Direct Grant Programs, State-Administered Formula Grant Programs, 10857-10864 [2023-03670]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 88, Number 35 (Wednesday, February 22, 2023)]
[Proposed Rules]
[Pages 10857-10864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03670]


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DEPARTMENT OF EDUCATION

34 CFR Parts 75 and 76

[Docket ID ED-2022-OPE-0157]
RIN 1840-AD72


Direct Grant Programs, State-Administered Formula Grant Programs

AGENCY: Office of Postsecondary Education, Department of Education.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Education (we or the Department) 
proposes to rescind regulations related to religious student 
organizations at certain public institutions of higher education (IHEs) 
that prescribe a novel role for the Department in enforcing grant 
conditions related to religious student organizations. These 
regulations apply to public IHEs that receive a direct grant from the 
Department or a subgrant from a State-administered formula grant 
program of the Department. The Department proposes to rescind the 
regulations because they are not necessary to protect the First 
Amendment right to free speech and free exercise of religion; have 
created confusion among institutions; and prescribe an unduly 
burdensome role for the Department to investigate allegations regarding 
IHEs' treatment of religious student organizations.

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

ADDRESSES: Comments must be submitted via the Federal eRulemaking 
Portal at www.regulations.gov. However, if you require an accommodation 
or cannot otherwise submit your comments via regulations.gov, please 
contact the contact person listed under FOR FURTHER INFORMATION 
CONTACT. The Department will not accept comments submitted by fax or by 
email or comments submitted after the comment period closes. To ensure 
that the Department does not receive duplicate copies, please submit 
your comments only once. Additionally, please include the Docket ID at 
the top of your comments.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under ``FAQ''.
    Privacy Note: The Department's policy is to make all comments 
received from members of the public available for public viewing in 
their entirety on the Federal eRulemaking Portal at 
www.regulations.gov. Therefore, commenters should be careful to include 
in their comments only information about themselves that they wish to 
make publicly available. Commenters should not include in their 
comments any information that identifies other individuals or that 
permits readers to identify other individuals. If, for example, your 
comment describes an experience of someone other than yourself, please 
do not identify that individual or include information that would allow 
readers to identify that individual. The Department will not make 
comments that contain personally identifiable information (PII) about 
someone other than the commenter publicly available on 
www.regulations.gov for privacy reasons. This may include comments 
where the commenter refers to a third-party individual without using 
their name if the Department determines that the comment provides 
enough detail that could allow one or more readers to link the 
information to the third party. If your comment refers to a third-party 
individual, to help ensure that your comment is posted, please consider 
submitting your comment anonymously to reduce the chance that 
information in your comment about a third party could be linked to the 
third party. The Department will also not make comments that contain 
threats of harm to another person or to oneself available on 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ashley Clark, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 2C185, Washington, DC 20202. 
Telephone: (202) 453-7977. Email: [email protected].
    If you are deaf, hard of hearing, or have a speech disability and 
wish to access telecommunications relay services, please dial 7-1-1.
    Invitation to Comment: We invite you to submit comments regarding 
these proposed regulations. To ensure that your comments have maximum 
effect in developing the final regulations, we urge you to clearly 
identify the specific section or sections of the proposed regulations 
that each of your comments addresses and to arrange your comments in 
the same order as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866 and 13563 and their overall 
requirement of reducing regulatory burden that might result from these 
proposed regulations. Please let us know of any further ways we can 
reduce potential costs or increase potential benefits while preserving 
the effective and efficient administration of the Department's programs 
and activities. Please also feel free to offer for our consideration 
any alternative approaches to the subjects addressed by the proposed 
regulations.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations by accessing Regulations.gov.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: On request, we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of accommodation or auxiliary 
aid, please contact the person listed under FOR FURTHER INFORMATION 
CONTACT.

SUPPLEMENTARY INFORMATION:

[[Page 10858]]

