Request for Information Regarding First Amendment and Free Inquiry Related Grant Conditions

On February 22, the Department of Education released a federal register notice requesting information on how regulations relating to First Amendment freedoms and free inquiry to Department grants have affected decisions surrounding First Amendment and free speech-related litigation and institutional policies on freedom of speech. In 2020, the Department of Education issued final regulations to add material conditions relating to First Amendment freedoms and free inquiry to certain Department grants. Referred to as the “Free Inquiry Rule,” the rule specified that in order for institutions of higher education to receive grants, they comply with the First Amendment and follow policies on freedom of speech, including academic freedom.

The Department encourages comments from impacted institutions of higher education; researchers, academics, policy experts, and other individuals familiar with First Amendment rights and institutional policies; organizations that work on First Amendment issues, including those that work directly with institutions and students; students and other members of the public. The deadline for submissions is March 24, 2023.

The Department invites comments as to:

1. Whether and how the current regulations have affected or are reasonably expected to affect decisions surrounding First Amendment and free speech-related litigation in Federal and State court;
2. How these regulations have affected or are reasonably expected to affect public IHEs’ approach to designing institutional policies related to First Amendment protections, including on-campuses processes used to address alleged free speech and academic freedom violations;
3. How these regulations have affected or are reasonably expected to affect private IHEs’ approach to designing institutional policies related to free speech and academic freedom, including on-campuses processes used to address alleged free speech and academic freedom violations;
4. Whether and how these grant conditions have provided additional protections of First Amendment rights in the case of public colleges, or promotion of free speech and free inquiry policies in the case of private institutions;
5. Whether these regulations affect or could be expected to affect how aggrieved campus community members seek resolution to alleged free speech and academic freedom policy violations;
6. Whether these regulations have resulted in additional quantifiable costs beyond what was considered in the 2020 final rule;
7. Any other information that the public believes would inform the Department’s understanding of the impact of these regulations.