Sneak Preview: ED Proposes To Rescind Nondiscrimination Rule
(The following was excerpted from a recent Thompson Grants Compliance Expert article.) The Department of Education (ED) recently proposed to rescind current regulatory language — cited in different parts of the Code of Federal Regulations (C.F.R.) depending on the type of grant received — that implements a nondiscrimination clause applicable to religious student organizations at public institutions of higher education (IHEs) receiving an ED direct grant or a subgrant under a state-administered ED formula grant program.
Stakeholders may submit comments to ED on the proposed rule via Regulations.gov by March 24 by referring to Docket ID No. ED-2022-OPE-0157.
In a September 2020 rulemaking, ED added grant material conditions for ED grants to federally funded IHEs at 34 C.F.R. §75.500(b) and (c) for direct grant programs and 34 C.F.R. §76.500(b) and (c) for state-administered formula grant programs) related to First Amendment freedoms, including the freedom of speech and free exercise of religion. ED explained that if a state or federal court issues a final, nondefault judgment that an IHE had violated the First Amendment or such institutional policies, ED would consider the grantee to be in violation of a material condition of the grant and may pursue available remedies for noncompliance, including withholding grant funding.
The 2020 rule further added another material grant condition to its regulation (34 C.F.R. §75.500(d) for direct grant programs and 34 C.F.R. §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 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. Unlike the regulation for First Amendment freedoms, this particular regulation is not tied to a court judgment.
At the time, ED stated the goals of the final rule were to ensure that “institutions that receive federal funds from ED promote free inquiry, free expression and academic freedom, and protect free speech on college campuses. … 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.”
(The full version of this story has now been made available to all for a limited time here.)
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