide by the First Amendment to the U.S. Constitution 
(hereinafter `public institution'), must also comply with the First 
Amendment to the U.S. Constitution . . . as a material condition of the 
Department's grant.'' The Department notes that ``[p]ublic, as applied 
to an agency, organization, or institution'' in 34 CFR 77.1 ``means 
that the agency, organization, or institution is under the 
administrative supervision or control of a government other than the 
Federal Government.'' The Department further notes that in 34 CFR 77.1, 
``[p]rivate, as applied to an agency, organization, or institution 
means that it is not under Federal or public supervision or control.'' 
Accordingly, if an institution

[[Page 59966]]

is a public institution that is not legally required to abide by the 
First Amendment to the U.S. Constitution, then that institution is not 
required to comply with the First Amendment to the U.S. Constitution as 
a material condition of the Department's grant. The final regulations 
concerning the First Amendment, thus, do not apply to Tribal 
institutions that are not legally required to comply with the First 
Amendment to the U.S. Constitution.
---------------------------------------------------------------------------

    \182\ Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). 
The Indian Civil Rights Act (ICRA) extended some of the Bill of 
Rights to tribes, but the ICRA is not the First Amendment to the 
U.S. Constitution, and the ICRA does not include an Establishment 
Clause. 25 U.S.C. 1302(a)(1).
---------------------------------------------------------------------------

    Similarly, Sec.  106.12(c) in these final regulations clarifies the 
exemption for an educational institution which is controlled by a 
religious organization if the application of Title IX and its 
implementing regulations would not be consistent with the religious 
tenets of such organization pursuant to 20 U.S.C. 1681(a)(3). Indeed, 
the revisions to these final regulations with respect to parts 106, 
606, 607, 608, and 609 of title 34 of the Code of Federal Regulations 
are consistent with the Indian Civil Rights Act, which contains 
language similar to almost the entire First Amendment to the U.S. 
Constitution except the Establishment Clause of the First Amendment. 
The Individual Civil Rights Act provides in relevant part: ``No Indian 
tribe in exercising powers of self-government shall make or enforce any 
law prohibiting the free exercise of religion, or abridging the freedom 
of speech, or of the press, or of the right of the people peaceably to 
assembly and to petition for a redress of grievances.'' \183\
---------------------------------------------------------------------------

    \183\ 25 U.S.C. 1302(a)(1).
---------------------------------------------------------------------------

    These final regulations are consistent with the First Amendment 
and, thus, do not pose federalism concerns because States are legally 
required to abide by the First Amendment.\184\ Requiring public 
institutions that are legally required to abide by the First Amendment 
to the U.S. Constitution to also comply with the First Amendment to the 
U.S. Constitution as a material condition of the Department's grant 
does not pose any federalism concerns. Such a requirement does not 
preclude States from enforcing any anti-discrimination laws because any 
State anti-discrimination law, including laws that prohibit 
discrimination on the basis of sex, must be consistent with the First 
Amendment. Similarly, requiring private institutions to comply with 
their stated institutional policies regarding freedom of speech, 
including academic freedom, as a material condition of the Department's 
grant, does not impose any federalism concerns. The Department does not 
dictate what a private institution's stated institutional policies must 
be, and private institutions should comply with all applicable laws, 
including any State's anti-discrimination laws.
---------------------------------------------------------------------------

    \184\ De Jonge v. Oregon, 299 U.S. 353, 364 (1937) (``Freedom of 
speech and of the press are fundamental rights which are safeguarded 
by the due process clause of the Fourteenth Amendment of the Federal 
Constitution. . . . The right of peaceable assembly is a right 
cognate to those of free speech and free press and is equally 
fundamental.''); Cantwell v. Connecticut, 310 U.S. 296, 303-04 
(1940); Near v. Minnesota, 283 U.S. 697, 707 (1931).
---------------------------------------------------------------------------

    Additionally, the First Amendment does not allow public 
institutions to treat religious student organizations differently based 
on their status as a religious organization or on account of their 
sincerely held religious beliefs, and the Department's regulation with 
respect to religious student organizations at public institutions is 
consistent with the First Amendment and also the Religious Freedom 
Restoration Act, 42 U.S.C. 2000bb, et seq. (``RFRA''), which applies to 
the Department and requires the Department not to substantially burden 
a person's exercise of religion unless certain conditions are 
satisfied.\185\ As the Department explains in the ```All Comers' 
Policies for Student Organizations'' subsection in the ``34 CFR 
75.500(d) and 34 CFR 76.500(d)--Religious Student Organizations'' 
section, public institutions may choose to adopt a true ``all-comers'' 
policy as described in Christian Legal Society v. Martinez,\186\ as 
long as public institutions do not treat religious student 
organizations differently than other student organizations under any 
``all-comers'' policy. The Department's revision to 34 CFR 106.12 
clarifies a statutory exemption under Title IX for institutions 
controlled by a religious organization and is consistent with the First 
Amendment and RFRA. Finally, the revisions to parts 606, 607, 608, 609 
of title 34 of the Code of Federal Regulations concern programs under 
the HEA, that the Department is required to administer, and these 
revisions are consistent with the First Amendment and also the 
Religious Freedom Restoration Act, 42 U.S.C. 2000bb, et seq., which 
applies to the Department.
---------------------------------------------------------------------------

    \185\ Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 719 
(2014) (holding ``person'' within meaning of the Religious Freedom 
Restoration Act's protection of a person's exercise of religion 
includes for-profit corporations).
    \186\ 561 U.S. 661 (2010).
---------------------------------------------------------------------------

    These final regulations apply to entities that choose to apply for 
and accept a grant or subgrant, Federal financial assistance, or 
participate in the Developing Hispanic-Serving Institutions Program, 
Strengthening Institutions Program, Strengthening Historically Black 
Colleges and Universities Program, or Strengthening Historically Black 
Graduate Institutions Program. Any entity may choose not to accept such 
a grant or subgrant, Federal financial assistance, or forego 
participating in a program that the Department administers. The 
commenters do not provide any evidence to support that these final 
regulations will lead to increased unemployment or any other negative 
consequence such that States would bear a greater economic burden with 
respect to increased unemployment or an increased need for State or 
local services. Accordingly, these final regulations do not pose any 
federalism concerns.
    We disagree with some commenters' characterization of Executive 
Order 13132.\187\ That Order's goal was ``to guarantee the division of 
governmental responsibilities between the national government and the 
States'' and to ``further the policies of the Unfunded Mandates Reform 
Act[.]'' \188\ The purpose of the Unfunded Mandates Reform Act is, in 
its own words, ``to end the imposition, in the absence of full 
consideration by Congress, of Federal mandates on State, local, and 
Tribal governments without adequate Federal funding, in a manner that 
may displace other essential State, local, and tribal governmental 
priorities[.]'' \189\ In other words, when the Federal government 
imposed an unfunded mandate on the States (including local governments) 
and Tribal governments carrying federalism implications and had effects 
on State and local laws, this Order required the Federal government to 
consult with State and local authorities. However, these final 
regulations are entirely premised as a condition of receiving Federal 
funds, and the recipient has the right to forgo such funds if the 
recipient does not wish to comply with these final regulations. 
Additionally, this Order states: ``To the extent practicable and 
permitted by law, no agency shall promulgate any regulation that has 
federalism implications, that imposes substantial direct compliance 
costs on State and local governments, and that is not required by 
statute'' unless the agency takes a few steps.\190\ The use of ``and'' 
as well as ``to the extent practicable'' indicate that each of these 
requirements must be met before the agency is compelled to take those 
additional

[[Page 59967]]

steps. These final regulations do not compel a recipient to accept 
grants or subgrants, Federal financial assistance, or any funds through 
programs under Title III and Title V of the HEA. Moreover, these final 
regulations are consistent with Title IX and other Federal statutory 
provisions. Thus, we do not believe that Executive Order 13132 is 
implicated by these final regulations.
---------------------------------------------------------------------------

    \187\ Exec. Order No. 13132, 64 FR 43255 (Aug. 10, 1999).
    \188\ Id.
    \189\ 2 U.S.C. 1501(2).
    \190\ Exec. Order 13132, section 6(b), 64 FR 43255 (Aug. 10, 
1999) (emphasis added).
---------------------------------------------------------------------------

    The Unfunded Mandates Reform Act expressly does not apply to ``any 
provision in a proposed or final Federal regulation that enforces 
constitutional rights of individuals'' \191\ or that ``establishes or 
enforces any statutory rights that prohibit discrimination on the basis 
of race, color, religion, sex, national origin, age, handicap, or 
disability[.]'' \192\ These final regulations enforce the 
constitutional rights of individuals by requiring public institutions 
that are legally required to abide by the First Amendment to also 
comply with the First Amendment as a material condition of a grant or 
subgrant under 34 CFR 75.500, 34 CFR 75.700, 34 CFR 76.500, and 34 CFR 
76.700. As explained more fully in the ``34 CFR 75.500(d) and 34 CFR 
76.500(d)--Religious Student Organizations'' section, the First 
Amendment prohibits public institutions from treating religious student 
organizations differently than other student organizations on the basis 
of their status as religious organizations or on account of their 
sincerely held religious beliefs. As explained throughout this preamble 
and the NPRM, these final regulations help prohibit discrimination on 
the basis of religion, and these final regulations are consistent with 
both the First Amendment and RFRA. Additionally, 34 CFR 106.12(c), 
enforces a statutory exemption for educational institutions controlled 
by a religious organization with respect to Title IX, which prohibits 
discrimination on the basis of sex.
---------------------------------------------------------------------------

    \191\ 2 U.S.C. 1503(1).
    \192\ 2 U.S.C. 1503(2).
---------------------------------------------------------------------------

    Changes: The Department revised 34 CFR 75.500 and 34 CFR 76.500 to 
clarify that only public institutions that are legally required to 
abide by the First Amendment to the U.S. Constitution must also comply 
with the First Amendment to the U.S. Constitution as a material 
condition of the Department's grant.
    Comments: Commenters asserted that the Department's NPRM did not 
comply with other Executive orders and statutory requirements. One 
commenter disputed the Department's treatment of the proposed 
regulations under Executive Order 13771, stating that since it imposed 
costs, the Department should identify two deregulatory actions with 
cost savings.
    In addition, commenters stated that the proposed rule violated the 
Treasury and General Government Appropriations Act of 1999, note to 5 
U.S.C. 601, because it failed to include a Family Policy Making 
Assessment, which would assess the proposed rules' impact on family 
wellbeing.
    Discussion: The Office of Management and Budget's guidance 
implementing Executive Order 13771 describes the offset required by the 
Executive Order as meaning that ``at least two E.O. 13771 deregulatory 
actions have been taken per E.O. 13771 regulatory action and that the 
incremental cost of the E.O. 13771 regulatory action has been 
appropriately counterbalanced by incremental cost savings from E.O. 
13771 deregulatory actions, consistent with the agency's total 
incremental cost allowance.'' \193\ The memorandum defines a ``13771 
Regulatory Action'' for relevant purposes as a ``significant regulatory 
action as defined in Section 3(f) of E.O. 12866 that has been finalized 
and that imposes total costs greater than zero.'' \194\ The Department 
has revised its analysis and has determined that these final 
regulations impose net costs under Executive Order 13771. In accordance 
with Executive Order 13771, the Department will identify at least two 
deregulatory actions.
---------------------------------------------------------------------------