Background

2020 Regulatory Action

    Executive Order (E.O.) 13864, Improving Free Inquiry, Transparency, 
and Accountability at Colleges and Universities,\1\ issued on March 21, 
2019, requires relevant agencies to take appropriate steps to ensure 
that institutions of higher education that receive Federal research or 
education grants promote free inquiry (described in the E.O. as 
fostering ``environments that promote open, intellectually engaging, 
and diverse debate''), including through compliance with applicable 
Federal laws and regulations. E.O. 13864 further provides that the 
terms ``Federal research or education grants'' do not, for purposes of 
the order, include funding associated with Federal student aid programs 
that cover tuition, fees, or stipends.
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    \1\ 84 FR 11401.
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    The Department published a notice of proposed rulemaking (NPRM) on 
January 17, 2020 (2020 NPRM).\2\ In the 2020 NPRM, the Department 
relied upon the United States Supreme Court's 2017 decision in Trinity 
Lutheran Church of Columbia, Inc. v. Comer,\3\ the United States 
Attorney General's October 6, 2017, memorandum on Federal Law 
Protections for Religious Liberty,\4\ E.O. 13798, ``Promoting Free 
Speech and Religious Liberty,'' dated May 4, 2017,\5\ and E.O. 13831, 
``Establishment of a White House Faith and Opportunity Initiative,'' 
dated May 3, 2018.\6\ The 2020 NPRM proposed, among other things, to 
add material conditions relating to First Amendment freedoms, including 
the freedom of speech and free exercise of religion, to Department 
grants. Specifically, the 2020 NPRM proposed to impose a grant 
condition on grantees to comply with the First Amendment to the U.S. 
Constitution, in the case of public IHEs, or stated institutional 
policies regarding freedom of speech, in the case of private IHEs. The 
2020 NPRM explained that, if there is a final, non-default judgment 
that an IHE had violated the First Amendment or such institutional 
policies, the Department would consider that grantee to be in violation 
of a material condition of the grant and may pursue available remedies 
for noncompliance.\7\ Finally, it proposed to add a material grant 
condition prohibiting public IHEs from denying to a religious student 
organization at the public institution any right, benefit, or privilege 
that is otherwise afforded to other student organizations at the 
institution because of the religious student organization's beliefs, 
practices, policies, speech, membership standards, or leadership 
standards of the religious student organization. However, the 2020 NPRM 
did not describe how the Department would determine if an IHE is out of 
compliance with this particular condition.
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    \2\ 85 FR 3190.
    \3\ 137 S. Ct. 2012 (2017).
    \4\ Office of the Attorney General. ``Memorandum for All 
Executive Departments and Agencies''. Department of Justice, October 
6, 2017: https://www.justice.gov/opa/press-release/file/1001891/download.
    \5\ 82 FR 21675.
    \6\ 83 FR 20715. This E.O. was revoked on February 14, 2021, by 
86 FR 10007.
    \7\ 85 FR 3196.
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    On September 23, 2020, the Department published the final rule, 
which became effective on November 23, 2020 (2020 final rule).\8\ As 
proposed in the 2020 NPRM, the 2020 final rule added provisions related 
to free inquiry (Sec.  75.500(b) and (c) for Direct Grant Programs, and 
Sec.  76.500(b) and (c) for State-Administered Formula Grant Programs), 
making it a material condition of these Department grants that public 
IHEs receiving these grants comply with the First Amendment and private 
institutions receiving these grants follow their stated institutional 
policies on freedom of speech, including academic freedom. Furthermore, 
the 2020 final rule added a third condition (Sec.  75.500(d) for Direct 
Grant Programs and Sec.  76.500(d) for State-Administered Formula Grant 
Programs) prohibiting public IHEs from denying to any student 
organization whose stated mission is religious in nature at the public 
institution any right, benefit, or privilege that is otherwise afforded 
to other student organizations at the institution because of the 
religious student organization's beliefs, practices, policies, speech, 
membership standards, or leadership standards informed by sincerely-
held religious beliefs.\9\
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    \8\ See 85 FR 59916. The Department also published a document 
with two technical corrections on November 6, 2020, see 85 FR 70975.
    \9\ In the final rule, the Department revised the language in 
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 and that the public institution cannot deny 
any right, benefit, or privilege that is otherwise 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: ``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.''
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    The 2020 final rule states that an IHE will be determined to have 
violated the grant conditions in Sec. Sec.  75.500(b) and (c) and 
76.500(b) and (c) only if a State or Federal court issues a final, non-
default judgment against a public IHE for violating the First Amendment 
or against a private IHE for violating stated institutional policies. 
In the 2020 NPRM and 2020 final rule, the Department stated that such 
judgments would be a necessary precondition of enforcing the grant 
conditions because State and Federal courts are the appropriate 
arbiters of alleged free speech violations.\10\ The 2020 final rule 
further stated, ``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.'' \11\
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    \10\ 85 FR 3213 and 85 FR 59921.
    \11\ 85 FR 59921.
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    Under the 2020 final rule concerning these conditions, the 
Department's role is deciding whether and to what extent to impose 
additional penalties where such court judgments have been rendered, 
including, but not limited to, withholding Federal grant funding.\12\ 
The preamble to the 2020 final rule stated that if a court issues such 
a judgment against a public IHE for violating the First Amendment or a 
private IHE for violating stated institutional policies, the 
institution must submit to the Secretary a copy of the judgment within 
45 days, and the Department may pursue remedies to address 
noncompliance with a grant condition.
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    \12\ Id.
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    Unlike with Sec. Sec.  75.500(b) and (c) and 76.500(b) and (c), 
action by the Department on Sec. Sec.  75.500(d) and 76.500(d) is not 
tied to a court judgment. When responding to public comments in the 
2020 final rule, the Department concluded that ``[w]hether religious 
student organizations are denied the rights, benefits, and privileges 
as other student organizations is a discrete issue that the Department 
may easily investigate.'' \13\ The 2020 final rule did not provide any 
further information as to the procedures the Department would use to 
investigate this grant condition. On November 25, 2020, the Department 
published a

[[Page 10859]]

separate Notice of Reporting Process to provide additional information 
on Sec. Sec.  75.500(d) and 76.500(d).\14\ In that notice, the 
Department provided an email address for anyone to report alleged 
violations of this grant condition to the Department.
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    \13\ 85 FR 59944-45.
    \14\ Notice of Reporting Process, 85 FR 75311 (November 25, 
2020).
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    In the 2020 NPRM, the Department's stated goals for promulgating 
the regulations included ensuring that institutions that receive 
Federal funds from the Department promote free inquiry, free 
expression, and academic freedom, and protecting free speech on college 
campuses.\15\ The Department stated that the proposed regulations would 
apply to all such institutions because the denial of free inquiry is 
harmful at all institutions.\16\ The Department reiterated these goals 
and views in promulgating the 2020 final rule.\17\ The Department 
further stated that, in regard to religious student organizations, the 
final regulations help ensure that religious organizations as well as 
their student members fully retain their right to free exercise of 
religion.
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    \15\ 85 FR 3196.
    \16\ Id.
    \17\ 85 FR 59924.
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Review of the 2020 Regulations

