School districts will often contract with third parties to provide the services. But the rules barred school districts from contracting with religious institutions in these circumstances.
Sister Dale McDonald, director of public policy for the National Catholic Educational Association, said it meant that school districts could not contract with faculty members at religiously affiliated universities, for example, to provide professional development to private-school teachers, even if the services were secular.
DeVos said in an announcement Monday that the prohibition was no longer enforceable because of a 2017 Supreme Court decision in which the court ruled that religious organizations could not be excluded from state programs if the organizations have secular intent. The court sided with Trinity Lutheran, a Missouri church that sought to participate in a state program to resurface its playground for its preschoolers.
“The Trinity Lutheran decision reaffirmed the long-understood intent of the First Amendment to not restrict the free exercise of religion,” DeVos said in a news release. “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.”
While school districts are now open to contract with religious organizations, the services they provide must be “secular, neutral and non-ideological.” The service providers also cannot be affiliated with the private schools they are serving.
DeVos’s announcement received mixed reactions from educators, politicians and advocates.
Andy Smarick, an education researcher and former president of the Maryland State Board of Education, said he expects lawsuits to be filed in response.
“It’s either courageous or provocative, depending on how you look at it,” he said. “It calls into question if this part of the federal law is still valid.”
Democrats are still debating the legality of DeVos’s move.
“House Democrats are carefully reviewing the legality of the administration’s new policy,” said Joshua Weisz, spokesman for the Committee on Education and Labor.
Advocates who closely monitor freedom of speech and religion expressed concerns about the implications of the announcement.
“Betsy DeVos is neither the Supreme Court nor Congress. She does not get to unilaterally declare that a statute is unconstitutional, especially with a provision that is designed to protect church-state separation, a bedrock of our democracy,” said Maggie Garrett, vice president for public policy at Americans United for Separation of Church and State, an advocacy organization.
Leaders at the Alliance Defending Freedom, a conservative Christian nonprofit organization that focuses on issues of religious freedom, applauded the policy move.
“Religious organizations should be free to compete to provide goods and services to schools and colleges on a level playing field with everyone else. We commend the Trump administration and the Department of Education for recognizing the unconstitutional nature of the existing ban on religious contractors who are providing secular services,” said Kellie Fiedorek, legal counsel to the Alliance Defending Freedom.
Smarick said that it is unusual for an education secretary to make such a move and that it may suggest a larger policy shift in the Trump administration.
“This is the kind of decision that would have had to go through lawyers, policy debates; it’s a major decision,” he said. “This kind of move doesn’t happen lightly in most administrations.”