Department’s New Final Rule Clarifies Title IX Exemption and Introduces Free Speech Requirements for Grant Recipients 

The Department of Education issued its final rule to implement Executive Order 13864 (Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities). The final rule was announced on September 9, 2020 with an accompanying Fact Sheet, and was formally published on September 23, 2020.  It is scheduled to go into effect on November 23, 2020.

The final rule’s major changes are outlined below, and include a clarification for Title IX as well as new conditions imposed on public and private institutions receiving federal direct grants or subgrants from a state-administered formula program.

Free Speech Requirements (34 CFR §§ 75.500, 76.500)

The final rule requires public universities and colleges that receive grants to comply with the First Amendment as a condition of receiving the grant.  Similarly, private institutions, as a condition of receiving of grants, must comply with their own stated institutional policies on freedom of speech, including academic freedom.

The Department will rely upon a final, non-default judgment by a state or federal court to determine whether a public or private institution has violated these material conditions of receiving grants.

Equal Treatment of Religious Student Organizations at Public Universities (34 CFR §§ 75.500, 76.500)

The final rule makes as a condition of receiving grants a requirement that public universities not deny any benefit, right, or privilege to any student organization whose mission is religious in nature that is otherwise afforded to any other student organization at the same institution.  In other words, religious student organizations should have the same opportunities and access as secular organizations to public institution facilities and services (including access to facilities, official recognition, and use of student fee funds).

Title IX Guidance for Faith-Based Institutions (34 CFR § 106.12)

The final rule provides a non-exhaustive list of factors to be utilized to determine whether an institution is “controlled by a religious organization,” and therefore is exempt from Title IX’s requirements that would be inconsistent with the religious tenets of the organization.  Such factors include (but are not limited to) if the institution:

  • is a school or department of divinity;
  • requires faculty, students, or employees to be members of (or espouse belief in) the religion of the organization;
  • has an official publication containing an explicit statement that it is controlled by a religious organization;
  • has a doctrinal statement of religious practices;
  • has a published institutional mission approved by the institution’s governing body that is predicated upon religious tenets.

Title III and Title V Relating to Grant Funds and Religion (34 CFR §§ 606.10, 607.10, 608.10, 609.10)

The final rule confirms the prohibition on grant funds being used for religious instruction, worship, or proselytization.  However, the Department addressed its stated concern that this prohibition could be construed too broadly, and gave the example of construing the definition of a “school or department of divinity” to prohibit grants being used to teach “theological subjects,” even if it was a secular department studying various religions in a comparative religion course.  As such, the new rule narrows the definition of a “school or department of divinity” to mean an institution or department whose program is solely to prepare students to become ministers of religion or to enter into some other religious vocation.