Last updated on 09/03/2021
Washington — Today, U.S. Secretary of Education Betsy DeVos announced that the Department of Education is taking several concrete actions to protect religious liberty and ensure the Department is acting in accordance with the First Amendment. The Department announced a proposed rule ensuring the equal treatment and constitutional rights of religious organizations and faith-based institutions, as well as First Amendment freedoms owed to students on campus. As directed by Congress, the agency will also release updated guidance regarding constitutionally protected prayer in schools.
“Our actions today will protect the constitutional rights of students, teachers, and faith-based institutions,” said Secretary DeVos. “The Department’s efforts will level the playing field between religious and non-religious organizations competing for federal grants, as well as protect First Amendment freedoms on campus and the religious liberty of faith-based institutions. I proudly share President Trump’s commitment to religious freedom and the First Amendment.”
The Department’s rule addresses five general areas of importance to religious organizations, faith-based institutions, and their students. First, along with several other agencies, the Department’s proposed rule seeks to implement President Trump’s Executive Order 13831, Executive Order on the Establishment of a White House Faith and Opportunity Initiative. The proposed rule would ensure that religious and non-religious organizations are treated equally by the federal government and that organizations are not discriminated against simply because they are religious in nature, removing unequal, burdensome regulatory requirements imposed by the Obama administration. The proposed rule would ensure that the Department’s direct grant programs and state-administered formula grant programs are implemented in a manner consistent with religious liberty protections in federal law, including the First Amendment and the Religious Freedom Restoration Act.
Second, student organizations, including faith-based student organizations, play an important role at public institutions of higher education. Their First Amendment rights, including the freedom of association, must also be protected. Accordingly, the proposed regulations require that, as a material condition of a direct grant or a subgrant from a state-administered formula grant program, a public institution of higher education not deny to a faith-based student organization any of the rights, benefits, or privileges otherwise afforded to non-faith-based student organizations.
Third, the Department proposes to amend regulations governing the Strengthening Institutions Program, the Developing Hispanic-Serving Institutions Program, the Strengthening Historically Black Colleges and Universities Program, and the Strengthening Historically Black Graduate Institutions Program of the Higher Education Act. The proposed revisions address constitutional concerns about the prohibition to use development grants for activities or services if they merely relate to “sectarian instruction” and “religious worship.” The proposed regulations prohibit use of such grants for activities or services that constitute religious instruction, religious worship, or proselytization consistent with the First Amendment to the U.S. Constitution and other federal laws. The Department also proposes to amend the definition of a “school or department of divinity” in a manner that is more consistent with the First Amendment and other federal laws.
Fourth, in its proposed rule, the Department also seeks to clarify how an educational institution may demonstrate that it is controlled by a religious organization for purposes of Title IX. Neither Title IX nor its regulations define what it means for a school to be “controlled by a religious organization.” Over the years, the Department of Education’s Office for Civil Rights (OCR) has posted on its website several internal memoranda on this question. Because these OCR memoranda constitute only non-binding, non-regulatory guidance, the Department desires to engage in notice and comment rulemaking on this issue and to obtain the views of the public in crafting an appropriate final regulation.
Fifth, to implement Executive Order 13864, Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities, the Department also proposes regulations to ensure public institutions of higher education that receive federal research or education grants comply with the First Amendment to the U.S. Constitution, as a material condition of a direct grant or a subgrant from a state-administered formula grant program. The Department also proposes regulations to ensure that private institutions of higher education that receive federal research or education grants comply with their stated institutional policies regarding freedom of speech, including academic freedom. Because state and federal courts remain the best arbiters of alleged violations of First Amendment freedoms, the Department proposes to determine that a public institution has not complied with the First Amendment only if there is a final, non-default judgment by a state or federal court that the public institution or an employee of the public institution, acting in his or her official capacity, violated the First Amendment. Similarly, the Department proposes to determine that a private institution has not complied with its stated institutional policies regarding freedom of speech only if there is a final, non-default judgment by a state or federal court that the private institution violated the institutional policy.
In a separate action, for the first time since 2003, the Department will also issue today updated guidance on constitutionally protected prayer in public elementary and secondary schools. The Department is required by the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act, to update this guidance every two years. The guidance explains the ESEA’s requirement that states report which local educational agencies have not certified that they do not have any policy that prevents, or otherwise denies participation in, constitutionally protected prayer. The ESEA also requires states to report complaints against a local educational agency that allegedly denies a person, including a student or employee, the right to engage in constitutionally protected prayer. The guidance clarifies that the ESEA requires states to provide a clear process for students, parents, and teachers to report violations of their right to pray. Under the ESEA, states must fulfill these reporting requirements by November 1 of each year.