    \193\ Office of Mgmt. & Budget, Exec. Office of the President, 
M-17-21, Guidance Implementing Executive Order 13771 (OMB 13771 
Guidance), at 4 (Q5) (Apr. 5, 2017), available at 
www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf.
    \194\ Id. at 3 (defining an E.O. 13771 Regulatory Action as 
``(i) A significant regulatory action as defined in Section 3(f) of 
E.O. 12866 that has been finalized and that imposes total costs 
greater than zero; or (ii) A significant guidance document (e.g., 
significant interpretive guidance) reviewed by OIRA under the 
procedures of E.O. 12866 that has been finalized and that imposes 
total costs greater than zero.'').
---------------------------------------------------------------------------

    The provision of the Treasury and General Government Appropriations 
Act of 1999 cited by commenters pertains to ``policies and regulations 
that may affect family well-being.'' \195\ As the proposed regulations, 
and these final regulations, did not have a direct effect on families, 
such an analysis was not required. These final regulations affect 
institutions that receive a Direct Grant or subgrant from a State-
Administered Formula grant program of the Department, which does not 
have a direct bearing on individual families. Similarly, the revisions 
to parts 106, 606, 607, 608, and 609, which are described at length in 
other sections of this preamble, affect institutions and not families. 
Therefore, the Department, in its assessment of these final regulations 
has concluded that they will not have a negative effect on families.
---------------------------------------------------------------------------

    \195\ ``Assessment of Federal Regulations and Policies on 
Families,'' paragraph (c), note to 5 U.S.C. 601.
---------------------------------------------------------------------------

    Changes: The Department has revised its analysis and has determined 
that these final regulations impose net costs.
    Comments: Commenters asserted that various provisions of the 
proposed regulations and RIA were arbitrary and capricious, for reasons 
such as that the Department failed to provide a reasoned basis or 
justification for them, or because the proposed rule departed from the 
prior rules and positions without adequate explanation. Commenters 
cited various legal authorities to substantiate an agency's 
responsibility to explain the basis for its decision-making, including 
when changing position on a given issue. Especially with respect to the 
religious exemption in proposed Sec.  106.12(c), they asserted that, 
for instance, the proposed rule included reversal of previous 
Department positions, failed to provide a reasoned justification or 
adequate basis, did not provide adequate evidence of the need for the 
proposed rule or its benefits, and failed to provide an adequate 
regulatory analysis and consider important evidence regarding the 
rule's impact. They also asserted that the Department failed to 
consider the impact of the proposed rules on various stakeholders.
    Discussion: We agree with commenters that an agency must give 
adequate reasons for its decisions and consider relevant factors,\196\ 
and that when an agency changes its position, it must display awareness 
that it is changing position and show that there are good reasons for 
the new policy. In explaining its changed position, an agency must be 
``cognizant that longstanding policies may have `engendered serious 
reliance interests that must be taken into account. . . . In such cases 
it is not that further justification is demanded by the mere fact of 
policy change; [ ] a reasoned explanation is needed for disregarding 
facts and circumstances that underlay or were engendered by the prior 
policy.\197\ On the other hand, the agency need not demonstrate . . . 
that the reasons for the

[[Page 59968]]

new policy are better than the reasons for the old one; it suffices 
that the new policy is permissible under the statute, that there are 
good reasons for it, and that the agency believes it to be better.'' 
\198\
---------------------------------------------------------------------------

    \196\ See, e,g., Motor Vehicle Mfrs. Ass'n. of United States, 
U.S., Inc. v. State Farm Mut. Automobile Auto. Ins. Co., 463 U.S. 
29, 43 (1983).
    \197\ See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 
2125-(2016) (quoting FCC v. Fox Television Stations, Inc., 129 S. 
Ct. 1800 (2009 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 
2126 (2016) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 
502, 515-16 (2009)).
    \198\ Fox Television, 129 S. Ct. at 1811 (emphasis in original).
---------------------------------------------------------------------------

    Throughout the NPRM and this preamble, we discuss the reasoned 
basis for these regulations, and include explanations for any changes 
in position regarding each provision in the relevant section, including 
those specifically mentioned by the commenters. Any changes from the 
proposed regulations are explained in the relevant sections of this 
preamble, including the Regulatory Impact Analysis (RIA) section. In 
particular, the ``34 CFR 106.12 Educational Institutions Controlled by 
Religious Organizations'' section of this preamble addresses many of 
these arguments in greater depth. We address comments concerning the 
RIA, including its legal sufficiency, in depth in the RIA section of 
this final rule.
    Changes: None.
    Comments: At least one commenter suggested that Secretary Elisabeth 
DeVos lacks the authority to issue the NPRM and to promulgate the final 
regulations because Vice President Michael Pence cast the deciding vote 
to confirm the Secretary after the Senators were equally divided on her 
confirmation.\199\ The commenter contended that the Vice President is 
not constitutionally authorized to break a tie for a cabinet member's 
confirmation, thereby rendering Secretary DeVos' Senate confirmation 
itself invalid and rendering her actions legally unauthorized.
---------------------------------------------------------------------------

    \199\ U.S. Senate, Vote: On the Nomination (Confirmation 
Elisabeth Prince DeVos, of Michigan, to be Secretary of Education), 
Feb. 7, 2017, available at https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&session=1&vote=00054.
---------------------------------------------------------------------------

    Discussion: We disagree with commenters' concerns that Secretary 
DeVos might not be constitutionally empowered to issue the NPRM or the 
final regulations because the Vice President lacked the constitutional 
prerogative to cast the tie-breaking vote to confirm the Secretary. 
Because the Vice President is constitutionally empowered to cast the 
tie-breaking vote in executive nominations, President Trump's 
nomination of Secretary DeVos properly was confirmed by the United 
States Senate; and Secretary DeVos therefore may function as the 
Secretary of Education. Article I, Sec.  3, clause 4 of the 
Constitution confers on the Vice President the power to break ties when 
the Senators' votes ``be equally divided.'' Secretary DeVos' service as 
the Secretary of Education has therefore been lawful and in accordance 
with the Constitution.
    A commenter largely relies on one piece of scholarship to advance 
this claim.\200\ But that source principally concerns the Vice 
President's power to break Senate ties on judicial nominations, not 
Executive ones. Morse does not develop robustly an argument about the 
latter. Moreover, Morse acknowledges there is nothing ``conclusive'' 
about Executive nominations, and argues only that Vice Presidents are 
without constitutional authority to break ties in judicial 
nominations.\201\ Morse cites three examples from 1806 (Vice President 
George Clinton voted to confirm John Armstrong as the Minister to 
Spain), 1832 (Vice President Calhoun cast a tie-breaking vote that 
defeated the nomination of Martin Van Buren as Minister to Great 
Britain), and 1925 (Vice President Charles G. Dawes almost cast the 
tie-breaking vote to confirm President Calvin Coolidge's nominee for 
attorney general), respectively.\202\ But even the evidence in this 
source points to the fact that the Vice President was always considered 
to hold the tie-breaking vote for Executive nominations (indeed for all 
Senate votes). Particularly the nineteenth century examples do seem to 
show that historically Vice Presidents have enjoyed this widely 
acknowledged power.\203\ Due to this time period's chronological 
proximity to the Constitution's ratifying generation, this is strong 
evidence that the original public meaning of the Constitution, left 
undisputed by intervening centuries of practice, confers the power of 
breaking Senate ties in executive nominations on Vice Presidents.
---------------------------------------------------------------------------

    \200\ See Samuel Morse, The Constitutional Argument Against the 
Vice President Casting Tie-Breaking Votes on Judicial Nominees, 2018 
Cardozo L. Rev. de novo 142 (2018) (herein, ``Morse,'' ``the 
source'' or ``the article'').
    \201\ See id. at 151.
    \202\ See id. at 150-51.
    \203\ See id. at 143-44 n.4.
---------------------------------------------------------------------------

    As for the argument that the placement of this power in Article I, 
which generally deals with Congress, meant the power was limited to the 
legislative votes, this misconceives the context in which the provision 
exists: that section concerns length of Senate tenure, the roles of 
congressional personnel, and the Senate's powers, including that of 
trying impeachments.\204\ It is not limited to what the Senate can 
accomplish but rather encompasses matters about who in the Senate gets 
to do what, concerning all Senate business. In this section of Article 
I, the Vice President, as President of the Senate, accordingly is given 
the power to break ties. This was the most logical section in which to 
put this prerogative of the Vice President. And given how the power to 
cast tie-breaking votes is left open-ended, the most natural inference 
is that it applies to all Senate votes in all Senate business. 
Consequently, this evidence refutes the commenter's claim about 
Secretary DeVos' confirmation because: (1) This section in Article I 
simply concerned the functions and prerogatives of the Senate and its 
various officers, including the Vice President's general tie-breaking 
authority; and (2) that the Senate's power to try impeachments is 
included in the same section means that this section is just as 
applicable to Executive nominations as to anything else (that neither 
the commenter nor the article is challenging).\205\ This analysis shows 
that Morse's argument, and transitively that of the commenter, is 
flawed.
---------------------------------------------------------------------------

    \204\ See generally U.S. Const. art. I, sec. 3.
    \205\ But see Morse, supra note 196, at 144, 146.
---------------------------------------------------------------------------

    Furthermore, one commenter's reference to Senator King's statement 
in 1850 as supporting a view that could lead anyone in the present day 
to conclude Secretary DeVos's Senate confirmation is invalid is 
unhelpful because the overwhelming weight of text and history is 
against the merits of this pronouncement. Even at that time, King 
appears to have been one of a handful of people, if that, to express 
this view. It was not a widely accepted view, before or after.
    Finally, a commenter's citation to John Langford's Did the Framers 
Intend the Vice President to Have a Say in Judicial Appointments? 
Perhaps Not \206\ and the reference to the Federalist Papers also 
misconceive the constitutional text, design, and history. To be sure, 
Alexander Hamilton in The Federalist No. 69 does contrast the New York 
council at the time,\207\ with the Senate of the national government 
the Framers were devising (``[i]n the national government, if the 
Senate should be divided, no appointment could be made'').\208\ The 
commenter's overall point is unpersuasive. As an initial matter, the 
Federalist Papers were

[[Page 59969]]

persuasion pieces to convince the People (as sometimes addressed to 
``The People of New York,'' etc.) to accept the Constitution. 
Therefore, while the Papers supply a framework and understanding 
closely linked to the Constitution's text by some of the authors of 
that text, it does not supplant the original public meaning of that 
text itself. Moreover, all The Federalist No. 69 refers to is that the 
President himself may not cast the tie-breaking vote in the Senate. The 
Vice President, however, may do so, for he is not the Executive.
---------------------------------------------------------------------------

    \206\ John Langford, Did the Framers Intend the Vice President 
to Have a Say in Judicial Appointments? Perhaps Not, Balkanization 
(Oct. 5, 2018), available at https://balkin.blogspot.com/2018/10/did-framers-intend-vice-president-to.html.
    \207\ See The Federalist No. 69, at 424 (Alexander Hamilton) 
(Bantam Classic ed., 2003) (``[I]f the [New York] council should be 
divided the Governor can turn the scale and confirm his own 
nomination.'').
    \208\ Id.
---------------------------------------------------------------------------

