The U.S. Department of Education (“DOE”) will no longer enforce a restriction in federal law that bars religious organizations solely because of their religious affiliation from contracting to provide equitable services – such as special education and tutoring – to private schools.
Secretary of Education Betsy DeVos announced the change in policy at a meeting of the Council for American Private Education (“CAPE”) and in a letter to Nancy Pelosi, the Speaker of the House of Representatives
Sections 1117(d)(2)(B) and 8501(d)(2)(B) of the Elementary and Secondary Education Act (“ESEA”) require that, under specific ESEA programs, state and local educational agencies (“SEAs” and “LEAs”) provide services or other benefits to certain private school students, teachers, and families that are equitably comparable to those services provided in public schools. An SEA or LEA must provide equitable services either directly using its own employees or through a contract with an individual, association, agency, or organization. In providing such services, the employee or third-party provider must be “independent of the private school and of any religious organization,” according to the ESEA.
The secretary said that the DOE consulted with the U.S. Department of Justice and determined that the requirement that providers of equitable services to private schools must “be independent of . . . any religious organization” was unconstitutional because it categorically excluded religious organizations based solely on their religious identity.
The secretary said that the restriction ran counter to the U.S. Supreme Court’s 2017 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, which held that, under the Free Exercise Clause of the First Amendment of the U.S. Constitution, otherwise eligible recipients could not be disqualified from a public benefit solely because of their religious character.
Given the Supreme Court’s Trinity Lutheran decision, the secretary said, the DOE would no longer enforce these two ESEA sections, which have restricted school districts from contracting with religious organizations to provide equitable services on the same basis as any other organization.
“The Trinity Lutheran decision reaffirmed the long-understood intent of the First Amendment to not restrict the free exercise of religion,” the secretary said in a prepared statement. “Those seeking to provide high quality educational services to students and teachers should not be discriminated against simply based on the religious character of their organization.”
In her letter to Speaker Pelosi, the secretary explained that, “Permitting religious organizations and secular organizations alike to provide secular services to schools does not violate the Establishment Clause,” and that, absent specific language to the contrary such as contained in Sections 1117(d)(2)(B) and 8501(d)(2)(B), the DOE “generally considers faith-based organizations to be eligible to contract with grantees and subgrantees” and to apply for and receive DOE grants “on the same basis as any other private organization.”
The secretary concluded that the DOE would continue to enforce all other applicable provisions of federal law. In particular, she pointed out, under ESEA Sections 1117(a)(2) and 8501(a)(2), school districts must continue to ensure that any contractor is independent of the private school for which it is providing services and that the educational services and other benefits being provided by a contractor are “secular, neutral and non-ideological.”