Last week, Secretary Betsy DeVos announced that the U.S. Department of Education will stop enforcing a provision in federal law that has long barred religious organizations from contracting with private schools to provide federally funded “equitable services,” like tutoring and professional development. In a letter to Congress, DeVos explained that she was acting in accord with the Supreme Court’s 2017 verdict in Trinity Lutheran Church of Columbia, Inc. v. Comer. In Trinity Lutheran, the Supreme Court ruled that the state of Missouri had engaged in unconstitutional discrimination by denying a church-run preschool access to a publicly funded program for playground improvement. Under the Constitution’s free-exercise clause, the Court found, otherwise eligible entities cannot be disqualified from a public benefit “based solely on their religious status.” In a press release accompanying her announcement, DeVos declared that, “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.” This is not a theoretical problem. To take but one example, up to now, parochial-school teachers could not attend a federally funded workshop at Catholic University. In that sense, DeVos’s policy change is long overdue. Indeed, the prohibition on religious providers was not some recent move by the Obama administration. Since its inception, the 1965 Elementary and Secondary Education Act (ESEA) was held to require that school districts must provide comparable services to educationally disadvantaged private-school students and educationally disadvantaged public-school students. Washington determined that those dollars could not flow directly to private schools, however, meaning that local districts had to provide the services or find a contractor to offer them. As implemented, federal law dictated that religious organizations were summarily barred from working as contractors with private schools — even when well suited for the work. But the ban on providers was remarkably inconsistent. Bizarrely, under the law, religious organizations have been permitted to provide services like after-school tutoring to public-school students, even as they’ve been barred from providing the same services to private-school students. The secretary’s decision corrects the government’s puzzling policy of intermittent religious discrimination. Predictably, some portrayed DeVos’s modest step to obey Supreme Court jurisprudence as part of a shadowy effort to entangle church and state. (“DeVos Moves to Ease Church-State Rules in Education,” one New York Times headline blared.) But the Department’s decision seems more aptly described as an effort to correct a kind of reflexive, anti-faith discrimination that had been in place for decades, under Democratic and Republican administrations alike. As Chief Justice Roberts wrote in his decision for the 7–2 majority in Trinity Lutheran, “There is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.” DeVos is applying the same logic, consistently. There’s no need to overcomplicate this. If the prohibitions in question were being applied to religious organizations that had spent funds inappropriately or engaged in proselytizing while on the federal dime, that would be one thing. But the issue here is wholesale, categorical discrimination against organizations of faith, simply because they’re organizations of faith, when it comes to non-religious programs such as English tutoring and professional development for math instruction. Discrimination of that sort has no place in the American system, and DeVos was right in moving to stamp it out. The new policy has the potential to immediately benefit many of the millions of educationally disadvantaged students who attend private schools, and its significance will only grow if efforts to expand private-school choice continue to flourish. It didn’t spark the commentary or contention that have greeted so many of DeVos’s other actions, but it’s a sensible, overdue act of good stewardship and we ought not overlook it.
Thanks to both Frederick M. Hess and Brendan Bell for bringing this to our attention, and major kudos to Sec. of Education Betsy DeVos for making this happen! This is a HUGE win not only for religious freedom, for the education of our kids. Frederick M. Hess is the director of education-policy studies at the American Enterprise Institute. Brendan Bell is the education-policy program manager at AEI. 🙂