U.S. Education Secretary Betsy DeVos announced March 11 that her department will not enforce parts of a federal law governing the nation’s elementary, middle and high schools deemed unconstitutional in light of a recent Supreme Court decision regarding the separation of church and state.
In a letter to House Speaker Nancy Pelosi, DeVos said the department “will refrain from enforcing, applying or administering” a provision of the Elementary and Secondary Education Act that “categorically excludes religious organizations simply because they are religious.”
The 449-page law passed in 1965 as part of President Lyndon Johnson’s War on Poverty and reauthorized most recently as the Every Student Succeeds Act by President Obama in 2015, provides financial assistance to public schools with high percentages of children from low-income families.
It also provides services such as special education, counseling, mentoring and one-on-one tutoring to private school children that are “equitable in comparison” to those offered by public schools.
The law requires local educational agencies to provide services for students in private schools either through employees of a public agency or a contract with an individual or agency. It mandates that whoever provides those services “be independent of such private school and of any religious organization” and under control and supervision of the public agency.
DeVos, a champion of school choice, school vouchers and charter schools, said that provision runs afoul of the 2017 Supreme Court decision in Trinity Lutheran Church of Columbia Inc. v. Comer, that a church cannot be excluded from a state program to enhance playground safety solely because of its “religious character.”
“The Trinity Lutheran decision reaffirmed the long-understood intent of the First Amendment to not restrict the free exercise of religion,” DeVos said in a 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 Pelosi, DeVos said after consulting with the Justice Department she concluded the law “impermissibly excludes a class of potential equitable service providers based solely on their religious status, just like the state policy that was struck down in Trinity Lutheran.”
“Permitting religious organizations and secular organizations alike to provide secular services to schools does not violate the Establishment Clause,” the secretary said. She said moving forward the education department generally considers faith-based organizations to be eligible” to contract and be eligible for grants “on the same basis as any other private organization.”
She said the department will continue to enforce other provisions of the law, including a requirement that equitable services be “secular, neutral and nonideological.”