    For much of our Nation's history, including when the Equally 
Divided Clause was written as part of the original Constitution, the 
President and the Vice President could be from different parties and 
fail to get along. This Clause gave the Vice President some power and 
authority independent of the President. There is an important context 
behind this. Prior to the Twelfth Amendment's adoption, the Vice 
Presidency was awarded to the presidential candidate who won the second 
most number of votes, regardless of which political party he 
represented.\209\ In the 1796 election, for instance, voters chose the 
Federalist John Adams to be President.\210\ But they chose Thomas 
Jefferson, a Democratic-Republican, as the election's runner-up, so 
Jefferson became Adams' Vice President.\211\ Under the Twelfth 
Amendment, however, usually Presidents and Vice Presidents are elected 
on the same ticket. But this does not change the Equally Divided 
Clause, preserving the Vice President's authority to break Senate ties 
for executive and other nominations. As a result, any argument to the 
contrary necessarily ignores the constitutional text, design, and 
history.
---------------------------------------------------------------------------

    \209\ See U.S. Const. amend. XII.
    \210\ See Jerry H. Goldfeder, Election Law and the Presidency, 
85 Fordham L. Rev. 965, 974-(2016).
    \211\ See id.
---------------------------------------------------------------------------

    Langford and the commenter at issue also misunderstand what 
Hamilton actually stated in The Federalist No. 76, which was: ``A man 
disposed to view human nature as it is . . . will see sufficient ground 
of confidence in the probity of the Senate, to rest satisfied not only 
that it will be impracticable to the Executive to corrupt or seduce a 
majority of its members; but that the necessity of its co-operation in 
the business of appointments will be a considerable and salutary 
restraint upon the conduct of that magistrate.'' \212\ Langford reads 
this to mean that Alexander Hamilton was saying the Executive needs a 
majority of the voting Senators present to confirm nominations.
---------------------------------------------------------------------------

    \212\ The Federalist No. 76, at 465 (Alexander Hamilton) (Bantam 
Classics ed., 2003).
---------------------------------------------------------------------------

    Langford's interpretation wrongly conflates the necessary with the 
sufficient, for Hamilton was saying only that it will suffice for a 
President to get a nominee confirmed with a majority of the Senate, not 
that he needs a Senate majority to get his nominee confirmed. This is 
all the more so because Senators may abstain from voting, so not every 
Senator will necessarily be voting. Doubtless Hamilton knew this 
because the Constitution gives the Senate the power to decide its own 
rules, including quorum, see U.S. Const. art. I, sec. 5, cl. 1, 2, and 
therefore, a President need not even ``corrupt or seduce'' a majority 
of the full Senate, The Federalist No. 76; all he needs is a majority 
of the voting Senators. Thus, Hamilton's phrasing indicates not 
precision but a common parlance. It is, accordingly, too slender a reed 
(outside the constitutional text, at that) for Langford to base much of 
his thesis on, providing no support for the commenter's argument.
    Langford is also incorrect in saying that ``the Framers situated 
the Senate's `advice and consent' powers in Article II, not Article 
I,'' where the Equally Divided Clause is located, means that the Vice 
President's tie-breaking power does not apply to nominations. This 
argument fails because, as noted earlier, it made more sense for the 
original Constitution's drafters and the ratifying generation to name 
the Vice President's tie-breaking power right in the same section of 
Article I when they were spelling out that he would be the President of 
the Senate. It is a limitation on his role as President of the Senate 
as well as his prerogative. Article II, by contrast, says what the 
President can do; and as already noted, when the original Constitution 
was ratified, the President and the Vice President were two different 
and often conflicting entities. Langford assumes the modern view that 
President and Vice President work hand in hand; that was not the 
original Constitution's presupposition, explaining why Langford's 
argument (and the commenter's) is flawed.
    Langford is also wrong to suggest that because ``the Framers 
explicitly guarded against a closely divided Senate by requiring a two-
thirds majority of Senators present to concur in order to consent to a 
particular treaty,'' this might show that: ``Perhaps the Framers 
assumed the default rule [of the Vice President's tie-breaking power] 
would apply whereby a tie goes to the Vice President; perhaps, instead, 
the Framers meant to provide for the possibility of a divided Senate, 
in which case the nomination would fail.'' However, the real reason for 
these placements is simple and has been alluded to earlier: The Treaty 
Clause belongs in Article II because the President is the first mover 
on treaties; the Senate's role is reactive. Also, the Vice President is 
a different actor from the President under the Constitution. This 
placement, therefore, has nothing to do with the Vice President's tie-
breaking power, which remains universally applicable across Senate 
floor votes. And even Langford is inconclusive about the reason for 
this placement and structure of keeping the Treaty Clause separate from 
the Equally Divided Clause.
    Therefore, the Constitution permits the Vice President to cast the 
tie-breaking vote for executive nominations. Vice President Pence 
constitutionally cast the tie-breaking vote to confirm President 
Trump's nomination of Secretary DeVos. The Secretary is a 
constitutionally appointed officer functioning in her present capacity 
and suffers from no want of authority to issue the NPRM or to 
promulgate the final regulations on this or any other matter pertaining 
to the Department of Education.
    Changes: None.

Length of Public Comment Period/Requests for Extension

    Comments: Several commenters asserted that the 30-day public 
comment period provided for the NPRM was inadequate. Commenters noted 
that the proposed regulatory changes were substantive, far-reaching, 
and complex, as opposed to technical, and requested comment periods of 
a minimum of 60 days. They noted that the implications of the proposed 
rules for universities and numerous other stakeholders were immense. 
One commenter stated this was particularly the case if the proposed 
rule forms the basis of further action by research agencies per 
Executive Order 13864, and others pointed out that it is a significant 
regulatory action. Some commenters asserted that the proposed rules 
reflected significant shifts in long-term legal interpretations and 
practices. One commenter noted that the rules, if finalized as 
proposed, would reject key recommendations that were the result of 
advisory council deliberations and would reverse rules that were 
proposed for 60-day comment periods.
    Commenters claimed that the 30-day comment period did not afford 
them a `meaningful opportunity to comment'' as required by the APA and 
pointed to Executive Orders 12866 and 13563 and the regulatory timeline 
on Regulations.gov suggesting a comment period of 60 days. Commenters 
noted

[[Page 59970]]

that the Department had received requests for extensions of the comment 
period and that failure to extend the comment period was arbitrary and 
capricious. Commenters stated that the Department did not include a 
required justification or finding of good cause or exigent 
circumstances for a comment period of less than 60 days. Some 
commenters cited to Housing Study Group v. Kemp,\213\ as authority for 
the proposition that a comment period should not be less than 60 days.
---------------------------------------------------------------------------

    \213\ 736 F. Supp. 321 (D.D.C. 1990).
---------------------------------------------------------------------------

    One commenter stated that the proposed rule did not provide a 
meaningful cost-benefit analysis, estimates of the scope of the rule's 
impact, or any evidence to support its conclusions, so the need for 
stakeholders to undertake an analysis of the rules was all the more 
essential.
    Discussion: We appreciate commenters' concerns about the length of 
the comment period. We understand the importance of these final 
regulations to various stakeholder groups and have proceeded 
thoughtfully and carefully to develop final regulations that balance 
varying interests appropriately.
    The APA does not mandate a specific length for an NPRM comment 
period, but states that agencies must ``give interested persons an 
opportunity to participate'' in the proceeding.\214\ This provision has 
generally been interpreted as requiring a ``meaningful opportunity to 
comment.'' \215\ Executive Orders 12866 and 13563, which are mirrored 
by the timeline commenters referenced on Regulations.gov, state that a 
meaningful opportunity to comment on any proposed regulation, in most 
cases, should include a comment period of not less than 60 days.\216\ 
However, 60 days is not a mandatory timeframe--case law interpreting 
the APA generally stipulates that comment periods should not be less 
than 30 days to provide adequate opportunity to comment.\217\ In 
addition, the designation of a regulatory action as ``significant'' 
does not automatically require a comment period of longer than 30 days. 
Contrary to commenters' assertions, the APA does not require a showing 
of good cause or exigent circumstances for a comment period of less 
than 60 days,\218\ so the rule is not arbitrary and capricious or 
rendered invalid by the lack of such a showing in the NPRM.
---------------------------------------------------------------------------

    \214\ 5 U.S.C. 553(c).
    \215\ E.g., Asiana Airlines v. F.A.A., 134 F.3d 393, 396 (D.C. 
Cir. 1998).
    \216\ Exec. Order 12866, Section 6(a), 58 FR 51735 (Oct. 4, 
1993); Exec. Order 13563, section 2(b), 76 FR 3821 (Jan. 1, 2011).
    \217\ See, e.g., Nat'l Retired Teachers Ass'n v. U.S. Postal 
Serv., 430 F. Supp. 141, 147 (D.D.C. 1977).
    \218\ Instead, 5 U.S.C. 553(b)(B) states that the notice and 
comment requirements of 553(b) do not apply ``when the agency for 
good cause finds . . . that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest.''
---------------------------------------------------------------------------

    Commenters cited Housing Study Group v. Kemp to support the 
proposition that a 30-day comment period is inadequate. However, that 
case dealt with an interim final rule, which differs from these final 
regulations in that an interim final rule takes effect immediately or 
soon after publication, prior to an agency's receipt and/or analysis of 
any solicited public comments.\219\ That is not the case for these 
final regulations, which we are promulgating through standard APA 
notice and comment procedures.
---------------------------------------------------------------------------

    \219\ 736 F. Supp. at 334. Moreover, in that case, the court 
found the agency's own regulations required that, absent good cause, 
``the public be afforded a minimum of 60 days to submit comments.'' 
Hous. Study Grp. v. Kent, 739 F. Supp. 633, 635 n.6 (D.D.C. 1990) 
(citing 24 CFR 10.1).
---------------------------------------------------------------------------

