Speech First submitted comments to the Department of Education on February 18, 2020 regarding “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Direct Grant Programs, State-Administered Formula Grant Programs, Developing Hispanic-Serving Institutions Program, and Strengthening Institutions Program; Docket ID No. ED-2019-OPE-0080.

As the comments note:

  • Requiring public universities to comply with the First Amendment and private universities to comply with their own speech policies as a condition for receiving certain federal grants will incentivize those universities to protect students’ fundamental free speech rights.
  • Currently, the proposed rule allows the Department to determine that a university is out of compliance with the First Amendment or its stated institutional policies only if a final judgment has been entered against a university. But universities are often able to avoid final judgments by changing their offending policies after being sued and mooting the cases against them. The proposed rule should account for this practice and should be amended to give the Department discretion to determine that a university is not in compliance when the university strategically repeals its offending policies to avoid a finding of liability.
  • Confining the trigger for a finding of non-compliance to final judgments does not account for the fact that universities often strategically avoid final judgments by changing their policies mid-litigation.

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