Betsy DeVos Strikes a Blow for Religious Freedom

Last week, Secretary Betsy DeVos announced that the U.S. Department of Education will stop enforcing a provision in federal law that has long barred religious organizations from contracting with private schools to provide federally funded “equitable services,” such as tutoring and professional development. In a letter to Congress, DeVos explained that she was acting in accordance with the Supreme Court’s 2017 verdict in Trinity Lutheran Church of Columbia, Inc. v. Comer.

In Trinity Lutheran, the Supreme Court ruled that the state of Missouri had engaged in unconstitutional discrimination by denying a church-run preschool access to a publicly funded program for playground improvement. Under the Constitution’s free-exercise clause, the Court found, otherwise eligible entities cannot be disqualified from a public benefit “based solely on their religious status.”

In a press release accompanying her announcement, DeVos declared that, “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.” This is not a theoretical problem. To take but one example, up to now, parochial-school teachers could not attend a federally funded workshop at Catholic University. In that sense, DeVos’s policy change is long overdue.

Indeed, the prohibition on religious providers was not some recent move by the Obama administration. Since its inception, the 1965 Elementary and Secondary Education Act (ESEA) was held to require that school districts must provide comparable services to educationally disadvantaged private-school students and educationally disadvantaged public-school students. Washington determined that those dollars could not flow directly to private schools, however, meaning that local districts had to provide the services or find a contractor to offer them. As implemented, federal law dictated that religious organizations were summarily barred from working as contractors with private schools — even when well suited for the work.

But the ban on providers was remarkably inconsistent. Bizarrely, under the law, religious organizations have been permitted to provide services such as after-school tutoring to public-school students, even as they’ve been barred from providing the same services to private-school students. The secretary’s decision corrects the government’s puzzling policy of intermittent religious discrimination.