By Michelle Asha Cooper, Ph.D., Acting Assistant Secretary for Office of Postsecondary Education, Deputy Assistant Secretary for Higher Education Programs
Protecting First Amendment freedoms on public university and college campuses is essential. Whether it is having the freedom to debate the issues of the day, to gather for expressive purposes, or to engage in protected religious practices, safeguarding First Amendment liberties for students, faculty and administrators serves us all.
For some, expressing their faith is an important aspect of their identity as well as their college experience. The United States Constitution provides strong protections for students to express and practice their faith on public college and university campuses. In particular, the First Amendment requires that public colleges and universities not infringe upon students’ rights to engage in protected free speech and religious exercise, such as associating with fellow members of their religious communities and sharing the tenets of their faith with others.
Public colleges and universities take a variety of steps to support student activities on campus and generally may not deny student organizations access to school-sponsored forums because of the groups’ religious or non-religious viewpoints. At the same time, these institutions may adopt policies by which student organizations that receive school funding, recognition, and privileges must abide. Such policies can include “all comers” policies – policies requiring all registered student organizations to permit all students to be members or leaders. Additionally, all institutions of higher education receiving Federal financial assistance must comply with applicable Federal statutes and regulations that prohibit discrimination. Where these important principles intersect, complex questions may arise. Public colleges and universities, their students, and the courts have historically been responsible for resolving these matters.
In 2020, however, the U.S. Department of Education issued regulations addressing these topics, commonly referred to as the “Free Inquiry Rule.” Certain aspects of these regulations, codified in 34 CFR parts 75 and 76, impose additional requirements on Department of Education higher education institutional grant recipients. The Department is currently conducting a review of those 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.
Following completion of our review, we anticipate publishing a notice of proposed rulemaking in the Federal Register to propose rescinding parts of the Free Inquiry Rule. The public will have an opportunity to comment on the Department’s regulatory proposal through a formal notice-and-comment period.
Throughout this process and beyond, public colleges and universities must ensure protection of First Amendment freedoms, including religious freedom and freedom of association, which long predate the Free Inquiry Rule. Compliance with nondiscrimination requirements must be in a manner consistent with the First Amendment. We urge public colleges and universities and their students to engage thoughtfully on these matters, holding paramount the goal of creating environments in which all students have the opportunity to learn and thrive.
- Disclaimer: Other than the statutory and regulatory requirements included in this blog post, the contents of this guidance do not have the force and effect of law and are not meant to bind the public. This blog post is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.