    We understand commenters' concerns about having an adequate 
opportunity to comment on the proposed regulations, but believe that 
the comment period afforded them an adequate opportunity to do so, on 
all of the issues in the NPRM including those related to Executive 
Order 13864. The Department's proposed regulations will not necessarily 
be determinative of other agencies' implementation of Executive Order 
13864; in fact, the other agencies' proposals may differ with respect 
to implementation of that Executive Order. Further, the Department 
received over 17,000 comments on the proposed regulations, many 
representing large constituencies. The large number, complexity, and 
diversity of comments received indicates that the public had adequate 
time to comment on the Department's proposals. The length of comment 
periods in past rulemaking proceedings is not necessarily determinative 
of the proper comment period length for the present rulemaking. Any 
shifts in policy or departures from prior practice are explained in the 
relevant sections of this preamble. In addition, we address comments 
about the sufficiency of the RIA in the applicable section of this 
preamble.
    Changes: None.
    Comments: In support of their requests for a longer comment period, 
several commenters noted that the Administration issued nine 
interconnected, but distinct proposed regulations on the same day. 
Given the complexity and wide-ranging impacts of the proposed 
regulations, commenters did not feel that they had sufficient time to 
prepare and submit their comments. According to commenters, an 
individual or entity interested in commenting on one of the agencies' 
rules would most likely be interested in commenting on all of them. 
They asserted that each rule required a unique analysis, which the 
length of the comment period would not allow, and that the short 
comment period indicated that the Administration was uninterested in 
public comments. Commenters also referred to an alleged White House 
statement that the agencies had been working in coordination for months 
on the proposed rules, and noted this was indicative of the complexity 
of the task, therefore requiring additional time for comment. One 
commenter noted that more time was especially appropriate if the 
Department is to become a model for other agency efforts.
    Commenters cited instances of other similar regulations that were 
published with a longer comment periods, including the related proposed 
rule published by the Department of Housing and Urban Development 
(HUD). Commenters stated that this indicates that the Department could 
have allowed a longer comment period on these proposed regulations and 
that, since other agencies will need to coordinate with HUD before 
finalizing their rules, that was another reason to extend the comment 
period. Other commenters pointed to past revisions of these or similar 
rules that provided for longer comment periods, including when the 
Department and other agencies proposed revisions to the same 
regulations in 2015 and included a 60-day comment period.
    Discussion: The Department disagrees that the proposal of the 
agencies' final regulations on the same timeline did not provide the 
public a meaningful opportunity to comment. The agencies' proposals 
were very similar in some areas, such that comments on aspects of one 
agency's regulations could be submitted in response to other agencies' 
NPRMs with minor changes. The work undertaken by the various agencies 
to coordinate their NPRMs facilitated the preparation of more 
streamlined proposals on which the public could comment in a more 
efficient manner. Although we are not certain of the manner in which 
one commenter meant that the Department would be a model for other 
agencies, the Department's proposal was not intended to lead or 
supersede that of other agencies. Further, any public statements about 
that work and preparation would have been reflective of the agencies' 
efforts, not necessarily those required of public commenters.

[[Page 59971]]

    The Department greatly values the public's comments on the proposed 
regulations but does not believe that a longer comment period was 
necessary in this case. HUD's regulations were proposed for a longer 
comment period due to its unique requirements. Specifically, HUD's 
regulations state that it is HUD's policy ``that its notices of 
proposed rulemaking are to afford the public not less than sixty days 
for submission of comments.'' \220\ In addition, the length of comment 
periods in past rulemaking proceedings is not necessarily determinative 
of the proper comment period length for the present rulemaking; the 
Department evaluates the appropriate length of a comment period on an 
individualized basis for each proposed regulation.
---------------------------------------------------------------------------

    \220\ 24 CFR 10.1.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Commenters also noted that 20 U.S.C. 6511 was included in 
authority citations for the proposed regulations. They pointed out that 
there is no 20 U.S.C. 6511, and inferred that the Department instead 
intended to cite 20 U.S.C. 6571. Commenters noted that 20 U.S.C. 6571 
requires negotiated rulemaking and a 60-day comment period, among other 
procedural requirements, and stated that the Department did not comply 
with those requirements. One commenter also questioned how the proposed 
regulations were authorized by 20 U.S.C. 6571.
    Another commenter contended that the Department has no statutory 
basis for the proposed regulations to require public institutions to 
comply with certain provisions of the U.S. Constitution, to require 
private colleges to comply with their own stated institutional policies 
regarding freedom of speech, including academic freedom, and to require 
public institutions to treat religious student organizations the same 
as secular student organizations. This commenter asserted that 20 
U.S.C. 1221e-3 and 20 U.S.C. 3474 cannot legally support these proposed 
regulations.
    Discussion: The Department inadvertently included 20 U.S.C. 6511, 
which is currently cited as the authority for some of the Department's 
existing regulations and is now obsolete, in the authority citations 
for some of the proposed regulations. We did not intend to cite that 
section, or 20 U.S.C. 6571, as authority for these regulations. Indeed, 
20 U.S.C. 6571 is part of the Elementary and Secondary Education Act of 
1965, as amended, which is not a source of authority for these 
regulations. We have corrected the authority citations in these final 
regulations and appreciate that the commenters brought this error to 
our attention. However, the negotiated rulemaking, 60-day comment 
period, and other requirements of 20 U.S.C. 6571 are inapplicable to 
these regulations, so the Department was not required to comply with 
them.
    The Department has authority to promulgate these final regulations 
under 20 U.S.C. 1221e-3 and 20 U.S.C. 3474, which give the Secretary 
general authority to make regulations governing the Department's 
applicable programs and to manage the functions of the Department. 
These final regulations are consistent with the statutes that govern 
institutions of higher education. Congress expressly stated in the HEA 
that ``no student attending an institution of higher education on a 
full- or part-time basis should, on the basis of participation in 
protected speech or protected association, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination or official sanction under any education program, 
activity, or division of the institution directly or indirectly 
receiving financial assistance[.]'' \221\ These final regulations also 
are consistent with the Equal Access Act, which concerns public 
secondary schools and states: ``It shall be unlawful for any public 
secondary school which receives Federal financial assistance and which 
has a limited open forum to deny equal access or a fair opportunity to, 
or discriminate against, any students who wish to conduct a meeting 
within that limited open forum on the basis of the religious, 
political, philosophical, or other content of the speech at such 
meetings.'' \222\ As explained in more detail in ``Part 1--Religious 
Liberty'' and ``Part 2--Free Inquiry'' of the NPRM, these regulations 
also were proposed in response to Supreme Court case law, interpreting 
the First Amendment, such as the United States Supreme Court's decision 
in Trinity Lutheran Church of Columbia, Inc. v. Comer,\223\ the 
Religious Freedom Restoration Act, the United States Attorney General's 
October 6, 2017 Memorandum on Federal Law Protections for Religious 
Liberty,\224\ Executive Order 13798 (Promoting Free Speech and 
Religious Liberty),\225\ Executive Order 13831 (Establishment of a 
White House Office Faith and Opportunity Initiative),\226\ Executive 
Order 13864 (Improving Free Inquiry, Transparency, and Accountability 
at Colleges and Universities).\227\ The Department notes that in 2016, 
the Department issued final regulations expressly to ``implement 
Executive Order 13279, as amended by Executive Order 13559. . . . to 
guide the policies of Federal agencies regarding the participation of 
faith-based and other community organizations in programs that the 
Federal agencies administer.'' \228\ The Department cited the same 
authority, 20 U.S.C. 1221e-3 and 20 U.S.C. 3474, for its 2015 NPRM 
\229\ and subsequent final regulations issued in 2016,\230\ as it did 
for the NPRM underlying this notice-and-comment rulemaking and these 
final regulations.
---------------------------------------------------------------------------

    \221\ 20 U.S.C. 1011a(a)(1).
    \222\ 20 U.S.C. 4071(a).
    \223\ 137 S. Ct. 2012 (2017).
    \224\ Jeff Sessions, Federal Law Protections for Religious 
Liberty, Memorandum for All Executive Departments and Agencies (Oct. 
6, 2017), https://www.justice.gov/opa/press-release/file/1001891/download.
    \225\ Exec. Order No. 13798, 82 FR 21675 (May 4, 2017).
    \226\ Exec. Order No. 13831, 83 FR 20715 (May 8, 2018).
    \227\ Exec. Order No. 13864, 84 FR 11401 (March 26, 2019).
    \228\ Federal Agency Final Regulations Implementing Executive 
Order 13559: Fundamental Principles and Policymaking Criteria for 
Partnerships with Faith-Based and Other Neighborhood Organizations, 
81 FR 19355 (Apr. 4, 2016).
    \229\ 80 FR 47253.
    \230\ 81 FR 19405-09.
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    Changes: We have revised the authority citations for the final 
regulations to cite 20 U.S.C. 1221e-3 and 20 U.S.C. 3474.

Effective Date

    Comments: One commenter, a public university, requested that the 
Department delay the effective date sufficiently far in the future (at 
least eight months) because institutions may be required to revise 
their policies. This commenter suggested that the final rule should 
become effective eight months after publication for consistency with 
the Higher Education Act's master calendar requirement.
    Discussion: The Department appreciates the commenter's suggestion; 
however, the Department does not believe that institutions of higher 
education will need at least eight months to comply with this final 
rule. Public institutions of higher education that are already legally 
required to abide by the First Amendment to the U.S. Constitution will 
simply also comply with the First Amendment to the U.S. Constitution as 
a material condition of a grant from the Department under 34 CFR 75.500 
and 34 CFR 76.500. Public institutions should not need to review

[[Page 59972]]

and revise their policies and practices as a result of this final rule. 
If public institutions review and revise their policies and practices, 
then the First Amendment and not this final rule dictates whether their 
policies and practices should change. Similarly, private institutions 
of higher education must simply comply with their own stated 
institutional policies regarding freedom of speech, including academic 
freedom, as a material condition of a grant from the Department under 
34 CFR 75.500 and 34 CFR 76.500, and private institutions are not 
required to adopt any particular policy regarding freedom of speech, 
including academic freedom. Institutions generally comply with their 
own stated institutional policies and are prepared to suffer 
consequences such as breach of contract claims or other complaints for 
failing to comply with their own stated institutional policies.
    The other regulations in this final regulatory action clarify the 
exemption in Title IX, 20 U.S.C. 1681(a)(3), for educational 
institutions controlled by a religious organization to the extent Title 
IX or its implementing regulations are not consistent with the 
religious tenets of such organization. Similarly, the revisions to 34 
CFR parts 606, 607, 608, and 609 remove language that prohibits use of 
funds for otherwise allowable activities if they merely relate to 
``religious worship'' and ``theological subjects'' and replace it with 
language that more narrowly defines the limitations. Such points of 
clarification do not require eight months of preparation on the part of 
an institution.
    As discussed previously, the master calendar requirements in Title 
IV of the HEA do not apply to these final regulations. The HEA provides 
that ``any regulatory changes initiated by the Secretary affecting the 
programs under [Title IV] that have not been published in final form by 
November 1 prior to the start of the award year shall not become 
effective until the beginning of the second award year after such 
November 1 date.'' \231\ These regulations, however, are not 
promulgated under Title IV of the HEA, and the master calendar 
requirement does not apply here.
---------------------------------------------------------------------------

    \231\ 20 U.S.C. 1089(c)(1).
---------------------------------------------------------------------------

    Even though these final regulations do not constitute a ``major 
rule'' under the Congressional Review Act,\232\ such that they may not 
take effect until 60 days after the date of publication in the Federal 
Register,\233\ and even though institutions are not required to review 
and revise their policies and practices as a result of this final rule, 
the Department understands that institutions and recipients of Federal 
financial assistance may choose to review their existing policies and 
practices to ensure compliance with the First Amendment for public 
institutions and with their own stated institutional policies 
concerning freedom of speech, including academic freedom, for private 
institutions. In case institutions would like to review their existing 
policies and practices, the Department will set the effective date at 
60 days after the date of publication in the Federal Register.
---------------------------------------------------------------------------

    \232\ 5 U.S.C. 804(2).
    \233\ 5 U.S.C. 801(a)(3).
---------------------------------------------------------------------------

    Changes: None.