    On August 19, 2021, the Department issued a blog post announcing 
that we were conducting a review of these regulations while keeping in 
mind the importance of several key elements, including First Amendment 
protections, nondiscrimination requirements, and the promotion of 
inclusive learning environments for all students.\18\ We stated in our 
blog post that the First Amendment requires that public colleges and 
universities not infringe upon students' rights to engage in protected 
free speech and religious exercise and emphasized our long-held and 
continuing view that ``[p]rotecting First Amendment freedoms on public 
university and college campuses is essential.'' We also emphasized that 
public colleges and universities generally may not deny student 
organizations access to school-sponsored forums because of the groups' 
religious or nonreligious viewpoints and recognized that IHEs receiving 
Federal financial assistance must comply with applicable Federal 
statutes and regulations that prohibit discrimination. The Department 
further recognized that IHEs, their students, and the courts have 
historically been responsible for resolving disputes relating to these 
complex matters where these important principles intersect.
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    \18\ Cooper, Michelle Asha. ``Update on the Free Inquiry Rule,'' 
Department of Education Homeroom Blog (Aug. 19, 2021), https://blog.ed.gov/2021/08/update-on-the-free-inquiry-rule/.
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    As part of the review, the Department conducted outreach and held 
meetings with: (1) higher education and institutional stakeholders, 
including organizations representing public institutions; (2) faith-
based organizations, including organizations representing religious 
IHEs; and (3) organizations that advocate for civil rights and civil 
liberties. The purpose of the meetings was to hear from impacted groups 
that had diverging perspectives in their comments on the proposed 
provisions in the 2020 NPRM. Institutional stakeholders raised concerns 
that, under Sec. Sec.  75.500(d) and 76.500(d), the Department's 
contemplated role would undermine individual institutions' ability to 
tailor their policies to best meet the needs of their student 
populations and campuses within existing legal constraints. They 
believe that the appropriate level of decision-making should remain at 
the institutional level, with the entities best positioned to ensure 
respect for religious expression and exercise and protection against 
unlawful discrimination for students on campuses. Some faith-based and 
civil rights organizations raised concerns that Sec. Sec.  75.500(d) 
and 76.500(d) create confusion about the interplay between these 
regulations and other nondiscrimination requirements. In particular, 
those organizations worried that Sec. Sec.  75.500(d) and 76.500(d) 
could be interpreted to require IHEs to go beyond what the First 
Amendment mandates and allow religious student groups to discriminate 
against vulnerable and marginalized students. The Department also heard 
from representatives of other faith-based organizations that believe 
that the regulations fairly state current law, provide needed 
protections for students of all faiths, and ensure religious students 
feel welcome on public college campuses.
    Having reconsidered the regulations after hearing from 
stakeholders, including reconsidering the potential confusion among 
institutions and burdensome role for the Department, we propose to 
rescind the provisions added by the 2020 final rule to Sec. Sec.  
75.500(d) and 76.500(d).
    We also heard concerns from stakeholders about Sec. Sec.  75.500(b) 
and (c) and 76.500(b) and (c). To date, the Department has not received 
notice of any final non-default judgments that might trigger those 
provisions, nor has it received evidence regarding the intended impact 
of these components. For those reasons, we are not proposing to modify 
those paragraphs in this rulemaking, but we are publishing a separate 
request for information to further inform our review of these 
components and our implementation of applicable grant programs.
    We discuss substantive issues below. We have grouped our discussion 
of Sec. Sec.  75.500(d) and 76.500(d) together because we are proposing 
the same changes to the grant conditions of Direct Grant Programs (Part 
75) and State-Administered Grant Programs (Part 76). Generally, we do 
not address proposed regulatory provisions that are technical or 
otherwise minor in effect.\19\
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    \19\ We do not propose to change any provisions from the 2020 
final rule not discussed below. Additionally, we do not propose to 
change any regulations issued as part of the Dec 17, 2020, joint 
rulemaking (85 FR 82037).
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Sec. Sec.  75.500(d) and 76.500(d) Public Institutions and Religious 
Student Organizations

    Statute: The General Education Provisions Act (GEPA) provides 
general authority to the Secretary to ``make, promulgate, issue, 
rescind, and amend rules and regulations'' governing applicable 
programs run by the Department.\20\
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    \20\ 20 U.S.C. 1221e-3.
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    Current Regulations: Section 75.500(d) requires, as a material 
condition of receiving a grant, that public IHEs that are grantees of a 
direct grant program not deny any religious student organization any 
right, benefit, or privilege that is otherwise 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. Likewise, section 76.500(d) requires, as a material condition 
of receiving a grant, that a State or public institution that is a 
subgrantee not deny to any religious student organization any right, 
benefit, or privilege that is 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. To enforce these 
portions of the rule, the Department created an email address that 
anyone may use to report alleged violations of this provision.\21\
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    \21\ See Notice of Reporting Process, 85 FR 75311 (November 25, 
2020).
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    Proposed Regulations: The Department proposes to rescind Sec. Sec.  
75.500(d) and 76.500(d).

