On January 16, 2020, U.S. Secretary of Education Betsy DeVos announced that the US Department of Education (USDE) is taking several concrete actions to “protect religious liberty and ensure USDE is acting in accordance with the First Amendment.” Thus, USDE announced a proposed rule ensuring the equal treatment and constitutional rights of religious organizations 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.
USDE’s proposed rule addresses identified areas of importance to religious organizations, faith-based institutions, and their students. For example, the proposed rule would ensure that religious and non-religious organizations are treated equally by the federal government and that organizations are not discriminated against simply because they are religious in nature, removing unequal, burdensome regulatory requirements and ensuring that USDE’s direct grant programs and state-administered formula grant programs are implemented in a manner consistent with religious liberty protections in federal law. The USDE’s proposed rule also seeks to clarify how an educational institution may demonstrate that it is controlled by a religious organization for purposes of Title IX and USDE desires to engage in notice and comment rulemaking on this issue and to obtain the views of the public in crafting an appropriate final regulation.
In a separate action, for the first time since 2003, also issued updated guidance on constitutionally protected prayer in public elementary and secondary schools.
The Department is required by the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act, to update this guidance every two years. The guidance explains the ESEA’s requirement that states report which local educational agencies have not certified that they do not have any policy that prevents, or otherwise denies participation in, constitutionally protected prayer. The ESEA also requires states to report complaints against a local educational agency that allegedly denies a person, including a student or employee, the right to engage in constitutionally protected prayer. The guidance clarifies that the ESEA requires states to provide a clear process for students, parents, and teachers to report violations of their right to pray. Under the ESEA, states must fulfill these reporting requirements by November 1 of each year.