Regulatory Impact Analysis

    Comments: A few commenters argued that the Department's cost-
benefit analysis was unsubstantiated by evidence and failed to consider 
broad economic and non-economic impacts, primarily discrimination. 
These commenters asserted that the Department did not conduct a 
meaningful cost-benefit analysis.
    Some commenters argued that the Department's cost-analysis 
calculation was incomplete and violates the Administrative Procedure 
Act and Executive Orders 12866 and 13563. One commenter asserted that 
these legal requirements were violated because the Department did not 
assess all costs and benefits or select approaches that maximize net 
benefits.
    Another commenter asserted that the Department violated the 
Administrative Procedure Act and Executive Order 13563 by not releasing 
information relevant to the cost estimates. One commenter argued that 
the Department's claim that the proposed regulations would impose zero 
costs is false and stated that accurate estimates cannot be developed 
in the absence of more information from the Department.
    One commenter asserted that the Department failed to assess the net 
economic and non-economic effects of the proposed changes, particularly 
costs for current and prospective students and for schools themselves. 
This commenter also contended that the Department must consider costs 
to current and prospective employees who may face higher rates of sex 
discrimination by religious schools due to these proposed regulations. 
This commenter asserted that such individuals may face lost wages, 
fewer future employment opportunities, and long-term health 
consequences, as well as the more indirect costs of increased 
discrimination.
    Another commenter asserted that the Department did not cite 
evidence to support the assertion that the number or composition of 
entities asserting the exemption for educational institutions which are 
controlled by a religious organization would not substantially change 
and, thus, there would be no quantifiable costs for the proposed 
regulation, 34 CFR 106.12(c). One commenter expressed concern that 
proposed Sec.  106.12(c), regarding the exemption for educational 
institutions which are controlled by a religious organization, would 
increase sex-based discrimination, particularly hurting students and 
employees.
    Another commenter asserted that the Department's cost-benefit 
analysis is flawed because it did not consider direct health and 
financial costs to beneficiaries who may be prevented from accessing 
safety net programs, experience discrimination and decreased fairness 
and respect for their rights, the potential cost-shifting to other 
health or human service agencies, and more confusion and 
familiarization costs. This commenter contended that the proposed 
regulations are economically significant because they cover programs 
totaling hundreds of billions of dollars and expressed concern that the 
Department did not fulfill Executive Order 12866. This commenter also 
argued that the Department failed to consider the total effect on the 
economy and costs as well as potential costs to beneficiaries, 
families, communities, and funded organizations.
    Discussion: As an initial matter, we note that the NPRM and its 
associated Regulatory Impact Analysis (RIA) included two parts--Part 1 
related to issues of Religious Liberty and Part 2 related to issues of 
Free Inquiry. However, this final rule only includes changes to a 
subset of the provisions originally included in Part 1 (specifically 34 
CFR parts 106, 606, 607, 608, and 609) and all of the provisions 
originally included in Part 2.
    The analysis pertinent to the relevant provisions in Part 1 
addressed proposed changes to 34 CFR 106.12, 606,10, 606.11, 607.10, 
607.11, 608.10, 608.12, 609.10, and 609.12. Of those sections, four are 
severability clauses.
    We note that the analysis pertinent to part 2 addressed proposed 
changes to seven sections (34 CFR 75.500, 75.684, 75.700, 75.741, 
76.500, 76.700, and 76.784). Of those sections, three are severability 
clauses and two are updated cross-references.
    While many commenters were not specific about the sources of their 
concerns, we do not believe commenters intended to imply that there 
were economic or non-economic impacts of the severability provisions or 
cross-

[[Page 59973]]

reference updates that were not considered. Severability clauses, 
generally, do not have any practical effect on the cost implications of 
any other provisions and only clarify the effectiveness of those 
provisions in certain circumstances. As such, we generally do not 
assume severability clauses to have cost implications and decline to do 
so in this instance. Similarly, updating cross-references does not have 
any practical effect on cost implications but rather serves only to 
improve the clarity of regulations. We decline to estimate additional 
effects from these clauses.
    With regard to changes to Sec. Sec.  75.500 and 76.500, we disagree 
that there were economic or non-economic impacts, including 
discrimination, that we failed to consider, or that our analysis was 
otherwise not meaningful. As noted in the NPRM, the regulatory changes 
serve primarily to clarify that public institutions must comply with 
the First Amendment and to require that, in the event there is a final, 
non-default judgment against them in a State or Federal court alleging 
a violation thereof, such judgment must be submitted to the Department. 
Based on our active and ongoing monitoring of grantees, we have not yet 
been made aware of any significant issues with grantees resulting in 
final, non-default judgments that a grantee has failed to comply with 
the First Amendment in large part because grantees are not required to 
and do not report such judgments or violations to us. We specifically 
requested the public submit any evidence of such violations to inform 
our estimates and did not receive any information about the number of 
final, non-default judgments against a public institution, holding that 
the public institution violated the First Amendment, or the number of 
final, non-default judgments against a private institution, holding 
that the private institution violated a stated institution policy 
regarding freedom of speech, including academic freedom.
    In addition to our request about compliance with the First 
Amendment, we specifically asked the public to submit relevant 
information regarding the likely effects--both economic and non-
economic--of these changes. In response to that request, members of the 
public cited potential economic and non-economic effects of increased 
discrimination. As discussed elsewhere, we did not find these arguments 
convincing. Despite the lack of persuasive comments, the Department did 
review our initial assumptions pursuant to commenters' general concerns 
and were unable to identify additional likely economic or non-economic 
impacts. In the absence of additional, specific information regarding 
the types of impacts commenters believed we failed to consider, we 
decline to amend our initial assumptions and estimates related to these 
provisions.
    That being said, while we disagree with commenters that the issues 
they identified should be quantified and included in our analysis of 
the likely impacts of these final regulations, we do note that our 
analysis did not include time for grant recipients under 34 CFR parts 
75 and 76 to review these final regulations or for a subset of those 
grantees to engage in a review of their policies as a result of these 
final rules. We have revised our cost estimates to include these items.
    With regard to changes to 34 CFR 106.12(c), which provide greater 
clarity regarding the statutory exemption in 20 U.S.C. 1681(a)(3) and 
reflected in 34 CFR 106.12(a), we disagree that there were economic or 
non-economic impacts, including discrimination, that we failed to 
consider, or that our analysis was otherwise not meaningful. One 
commenter alleged that the Department provided no basis on which to 
substantiate its assumption that this change would not substantially 
change the number or composition of entities claiming the exemption. 
However, as noted in the NPRM and this final rule, these changes only 
clarify and codify in regulations many long-standing practices of the 
Department. A number of the standards in 34 CFR 106.12(c)(1)-(5) are 
criteria that have been used by OCR for decades in adjudicating claims 
to the exemption under 20 U.S.C. 1681(a)(3) and reflected in 34 CFR 
106.12(a) and, therefore, it is likely that any entities that contacted 
the Department about this exemption would have received guidance in 
accordance with these changes. Informed by public comment, the 
Department has no information to suggest that a substantial number of 
educational institutions will be newly eligible to assert a religious 
exemption under Title IX, where they could not before. We therefore 
have no evidence to refute and stand by the assumption that these 
changes would not result in a substantial change in the number or 
composition of entities asserting the exemption. Further, given that we 
do not believe that there would be a substantial change in the number 
or composition of entities asserting the exemption, we have no reason 
to believe that there would be a substantial increase in the number of 
individuals affected by the policies and practices of these entities. 
If an individual feels that the religious exemption under Title IX and 
these regulations does not apply to an educational institution, that 
individual may always file a complaint with OCR. Further, if the 
assertion of the exemption in 34 CFR 106.12(a) were likely to cause the 
harms cited by commenters, there should be ample evidence of those 
harms at the entities already asserting the exemption. We do not have 
evidence that those harms actually occurred, and commenters did not 
identify any examples of such. If we do not anticipate any change in 
the number of individuals affected by the policies and practices of 
these entities to which the religious exemption applies, and we have no 
evidence to suggest that the policies and practices of these entities 
actually generate the harms cited by commenters (including, among 
others, increased rates of intimate partner violence and psychological 
abuse and lower rates of cervical cancer screenings), we cannot 
reasonably attach costs associated with those harms to the changes 
being made herein. We therefore decline to include costs related to 
discrimination, lack of access to safety net programs, or costs 
associated with confusion or familiarization with new providers.
    With regard to changes to 34 CFR 606.10, 607.10. 608.10, and 
609.10, we disagree that there were economic or non-economic impacts, 
including discrimination, that we failed to consider, or that our 
analysis was otherwise not meaningful. As noted in the NPRM, these 
changes would remove language that prohibits the use of funds for 
otherwise allowable activities that merely relate to sectarian 
instruction or religious worship and replace it with language more 
narrowly defining the limitation. In general, the Department does not 
estimate costs associated with regulatory changes that only affect the 
expenditure of Federal funds as all costs associated with compliance 
are subsidized with Federal grants. At most, such changes could result 
in transfers across eligible activities or recipients. The Department 
noted this potential for transfers in the NPRM and specifically 
requested public feedback on the extent to which these transfers were 
likely to occur. We received no information from the public on this 
matter. We therefore retain this as a potential, but unquantified 
transfer among allowable activities and recipients.
    Commenters also asserted potential violations of the Administrative 
Procedure Act and Executive Orders 12866 and 13563 with respect to 
additional information they believe the Department should have released 
to aid them in their review of these estimates,

[[Page 59974]]

such as information about grants, grant recipients and effects on small 
entities. The only non-publicly-available information used in 
developing those estimates was the Department's active monitoring of 
our grantees, and the relevant aspects of that information were 
discussed in the NPRM. We do not believe it would be necessary or 
appropriate for the Department to release all monitoring records for 
all grantees, nor would the provision of that information aid 
commenters in further assessing the reasonableness of our assumptions.
    Changes: We have revised our cost estimates to include time for 
grantees to read the rule and review their institutional policies.

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under E.O. 12866, the Office of Management and Budget (OMB) must 
determine whether this regulatory action is ``significant'' and, 
therefore, subject to the requirements of the Executive Order and 
subject to review by OMB. Section 3(f) of E.O. 12866 defines a 
``significant regulatory action'' as an action likely to result in a 
rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive Order.
    Under E.O. 12866, section 3(f)(1), this regulatory action is a 
significant regulatory action subject to review by OMB.
    Under E.O. 13771, for each new regulation that the Department 
proposes for notice and comment or otherwise promulgates that is a 
significant regulatory action under E.O. 12866 and that imposes total 
costs greater than zero, it must identify two deregulatory actions. For 
FY 2020, any new incremental costs associated with a new regulation 
must be fully offset by the elimination of existing costs through 
deregulatory actions. The final regulations are a significant 
regulatory action under E.O. 12866, and impose total one-time costs of 
approximately $297,770. Pursuant to the Congressional Review Act (5 
U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs 
designated this rule as not a ``major rule,'' as defined by 5 U.S.C. 
804(2).
    We have also reviewed these final regulations under E.O. 13563, 
which supplements and explicitly reaffirms the principles, structures, 
and definitions governing regulatory review established in E.O. 12866. 
To the extent permitted by law, E.O. 13563 requires that an agency--
    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    E.O. 13563 also requires an agency ``to use the best available 
techniques to quantify anticipated present and future benefits and 
costs as accurately as possible.'' The Office of Information and 
Regulatory Affairs of OMB has emphasized that these techniques may 
include ``identifying changing future compliance costs that might 
result from technological innovation or anticipated behavioral 
changes.''
    We are issuing these final regulations only on a reasoned 
determination that their benefits justify their costs. While the 
Department is required to estimate the benefits and costs of every 
regulation, and has considered those benefits and costs for these final 
regulations, our decision regarding the final regulations rely on legal 
and policy considerations discussed elsewhere, and not on the estimated 
cost likely to result from these final regulations. The approach that 
the Department chooses upholds the First Amendment to the U.S. 
Constitution with respect to public institutions of higher education 
and holds private institutions of higher education accountable to their 
own stated institutional policies regarding freedom of speech, 
including academic freedom. The Department's approach with respect to 
discretionary grant programs under Title III and Title V of the HEA 
aligns with the most current precedent from the U.S. Supreme Court. The 
Department also clarifies 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.
    We also have determined that this regulatory action does not unduly 
interfere with State, local, or Tribal governments in the exercise of 
their governmental functions.
    In this regulatory impact analysis, we discuss the need for 
regulatory action, the potential costs and benefits, assumptions, 
limitations, and data sources that we considered.

