WASHINGTON — Education Secretary Betsy DeVos, a lifelong advocate of Christian education, moved on Wednesday to loosen federal regulations on religious colleges and universities, after a Supreme Court decision that restricted states from denying some kinds of aid to religious institutions.
The measure is part of a sweeping deregulatory agenda for the Education Department announced on Wednesday by the White House budget office, which outlined several rules and regulations for the department to scrap or amend. Among those are rules that restrict faith-based entities from receiving federally administered funding.
“Various provisions of the department’s regulations regarding eligibility of faith-based entities and activities do not reflect the latest case law regarding religion or unnecessarily restrict religion,” said Liz Hill, an Education Department spokeswoman. “The department plans to review and to amend such regulations in order to be more inclusive.”
Education Department officials appear to be targeting regulations that would pose a legal risk after the Supreme Court ruled in June that states must sometimes provide aid to faith-based organizations. In the decision, Trinity Lutheran Church of Columbia Inc. v. Comer, the court ruled that Missouri had engaged in unconstitutional religious discrimination when it denied a church-run preschool publicly funded tire scraps for its playground.
Additionally, Attorney General Jeff Sessions released a memo last fall in which he listed 20 principles that should guide agencies in enforcing federal laws.
“Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law,” Mr. Sessions wrote. “Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting and programming.”
The administration may be adopting an expansive interpretation of the Trinity decision. The funding at issue in the decision was for a nonreligious activity. Last week the New Jersey Supreme Court unanimously ruled that the decision did not prohibit New Jersey from denying state aid to repair damaged sanctuaries because that would support religion.
That is not stopping Ms. DeVos. The department plans to review regulations, keeping an eye out for provisions that “unnecessarily restrict participation by religious entities” and “to reduce or eliminate unnecessary burdens and restrictions on religious entities and activities,” according to the department’s explanation of its proposals.
In the case of religiously affiliated colleges and universities participating in federal student aid programs, the department said that some provisions of the Higher Education Act may be “overly broad in their prohibition of activities or services that relate to sectarian instruction or religious worship,” or “in prohibiting the benefits a borrower may receive based on faith-based activity.”
A number of little-known religious prohibitions are cemented in federal law when it comes to higher education and other faith-based entities gaining access to federal funding.
For example, regulations prohibit work-study financial aid for work that involves “the construction, operation or maintenance of any part of a facility used or to be used for religious worship or sectarian instruction.” And a popular grant program called Gear Up, which funds tutors, mentors and other outreach efforts for at-risk youths, prohibits state education departments from pairing with institution that are “pervasively sectarian.”
Advocates for religious education cheered the Trinity decision, which they said bolstered the constitutional case for allowing taxpayer funds to pay for vouchers to religious elementary and secondary schools. But few observers saw implications for higher education.
Now they do.
“We appreciate Secretary DeVos’s commitment to ensuring students are able to obtain quality educations at the institutions of higher education that will best serve their needs, including religious colleges and universities,” President Shirley V. Hoogstra of the Council for Christian Colleges & Universities said in a statement. “Eliminating or revising regulations that impose undue and outdated restrictions on religious institutions is an important and welcome development.”
To the chagrin of Democrats and civil rights advocates, religious colleges and universities have made public their decisions to forgo federal funding, usually to be exempt from federal civil rights laws.
“It’s extremely disappointing to see Secretary DeVos doubling down on the Trump administration’s extreme anti-education agenda and is once again considering steps to roll back critical student protections,” Senator Patty Murray, the ranking member on the education committee, said in a statement.
Those passing up federal aid include Hillsdale College in Michigan, whose alumni include Ms. DeVos’s brother, Erik Prince, and which has benefited from large donations from the DeVos family. Ms. DeVos, who has repeatedly been questioned about her department’s commitment to defunding religious schools that discriminate, attended Christian schools all of her life and sent her own children to them.
In 2016, the Education Department published a database of colleges that received religious exemptions, particularly from rules prohibiting discrimination against gay, lesbian and transgender employees and students.
The DeVos administration had continued publishing the database, which lists 61 institutions that have requested exemptions, and has expanded it to include the correspondence between the department and the schools.
Advocates of a House Republican bill reauthorizing the Higher Education Act also say they hope to restore First Amendment rights that have been trampled under federal law. Under the House bill, called the Prosper Act, religious colleges would be able to bar same-sex relationships, and religious student groups could ban others who do not share their faith.
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