II 118th CONGRESS 1st Session S. 1795 IN THE SENATE OF THE UNITED STATES June 1, 2023 Mr. Rubio (for himself, Mr. Lee , and Mr. Scott of Florida ) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To modify the criteria for recognition of accrediting agencies or associations for institutions of higher education.

1. Short title This Act may be cited as the Fairness in Higher Education Accreditation Act . 2. Criteria for recognition of accrediting agencies or associations Section 496 of the Higher Education Act of 1965 ( 20 U.S.C. 1099b ) is amended— (1) in subsection (a)— (A) in paragraph (5)— (i) in subparagraph (I), by striking and after the semicolon; (ii) in subparagraph (J), by inserting and after the semicolon; and (iii) by inserting after subparagraph (J), and before the flush text, the following: (K) except in the case of an institution described in subsection (r)(2), success in ensuring a right of free inquiry (as defined in subsection (r)(1)); ; (B) in paragraph (7), by striking and after the semicolon; (C) in paragraph (8), by striking the period at the end and inserting ; and ; and (D) by adding at the end the following: (9) as part of the accrediting process, such an agency or association shall not consider— (A) the diversity, equity, and inclusion policies of an institution of higher education; and (B) the racial composition of the accepted applicants, students, or the faculty or staff, of an institution of higher education. ; (2) in subsection (g), in the second sentence, by striking Nothing in this Act and inserting Subject to subsection (a)(9), nothing in this Act ; (3) in subsection (p), by striking Nothing in subsection (a)(5) and inserting Subject to subsection (a)(9), nothing in subsection (a)(5) ; and (4) by adding at the end the following: (r) Free inquiry (1) Free inquiry In this section, the term free inquiry means— (A) in the case of a public institution of higher education that is legally required to abide by the First Amendment to the Constitution, compliance with— (i) the First Amendment to the Constitution, including protections for freedom of speech, association, press, religion, assembly, and petition; and (ii) the institution's own written policies regarding academic freedom; or (B) in the case of a private institution of higher education, adherence to the institution's written institutional policies concerning freedom of speech, association, press, religion, assembly, petition, and academic freedom. (2) Religious exemption An institution described in any of subparagraphs (A) through (F) shall not be subject to the free inquiry requirements of subsection (a)(5)(K). Such exempt institutions shall include: (A) An institution that is a school or department of divinity. (B) An institution that requires its faculty, students, or employees to be members of, or otherwise engage in religious practices of, or espouse a personal belief in, the religion of the organization by which it claims to be controlled. (C) An institution that in its charter or catalog, or other official publication, contains an explicit statement that it is controlled by a religious organization or an organ thereof, or is committed to the doctrines or practices of a particular religion, and the members of its governing body are appointed by the controlling religious organization or an organ thereof, and it receives a significant amount of financial support from the controlling religious organization or an organ thereof. (D) An institution that has a doctrinal statement or a statement of religious practices, along with a statement that members of the institution community must engage in the religious practices of, or espouse a personal belief in, the religion, its practices, or the doctrinal statement or statement of religious practices. (E) An institution that has a published institutional mission that is approved by the governing body of an educational institution and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings. (F) An institution with respect to which there is other evidence sufficient to establish that the institution is controlled by a religious organization, pursuant to section 901(a)(3) of the Education Amendments of 1972 ( 20 U.S.C. 1681(a)(3) ). . 3. Civil action An institution of higher education (as defined in section 102 of the Higher Education Act of 1965 ( 20 U.S.C. 1002 ), and including both public and private institutions as so defined) that is subject to a denial, withdrawal, or termination of accreditation as a result of an accrediting agency or association's violation of the prohibition established in paragraph (9) of section 496(a) of the Higher Education Act of 1965 ( 20 U.S.C. 1099b(a) ), as added by section 2 of this Act, may pursue a civil action in accordance with subsections (e) and (f) of such section 496.