Need for Regulatory Action

    The Department is revising its regulations in response to the 
United States Supreme Court's decisions in Trinity Lutheran Church of 
Columbia, Inc. v. Comer \234\ and consistent with Espinoza v. Montana 
Dep't of Revenue \235\ as well as Little Sisters of the Poor Saints 
Peter and Paul Home v. Pennsylvania,\236\ RFRA, the United States 
Attorney General's October 6, 2017, Memorandum on Federal Law 
Protections for Religious Liberty, E.O. 13798 (Promoting Free Speech 
and Religious Liberty),\237\ and E.O. 13831 (Establishment of a White 
House Faith and Opportunity Initiative). Additionally, the Department 
is revising its regulations to enforce E.O. 13864,\238\ Improving Free 
Inquiry, Transparency, and Accountability at Colleges and Universities.
---------------------------------------------------------------------------

    \234\ 137 S. Ct. 2012 (2017).
    \235\ 140 S. Ct. 2246 (2020).
    \236\ 140 S. Ct. 2367 (2020).
    \237\ Att'y Gen. Mem. nn Federal Law Protections for Religious 
Liberty, Memorandum for All Executive Departments and Agencies (Oct. 
6, 2017), https://www.justice.gov/opa/press-release/file/1001891/download.
    \238\ Exec. Order 13864, 84 FR 11401 (Mar. 21, 2019).
---------------------------------------------------------------------------

    The Department believes that even a single instance of a violation 
of the First Amendment at a public institution or a

[[Page 59975]]

single instance of a violation of stated institutional policies 
regarding freedom of speech, including academic freedom, at a private 
institution, as adjudicated by a court, is egregious with respect to 
Federal research or education grants. Such violations deny students the 
opportunity to learn and also deny teachers and faculty the opportunity 
to research and engage in rigorous academic discourse. The freedoms in 
the First Amendment for public institutions and stated institutional 
policies regarding freedom of speech, including academic freedom, for 
private institutions are fundamental for education.
    Additionally, these final regulations governing the Hispanic-
Serving Institutions Program, Strengthening Institutions Program, 
Strengthening Historically Black Colleges and Universities Program, and 
Strengthening Historically Black Graduate Institutions Program provide 
consistency with current Supreme Court case law regarding the Free 
Exercise Clause and RFRA. These final regulations also help ensure that 
religious student organizations at public institutions do not have to 
choose between exercising their religion or participating in a publicly 
available government benefit program.
    Finally, the Department for the first time provides clarity through 
regulations as to how an educational institution may demonstrate that 
it is controlled by a religious organization such that Title IX and its 
implementing regulations would not apply pursuant to 20 U.S.C. 
1681(a)(3). The Department previously addressed such matters through 
guidance which does not have the force and effect of law. These final 
regulations provide a non-exhaustive list of criteria that is 
consistent with RFRA and that institutions may choose to use in 
asserting an exemption under 20 U.S.C. 1681(a)(3).
    The Department's need for regulatory action is explained more fully 
in the NPRM in ``Background--Part 1 (Religious Liberty)'' and 
``Background--Part 2 (Free inquiry).'' \239\
---------------------------------------------------------------------------

    \239\ 85 FR 3191-99.
---------------------------------------------------------------------------

Discussion of Costs and Benefits

    The Department has analyzed the costs and benefits of complying 
with these final regulations. Due to the number of affected entities 
and recipients, we cannot estimate, with absolute precision, the likely 
effects of these regulations. However, as discussed below, we estimate 
that these final regulations will have a one-time net cost of 
approximately $297,770.

Discussion of Costs, Benefits, and Transfers

    For purposes of these estimates, the Department assumes that 
approximately 1,500 institutions of higher education are grant 
recipients under 34 CFR parts 75 and 76. Of those, we assume that 
approximately 70 percent (1,050) are public institutions and 30 percent 
(350) are private institutions.\240\ We assume that most activities 
outlined below would be conducted by an attorney at a rate of $102.05 
per hour.\241\
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    \240\ Estimates based on analysis of grant awards made by the 
Department in fiscal year 2018.
    \241\ Estimates based on a median hourly wage for lawyers 
employed by colleges, universities, and professional schools, State 
government owned from the May 2019 National Occupational Employment 
and Wage Estimates by ownership, published by the Bureau of Labor 
Statistics (www.bls.gov/oes/current/611300_2.htm#23-0000). We have 
used loaded wage rates, assuming a factor of 2.0 to account for both 
the employer cost for employee compensation and overhead costs.
---------------------------------------------------------------------------

    We assume that representatives of all 1,500 institutions receiving 
grants under 34 CFR parts 75 and 76 will review the final rule. We 
estimate that such review will take, on average, 1 hour per institution 
for a one-time cost of approximately $209,700. While the Department 
recognizes that some institutions may take longer to complete this 
review, we believe many institutions will take far less time, instead 
relying on high level summaries or overviews, such as those produced by 
a central office for an entire university system.

34 CFR Part 75--Direct Grant Programs and 34 CFR Part 76--State-
Administered Formula Grant Programs

    Changes to 34 CFR 75.500 and 34 CFR 76.500 clarify public 
institutions that are grantees or subgrantees and that already are 
legally required to abide by the First Amendment, must comply with the 
First Amendment as a material condition of the Department's grant. 
Similarly, private institutions must comply with their own stated 
institutional policies regarding freedom of speech, including academic 
freedom, as a material condition of a grant. These final regulations 
assume that generally, a public institution makes a good faith effort 
to comply with this material condition unless a State or Federal court 
renders a final, non-default judgment against the institution or its 
employee acting in the employee's official capacity, finding that the 
public institution or such an employee violated the First Amendment. 
Similarly, these final regulations assume that generally, a private 
institution makes a good faith effort to comply with its own stated 
institutional policies regarding freedom of speech, including academic 
freedom, unless a State or Federal court renders a final, non-default 
judgment against the institution or its employee acting on its behalf, 
finding that the private institution or such an employee violated a 
stated institutional policy regarding freedom of speech, including 
academic freedom. These final regulations require grantees to submit to 
the Department a copy of any final, non-default judgment rendered 
against them by a State or Federal court, finding a violation of the 
First Amendment for public institutions or finding a violation of a 
stated institutional policy regarding freedom of speech, including 
academic freedom, for private institutions. Additionally, the changes 
prohibit public institutions of higher education from denying religious 
student organizations any rights, benefits, or privileges afforded to 
other student organizations because of the religious student 
organization's beliefs, practices, policies, speech, membership 
standards, or leadership standards, which are informed by sincerely 
held religious beliefs.
    Generally, the Department assumes that public institutions, to 
which the First Amendment already applies, make a good faith effort to 
comply with the First Amendment. As such, we do not believe the 
majority of institutions will conduct a review of their policies as a 
result of this final rule. We assume that approximately 15 percent of 
public institutions of higher education will review their policies to 
ensure compliance with the First Amendment. We believe such a review 
will take approximately four (4) hours. We do not assume a more 
comprehensive or burdensome review process because, as noted above, 
public institutions have always been required to comply with the First 
Amendment, and we assume that public institutions are making a good 
faith effort to comply. We further assume that no private institutions 
will conduct such a review given that they are only required to comply 
with their existing policies. However, to the extent that private 
institutions do choose to conduct such a review (for instance, to 
verify their continued support of all previously adopted policies), the 
costs noted herein will be underestimates of the actual costs generated 
by these final regulations. We therefore assume that approximately 158 
institutions will conduct a review of their policies for a total one-
time cost of $88,070.
    The Department recognizes that the number of final, non-default 
judgments holding that a public institution or an employee acting on 
its behalf has violated the First Amendment is unpredictable and may be 
infrequent.

[[Page 59976]]

