Written by Don Byrd
Education Secretary Betsy Devos has announced that the Department will no longer enforce provisions of federal law that prohibit religious organizations from receiving taxpayer funds as contractors providing services such as tutoring and special education for private school students. In light of the U.S. Supreme Court’s decision in Trinity Lutheran Church, she argues that such a restriction is unconstitutional.
From her press release:
“The Trinity Lutheran decision reaffirmed the long-understood intent of the First Amendment to not restrict the free exercise of religion,” said Secretary DeVos. “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.”
The Department will continue to enforce all other applicable provisions of federal law. In particular, 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 the contractor are “secular, neutral and non-ideological.”
Federal law requires public school districts to provide certain “equitable services” to low-income private school students, but requires that school districts must contract with independent contractors rather than the private school itself. Those contractors may not, however, be religious organizations, out of concern for church-state separation. The restriction on direct funding of religious organizations is designed to protect the religious liberty of taxpayers, who should not be forced to fund religious ministries benefiting private school students.
Even more to the point, Devos’ argument overstates the reach of the Trinity Lutheran decision, as Maggie Garrett of Americans United explained to Education Week:
“Betsy DeVos is neither the Supreme Court nor Congress. She does not get to unilaterally declare that a statute is unconstitutional, especially with a provision that is designed to protect church-state separation, a bedrock of our democracy,” said Maggie Garrett, vice president for public policy at Americans United for Separation of Church and State, an advocacy organization. “Trinity Lutheran was an incredibly narrow decision that was about providing playground material to a church not about providing educational services to impressionable young schoolchildren.”
For more on the Trinity Lutheran case and its impact, see the Baptist Joint Committee’s Trinity Lutheran Church resource page.