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[Federal Register Volume 89, Number 247 (Thursday, December 26, 2024)]
[Proposed Rules]
[Pages 104935-104936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30923]

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DEPARTMENT OF EDUCATION

34 CFR Parts 75 and 76

[Docket ID ED-2022-OPE-0157]
RIN 1840-AD72

Direct Grant Programs, State-Administered Formula Grant Programs; 
Withdrawal

AGENCY: Office of Postsecondary Education, Department of Education.

ACTION: Notice of proposed rulemaking; withdrawal.

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SUMMARY: The U.S. Department of Education (Department) is withdrawing a 
notice of proposed rulemaking to rescind regulations related to 
religious student organizations at certain public institutions of 
higher education (IHEs). The proposed regulations would have applied to 
public IHEs that receive a direct grant from the Department or a 
subgrant from a State-administered formula grant program of the 
Department.

DATES: The notice of proposed rulemaking published in the Federal 
Register at 88 FR 10857 on February 22, 2023, is withdrawn as of 
December 20, 2024.

FOR FURTHER INFORMATION CONTACT: Scott Prince, U.S. Department of 
Education, Office of Postsecondary Education, 400 Maryland Avenue SW, 
5th floor, Washington, DC 20202. Telephone: (202) 453-5568. Email: 
[email protected].
    If you are deaf, hard of hearing, or have a speech disability and 
wish to access telecommunications relay services, please dial 7-1-1.

SUPPLEMENTARY INFORMATION:

Background

    On September 23, 2020, the Department promulgated a final rule that 
addressed freedom of speech and the free exercise of religion at 
institutions of higher education participating in certain programs 
administered by the Department. See 85 FR 59916.\1\ On August 19, 2021, 
the Department announced our intent to conduct a review of these 
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.\2\ As part

[[Page 104936]]

of the review, the Department conducted outreach and held meetings 
with: (1) higher education and institutional stakeholders, including 
organizations representing public institutions; (2) faith-based 
organizations, including organizations representing religious IHEs; and 
(3) organizations that advocate for civil rights and civil liberties. 
On February 22, 2023, the Department published a notice of proposed 
rulemaking (NPRM) in the Federal Register proposing to rescind portions 
of the rule that became effective on November 23, 2020. See 88 FR 
10857. Specifically, the Department proposed to rescind 34 CFR 
75.500(d) and 76.500(d), which prescribe a role for the Department in 
enforcing grant conditions related to religious student organizations 
at certain public institutions of higher education (IHEs). These 
regulations apply to public IHEs that receive a direct grant from the 
Department or a subgrant from a State-administered formula grant 
program of the Department.
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    \1\ The Department also published a document with two technical 
corrections on November 6, 2020, see 85 FR 70975.
    \2\ Cooper, Michelle Asha. ``Update on the Free Inquiry Rule,'' 
Department of Education Homeroom Blog (Aug. 19, 2021), https://blog.ed.gov/2021/08/update-on-the-free-inquiry-rule/.
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    The Department accepted public comments on the NPRM from February 
22, 2023, through March 24, 2023. In response to that NPRM the 
Department received approximately 58,000 public comments.

Withdrawal of the Notice of Proposed Rulemaking and Termination of the 
Rulemaking Proceeding

    The Department issued the NPRM to amend 34 CFR parts 75 and 76 and 
provided its reasons for proposing to rescind the 2020 final 
regulations in that document. However, upon further consideration, the 
Department is withdrawing the NPRM and terminating the rulemaking 
proceeding.
    During the public comment period, the Department received 
approximately 58,000 comments. Several hundred of the comments calling 
for withdrawal were from individuals and organizations who argued that 
rescinding the current rule is not necessary because it is not complex 
or burdensome. Additionally, many comments in support of the current 
regulations pointed to ongoing issues faced by religious student groups 
as evidence of the need to keep these regulations. Numerous commenters 
in favor of rescinding these provisions asserted that the current 
regulations are not necessary to protect these constitutional freedoms 
and expressed concern that the regulations could be read to require 
institutions to afford preferential treatment to religious student 
groups.
    We appreciate the feedback that the Department received in response 
to the NPRM. In light of 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 Department for each of these independent reasons 
does not believe that finalizing the proposed rescissions is an 
efficient use of Department resources at this time. Therefore, the 
Secretary exercises his discretion to withdraw the NPRM and terminate 
this rulemaking. We do not intend for a final rule to be issued on this 
NPRM. Any future rulemaking the Department may undertake on this topic 
would similarly be subject to the notice and comment requirements of 
the Administrative Procedure Act, 5 U.S.C. 551, et seq.\3\
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    \3\ The Department notes that the 2020 final regulations do not 
impose conditions on participation in the programs authorized under 
title IV of the Higher Education Act of 1965, as amended (HEA). See 
85 FR 59942. Any future rulemaking that would seek to impose 
conditions on participation in title IV programs would be subject to 
the negotiated rulemaking requirement in section 492 of the HEA, 20 
U.S.C. 1098a.
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    Importantly, this withdrawal does not change or alter the 
Department's role with respect to the other material grant conditions 
added by the 2020 final regulations at Sec. Sec.  75.500(b) and (c) and 
76.500(b) and (c). The Department will determine if an IHE has violated 
the grant conditions in those provisions only if a State or Federal 
court issues a final, non-default judgment against a public IHE for 
violating the First Amendment or against a private IHE for violating 
stated institutional policies. Absent such a judgment, the Department 
presumes public IHEs to be in compliance with the First Amendment where 
the alleged violations concern matters other than denial of equal 
treatment to religious student organizations because of the 
organization's beliefs, practices, policies, speech, membership 
standards, or leadership standards, which are informed by sincerely 
held religious beliefs. Under the 2020 final regulations at Sec. Sec.  
75.500(b) and (c) and 76.500(b) and (c), the Department's role is not 
to investigate alleged violations of these grant conditions and is 
limited to deciding whether and to what extent to impose additional 
penalties where a State or Federal court has rendered a relevant final, 
non-default judgment.
    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document and a copy of the application package in an 
accessible format. The Department will provide the requestor with an 
accessible format that may include Rich Text Format (RTF) or text 
format (txt), a thumb drive, an MP3 file, braille, large print, 
audiotape, compact disc, or other accessible format.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
document, as well as all other Department documents published in the 
Federal Register, in text or Portable Document Format (PDF). To use PDF 
you must have Adobe Acrobat Reader, which is available free at the 
site.
    You may also access Department documents published in the Federal 
Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

Miguel Cardona,
Secretary of Education.
[FR Doc. 2024-30923 Filed 12-20-24; 2:00 pm]
BILLING CODE 4000-01-P
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