Department of Justice Announces Proposed Rule Regarding Equal Treatment of Faith-Based Organizations and Guidance on School Prayer

The Department of Justice announced a proposed rule today that would implement President Trump’s Executive Order No. 13831 (May 3, 2018), remove regulatory burdens on religious organizations, and ensure that religious and non-religious organizations are treated equally in DOJ-supported programs.  The proposed rule ensures that DOJ-supported social service programs are implemented in a manner consistent with the Constitution and other applicable federal law. 

The department also announced, in conjunction with the Department of Education, guidance on school prayer.  The updated guidance provides information on legal protections for prayer and other religious expression in public schools. 

“Since our nation’s founding, there has always been a strong consensus about the centrality of religious liberty in the United States and the freedom of religious expression,” said Attorney General William P. Barr.  “The Framers of the Constitution believed that both were indispensable to sustaining our free system of government.  The actions taken by the administration today will hopefully help secure religious freedom in our country for decades to come.”

Background on Equal Treatment of Faith-Based Organizations

Under current regulations that govern DOJ-supported programs, religious providers of social services — but not other providers of social services — must make referrals under certain circumstances and must post notices regarding this referral procedure.  These regulatory burdens had been required by then-President Obama’s Executive Order No. 13559 (Nov. 17, 2010).  Consistent with President Trump’s Executive Order No. 13831 (May 3, 2018), the DOJ’s proposed rule would eliminate them from DOJ regulations.  As the DOJ’s proposed rule observes, these burdens were not required by any applicable law, and because they were imposed only on religious social service providers, they are in tension with recent Supreme Court precedent regarding nondiscrimination against religious organizations.  The proposed rule also will foreclose other unequal treatment of religious organizations by ensuring that they are not required to provide assurances or notices that are not required of secular organizations. 

In addition, the proposed rule will clarify that religious organizations may apply for awards on the same basis as any other organization and that when DOJ selects award recipients, DOJ will not discriminate based on an organization’s religious character.  The proposed rule also clarifies that religious organizations participating in DOJ-supported programs retain their independence from the government and may continue to carry out their missions consistent with religious freedom protections in federal law, including the Free Speech and Free Exercise Clauses of the First Amendment. 

The proposed rule incorporates the Attorney General’s 2017 Memorandum for All Executive Departments and Agencies, Federal Law Protections for Religious Liberty.  That memorandum was issued pursuant to President Trump’s Executive Order No. 13798 (May 4, 2017), and it guides all federal administrative agencies and executive departments in complying with federal law.

Background on School Prayer Guidance

Section 8524(a) of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act and codified at 20 U.S.C. § 7904(a), requires the Secretary of Education to issue guidance to State educational agencies (SEAs), local educational agencies (LEAs), and the public on constitutionally protected prayer in public elementary and secondary schools.  It requires the Department of Justice’s Office of Legal Counsel to review the guidance prior to distribution to ensure that it represents the current state of the law.  In addition, section 8524(b) requires that, as a condition of receiving ESEA funds, an LEA must certify in writing to its SEA that it has no policy that prevents, or otherwise denies participation in, constitutionally protected prayer in public schools as detailed in this updated guidance.

The purpose of this updated guidance is to provide information on the current state of the law concerning religious expression in public schools.  Part I is an introduction.  Part II clarifies the extent to which prayer in public schools is legally protected.  LEAs and SEAs are responsible, under section 8524(b) of the ESEA, to certify their compliance with the standards set forth in Part II.

Part III of this updated guidance generally addresses principles of religious liberty that relate to religious expression more broadly, including prayer, in accordance with Executive Order 13798 (May 4, 2017), 82 Fed. Reg. 21675 (May 9, 2017), and the Attorney General’s Memorandum on Federal Law Protections for Religious Liberty of October 7, 2017, 82 Fed. Reg. 49668 (Oct. 26, 2017) (AG Memo).  It is meant to advise SEAs and LEAs on how to comply with governing constitutional and statutory law, but it is not a part of the required certification under section 8524(b) of the ESEA.  Part IV discusses the Equal Access Act, which provides statutory protection for religious expression in public schools.  These broader principles were drawn substantially from a 1995 presidential memorandum, Memorandum on Religious Expression in Public Schools, 2 Pub. Papers 1083 (July 12, 1995), and a 1998 Department of Education memorandum, Richard W. Riley, U.S. Secretary of Education, Religious Expression in Public Schools: A Statement of Principles (June 1998).

The Office of Legal Counsel in the Department of Justice and the Office of General Counsel in the Department of Education have jointly approved this updated guidance as reflecting the current state of the law.  This updated guidance will be made available on the Department of Education’s website (www.ed.gov) and the Department of Justice’s website (www.justice.gov).

The year 2020 marks the 150th anniversary of the Department of Justice.  Learn more about the history of our agency at www.Justice.gov/Celebrating150Years.

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Author: January 16, 2020

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