[[Page 10860]]

    Reasons: The Department deeply values religious liberty and free 
expression. Public IHEs are rightly required to comply with First 
Amendment guarantees, including the free exercise of religion. 
Rescinding these regulations would not affect those requirements.\22\
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    \22\ See, e.g., Healy v. James, 408 U.S. 169, 180 (1972) (noting 
that ``state colleges and universities are not enclaves immune from 
the sweep of the First Amendment''); Rosenberger v. Rector and 
Visitors of the University of Virginia, 515 U.S. 819, 822 
(1995)(noting that the University is an instrumentality of the 
Commonwealth and ``thus bound by the First and Fourteenth 
Amendments'').
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    The purported function of Sec. Sec.  75.500(d) and 76.500(d) is to 
help ensure that public educational institutions do not discriminate 
against religious organizations in a way the Constitution forbids. As 
the Department explained in the preamble to the 2020 final rule, those 
provisions were promulgated in order to ``reinforce the First 
Amendment's mandate that public institutions treat religious student 
organizations the same as other student organizations'' (emphasis 
added).\23\ The preamble to the 2020 final rule further states that the 
Free Exercise Clause `` `protect[s] religious observers against unequal 
treatment' and subjects laws that target the religious for `special 
disabilities' based on their `religious status' '' to the strictest 
scrutiny (emphasis added).\24\ Accordingly, Sections 75.500(d) and 
76.500(d), we explained, ``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'' \25\ (emphasis added). ``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.'' \26\
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    \23\ 85 FR 59942; and see also id. at 59943 (``these regulations 
are necessary to make the guarantees in the First Amendment, 
including the Free Exercise Clause, a reality at public 
institutions''); id. at 59944 (``Sec. Sec.  75.500(d) and 76.500(d) 
. . . are rooted in the First Amendment [and] do not apply to 
private institutions because private institutions are not bound by 
the First Amendment'').
    \24\ Id. at 59942 (quoting Trinity Lutheran, 137 S. Ct. at 
2019).
    \25\ Id. at 59943. See also id. at 59940.
    \26\ Id. at 59939.
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    In response to the 2020 NPRM, several commenters raised concerns 
that, despite this nondiscrimination objective, the regulations 
themselves could be read to require IHEs to afford preferential 
treatment to religious student groups and would prohibit IHEs from 
applying neutral, generally-applicable nondiscrimination policies that 
would otherwise be compliant with the First Amendment. Throughout the 
preamble and in response to those comments, the Department repeatedly 
asserted that Sec. Sec.  75.500(d) and 76.500(d) do not afford any 
preferences to religious organizations.\27\ The Department explained 
that the imposition of this grant condition was meant to be consistent 
with the First Amendment because the 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.'' \28\ The 
preamble provided examples of what the Department considered to be 
``true'' or ``authentic'' all-comers policies, while acknowledging that 
such policies are permitted but not required by the Constitution.\29\ 
In the preamble, the Department similarly asserted that public IHEs may 
apply neutral, generally-applicable policies to religious student 
organizations in a nondiscriminatory manner without risking any 
disqualification for the covered Department grants.\30\
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    \27\ See, e.g., id. at 59938 (``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''); id. at 59939 (``The final regulations would not, as one 
commenter suggested, mandate preferential treatment for religious 
student organizations . . . . Here, the Department requires parity 
among all organizations . . . . A public institution . . . may adopt 
. . . 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.''); id. at 59940 (``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.'').
    \28\ 85 FR 59939. See also id. at 59940 (``withholding funds 
from any student organization under a neutral rule of general 
applicability is not constitutionally suspect or prohibited under 
these final regulations'').
    \29\ The preamble to the 2020 final rule stated that a ``true 
all-comers policy'' or ``authentic all-comers policy'' is limited to 
one that ``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.'' 85 FR 
at 59939. As an example, the Department previously articulated a 
view that, under 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.'' Id.
    \30\ See id. at 59943 (``[T]hese 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.''); see also id. at 
59940 (asserting that ``Sec. Sec.  75.500(d) and 76.500(d) do not 
enable religious student organizations to discriminate on the basis 
of protected classes''). Separately, the Notice of Reporting Process 
published after the 2020 final rule took the position that a ``non-
discrimination policy with enumerated protected classes is not an 
all-comers policy and, therefore, cannot be applied to prohibit 
religious student organizations from having faith-based membership 
or leadership criteria.'' 85 FR 75311. The Notice of Reporting 
Process did not however explain the relationship between this 
statement and the statements in the preamble expressly permitting 
IHEs to apply neutral and generally-applicable policies.
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    However, the regulatory language the Department adopted in 
Sec. Sec.  75.500(d) and 76.500(d) does not expressly reflect that the 
material condition required by those sections is merely a 
nondiscrimination requirement, nor does it specify that IHEs may apply 
neutral and generally-applicable rules to religious student 
organizations. To the contrary, the regulations state that, as a 
material condition of a covered Department grant, a public institution 
shall not deny any right, benefit, or privilege that is otherwise 
afforded to other student organizations at the public institution ``to 
any student organization whose stated mission is religious in nature'' 
not only on the basis of the organization's status, beliefs and speech, 
but also ``because of . . . [its] practices, policies . . . membership 
standards, or leadership standards, which are informed by sincerely-
held religious beliefs.'' There is nothing in the regulatory text that 
clarifies or guarantees that an institution may insist that such 
religious organizations comply with the same neutral and generally-
applicable practices, policies, and membership and leadership standards 
that apply equally to nonreligious student organizations, including but 
not limited to nondiscrimination requirements.
    The disparity between the language of the regulatory text and the 
Department's stated intent has engendered confusion and uncertainty 
about what institutions must do to avoid risking ineligibility for 
covered Department grants. As part of our review described in the 
August 2021 blog post, the Department conducted outreach and listening 
sessions with institutional stakeholders and representatives of faith-
based communities. Many of those stakeholders voiced confusion about 
the

