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March 11, 2019

Honorable Nancy PelosiSpeaker of the House of RepresentativesWashington, DC 20515
Dear Madam Speaker:

Pursuant  to 28 U.S.C. § 530D, I write to notify you that I have determined that  portions of sections 1117(d)(2)(B) and 8501(d)(2)(B) of the Elementary and  Secondary Education Act of 1965 (ESEA), Public Law 89-10, codified as amended at  20 U.S.C. §§ 6320(d)(2)(B) and 7881(d)(2)(B), respectively, are unconstitutional  in light of the Supreme Court’s decision in *Trinity  Lutheran Church of Columbia, Inc. v. Comer*, 137 S. Ct. 2012 (2017). The  Attorney General’s October 6, 2017, Memorandum on Federal Law Protections for  Religious Liberty provided guidance to agencies about the First Amendment’s  prohibition on discrimination against religious organizations, and the  Department of Education has identified these provisions as running afoul of that  constitutional provision. Accordingly, the Department will refrain from enforcing,  applying, or administering these provisions. As required under section 530D, I  am sending this letter to the speaker of the House of Representatives, the majority  leader and minority leader of the Senate, the majority leader and minority  leader of the House of Representatives, the chairman and ranking minority  member of the Committee on the Judiciary of the House of Representatives, the  chairman and ranking minority member of the Committee on the Judiciary of the  Senate, the Senate Legal Counsel, and the General Counsel of the House of  Representatives. I also am sending this letter to the chairman and ranking  member of the Senate Committee on Health, Education, Labor and Pensions and the  House Committee on Education and Labor.

ESEA  sections 1117 and 8501 require that, under specific ESEA programs, State and  local educational agencies (SEAs and LEAs) provide services or other benefits  to certain private school students, teachers, and families that are equitably  comparable to those services provided in public schools. An SEA or LEA must  provide equitable services either directly using its own employees or through a  contract with an individual, association, agency, or organization. In providing  such services, the statute requires that the employee or third-party provider  must be “independent of the private school and of any religious organization.”  20 U.S.C. §§ 6320(d)(2)(B),  7881(d)(2)(B)).

On  June 26, 2017, the Supreme Court held in *Trinity  Lutheran* that the Missouri Department of Natural Resources’ policy of  categorically disqualifying churches and other religious organizations from  receiving grants under its playground resurfacing program violated the rights  of Trinity Lutheran under the Free Exercise Clause of the First Amendment by  denying the church an otherwise available public benefit on account of its  religious status. The Court explained that Missouri’s “policy expressly  discriminates against otherwise eligible recipients by disqualifying them from  a public benefit solely because of their religious character” and that “such a  policy imposes a penalty on the free exercise of religion that triggers the  most exacting scrutiny.” 137 S. Ct. at 2021.

After consultation with the Department of  Justice, I have concluded that the requirement in ESEA sections 1117(d)(2)(B)  and 8501(d)(2)(B) that an equitable services provider be “independent of . . .  any religious organization” impermissibly excludes a class of potential  equitable services providers based solely on their religious status, just like  the State policy that was struck down in *Trinity  Lutheran*. It categorically excludes religious organizations simply because  they are religious. This status-based prohibition also cannot be justified  under *Locke v. Davey*, 540 U.S. 712  (2004), which held that the government may decline in some circumstances to  fund religious *activity*. Although the  ESEA provisions in question may have been intended to advance the separation of  church and state, the *Trinity Lutheran* Court expressly stated that such concerns do not provide sufficient  justification for status-based discrimination against religious  organizations. 137 S. Ct. at  2024. 

Permitting religious organizations and  secular organizations alike to provide secular services to schools does not  violate the Establishment Clause, and absent specific language to the contrary  (e.g., ESEA sections 1117(d)(2)(B) and 8501(d)(2)(B)), the Department generally  considers faith-based organizations to be eligible to contract with grantees  and subgrantees and to apply for and receive Department grants on the same  basis as any other private organization. *See*2 C.F.R. § 3474.15(b)(1); 34 C.F.R. § 72.52(a)(1). Of course, the  Department will continue to implement all other provisions of ESEA, including  the requirement that all equitable services be “secular, neutral, and  nonideological.”  20 U.S.C. §§ 6320(a)(2), 7881(a)(2). 
Going forward, the Department will decline to  enforce the specific requirement that an equitable services provider be  “independent . . . of any religious organization” but will continue  to enforce all other provisions of ESEA sections 1117 and 8501 as written.
|  | Sincerely,  |
|--|-------------|
|  | /s/         |
|  | Betsy DeVos |

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