The U.S. Department of Education is taking several significant actions to keep itself aligned with the First Amendment, U.S. Secretary of Education Betsy DeVos announced this week. The Department announced a proposed rule ensuring the equal treatment and constitutional rights of religious groups and faith-based institutions, as well as First Amendment freedoms owed to students on campus. As directed by Congress, the agency will also release updated guidance regarding constitutionally protected prayer in schools.
“Our actions today will protect the constitutional rights of students, teachers, and faith-based institutions,” said Secretary DeVos. “The Department’s efforts will level the playing field between religious and non-religious organizations competing for federal grants, as well as protect First Amendment freedoms on campus and the religious liberty of faith-based institutions.”
The Department’s rule addresses five general areas:
- First, along with several other agencies, the Department’s proposed rule seeks to implement President Trump’s Executive Order on the Establishment of a White House Faith and Opportunity Initiative. The proposal would ensure that religious and non-religious organizations are treated equally by the federal government and remove unequal, burdensome regulatory requirements imposed by the Obama administration on religious organizations.
- Second, student organizations, including faith-based student organizations, cannot be denied any of the rights, benefits, or privileges otherwise afforded to non-faith-based student organizations. Such denial could mean loss of federal funding.
- Third, the Department proposes to amend regulations governing the Strengthening Institutions Program, the Developing Hispanic-Serving Institutions Program, the Strengthening Historically Black Colleges and Universities Program, and the Strengthening Historically Black Graduate Institutions Program of the Higher Education Act. The proposed revisions address constitutional concerns about the prohibition to use development grants for activities or services if they merely relate to “sectarian instruction” and “religious worship.”
- Fourth, in its proposed rule, the Department also seeks to clarify how an educational institution may demonstrate that it is controlled by a religious organization for purposes of Title IX. Neither Title IX nor its regulations define what it means for a school to be “controlled by a religious organization.”
- Fifth, to implement Executive Order 13864, Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities, the Department also proposes regulations to ensure public institutions of higher education that receive federal research or education grants comply with the First Amendment to the U.S. Constitution, as a material condition of a direct grant or a subgrant from a state-administered formula grant program. The Department also proposes regulations to ensure that private institutions of higher education that receive federal research or education grants comply with their stated institutional policies regarding freedom of speech, including academic freedom.