States and local governments that administer funds awarded by the U.S. Department of Education must give qualified religious organizations the same consideration they give nonreligious groups when they award subgrants, new guidance from the agency says.
The guidance, announced by U.S. Secretary of Education Betsy DeVos Friday, also creates a federal process for individuals and organizations to file complaints under the federal Religious Freedom Restoration Act.
“Too many misinterpret the ‘separation of church and state’ as an invitation for government to separate people from their faith,” DeVos said in a statement. “In reality, the First Amendment doesn’t exist to protect us from religion. It exists to protect religion from government.”
The document largely restates the Trump administration’s previously announced positions on religion and education, including those mentioned in a January executive order on religious freedom. It also cites a June ruling in Espinoza v. Montana Department of Revenue, in which the U.S. Supreme Court ruled that a Montana prohibition on families from using state tax-credit scholarships at religious schools was an unconstitutional violation of religious freedom.
When awarding federal education grant funds, the Education Department and its grantees cannot discriminate “against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character,” the guidance says.
For example, the directive says, religious organizations must not be left off provider lists for grant recipients, like those participating in Upward Bound college transition programs, solely because those programs are religious.
But that doesn’t mean such organizations can use federal funds “worship, religious instruction, or proselytization,” the guidance says, adding that participation in “explicitly religious activities” must be voluntary for any beneficiaries of federal aid.
The Espinoza Supreme Court case centered on a so-called “no aid clause” in the Montana Constitution that prohibits the state from directing public funds to religious organizations. Thirty-eight states have such rules, which are sometimes called Blaine Amendments.
The Department’s guidance says states can’t use such rules to as a basis to “deny faith-based organizations contracts or grants under Department regulations.” The directive applies to federal funds awarded by the department, as well as state funds that are comingled with those federal funds, the document says.
The Religious Freedom Restoration Act is a 1993 federal law that says “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”
The new guidance outlines a process under which participants in Education Department programs can complain if they believe they faced discrimination in violation of that law.