The document comprises a formal letter and accompanying legal memorandum from a coalition of leading higher education associations, addressed to Secretary Betsy DeVos in response to the Department of Education’s January 2020 proposed rulemaking (NPRM) on free inquiry and the rights of student organizations. The signatories express general support for the promotion of free speech and academic freedom on college campuses, in line with Executive Order 13864, but voice significant concerns regarding the proposed amendments to Sections 75.500 and 76.500 of Title 34 of the Code of Federal Regulations. Specifically, the letter objects to provisions conditioning federal research and education grants on a single adverse final judgment related to First Amendment or institutional speech policies, arguing that such a low threshold could have chilling effects on campus discourse, lead to increased litigation, and threaten institutional autonomy. The associations caution that this approach may discourage swift, informal dispute resolution, incentivize risk-averse policies that undermine rather than protect free inquiry, and expose institutions—particularly private ones—to excessive liability under the False Claims Act, including a proliferation of frivolous lawsuits.
Additionally, the letter challenges the proposed rule’s requirements related to religious student organizations at public institutions. It notes that by prohibiting denial of any rights or benefits to such groups based on their beliefs or practices, the Department’s proposal oversteps controlling Supreme Court precedent (Christian Legal Society v. Martinez), which permits “all-comers” policies that require recognized student groups to accept any student regardless of belief. The legal memorandum further details that the proposed regulations threaten to conflict with valid state nondiscrimination statutes and could force institutions into untenable legal positions. The associations recommend substantial revision: substituting the actual text of the executive order for the current regulatory language, raising the threshold for noncompliance triggers to require a pattern of violations rather than a single incident, sharply circumscribing Departmental discretion in grant termination, and deleting references to “academic freedom” which are not justified by either law or the executive order. The letter requests an extension of the comment period, calling for careful consideration of the complex legal and practical issues involved to ensure that federal efforts genuinely support rather than inadvertently hinder the principles of free inquiry and campus autonomy.