While the Department is choosing to take a measured approach in these 
final regulations in finding a public or private institution in 
violation of the newly added material conditions in Sec. Sec.  75.500 
and 76.500 only when there is a final, non-default judgment against an 
institution, we believe these final regulations will have the 
additional benefit of increasing and incentivizing awareness about the 
importance of compliance generally. These changes are qualitative in 
nature and, therefore, we have not quantified them as part of this 
analysis. We note that individuals may experience a violation of the 
First Amendment or a stated institutional policy regarding freedom of 
speech and choose not to file a lawsuit to challenge a public 
institution or a private institution. A student or employee may risk 
their education or employment in filing such a lawsuit. They also may 
fear retaliation from the institution, their peers, their colleagues, 
or their supervisors. Additionally, many institutions may choose to 
settle such disputes such that a court never renders a final, non-
default judgment. Accordingly, the lack of a final, non-default 
judgment against an institution does not mean that a public institution 
has not violated the First Amendment or that a private institution has 
not violated its own stated institutional policies regarding freedom of 
speech, including academic freedom. It may mean that the institution 
remedied any problem before a lawsuit was filed or during any 
litigation. Remedying such a problem before a final, non-default 
judgment is rendered saves institutions the cost of litigation, and 
remedying any such problem during litigation saves the institution the 
continued cost of litigation.
    A final, non-default judgment against a public institution for a 
violation of the First Amendment or against a private institution for 
stated institutional policies regarding freedom of speech, including 
academic freedom, may be rare, but such a judgment may signify that the 
institution refused to remedy any such problem until a State or Federal 
court ordered it to do so. The Department believes that a single 
instance of such a violation is egregious. First Amendment rights at 
public institutions and freedom of speech, including academic freedom, 
at private institutions are essential to learning and education. Even 
one violation may have a detrimental effect on students, faculty, and 
the educational environment. One such instance may chill students', 
faculty's, and others' protected speech with respect to the First 
Amendment at public institutions or permissible speech, including 
academic freedom, under stated institutional policies. The burden and 
cost of complying with the First Amendment for public institutions and 
with stated institutional policies regarding freedom of speech, 
including academic freedom, for private institutions is a burden and 
cost that these institutions already must bear. These final regulations 
do not add any such burden or cost beyond what is discussed above.
    To the extent that grantees do have such judgments rendered against 
them, we believe the cost of submitting a copy to the Department will 
be negligible. The final rule does not require grantees to submit the 
information in any particular format or venue, and we believe the 
requirement could easily and efficiently be addressed by grantees by 
forwarding a copy of the judgment via email to their project officer. 
Such an approach likely will take less than thirty minutes to 
accomplish for an estimated cost of no more than $50 (assuming the work 
is completed by a lawyer employed by the institution) per submission.
    Specifically, regarding the prohibition on denying religious 
student organizations the rights, benefits, and privileges afforded to 
other student organizations in Sec. Sec.  75.500(d) and 76.500(d), we 
assume no costs associated with ensuring that all student organizations 
have equal access to generally available resources. To the extent that 
generally available resources are, as a result of this change, now made 
available to a wider range of student organizations, this change may 
result in a small transfer of benefits from existing student 
organizations to religious student organizations. We believe that the 
number of student organizations usually operating on each campus likely 
makes these transfer effects minimal for any given student 
organization.
    As noted above, grantees that are found to be in violation of the 
First Amendment or their stated institutional policies regarding 
freedom of speech, including academic freedom, will be considered to be 
in violation of a material condition of their grant and the Department 
will consider available remedies for the violation. We do not believe 
it is likely that such violations, if they do occur, would result in a 
substantial number of grants being terminated because the Department 
would first seek to acquire voluntary compliance from the institution 
with the First Amendment for public institutions or its own stated 
institutional policies regarding freedom of speech, including academic 
freedom, for private institutions, or any special conditions that the 
Department may impose to achieve such compliance. Accordingly, we do 
not believe it is likely that such violations will result in any large 
number of grants being terminated. Further, as with all violations of 
the conditions of a particular grant, decisions regarding appropriate 
remedies are made on a case-by-case basis, and we therefore cannot 
reliably estimate the effects on any particular grantee's awards, even 
if we assume a failure to comply with the First Amendment. Nonetheless, 
the potential suspension or termination of a Federal award and 
potential debarment would, in the event that they occurred, represent 
real costs to grantees. However, as noted above, we believe such 
outcomes are generally unlikely and difficult to meaningfully predict. 
We also note that some grantees or subgrantees may, in the event that 
they face a lawsuit alleging violations of the First Amendment or 
institutional policies regarding freedom of speech, shift their 
litigation strategies to avoid final, non-default judgments against 
them. To the extent that they did so, such actions could result in 
additional costs to grantees that would not occur in the absence of the 
rule. However, as noted above, although such violations do occur, we 
believe they are difficult to predict with certainty and any effect on 
the litigation strategy of grantees is case-dependent. As such, we 
continue to estimate negligible costs associated with this provision.
    The addition of 34 CFR 75.684 clarifies that the provisions of this 
section are severable. We do not anticipate this change to have any 
quantifiable cost.
    Changes to 34 CFR 76.700 add a cross-reference to 34 CFR 76.500. We 
do not anticipate this change to have any quantifiable cost and may 
benefit the Department and the general public by improving the clarity 
of the regulations.
    The addition of 34 CFR 76.784 clarifies that the provisions of this 
section are severable. We do not anticipate this change to have any 
quantifiable cost.
34 CFR Part 106--Nondiscrimination on the Basis of Sex in Education 
Programs or Activities Receiving Federal Financial Assistance
    Changes to 34 CFR 106.12 help define the term ``controlled by a 
religious organization'' for purposes of asserting the exemption under 
20 U.S.C. 1681(a)(3) and reflected in Sec.  106.12(a). While these 
changes provide substantial clarity to regulated entities about how to 
demonstrate that an educational

[[Page 59977]]

institution is controlled by a religious organization, the Department 
does not believe that they substantially change the number or 
composition of entities asserting the exemption. To the extent that it 
would, we believe there could be an expansion of previously eligible 
entities beginning to assert the exemption due to an increased clarity 
regarding the regulatory standard for doing so. We do not anticipate 
this change to have any quantifiable cost.
    The addition of 34 CFR 106.12(d) clarifies that the provisions of 
this section are severable. We do not anticipate this change to have 
any quantifiable cost.
34 CFR Part 606--Developing Hispanic-Serving Institutions Program
    Changes to 34 CFR 606.10 removes language that prohibits the use of 
funds for otherwise allowable activities that merely relate to 
sectarian instruction or religious worship and replace it with language 
more narrowly defining the limitation. The Department also revises the 
definition of a ``school or department of divinity'' in a manner that 
is more consistent with the First Amendment and other Federal laws. We 
do not anticipate these changes to result in any quantifiable costs. 
However, it is possible that grantees may shift their use of funds to 
support activities that are currently prohibited under the broader, 
current limitation. In the NPRM, the Department noted that it had 
insufficient information available to quantify this potential transfer 
at that time and requested information from the public to help us do 
so. The commenters did not provide any such information and therefore, 
without sufficient information, we retain this as a potential 
unquantified transfer.
    The addition of 34 CFR 606.11 clarifies that the provisions of this 
section are severable. We do not anticipate this change to have any 
quantifiable cost.
34 CFR Part 607--Strengthening Institutions Program
    Changes to 34 CFR 607.10 removes language that prohibits the use of 
funds for otherwise allowable activities that merely relate to 
sectarian instruction or religious worship and replaces it with 
language more narrowly defining the limitation. The Department also 
revises the definition of a ``school or department of divinity'' in a 
manner that is more consistent with the First Amendment and other 
Federal laws. We do not anticipate these changes to result in any 
quantifiable costs. However, it is possible that grantees may shift 
their use of funds to support activities that are currently prohibited 
under the broader, current limitation. In the NPRM, the Department 
noted that it had insufficient information available to quantify this 
potential transfer at that time and requested information from the 
public to help us do so. The commenters did not provide any such 
information and we therefore, without sufficient information, we retain 
this as a potential unquantified transfer.
    The addition of 34 CFR 607.11 clarifies that the provisions of this 
section are severable. We do not anticipate this change to have any 
quantifiable cost.
34 CFR Part 608--Strengthening Historically Black Colleges and 
Universities Program
    Changes to 34 CFR 608.10 removes language that prohibits the use of 
funds for otherwise allowable activities that merely relate to 
sectarian instruction or religious worship and replace it with language 
more narrowly defining the limitation. The Department also revises the 
definition of a ``school or department of divinity'' in a manner that 
is more consistent with the First Amendment and other Federal laws. We 
do not anticipate these changes to result in any quantifiable costs. 
However, it is possible that grantees may shift their use of funds to 
support activities that are currently prohibited under the broader, 
current limitation. The Department does not have sufficient information 
to quantify this potential transfer at this time.
    The addition of 34 CFR 608.12 clarifies that the provisions of this 
section are severable. We do not anticipate this change to have any 
quantifiable cost.
34 CFR Part 609--Strengthening Historically Black Graduate Institutions 
Program
    Changes to 34 CFR 609.10 removes language that prohibits the use of 
funds for otherwise allowable activities that merely relate to 
sectarian instruction or religious worship and replaces it with 
language more narrowly defining the limitation. The Department also 
revises the definition of a ``school or department of divinity'' in a 
manner that is more consistent with the First Amendment and other 
Federal laws. We do not anticipate these changes to result in any 
quantifiable costs. However, it is possible that grantees may shift 
their use of funds to support activities that are currently prohibited 
under the broader, current limitation. The Department does not have 
sufficient information to quantify this potential transfer at this 
time.
    The addition of 34 CFR 609.12 clarifies that the provisions of this 
section are severable. We do not anticipate this change to have any 
quantifiable cost.

Regulatory Alternatives Considered

    The Department considered issuing guidance documents instead of 
regulations to address the issues discussed in the NPRM, including in 
``Part 1--Religious Liberty'' and ``Part 2--Free Inquiry.'' The 
Department determined that guidance documents would prove insufficient 
because guidance documents are not binding and do not carry the force 
and effect of law.\242\ To address these issues in a clear and 
enforceable manner, a formal notice-and-comment rulemaking was the most 
appropriate approach. It also reinforces our commitment to the rule of 
law and robust public participation in the development of regulations 
that govern us.
---------------------------------------------------------------------------

    \242\ Perez, 575 U.S. at 97,
---------------------------------------------------------------------------

    The Department considered whether the Department, itself, should 
adjudicate claims alleging that a public institution violated the First 
Amendment or alleging that a private institution violated its stated 
institutional policies regarding freedom of speech. The Department 
decided against this alternative as both State and Federal courts are 
adequate guardians of the First Amendment and have a well-developed 
body of case law concerning First Amendment freedoms. Relying on State 
and Federal courts to make these determinations decreases the 
administrative burden on the Department. If the Department were to 
determine whether First Amendment rights were violated, then the 
Department officials would have to become experts in the panoply of 
First Amendment issues, including guarding against any establishment of 
religion, the free exercise of religion, freedom of speech, freedom of 
association, freedom of petition, freedom of assembly, and freedom of 
the press. The Department also would have to become familiar with the 
governing case law regarding each aspect of the First Amendment that 
applies to the jurisdiction where a public institution is located. 
Unlike other Federal agencies, such as the Department of Justice, the 
Department does not routinely enforce or handle matters regarding the 
First Amendment and would like to rely on the courts for their 
expertise in such judgments. With respect to private institutions, the 
Department would have to become familiar with each private 
institution's stated institutional policies regarding

[[Page 59978]]

freedom of speech, including academic freedom, and each discrete issue 
that may be presented under such policies. State and Federal courts are 
well equipped to make necessary factual and legal determinations with 
respect to stated institutional policies regarding freedom of speech, 
including academic freedom, that private institutions choose to adopt.

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, the Secretary certifies 
that these final regulations do not have a significant economic impact 
on a substantial number of small entities.
    The final rule affects all institutions of higher education 
receiving grants from the Department. In FY 2018, 1,548 IHEs received 
such awards, totaling approximately $3.3 billion. Approximately 130 of 
those IHEs qualify as small, receiving approximately $183 million.\243\ 
As described in the Discussion of Costs and Benefits section of this 
notice, the Department estimates that these final regulations will 
impose one-time costs of approximately $510 per institution that 
conducts a review of their policies. We do not believe this would 
represent a significant economic impact on small entities.
---------------------------------------------------------------------------

    \243\ For purposes of this analysis, the Department defines a 
small IHE as a two-year institution with 500 FTE or less or a four-
year institution with an enrollment of 1,000 FTE or less.
---------------------------------------------------------------------------

Paperwork Reduction Act of 1995

    Under the final regulations, a public or private institution must 
submit to the Secretary a copy of certain final, non-default judgments 
by a State or Federal court. We believe such a submission will take no 
longer than 30 minutes per judgment. As discussed in the NPRM and in 
the Discussion of Costs, Benefits, and Transfers above, we do not 
estimate 10 or more parties will have such judgments to submit to the 
Department. Therefore, the Paperwork Reduction Act is not implicated.

Intergovernmental Review

    The programs in parts 606, 607, 608, and 609 of title 34 of the 
Code of Federal Regulations may be affected by these regulations, and 
these programs, which include the Developing Hispanic-Serving 
Institutions Program, Strengthening Institutions Program, Strengthening 
Historically Black Colleges and Universities Program, and the 
Strengthening Historically Black Graduate Institutions Program, are 
subject to the requirements of Executive Order 12372 and the 
regulations in 34 CFR part 79. One of the objectives of the Executive 
Order is to foster an intergovernmental partnership and a strengthened 
federalism. The Executive Order relies on processes developed by State 
and local governments for coordination and review of proposed Federal 
financial assistance.
    This document provides early notification of our specific plans and 
actions for these programs.