[[Page 10861]]

interplay between these regulations and other nondiscrimination 
requirements, including the longstanding requirements to comply with 
Federal civil rights laws and regulations, which both Sec. Sec.  
75.500(a) and 76.500(a) acknowledge. Institutional stakeholders raised 
concerns about the regulations when commenting on the 2020 NPRM and 
have continued to express concerns about Sec. Sec.  75.500(d) and 
76.500(d). Their concerns include that the regulations are confusing 
and may conflict with institutional and State nondiscrimination 
policies, and that the Department's approach reduces institutions' 
ability to set individualized policies that protect First Amendment 
freedoms and reflect the diversity of institutional contexts and 
missions.\31\
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    \31\ The Department is also currently a defendant in litigation 
challenging the material condition added by this provision. In 
January 2021, the Secular Student Alliance, a nonprofit 
organization, and Declan A. Galli, a student at California 
Polytechnic State University, sued the Department, alleging that the 
Department lacked statutory authority to issue this provision, that 
the provision violates the First Amendment by granting preferential 
treatment to religious student organizations because it allegedly 
bars public institutions from requiring religious student 
organizations to comply with nondiscrimination requirements, and 
that the Department did not adequately respond to comments during 
the rulemaking process. See Complaint, Secular Student Alliance et 
al. v. U.S. Dep't of Educ., No. 21-cv-00169 (D.D.C. Jan. 19, 2021).
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    Moreover, despite the stated purpose of these regulations, the 
Department has not observed that they have meaningfully increased 
protections of First Amendment rights for religious student 
organizations or campus administrators since the rule went into effect.
    If IHEs do discriminate against religious student organizations on 
the basis of the organizations' beliefs or character, such 
organizations can and do seek relief in Federal and State courts, which 
have longstanding expertise in and responsibility for protecting rights 
under the Free Speech and Free Exercise Clauses, including in cases 
where there are complex, fact-dependent disputes about whether a policy 
is neutral and generally-applicable.\32\ Thus, while the Department 
certainly shares the view that public schools should not treat 
religious student organizations worse than other student organizations, 
we do not, at this time, believe that a threat of remedial action with 
respect to the Department's grants is necessary ``to make the 
guarantees of the First Amendment, including the Free Exercise Clause, 
a reality at public institutions.'' \33\ The Department welcomes 
evidence from the public regarding whether maintaining a condition 
specifically for institutions that receive Department grants has 
provided any additional protections of the First Amendment rights of 
religious student organizations at public institutions.
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    \32\ See, e.g., Ratio Christi at the University of Nebraska-
Lincoln et al. v. Members of the Board of Regents of the University 
of Nebraska et al., Case No. 4:21-cv-03301 (Oct. 27, 2021) 
(Complaint) (challenging application of campus speaker policy and 
alleging refusal to fund event because of student organization's 
Christian viewpoint); Ratio Christi at the University of Houston-
Clear Lake et al. v. Khator et al., Case No. 4:21-cv-03503 (S.D. 
Tex. Oct. 25, 2021) (Complaint) (challenging university refusal to 
recognize religious student group allegedly based on its religious 
beliefs and leadership requirements); InterVarsity Christian 
Fellowship/USA v. Bd. of Governors of Wayne State Univ., 534 F. 
Supp. 3d 785, 825 (E.D. Mich. 2021) (finding that university's 
revocation of Christian student organization's recognized status was 
not neutral and violated organization's First Amendment rights).
    \33\ 85 FR at 59943.
---------------------------------------------------------------------------

    We now find reason to question the conclusions in the preamble to 
the 2020 final rule that the types of investigations the Department 
would undertake would be ``limited in scope'' and be ``similar to the 
types of investigations that the Department currently conducts.'' \34\ 
The First Amendment is a complex area of law with an intricate body of 
relevant case law.\35\ Closely contested cases, such as those in which 
there is some uncertainty about whether a public institution's policy 
is neutral and generally-applicable or about whether the institution 
has applied such policies without discriminating on the basis of a 
religious organization's beliefs or character, are typically very fact-
intensive, and litigated thoroughly through the courts. A proper review 
of an alleged violation could require the Department to devote 
extensive resources to investigate the allegation given the nature of 
these cases.\36\ Therefore, even if the Department revised the 
regulations to clarify this confusion, we would still be concerned that 
enforcement would be overly burdensome for the Department. Although the 
Department's Office for Civil Rights (OCR) has expertise and 
responsibility for investigating claims of discrimination under the 
Federal civil rights statutes it is authorized to enforce, no office in 
the Department has historically been responsible for investigating 
First Amendment violations.
---------------------------------------------------------------------------

