U.S. Department of Education Finds ESEA Restriction on Religious Organizations Unconstitutional, Will No Longer Enforce

Washington, D.C. – U.S. Secretary of Education Betsy DeVos announced today at the Council for American Private Education (CAPE) State Directors Annual Meeting that the Department will no longer enforce a restriction barring religious organizations from serving as contract providers of equitable services solely due to their religious affiliation.

The U.S. Department of Education, in consultation with the U.S. Department of Justice, determined the statutory provisions in Section 1117(d)(2)(B) and 8501(d)(2)(B) of the Elementary and Secondary Education Act (ESEA) that require an equitable services provider to “be independent of … any religious organization” are unconstitutional because they categorically exclude religious organizations based solely on their religious identity.

These provisions run counter to the U.S. Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) that, under the Free Exercise Clause of the First Amendment of the U.S. Constitution, otherwise eligible recipients cannot be disqualified from a public benefit solely because of their religious character.

Given this decision, the Department will no longer enforce these provisions that previously restricted school districts from contracting with religious organizations to provide equitable services on the same basis as any other organization.

“The Trinity Lutheran decision reaffirmed the long-understood intent of the First Amendment to not restrict the free exercise of religion,” said Secretary DeVos. “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.”

The Department will continue to enforce all other applicable provisions of federal law. In particular, under ESEA Sections 1117(a)(2) and 8501(a)(2), school districts must continue to ensure that any contractor is independent of the private school for which it is providing services and that the educational services and other benefits being provided by the contractor are “secular, neutral and non-ideological.”

Featured

  • Nashville Elementary School Receives LEED Gold Certification

    Goodlettsville Elementary School, part of Metro Nashville Public Schools in Nashville, Tenn., recently achieved LEED Gold Certification from the U.S. Green Building Council (USGBC), according to a news release. The 81,750-square-foot school opened in 2023 and was designed by Goodwyn Mills Cawood (GMC).

  • Hawaii Elementary School Reopens Following $25M Campus Modernization

    Haʻaheo Elementary School in Hilo, Hawaii, has reopened to students following a three-year, $25-million campus modernization and expansion project that significantly increases the school's instructional space while preserving one of the island's oldest educational institutions, according to local news.

  • Haws Corporation Marks 120th Anniversary

    Haws Corporation, which provides hydration and emergency safety solutions worldwide, recently announced that the company is celebrating its 120th anniversary this year, according to a news release.

  • Houston-Area High School Receives Best Project Award from ENR

    Tomball West High School near Houston, Texas, recently received a K–12 Education Best Project Award in Engineering News-Record’s 2026 Texas & Southeast Best Projects Awards, according to a press release. The new facility was completed in May and opened its doors to students for the fall 2026 semester.