Secretary of Education Betsy DeVos announced that she would no longer enforce a rule barring religious institutions from providing contracted services for federally funded educational programs.
The move, hailed by a broad base of faith groups, is one of the continuing effects of a 2017 Supreme Court decision, Trinity Lutheran Church of Columbia, Inc. v. Comer, that government could not exclude organizations from funding programs solely on the basis of those organizations having a religious affiliation.
While the full implications of this move are as yet unknown, Rabbi Abba Cohen, Agudath Israel of America’s vice president for government affairs, told Hamodia that the decision is “very significant.”
“In addition to what this could mean for our schools, the fact that the Trinity decision is changing the landscape of how government deals with religious entities is continuing to have very positive ramifications for faith communities,” he said. “Last year, we saw how this played out for federal disaster relief, and we very much welcome that Secretary DeVos has applied it to educational programs.”
The Trinity case focused on a Missouri state program that provided funds to schools to buy rubber padding for playgrounds but limited the grants to secular institutions. Chief Justice John Roberts wrote that the policy was “odious to our Constitution.”
Since then, in addition to a regulatory change that was followed by legislation that opened FEMA disaster relief to houses of worship, what once was a controversial program that gave security grants to private schools has gained nearly universal support.
Shortly after the ruling, Secretary DeVos initiated a review of her department’s policies in an attempt to bring them into line with Trinity’s implications.
The present announcement impacts the Elementary and Secondary Education Act (ESEA), of which Title One is a central component. ESEA’s text requires that any contractors that offer services covered by the program to “be independent of … any religious organization.” After consultation with the Department of Justice, Secretary DeVos announced that the provision was not in line with the high court’s decision and would no longer be enforced.
“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.”
ESEA grants, initiated in 1965 as part of President Lyndon Johnson’s “War on Poverty,” provide federal funding for a wide range of educational needs. Private schools have reaped the broadest benefits from the bill’s “Title One,” which supports services such as tutoring for core subjects and professional development for teachers.
A consultant to Torah schools on Title One programming said that the Department of Education’s announcement would allow for organizations like Torah U’Mesorah that offer courses in classroom management and the like to contract with schools to provide for some of the services covered by the federal program. Besides that, he said, the change was unlikely to have a broad effect on Orthodox institutions in the near future, as few organizations that are considered religious provide tutoring for math and English.
While the regulation change opens ESEA contracts to religious organizations, the contracts will still be limited to providing services that are “secular, neutral and non-ideological.”
Several changes made by the administration to DOE regulations have been welcomed by the private-school community, yet, as with all such moves, they can be easily reversed by a future administration. In 2018, even after FEMA opened up its funding to houses of worship, the change was put into legislation in an effort to ensure its longevity.
Yet Rabbi Cohen was cautiously optimistic that, since the present move was made to fall in line with a Supreme Court ruling, it was more likely to remain in place beyond the Trump presidency.
He added that the move reflects a shift in jurisprudence and government attitudes begun well before Trinity.
“Over the last 25 years we have seen a greater receptivity to equity for religious organizations; Trinity and President Bush’s Faith Based Initiative were parts of that,” said Rabbi Cohen. “I think society began to realize that religious organizations had been treated unfairly, and they have also seen the effectiveness of religious organizations in addressing a lot of society’s problems.”
With additional access to government funding often comes greater oversight and more regulations, which some faith groups have found put undue limits on their activities and attempts to control the dissemination of their doctrines.
Rabbi Cohen admitted that such a concern is certainly legitimate in regard to the ESEA changes, but that such a challenge was manageable.
“There is no question that more opportunities to participate comes with strings attached,” he said. “We will have to pick out the legitimate strings, like those that deal with safety and financial transparency, from those that are intrusive or involve unconstitutional government entanglement in religious matters, but these are challenges we can overcome.”