    \34\ Cf. 85 FR 59945 (making similar observations in the context 
of discussing the 2020 rule's provisions concerning free speech).
    \35\ Id. at 59919, 59922-23.
    \36\ For example, a recent decision against the University of 
Iowa for selective enforcement of a non-discrimination policy 
against a religious group awarded plaintiffs $533,508 in attorney's 
fees and expenses to cover an estimated 873 billed hours. See 
Intervarsity Christian Fellowship, et al. v. The University of Iowa, 
et al., Case No. 3:18-cv-00080 (S.D. Iowa Nov. 18, 2021) (Order).
---------------------------------------------------------------------------

    Further, in the 2020 final rule, we stated we believed that 
investigating First Amendment claims generally would be unduly 
burdensome and unnecessary in light of the existing First Amendment 
protections afforded by the Constitution and adjudicated through the 
courts.\37\ Prior to the 2020 final rule, the Department's longstanding 
practice was to defer to courts to adjudicate First Amendment matters, 
including those involving religious student organizations, and to order 
appropriate remedies without Departmental involvement.\38\ Those 
remedies may include, if the court deems appropriate, injunctive relief 
prohibiting the school from violating the plaintiffs' rights in a 
similar fashion going forward.\39\ Indeed, for all types of First 
Amendment matters, the current regulations at Sec. Sec.  75.500(b) and 
76.500(b) indicate that the Department will presume a public 
institution to be in compliance with the First Amendment absent a 
court's final, non-default judgment.
---------------------------------------------------------------------------

    \37\ 85 FR 59923 (In the context of discussing the 2020 rule's 
provisions concerning free speech, stating that ``[t]he 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 [the regulation at Sec.  75.500(b) and (c) and 
Sec.  76.500(b) and (c)] 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.'').
    \38\ See, e.g., Austin v. Univ. of Fla. Bd. of Trustees, No. 
1:21CV184-MW/GRJ, 2022 WL 195612 at *28 (N.D. Fla. Jan. 21, 2022) 
(finding conflict-of-interest policy likely violated First Amendment 
rights of faculty and staff and enjoining university from enforcing 
it); Bus. Leaders in Christ v. Univ. of Iowa, 360 F. Supp. 3d 885, 
909 (S.D. Iowa 2019) (finding policy violated First Amendment rights 
and issuing permanent injunction preventing university from 
enforcing policy against religious student group based on the 
content of statement of faith and leadership selection policies); 
Coll. Republicans at San Francisco State Univ. v. Reed, 523 F. Supp. 
2d 1005, 1024 (N.D. Cal. 2007) (concluding that student organization 
was likely to prevail on claim that civility provisions of student 
code of conduct offended the First Amendment and enjoining 
university from basing any disciplinary proceedings on the ground 
that the conduct in issue was not ``civil''); Bair v. Shippensburg 
Univ., 280 F. Supp. 2d 357, 372-73 (M.D. Pa. 2003) (concluding that 
the university speech code likely violated the First Amendment and 
granting preliminary injunction to protect students' rights).
    \39\ See, e.g., Gerlich v. Leath, 861 F.3d 697 (8th Cir. 2017); 
Just. For All v. Faulkner, 410 F.3d 760 (5th Cir. 2005); Moore v. 
Watson, 838 F. Supp. 2d 735 (N.D. Ill. 2012).
---------------------------------------------------------------------------

    For these reasons, and after reconsidering this issue, the 
Department proposes to rescind Sec. Sec.  75.500(d) and 76.500(d), 
which would eliminate the confusion caused by the 2020 final rule and 
leave adjudication of these complex

[[Page 10862]]

and important constitutional questions to the institutions themselves, 
their communities, and the judiciary. This rescission would thus return 
the Department to its longstanding role in this area.
    This rescission would not alter the Department's commitment to 
religious freedom, which is enshrined in the First Amendment to the 
U.S. Constitution as a fundamental human right that contributes to the 
vibrancy, diversity, and strength of our nation. President Biden has 
emphasized the importance of this freedom repeatedly. As he has said, 
``ensuring freedom of religion remains as important as ever'' today, 
and ``the work of protecting religious freedom, for people of all 
faiths and none, is never finished.'' \40\ A rescission of this rule 
also would not alter the Department's commitment to emphasize the 
importance of First Amendment protections, including religious freedom 
protections, at public IHEs. The Department will continue to encourage 
all IHEs to protect students' opportunities to associate with fellow 
members of their religious communities, to share the tenets of their 
faith with others, and to express themselves on campus about religious 
and nonreligious matters alike.
---------------------------------------------------------------------------

    \40\ Statement by President-elect Biden on Religious Freedom 
Day. The American Presidency Project. January 16, 2021, https://www.presidency.ucsb.edu/documents/statement-president-elect-biden-religious-freedom-day?msclkid=d7438aa6aa0211ecb203ca81d166d3c2.
---------------------------------------------------------------------------

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 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 Executive Order 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.
    This proposed regulatory action is a significant regulatory action 
subject to review by OMB under section 3(f)(4) of Executive Order 
12866.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only upon 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.
    Executive Order 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 proposed regulations only on a reasoned 
determination that their benefits would justify their costs. In 
choosing among alternative regulatory approaches, we selected those 
approaches that maximize net benefits. Based on the analysis that 
follows, the Department believes that these proposed regulations are 
consistent with the principles in Executive Order 13563.
    We also have determined that this regulatory action would not 
unduly interfere with State, local, or Tribal governments in the 
exercise of their governmental functions.
    In accordance with both Executive Orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs associated 
with this regulatory action are those resulting from IHEs reviewing 
regulations to ensure they are appropriately administering the 
Department's programs and activities.
    Students and public IHEs would benefit from the rescission of 
Sec. Sec.  75.500(d) and 76.500(d) because it would reduce stakeholder 
confusion about what policies are allowable. Rescinding these 
provisions would also reduce burdens on the Department.

