Religious Freedom

January 16, 2020: Guidance on Constitutionally Protected Prayer and Religious Expression in Public Schools

As required by the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act, the Secretary issued updated guidance to state educational agencies (SEAs), local educational agencies (LEAs), and the public on the state of the law regarding constitutionally protected prayer and religious expression in public schools.

  • The guidance makes clear that prohibiting constitutionally protected prayer and religious expression in public schools violates the religious liberty of students and teachers enshrined in the Free Exercise Clause of the First Amendment to the U.S. Constitution.
  • As a condition of receiving ESEA funds, LEAs must certify in writing that they have no policy that prevents, or otherwise denies participation in constitutionally protected prayer.
  • SEAs must establish a process by which individuals can make complaints against LEAs, and SEAs must report all complaints to the Department.

“Equitable services” for private schools

Title I of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act, provides money to LEAs with higher numbers of students living in poverty.  In October 2019, the Department issued guidance reaffirming the requirement that LEAs that receive Title I funds provide equitable services to eligible private school students, their teachers, and their families.

Fighting for Funding for religiously affiliated Historically Black Colleges and Universities (HBCUs)

Secretary DeVos notified Congress of the unconstitutionality of a mandate in the 1992 HBCU Capital Financing Program that denied loans for capital improvement programs at HBCU schools where “a substantial portion of [the HBCU school’s] functions is subsumed in a religious mission.”

  • The Department of Justice’s (DOJ) Office of the General Counsel agreed in an August 2019 memorandum opinion that this restriction violated the Free Exercise Clause of the First Amendment.
  • In a January 17, 2020 NPRM, the Department proposed codifying the implications of DOJ’s memorandum opinion.
  • The proposed rule makes it clear that faith-based organizations may apply for and receive Federal awards on the same basis as any other organization while still carrying out their religious missions.

November 1, 2019 final rule: Student Assistance General Provisions, The Secretary’s Recognition of Accrediting Agencies, The Secretary’s Recognition Procedures for State Agencies

In this rule reforming accreditation, accreditation agencies may not discriminate against a school based on its religious exercise nor consider the institution’s religious mission-based policies, decisions, and practices as a “negative factor” in its assessment.  Further, if an institution receives a suspension order from its accreditation agency due to the agency’s failure to respect the institution’s religious mission, the Secretary will consider the institution’s cause for changing its accrediting agency to be reasonable.  For example, an accrediting agency could not deny accreditation based on a Christian school’s refusal to recognize same-sex marriage.

July 1, 2020 final ruleFaith-Based Institutions and TEACH Grants Final Rule

Title IV of the Higher Education Act authorizes programs that provide students with financial assistance for certain institutions of higher education in the form of Federal loans, grants, and work-study programs.  This rule prohibits religious discrimination in the administration of Title IV programs.

  • Students who are members of religious orders would no longer be considered ineligible for certain Federal loans, grants, and work-study programs.
  • Student borrowers who engage in religious volunteer work are now eligible to defer repayment of certain Federal loans.
  • Borrowers who work for non-profit employers that engage in inherently religious activities are now eligible for the Public Service Loan Forgiveness (PSLF) program.
  • The rule removes arbitrary limitations on the ability of pervasively sectarian institutions of higher education to serve as fiscal agents in the Gaining Early Awareness and Readiness for Undergraduate Programs (GEAR UP). Finally,
  • The regulation clarifies that students who construct, operate, or maintain portions of multiuse structures that are not dedicated solely to religious purposes are eligible for the Federal Work Study Program.

January 17, 2020 proposed rule: Equal Participation of Faith-Based Organizations in Department of Education Programs and Activities

The proposed rule ensures that faith-based organizations are eligible to apply for and receive both direct grants and subgrants under a Department program on the same basis as their secular counterparts, as consistent with religious liberty protections in Federal law, including the First Amendment and the Religious Freedom Restoration Act.

  • States may no longer use bigoted State Blaine amendments, which prohibit aid to religious institutions, to deny Department funding to faith-based organizations.
  • A public institution of higher education may not deny to a faith-based student organization any of the rights, benefits, or privileges afforded to secular student organizations because of their beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs.
  • The regulations codify the Department of Justice’s critique in an August 2019 memorandum opinion that denying loans to historically black colleges and universities for programs “in which a substantial portion of [the HBCU school’s]  functions is subsumed in a religious mission” is unconstitutional.
  • Finally, the department proposes to define the phrase “controlled by a religious organization” for religious schools seeking to establish their eligibility for a Title IX exemption.