USA Department of Education Announces Joint Final Rule Regarding Equal Treatment of Faith-Based Organizations in Department-Supported Social Service Programs

Department of Education announced a joint final rule with eight other agencies — the Department of Justice, the Department of Homeland Security, the Department of Labor, the Department of Health and Human Services, the Department of Housing and Urban Development, the Department of Agriculture, the Agency for International Development, and the Department of Veterans Affairs — to implement President Trump’s Executive Order No. 13831, on the Establishment of a White House Faith and Opportunity Initiative (May 3, 2018). This rule ensures that religious and non-religious organizations are treated equally in Department-supported programs, and it clarifies that religious organizations do not lose their legal protections and rights just because they participate in federal programs and activities.

“Religious liberty is a bedrock founding principle that this Administration consistently demonstrates its commitment to vigorously defend,” said U.S. Secretary of Education Betsy DeVos. “At the Department of Education, we’re continuing to ensure faith-based organizations, including faith-based institutions, do not give up their First Amendment rights as a condition of participating in taxpayer programs. We will continue to ensure faith-based educational providers are treated equally alongside their secular counterparts. Under this Administration, religious discrimination in education is never tolerated.”

This final rule ensures equal treatment for faith-based organizations, consistent with the Constitution and other federal law. It removes requirements in prior regulations that placed unequal burdens on religious organizations, cast unwarranted suspicion on them, and were in tension with their religious liberty rights. This final rule also clarifies that religious organizations do not lose various legal protections because they participate in federal programs and activities, such as the rights to accommodations and conscience protections under the First Amendment, Religious Freedom Restoration Act, and other federal laws.

This final rule preserves most of the existing regulations governing participation of religious organizations in the Department’s financial assistance programs, including provisions barring providers from discriminating against beneficiaries based on religion and requiring that any religious activities by the organization be separated in time or location from any services directly funded with federal money.

The final rule was drafted in response to Executive Order 13831, issued in May 2018. The agencies worked collaboratively to draft notices of proposed rulemaking that were published or delivered to Congress in January 2020. The nine agencies then received over 95,000 public comments from a range of interested parties, including Members of Congress; state and local governments, agencies, and officials; faith-based services providers and umbrella organizations; advocacy organizations; and individuals. The agencies considered those comments, modified their regulations to address concerns raised in the comments, and drafted responses which are included in the final rule.

Today’s action follows past Department actions to protect religious liberty, including: ending enforcement of a restriction barring religious organizations from serving as contract providers of equitable services solely due to their religious affiliation; updating the Department’s Guidance on Constitutionally Protected Prayer and Religious Expression in Elementary and Secondary Schools; announcing guidance to protect the religious liberty of individuals and institutions participating in Department of Education programs; issuing rules to level the playing field for faith-based entities to participate in the Federal Student Aid programs authorized under Title IV of the Higher Education Act of 1965, as amended; and implementing a rule to protect free inquiry and religious liberty on campus.