HR5121-119

1. Short title This Act may be cited as the Fairness in Higher Education Accreditation Act.

2. Criteria for recognition of accrediting agencies or associations Section 496 of the Higher Education Act of 1965 (20 U.S.C. 1099b) is amended— in subsection (a)— in paragraph (5)— in subparagraph (I), by striking and after the semicolon; in subparagraph (J), by inserting and after the semicolon; and by inserting after subparagraph (J), and before the flush text, the following: except in the case of an institution described in subsection (r)(2), success in ensuring a right of free inquiry (as defined in subsection (r)(1)); in paragraph (7), by striking and after the semicolon; in paragraph (8), by striking the period at the end and inserting a semicolon; and by adding at the end the following: such accrediting agency or association will not impose requirements, establish standards, conduct investigations, or make recommendations concerning— the race, color, sex, or national origin composition of the student body, faculty, or staff; the race, color, sex, or national origin of the students, faculty members, or staff members who are in leadership roles; or the race, color, sex, or national origin of the students, faculty members, or staff members who receive honors or special commendations; such an accrediting agency or association may only be determined to be a reliable authority as to the quality of education or training offered for the purposes of this Act or for other Federal purposes if the agency or association permits each institution of higher education that the agency or association accredits (and each component or subpart of each institution of higher education that the agency or association accredits) to adopt any lawful policy with regard to the factors described in subparagraphs (A) through (C) of paragraph (9), notwithstanding the particular mission of an institution of higher education (or component or subpart thereof); and as part of the accrediting process, such an accrediting agency or association may not consider any factor described in subparagraphs (A) through (C) of paragraph (9). in subsection (p), by striking Nothing in subsection (a)(5) and inserting Subject to subsection (a)(9), nothing in subsection (a)(5); and by adding at the end the following: In this section, the term free inquiry means— in the case of a public institution of higher education that is legally required to abide by the First Amendment to the Constitution, compliance with— the First Amendment to the Constitution, including protections for freedom of speech, association, press, religion, assembly, and petition; and the institution’s own written policies regarding academic freedom; or in the case of a private institution of higher education, adherence to the institution’s written institutional policies concerning freedom of speech, association, press, religion, assembly, petition, and academic freedom. An institution described in any of subparagraphs (A) through (F) shall not be subject to the free inquiry requirements of subsection (a)(5)(K). Such exempt institutions shall include an institution— that is a school or department of divinity; that requires its faculty, students, or employees to be members of, or otherwise engage in religious practices of, or espouse a personal belief in, the religion of the organization by which it claims to be controlled; that in its charter or catalog, or other official publication, contains an explicit statement that it is controlled by a religious organization or an organ thereof, or is committed to the doctrines or practices of a particular religion, and the members of its governing body are appointed by the controlling religious organization or an organ thereof, and it receives a significant amount of financial support from the controlling religious organization or an organ thereof; that has a doctrinal statement or a statement of religious practices, along with a statement that members of the institution community must engage in the religious practices of, or espouse a personal belief in, the religion, its practices, or the doctrinal statement or statement of religious practices; that has a published institutional mission that is approved by the governing body of an educational institution and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings; or with respect to which there is other evidence sufficient to establish that the institution is controlled by a religious organization, pursuant to section 901(a)(3) of the Education Amendments of 1972 (20 U.S.C. 1681(a)(3)). (K)except in the case of an institution described in subsection (r)(2), success in ensuring a right of free inquiry (as defined in subsection (r)(1));; (9)such accrediting agency or association will not impose requirements, establish standards, conduct investigations, or make recommendations concerning— (A)the race, color, sex, or national origin composition of the student body, faculty, or staff; (B)the race, color, sex, or national origin of the students, faculty members, or staff members who are in leadership roles; or (C)the race, color, sex, or national origin of the students, faculty members, or staff members who receive honors or special commendations; (10)such an accrediting agency or association may only be determined to be a reliable authority as to the quality of education or training offered for the purposes of this Act or for other Federal purposes if the agency or association permits each institution of higher education that the agency or association accredits (and each component or subpart of each institution of higher education that the agency or association accredits) to adopt any lawful policy with regard to the factors described in subparagraphs (A) through (C) of paragraph (9), notwithstanding the particular mission of an institution of higher education (or component or subpart thereof); and (11)as part of the accrediting process, such an accrediting agency or association may not consider any factor described in subparagraphs (A) through (C) of paragraph (9).; (r)Free inquiry (1)Free inquiryIn this section, the term free inquiry means— (A)in the case of a public institution of higher education that is legally required to abide by the First Amendment to the Constitution, compliance with— (i)the First Amendment to the Constitution, including protections for freedom of speech, association, press, religion, assembly, and petition; and (ii)the institution’s own written policies regarding academic freedom; or (B)in the case of a private institution of higher education, adherence to the institution’s written institutional policies concerning freedom of speech, association, press, religion, assembly, petition, and academic freedom. (2)Religious exemptionAn institution described in any of subparagraphs (A) through (F) shall not be subject to the free inquiry requirements of subsection (a)(5)(K). Such exempt institutions shall include an institution— (A)that is a school or department of divinity; (B)that requires its faculty, students, or employees to be members of, or otherwise engage in religious practices of, or espouse a personal belief in, the religion of the organization by which it claims to be controlled; (C)that in its charter or catalog, or other official publication, contains an explicit statement that it is controlled by a religious organization or an organ thereof, or is committed to the doctrines or practices of a particular religion, and the members of its governing body are appointed by the controlling religious organization or an organ thereof, and it receives a significant amount of financial support from the controlling religious organization or an organ thereof; (D)that has a doctrinal statement or a statement of religious practices, along with a statement that members of the institution community must engage in the religious practices of, or espouse a personal belief in, the religion, its practices, or the doctrinal statement or statement of religious practices; (E)that has a published institutional mission that is approved by the governing body of an educational institution and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings; or (F)with respect to which there is other evidence sufficient to establish that the institution is controlled by a religious organization, pursuant to section 901(a)(3) of the Education Amendments of 1972 (20 U.S.C. 1681(a)(3))..

3. Civil action An institution of higher education (as defined in section 102 of the Higher Education Act of 1965 (20 U.S.C. 1002)) that is subject to a denial, withdrawal, or termination, or imminent threat of denial, withdrawal, or termination, of accreditation as a result of an accrediting agency or association’s violation of the prohibition established in section 496(a)(10) of the Higher Education Act of 1965 (20 U.S.C. 1099b(a)), as added by section 2 of this Act, may pursue a civil action in accordance with subsections (e) and (f) of such section 496.