Discussion of Costs and Benefits

    The Department has analyzed the costs and benefits of complying 
with these proposed regulations. Rescinding Sec. Sec.  75.500(d) and 
76.500(d) would remove language prohibiting public institutions that 
are grantees or subgrantees from denying any religious student 
organization any right, benefit, or privilege that is otherwise 
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 as a material condition of the Department's 
grants.

Costs to Rescinding the Regulations

    For purposes of these estimates, the Department assumes that 
approximately 1,217 public IHEs are currently grant recipients under 34 
CFR parts 75 and 76. We assume that most activities outlined below 
would be conducted by an attorney at a rate of $141.10 per hour.\41\
---------------------------------------------------------------------------

    \41\ Estimates based on a median hourly wage for lawyers 
employed by colleges, universities, and professional schools, State 
government owned from the May 2020 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.
---------------------------------------------------------------------------

    To estimate the cost of reviewing the proposed rule, we assume that 
representatives of all 1,217 institutions receiving grants under 34 CFR 
parts 75 and 76 will review the proposed and final rules. We estimate 
that these reviews will take, on average, a total of one hour per 
institution. We estimate a one-time cost of approximately

[[Page 10863]]

$171,719 in total across these grantees to review.
    While the Department recognizes that some institutions may take 
longer to complete this review, many institutions will likely take less 
time, instead relying on high-level summaries or overviews, such as 
those produced by a central office for an entire university system. The 
current regulations were intended to align with existing constitutional 
requirements. As such, rescinding the regulations would have a de 
minimis effect on their operations and, therefore, we do not anticipate 
a substantial number of entities devoting significant time to reviewing 
this proposed rule. We invite comment on whether there are additional 
costs that relevant entities may incur related to the rescission of 
these regulations.
    The Department has not received any complaints regarding alleged 
violations of Sec. Sec.  75.500(d) and 76.500(d) at the time of 
publishing this document. Accordingly, we estimate that we will receive 
fewer than 5 complaints annually related to alleged violations of this 
condition. Additionally, we continue to believe institutions generally 
make a good-faith effort to abide by the First Amendment irrespective 
of the implementation of the 2020 final rule, and we assume that 
compliance with the First Amendment has not generated additional burden 
for IHEs.\42\ However, IHEs have expressed confusion about the 
interplay of the conditions in paragraph (d) of Sec. Sec.  75.500 and 
76.500 and Federal and State nondiscrimination laws, and we do estimate 
that this confusion may have generated burden but do not have a 
measurable burden estimate at this time. The Department specifically 
invites public comment on the extent to which compliance with paragraph 
(d) of Sec. Sec.  75.500 and 76.500 of the 2020 final rule have 
generated burdens for regulated entities and the likely estimated 
number of complaints.
---------------------------------------------------------------------------

    \42\ 85 FR 3216-3217.
---------------------------------------------------------------------------

    The Department estimates that rescinding Sec. Sec.  75.500(d) and 
76.500(d) would not have costs for students or campus communities. We 
have not identified that these provisions have added material 
additional protections for student groups whose stated mission is 
religious in nature at public IHEs. Therefore, the proposed rescission 
would not impose a cost on these communities.
    The Department assumes that rescinding Sec. Sec.  75.500(d) and 
76.500(d) would generate no new burdens or costs aside from those 
discussed herein but invites public comment on potential costs or 
burdens generated by rescinding these regulations and whether these 
provisions have added material protections for religious student groups 
at public IHEs.

Benefits To Rescinding the Regulations

    Rescinding Sec. Sec.  75.500(d) and 76.500(d) would reduce the 
continued confusion that IHEs and others have cited over how those 
paragraphs intersect with First Amendment requirements. We believe this 
would benefit IHEs and the students they serve by removing regulations 
that create confusion and would instead allow IHEs to design and 
enforce policies that best serve their student bodies and that are 
consistent with applicable laws and regulations.
    Additionally, rescinding these regulations would eliminate the 
burden on the Department of Education to investigate alleged First 
Amendment violations under Sec. Sec.  75.500(d) and 76.500(d) and 
determine and administer penalties for IHEs that violate grant 
conditions under those provisions. First Amendment cases are fact-
specific and would require scrutiny from the Department's Office of 
General Counsel and related offices to review complaints to determine 
appropriate Departmental action in response to the alleged violations, 
and no office in the Department has historically been responsible for 
investigating or adjudicating First Amendment violations. The amount of 
time needed to review a specific alleged violation would depend upon 
the nature of the violation, and therefore we are not able to predict 
how much this rescission would decrease the Department's burden. 
However, as stated above, the Department has observed that cases can 
require a substantial number of hours to adjudicate (as discussed in 
footnote 36).
    We invite comments on any of the described benefits, including the 
potential elimination of confusion related to the requirements outlined 
in Sec. Sec.  75.500(d) and 76.500(d). We also invite comments that 
identify benefits of rescinding Sec. Sec.  75.500(d) and 76.500(d) that 
we have not identified.

