In the letter addressed to Congressional leadership, DeVos said these two provisions were unconstitutional.
"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," said DeVos in the letter.
The secretary said that the exclusion of religious organizations by virtue of their beliefs constituted a "status-based prohibition" that "cannot be justified."
DeVos wrote that allowing both religious and secular organizations to provide these services would not violate the Establishment Clause, and that "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."
All other provisions of the ESEA, including that the equitable services provided be "secular, neutral, and nonideological" would still be enforced, DeVos said.
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Mark Rienzi, president of the Becket Fund for Religious Liberty and a professor at the Catholic University of America's Columbus School of Law, told CNA that he believes the change is "actually constitutionally required."
"What the Department of Education said was they understand that the Constitution and the Supreme Court's recent decisions about the Constitution make clear that the government can't exclude religious people and religious organizations from participating in otherwise neutral programs," Rienzi told CNA.
Rienzi explained that it would be different if the government were hiring people to preach religion or to celebrate Mass, but in this case, it involves hiring teachers from a religiously-affiliated school to teach secular subjects, such as English as a second language classes.