Education Secretary Betsy DeVos announced this month that she will no longer enforce a federal law barring religious organizations from providing federally funded educational services to private schools. The action is a natural development to follow President Trump’s 2017 executive order on religious freedom.
Trump’s order directed the attorney general to issue guidance to all federal agencies interpreting the provisions of federal law on religious liberty. Several months later, the Department of Justice issued that very guidance.
In her letter to Congress, DeVos explained that the DOE would no longer enforce a statute that prohibited religious organizations from providing educational services to students. The rationale is simple: the DOJ and its guidance memo applied the Supreme Court’s recent decision in Trinity Lutheran v. Comer, making it clear that religious organizations must be treated equally under the law and participate at the same level as secular organizations.
Or, as DeVos said, “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.”
Like the rest of the president’s executive order, there is no new law created here. What DeVos has rightly done is to examine her department for compliance with federal law — including recent decisions by the Supreme Court of the United States.
Trinity Lutheran concluded that the government cannot preclude religious organizations from participation in a state benefit, merely because they are religious. In the context of the DOE, religious organizations may now participate as educational service providers.
Meaning, of course, that at one time they were not permitted to participate in programs that provide tutoring, mentoring, and other services to local students and teachers. The law of the United States prevented their participation solely on the grounds that these providers were religious. It was not that their product was subpar, their accounting was sloppy, or they imposed religious doctrines upon students and teachers. Their singular, disqualifying feature was that they identified as a religious organization that provided tutoring, mentoring, and special education services to local students and teachers.
How could that be anything but the kind of discrimination against religion that our Constitution forbids and that our country has long opposed? As Justice Brett Kavanaugh noted in a statement following a denial of review in Morris County Board of Chosen Freeholders, et al. v. Freedom from Religion Foundation, “Barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion.”
DeVos should be commended for following the law.
“It shall be the policy of the executive branch,” President Trump wrote in his executive order, “to vigorously enforce federal law’s robust protections for religious freedom … Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the federal government.”
Secretary DeVos, and the actions of her Education Department, have done just that.
Jeremy Dys (@JeremyDys) is deputy general counsel for First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all Americans.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
