The text of McPherson’s letter to DeVos follows:
February 18, 2020
Secretary Betsy DeVos
c/o Jean-Didier Gaina
U.S. Department of Education
400 Maryland Avenue SW
Washington, DC 20202
Re: Docket ID ED-2019-OPE-0080
Dear Secretary DeVos:
As president of the Association of Public and Land-grant Universities (APLU), I write to express concerns regarding the U.S. Department of Education’s proposed regulations on campus free speech and respectfully request a 30 day extension to the comment period. Our comments are limited to Part II of the proposed regulations on “free inquiry.”
APLU is a research, policy, and advocacy organization dedicated to strengthening and advancing the work of public universities. With a membership of over 200 public research universities, land-grant institutions, state university systems, and affiliated organizations, APLU's agenda is built on the three pillars of increasing degree completion and academic success, advancing scientific research, and expanding engagement. Annually, our U.S. member campuses enroll 4.3 million undergraduates and 1.2 million graduate students, award 1.2 million degrees, employ 1.1 million faculty and staff, and conduct $46.7 billion in university-based research.
I cannot convey in strong enough terms the commitment of public universities to free speech. It is the lifeblood of our democracy, the foundation of academic inquiry, and is essential for providing a robust learning environment for students. As public institutions, we are rightly accountable to courts for upholding the First Amendment on campus.
Just as communities across the country work to facilitate free and civil debate at a time when polarization has reached new heights, public universities must and do strive to safeguard those civil liberties on their campuses. With a mission to advance the public interest, public universities have a responsibility not just to be outspoken advocates for free speech, but to be leaders in providing a forum for civil discourse and disagreement. It is with a deep abiding respect for the First Amendment and its role on campus that APLU offers comments on the proposed regulations.
First, I respectfully request a 30 day extension to the comment period. The proposed rule involves deeply complicated legal matters with significant implications that require careful consideration. The consequences for public universities are possibly immense, particularly if the proposed rule forms the basis of further action by research agencies per President Trump’s Executive Order 13864, “Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities.” The Department of Education should provide adequate opportunity for stakeholders to fully consider the implications of its proposed policy so our comments can help inform a final rule. Unfortunately, the comment period of 30 days is not adequate given the importance and complexity of the proposed regulations.
As you know, the proposed rule requires public institutions to abide by the First Amendment as a “material condition” of receiving a Department of Education grant. Noncompliance is determined by a “final, non-default judgment” by a state or federal court that the institution or any of its employees, acting in their official capacity, violated the First Amendment. Institutions must notify the Department of final judgments within 30 days.
The proposed rule also requires that public universities not deny to religious student organizations any “right, benefit, or privilege (including full access to the facilities of the public institution and official recognition of the organization) afforded to other student organizations” because of the religious student organization’s “beliefs, practices, policies, speech, membership standards, or leadership standards…”
Below I provide initial responses to the two main components of Part II of the proposed rule.
Harmfully Raises the Stakes of Litigation
APLU is greatly concerned the proposed rule would significantly and inappropriately raise the stakes of First Amendment litigation. By potentially tying all of an institution’s Department of Education funding (excluding Title IV student aid) to the outcome of First Amendment litigation, the proposed rule adds a catastrophic penalty to a public university losing a case. The consequences, including unintended ones, are so severe that even the Foundation for Individual Rights in Education (FIRE) strongly opposes such a move.
The policy would completely shift the dynamics of litigation. Facing the prospect of such a severe, extreme penalty that would upend the work of institutions, faculty, researchers, and students, public universities would be forced to litigate every case as if the world depends on the outcome. The costs of litigation would skyrocket. This means public universities would be forced to spend more resources on lawyers and less on fulfilling their academic, research, and community engagement mission.
The alternative is to not litigate at all, meaning public universities are intimidated from defending themselves when they in good faith believe the actions of the institution or an employee acting in their official capacity comport with the First Amendment. The new threat against public universities would not go unnoticed or underutilized by plaintiffs’ attorneys who know they can force institutions into settlements, financial and otherwise, when previously an institution may have defended itself in court.
