** APLU submitted formal comments to the proposed regulations in February. **
“Adding extreme U.S. Department of Education penalties to the outcomes of First Amendment cases is unprecedented, misguided, and deeply harmful. The rule risks raising the stakes of First Amendment litigation so that public universities are pushed into extreme positions of either defending cases as if the world depends on it or choosing not to defend themselves because even the small chance of losing would bring about consequences too great. Neither position is in the public interest.
“Different circuit courts and judges applying the same law to the same fact pattern can reach very different conclusions particularly in cases involving complicated, unsettled First Amendment jurisprudence. The outcomes of cases and expenses of litigation are severe enough without the Department attaching wholly unrelated penalties. The rule gives deeply unfair leverage to plaintiff attorneys to threaten public institutions in attempts to force settlements.”