(New York, NY) – A new U.S. Department of Education rule that would cut federal funds for colleges that don’t sufficiently uphold free speech or protections for religious student organizations risks politicizing these issues further, PEN America said today. The rule, which takes effect in 60 days, duplicates pre-existing laws and gives the Education Department undue powers to penalize public and private universities.

“President Trump and Secretary DeVos have been committed to making free speech and religious liberty on campus a wedge issue,” said Jonathan Friedman, director of PEN America’s Campus Free Speech Program. “This rule is unnecessary, and duplicative of existing law and regulations, among them the First Amendment. At best, it provides lip service to free speech principles, and at worst it could be used as a vehicle to constrict the way public and private universities set and enforce policies. Threatening to defund universities has become a hallmark of the Trump administration, but such tactics should have no place when the true aim of government policy should be to strengthen higher education.”

The new rule stipulates that the Department of Education will rely on the “final, non-default judgements” of state and federal courts as a basis for determining when both public and private universities could have their federal funding pulled. This means that if public and private universities lose a case in court, they will not only be subject to whatever penalties are associated with the case, but could also, under this rule, have these federal grants put in jeopardy. The rule is a means of implementing President Trump’s Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities from March 2019.

“The judicial branch already exists to hear and adjudicate violations regarding the First Amendment and free speech policies on campus,” said PEN America’s Friedman. “This new rule will add pressure on universities to settle such cases before final judgements are rendered, and it invests new power in the department to withhold federal funds, a process which could be subject to politicization, contrary to the spirit of the First Amendment itself. Free speech on campus is an important matter that should be promoted by the federal government, but it would be better addressed through education, dialogue, and balanced policymaking. As articulated, this rule is wholly the wrong answer; it risks causing more problems for universities than actually helping them confront the real challenges they face on these issues.”