It is reasonable to expect that unscrupulous attorneys would look for clients on campuses, which would lead to a significant increase in the filing of frivolous litigation. Plaintiffs’ attorneys would push the envelope threatening public universities with the possible loss of its Department of Education funding if they do not agree to demands. Such developments would undermine the very purpose of state sovereign immunity enumerated in the Constitution in protecting states.
Uncertain Litigation Outcomes Attached to Severe Penalties
While APLU would never claim public universities get everything right under all circumstances, it is important to recognize that cases are seldom simple. For a large public research university, the environment includes tens of thousands of students and thousands of faculty members in a setting in which intellectual exchange on controversial matters are core to the mission. The application of the First Amendment to this unique setting is not always clear cut. Courts may not always agree. Different circuits and judges may reach different conclusions. As an example, issues involving property as designated or limited public forums are very complicated and the outcome of litigation is far from certain. Circuits could easily split on these issues. Additionally, there is a vast difference between cases involving clearly-established Supreme Court precedent than a matter of law or application that continues to evolve such as the First Amendment and new technological methods of communication.
The proposed rule appears to presume that a public university would only lose a First Amendment case if some egregious action was committed. However, the application of facts to law is often incredibly complicated. An institution can, in good faith, defend itself in a matter of unsettled law and lose in split decisions as judges chart new territory in First Amendment jurisprudence.
Interjects Federal Government in Decisions Best Left to Institutions and States
APLU is also concerned about requirements in the proposed rule relative to student organizations with authority to the Department of Education to determine compliance. We strongly believe such matters should be decided by institutions and states as may be appropriate.
This area of the regulation is in direct conflict with U.S. Supreme Court precedent in Christian Legal Society v. Martinez, 561 U.S. 661 (2010), which upheld the right of a public university to maintain an “all-comers” nondiscrimination policy that is applied equally relative to student organizations.
The proposed regulations put some public universities in an untenable situation: A right granted by the U.S. Supreme Court is removed through U.S. Department of Education regulations which ultimately will conflict with some states’ nondiscrimination laws.
In various contexts, the U.S. Department of Education has reinforced the values of the administration in respecting the need for matters of education to be decided at the institutional, local and state level. For example, last month, a press release included, “We are committed to shifting control over education decisions from Washington back to where it belongs: in the hands of state and local education leaders who know what's best for their students and communities." APLU strongly believes that higher education institutions and states should have the right to make their own decisions on these issues.
While we wholeheartedly agree on the critical nature of free speech on campus, the proposed policy is unnecessary and would have severe unintended consequences to public universities and the communities they serve. If the Department of Education is unwilling to abandon the rule, it should consider significantly narrowing its scope to limit the harmful consequences discussed above.
We also respectfully request a 30 day extension to the comment period so stakeholders can give additional consideration to the significant ramifications of the policy. The initial comment period of only 30 days is insufficient time to consider such important and consequential new federal policy.
Ultimately, those who stand to lose by the penalties and unintended consequences of the policy are those who benefit from the Department of Education funding at stake: students served by Minority-Serving Institutions strengthened through Title III and V funding, educators adopting evidence-based practices stemming from Institute of Education Sciences research, students developing global competencies through Title VI International Education funding, etc.
If per President Trump’s Executive Order the next step is for research agencies to adopt similar policies, it would risk vital federal funding and possibly risks slowing progress in lifesaving biomedical cures, Department of Defense-funded research that keeps America safe, and priority research areas of the administration including artificial intelligence, 5G, quantum information sciences, and advanced manufacturing. At a time when the United States is facing significant threats to its scientific leadership as competitor nations are investing more in research and development, the potential unintended impact of the Department’s proposal must be considered.
Thank you for considering APLU’s views. We are eager to be a helpful resource as the Department of Education takes additional steps in this matter of mutual importance.
Association of Public and Land-grant Universities