Alternatives Considered

    The Department considered retaining the existing regulations. 
However, upon review of the regulations and hearing from stakeholders, 
we propose to rescind the existing regulations in paragraph (d) of 
Sec. Sec.  75.500 and 76.500 because we tentatively believe these 
provisions' costs outweigh any potential benefits.
    We considered revising Sec. Sec.  75.500(d) and 76.500(d) to 
clarify that neutral, generally-applicable policies would be 
permissible. However, if the regulations were revised in this manner, 
the Department would still be responsible for investigating alleged 
violations. Instead, we believe the Department should return to our 
historical role in which we have not adjudicated alleged violations of 
the First Amendment. Courts are better suited to handle such matters.
    We invite comments on alternatives that would address the concerns 
we have identified about the current regulations.

Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand. The Secretary invites comments 
on how to make these proposed regulations easier to understand, 
including answers to questions such as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec. '' and a numbered heading; for example, 
``Sec.  75.500 (b) Public Institutions and the First Amendment.'')
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    To send any comments that concern how the Department could make 
these proposed regulations easier to understand, see the instructions 
in the ADDRESSES section.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations will not 
have a significant economic impact on a substantial number of small 
entities, as the proposed rescission does not modify or change existing 
legal requirements for public IHEs. We invite the public to comment on 
our certification that these regulations would not have a significant 
economic impact on a substantial number of small entities.

[[Page 10864]]

    The Small Business Administration (SBA) defines ``small 
institution'' using data on revenue, market dominance, tax filing 
status, governing body, and population. Most entities to which the 
Office of Postsecondary Education's (OPE) regulations apply are 
postsecondary institutions; however, many of these institutions do not 
report such data to the Department. As a result, the Department defines 
``small entities'' by reference to enrollment,\43\ to allow meaningful 
comparison of regulatory impact across all types of higher education 
institutions.\44\
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    \43\ Two-year postsecondary educational institutions with 
enrollment of less than 500 full-time equivalent (FTE) and four-year 
postsecondary educational institutions with enrollment of less than 
1,000 FTE.
    \44\ In previous regulations, the Department categorized small 
businesses based on tax status. Those regulations defined ``non-
profit organizations'' as ``small organizations'' if they were 
independently owned and operated and not dominant in their field of 
operation, or as ``small entities'' if they were institutions 
controlled by governmental entities with populations below 50,000. 
Those definitions resulted in the categorization of all private 
nonprofit organization as small and no public institutions as small. 
Under the previous definition, proprietary institutions were 
considered small if they were independently owned and operated and 
not dominant in their field of operation with total annual revenue 
below $7,000,000. Using FY 2017 IPEDs finance data for proprietary 
institutions, 50 percent of 4-year and 90 percent of 2-year or less 
proprietary institutions would be considered small. By contrast, an 
enrollment-based definition applies the same metric to all types of 
institutions, allowing consistent comparison across all types.

                          Table 1--Small Institutions Under Enrollment-Based Definition
----------------------------------------------------------------------------------------------------------------
                 Level                            Type                 Small           Total          Percent
----------------------------------------------------------------------------------------------------------------
2-year................................  Public..................             328           1,182           27.75
4-year................................  Public..................              56             747            7.50
                                                                 -----------------------------------------------
    Total.............................  ........................             384           1,929           19.91
----------------------------------------------------------------------------------------------------------------
Source: 2018-19 data reported to the Department.

Paperwork Reduction Act of 1995

    These proposed regulations do not impose or remove information 
collection requirements for public institutions. Therefore, the 
Paperwork Reduction Act is not implicated.

Intergovernmental Review

    These programs are not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.

Assessment of Education Impact

    In accordance with section 411 of GEPA, 20 U.S.C. 1221e-4, the 
Secretary particularly requests comments on whether these proposed 
regulations would require transmission of information that any other 
agency or authority of the United States gathers or makes available.
    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document in an accessible format. The Department will 
provide the requestor with an accessible format that may include Rich 
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, 
braille, large print, audiotape, or compact disc, or other accessible 
format.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
document, as well as all other documents of this Department published 
in the Federal Register, in text or Adobe Portable Document Format 
(PDF). To use PDF, you must have Adobe Acrobat Reader, which is 
available free at the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

List of Subjects

34 CFR Part 75

    Accounting, Copyright, Education, Grant programs--education, 
Indemnity payments, Inventions and patents, Private schools, Reporting 
and recordkeeping requirements, Youth organizations.

34 CFR Part 76

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

Nasser Paydar,
Assistant Secretary, Office of Postsecondary Education.

    For the reasons discussed in the preamble, the Secretary of 
Education proposes to amend parts 75 and 76 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.


Sec.  75.500  [Amended]

0
2. Section 75.500 is amended by removing paragraph (d) and 
redesignating paragraph (e) as new paragraph (d).

PART 76--STATE-ADMINISTERED PROGRAMS

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

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


Sec.  76.500  [Amended]

0
4. Section 76.500 is amended by removing paragraph (d) and 
redesignating paragraph (e) as new paragraph (d).

[FR Doc. 2023-03670 Filed 2-21-23; 8:45 am]
BILLING CODE 4000-01-P