Analysis: ED’s Faith-Based Entities Proposed Rules

By Jill Desjean, NASFAA Policy & Federal Relations Staff

The Department of Education (ED) on Wednesday issued proposed rules for the Teacher Education Assistance for College and Higher Education (TEACH) Grant program and faith-based entities, the result of the 2018-19 negotiated rulemaking, or neg reg, sessions. As a reminder, ED released final rules on three other topics from the neg reg sessions — accreditation, state authorization, and student assistance general provisions — on Nov. 1, 2019, after seeking public comment this past summer. 

Consensus was reached by the negotiators on all of the topics included in the negotiations, meaning that ED must adhere to the regulatory language agreed upon at the conclusion of negotiations in issuing its proposed rules. ED has yet to release proposed rules for the last remaining topic from the 2018-19 session, on distance education. 

During negotiations, a faith-based entities subcommittee was established, as a strategy to enable negotiators to manage the large number of topics included in the rulemaking session. The subcommittee was unable to agree on many topics. Ultimately they agreed to regulatory language only on relatively minor issues in the GEAR UP program and the Federal Work-Study (FWS) program’s restrictions on the construction, operation, and maintenance of facilities used for religious activities. Whereas existing language prohibits use of FWS funds for any part of a facility used for religious worship, those funds could now be used for areas of facilities not dedicated to such purposes. 

This left the main negotiating committee to debate the religious order student eligibility provisions in the FWS, Federal Supplemental Educational Opportunity Grant (FSEOG), Direct Loan, and Federal Pell Grant programs, loan deferment and forgiveness for religiously-affiliated activities, and accreditation and state authorization issues, including the definition of religious mission and the appropriate treatment of religious missions by accrediting agencies.

Of the faith-based issues open for discussion, the committee spent most of its time debating possible definitions for religious mission, which is not currently defined in regulation. The language they ultimately landed on, and which appears in the proposed rule, defines religious mission as a “published institutional mission that is approved by the governing body of an institution of postsecondary education and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings.”

Pell Grant, Perkins Loan, FWS, subsidized Direct Loan, and subsidized Stafford Loan language is revised in the proposed rule to remove the eligibility restriction for members of religious orders. Also removed is the limitation on deferment for volunteers engaged in religious instruction or proselytizing, for both Perkins and National Defense Student Loans (NDSLs). 

Restrictions for borrowers employed by religious organizations from qualifying for Public Service Loan Forgiveness (PSLF) are lifted in the proposed language. However, time spent participating in religious education, proselytizing, or worship services would not count toward the full-time employment requirement for the borrowers.

With respect to accreditation of faith-based entities, the proposed rule would allow ED to recognize an institution’s change of accreditor if the institution can demonstrate, among other circumstances, that its existing accreditor failed to respect the institution’s stated mission, including religious mission.

Public comment is due by Jan. 10, 2020. ED must then consider and respond to all comments received in developing its final rule. Per statutory master calendar requirements, final rules must be published by November 1 to become effective the following July, meaning that the earliest the faith-based entities provisions can become effective is July 1, 2021 unless Education Secretary Betsy DeVos exercises her authority to permit early implementation.

Public comments can be submitted through per the instructions provided in the Notice of Proposed Rulemaking. Please send a copy of your comments to NASFAA.


Publication Date: 12/12/2019

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