Assessment of Educational Impact

    In the NPRM we requested comments on whether the proposed 
regulations would require transmission of information that any other 
agency or authority of the United States gathers or makes available.
    Based on the response to the NPRM and on our review, we have 
determined that these final regulations do not require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.

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. Free internet access to the official edition of 
the Federal Register and the Code of Federal Regulations is available 
via the Federal Digital System at: www.gpo.gov/fdsys. You can view this 
document at that site, as well as all other documents of this 
Department published in the Federal Register, in text or 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. Through the advanced search feature at this 
site, you can limit your search to documents published by the 
Department.

List of Subjects

34 CFR Part 75

    Accounting, Copyright, Education, Grant programs--Education, 
Inventions and patents, Private schools, Reporting and recordkeeping 
requirements.

34 CFR Part 76

    Accounting, Administrative practice and procedure, American Samoa, 
Education, Grant programs--education, Guam, Northern Mariana Islands, 
Pacific Islands Trust Territory, Private schools, Reporting and 
recordkeeping requirements, Virgin Islands.

34 CFR Part 106

    Education, Sex discrimination, Civil rights, Sexual harassment

34 Part 606

    Colleges and universities, Grant programs--education, Reporting and 
recordkeeping requirements.

34 Part 607

    Colleges and universities, Grant programs--education, Reporting and 
recordkeeping requirements.

34 Part 608

    Colleges and universities, Grant programs--education, Reporting and 
recordkeeping requirements.

34 Part 609

    Colleges and universities, Grant programs--education, Reporting and 
recordkeeping requirements.

Betsy DeVos,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary of 
Education amends parts 75, 76, 106, 606, 607, 608, and 609 of title 34 
of the Code of Federal Regulations as follows:

PART 75--DIRECT GRANT PROGRAMS

0
1. The authority citation for part 75 continues to read as follows:

    Authority:  20 U.S.C. 1221e-3 and 3474, unless otherwise noted.


0
2. Section 75.500 is revised to read as follows:


Sec.  75.500  Constitutional rights, freedom of inquiry, and Federal 
statutes and regulations on nondiscrimination.

    (a) Each grantee shall comply with the following statutes and 
regulations:

[[Page 59979]]



                       Table 1 to Sec.   75.500(a)
------------------------------------------------------------------------
            Subject                     Statute            Regulation
------------------------------------------------------------------------
Discrimination on the basis of  Title VI of the Civil   34 CFR part 100.
 race, color, or national        Rights Act of 1964
 origin.                         (42 U.S.C. 2000d
                                 through 2000d-4).
Discrimination on the basis of  Title IX of the         34 CFR part 106.
 sex.                            Education Amendments
                                 of 1972 (20 U.S.C.
                                 1681-1683).
Discrimination on the basis of  Section 504 of the      34 CFR part 104.
 handicap.                       Rehabilitation Act of
                                 1973 (29 U.S.C. 794).
Discrimination on the basis of  The Age Discrimination  34 CFR part 110.
 age..                           Act (42 U.S.C. 6101
                                 et seq.).
------------------------------------------------------------------------

    (b)(1) Each grantee that is an institution of higher education, as 
defined in 20 U.S.C. 1002(a), that is public and that is legally 
required to abide by the First Amendment to the U.S. Constitution 
(hereinafter ``public institution''), must also comply with the First 
Amendment to the U.S. Constitution, including protections for freedom 
of speech, association, press, religion, assembly, petition, and 
academic freedom, as a material condition of the Department's grant. 
The Department will determine that a public institution has not 
complied with the First Amendment only if there is 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. A final judgment is a judgment 
that the public institution chooses not to appeal or that is not 
subject to further appeal. Absent such a final, non-default judgment, 
the Department will deem the public institution to be in compliance 
with the First Amendment.
    (2) Each grantee that is a public institution also must submit to 
the Secretary a copy of the final, non-default judgment by that State 
or Federal court to conclude the lawsuit no later than 45 calendar days 
after such final, non-default judgment is entered.
    (c)(1) Each grantee that is an institution of higher education, as 
defined in 20 U.S.C. 1002(a), that is private (hereinafter ``private 
institution'') must comply with its stated institutional policies 
regarding freedom of speech, including academic freedom, as a material 
condition of the Department's grant. The Department will determine that 
a private institution has not complied with these stated institutional 
policies only if there is 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. A final judgment is a judgment that the 
private institution chooses not to appeal or that is not subject to 
further appeal. Absent such a final, non-default judgment, the 
Department will deem the private institution to be in compliance with 
its stated institutional policies.
    (2) Each grantee that is a private institution also must submit to 
the Secretary a copy of the final, non-default judgment by that State 
or Federal court to conclude the lawsuit no later than 45 calendar days 
after such final, non-default judgment is entered.
    (d) As a material condition of the Department's grant, each grantee 
that is a public institution 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.
    (e) A grantee that is a covered entity as defined in 34 CFR 108.3 
shall comply with the nondiscrimination requirements of the Boy Scouts 
of America Equal Access Act, 20 U.S.C. 7905, 34 CFR part 108.

(Authority: 20 U.S.C. 1221e-3 and 3474)


0
3. Section 75.684 is added to subpart E to read as follows:


Sec.  75.684  Severability.

    If any provision of this subpart or its application to any person, 
act, or practice is held invalid, the remainder of the subpart or the 
application of its provisions to any person, act, or practice shall not 
be affected thereby.

(Authority: 20 U.S.C. 1221e-3 and 3474)


0
4. Section 75.700 is revised to read as follows:


Sec.  75.700  Compliance with the U.S. Constitution, statutes, 
regulations, stated institutional policies, and applications.

    A grantee shall comply with Sec.  75.500, applicable statutes, 
regulations, and approved applications, and shall use Federal funds in 
accordance with those statutes, regulations, and applications.

(Authority: 20 U.S.C. 1221e-3 and 3474)


0
5. Section 75.741 is added to subpart F to read as follows:


Sec.  75.741  Severability.

    If any provision of this subpart or its application to any person, 
act, or practice is held invalid, the remainder of the subpart or the 
application of its provisions to any person, act, or practice shall not 
be affected thereby.

(Authority: 20 U.S.C. 1221e-3 and 3474)

PART 76--STATE-ADMINISTERED FORMULA GRANT PROGRAMS

0
6. The authority citation for part 76 continues to read as follows:

    Authority:  20 U.S.C. 1221e-3 and 3474, unless otherwise noted.


0
7. Section 76.500 is revised to read as follows:


Sec.  76.500  Constitutional rights, freedom of inquiry, and Federal 
statutes and regulations on nondiscrimination.

    (a) A State and a subgrantee shall comply with the following 
statutes and regulations:

                       Table 1 to Sec.   76.500(a)
------------------------------------------------------------------------
            Subject                     Statute            Regulation
------------------------------------------------------------------------
Discrimination on the basis of  Title VI of the Civil   34 CFR part 100.
 race, color, or national        Rights Act of 1964
 origin.                         (42 U.S.C. 2000d
                                 through 2000d-4).

[[Page 59980]]

 
Discrimination on the basis of  Title IX of the         34 CFR part 106.
 sex.                            Education Amendments
                                 of 1972 (20 U.S.C.
                                 1681-1683).
Discrimination on the basis of  Section 504 of the      34 CFR part 104.
 handicap.                       Rehabilitation Act of
                                 1973 (29 U.S.C. 794).
Discrimination on the basis of  The Age Discrimination  34 CFR part 110.
 age.                            Act (42 U.S.C. 6101
                                 et seq.).
------------------------------------------------------------------------

    (b)(1) Each State or subgrantee that is an institution of higher 
education, as defined in 20 U.S.C. 1002(a), that is public and that is 
legally required to abide by the First Amendment to the U.S. 
Constitution (hereinafter ``public institution''), must also comply 
with the First Amendment to the U.S. Constitution, including 
protections for freedom of speech, association, press, religion, 
assembly, petition, and academic freedom, as a material condition of 
the Department's grant. The Department will determine that a public 
institution has not complied with the First Amendment only if there is 
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. A final 
judgment is a judgment that the public institution chooses not to 
appeal or that is not subject to further appeal. Absent such a final, 
non-default judgment, the Department will deem the public institution 
to be in compliance with the First Amendment.
    (2) Each State or subgrantee that is a public institution also must 
submit to the Secretary a copy of the final, non-default judgment by 
that State or Federal court to conclude the lawsuit no later than 45 
calendar days after such final, non-default judgment is entered.
    (c)(1) Each State or subgrantee that is an institution of higher 
education, as defined in 20 U.S.C. 1002(a), that is private 
(hereinafter ``private institution'') must comply with its stated 
institutional policies regarding freedom of speech, including academic 
freedom. The Department will determine that a private institution has 
not complied with these stated institutional policies only if there is 
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 a material condition of the Department's grant. A final judgment is 
a judgment that the private institution chooses not to appeal or that 
is not subject to further appeal. Absent such a final, non-default 
judgment, the Department will deem the private institution to be in 
compliance with its stated institutional policies.
    (2) Each State or subgrantee that is a private institution also 
must submit to the Secretary a copy of the final, non-default judgment 
by that State or Federal court to conclude the lawsuit no later than 45 
calendar days after such final, non-default judgment is entered.
    (d) As a material condition of the Department's grant, each State 
or subgrantee that is a public institution 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.
    (e) A State or subgrantee that is a covered entity as defined in 34 
CFR 108.3 shall comply with the nondiscrimination requirements of the 
Boy Scouts of America Equal Access Act, 20 U.S.C. 7905, 34 CFR part 
108.

(Authority: 20 U.S.C. 1221e-3, 3474)


0
8. Section 76.684 is added to subpart F to read as follows:


Sec.  76.684  Severability.

    If any provision of this subpart or its application to any person, 
act, or practice is held invalid, the remainder of the subpart or the 
application of its provisions to any person, act, or practice shall not 
be affected thereby.

(Authority: 20 U.S.C. 1221e-3, 3474)


0
9. Section 76.700 is revised to read as follows:


Sec.  76.700  Compliance with the U.S. Constitution, statutes, 
regulations, stated institutional policies, and applications.

    A State and a subgrantee shall comply with Sec.  76.500, the State 
plan, applicable statutes, regulations, and approved applications, and 
shall use Federal funds in accordance with those statutes, regulations, 
plan, and applications.

(Authority: 20 U.S.C. 1221e-3, 3474)


0
10. Section 76.784 is added to subpart I to read as follows:


Sec.  76.784  Severability.

    If any provision of this subpart or its application to any person, 
act, or practice is held invalid, the remainder of the subpart or the 
application of its provisions to any person, act, or practice shall not 
be affected thereby.

(Authority: 20 U.S.C. 1221e-3 and 3474)

PART 106--NON DISCRIMINATION ON THE BASIS OF SEX IN EDUCATION 
PROGRAMS OR ACTIV