Sneak Preview: ED Terminates Certain Grant-Related Rulemaking Efforts

(The following was excerpted from a recent Thompson Grants Compliance Expert article.) The Department of Education (ED) recently withdrew several outstanding rulemaking efforts that garnered countless comments and pertained to federal financial assistance programs, citing various reasons.

One proposed rule that was terminated addressed religious student organizations at institutions of higher education (IHEs) that receive a direct ED grant or a subgrant from state-administered ED formula grant programs. The department on Feb. 23, 2023, issued a proposed rule seeking to rescind regulations at 34 C.F.R.§75.500(d) and §76.500(d) that became effective under a Sept. 23, 2020, final rule. These regulations address the free exercise of religion at IHEs participating in certain grant programs. ED received 58,000 public comments on the proposed rule.

Several hundred commenters explained that rescinding the regulations was not necessary because the rule is not complex or burdensome. Other commenters in favor of the current rule said that these regulations support ongoing issues faced by religious student groups. In contrast, commenters who supported rescinding the regulations asserted that they are not necessary to protect these constitutional freedoms, and feared they could be read to require institutions to afford preferential treatment to religious student groups.

ED on Dec. 26, 2024, notes that it is now terminating the rulemaking proceeding due to “the concerns raised by commenters both in support of and in opposition to the proposed rescissions, the forthcoming change in administration, and the significant resources needed to review and consider all relevant matters presented in the public comments.” The agency adds that it “does not believe that finalizing the proposed rescissions is an efficient use of ED’s resources at this time.”

ED emphasizes that the withdrawal does not change or alter its role with respect to the other material grant conditions added by the 2020 final regulations at 34 C.F.R. §75.500(b) and (c) and §76.500(b) and (c). It will determine whether an IHE has violated the grant conditions in those provisions only if a state or federal court issues a final, nondefault judgment against a public IHE for violating the First Amendment or against a private IHE for violating stated institutional policies.

(The full version of this story has now been made available to all for a limited time here.)

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