Trump Administration Proposes Rules Undermining Separation of Church and State Which Would Increase Sex Discrimination in Schools

February 18, 2020 marked the end of the 30-day public comment period on nine proposed federal rules loosening federal funding restrictions on religious social service providers and schools. The Department of Education’s (ED)  proposed rule to implement religion-related executive orders received nearly 16,000 comments and would have broad negative impacts if enacted.

The ED’s proposed rule would undermine Title IX, the federal civil rights law prohibiting sex discrimination in schools. Some of the rule’s proposed changes include expanding eligibility for religious exemptions to Title IX regulations and requiring colleges to provide funding to religious student groups that violate school anti-discrimination policies. Colleges would no longer be permitted to deny funding to religious student groups that, for example, exclude women or LGBTQ people, even if they deny funding to secular groups that do the same.

The rule also changes the qualifications a school must meet to be eligible for a religious exemption to Title IX. Title IX requires a school to be “controlled by a religious organization” to qualify for a religious exemption. Under the proposed rule, the ED would allow a school to meet the current “controlled by a religious organization” standard if the school “subscribes to specific moral beliefs or practices.”⁠ This would potentially expand eligibility for a religious exemption to any school, not just religiously controlled institutions.

This change comes on the heels of another heavily criticized proposed Title IX rule on sexual harassment and assault issued by the ED in November 2018. In addition to drastically changing sexual assault adjudication procedures to weigh them against victims and in favor of those accused of assault, this proposed rule would eliminate the requirement that schools report religious exemption claims to the ED’s Office for Civil Rights.

The ED claims that these changes will “protect religious liberty and ensure the Department is acting in accordance with the First Amendment.” But advocates for LGBTQ and women’s rights have expressed concerns about the proposed rule’s impacts, particularly on students and school staff. These proposed changes to Title IX’s narrow religious exemption would open the door for more schools to engage in legal sex discrimination. By claiming a religious exemption, a school would be permitted to, for example, expel students for wearing immodest clothing or becoming pregnant outside of marriage. “The proposed rule seeks to dramatically expand which schools can discriminate based on sex while receiving federal funding, with potentially devastating consequences for students,” said the National Women’s Law Center in a statement.

Some of the proposed rules would also eliminate requirements for providers to refer beneficiaries to alternate providers and provide beneficiaries with written notice of their religious freedom rights. Under existing Obama-era rules, social service providers receiving federal funds must inform beneficiaries that an “organization may not discriminate against a beneficiary based on religion,” “may not require a beneficiary to attend or participate in any explicitly religious activities,” and “if a beneficiary or prospective beneficiary objects to the religious character of the organization, the organization will undertake reasonable efforts to identify and refer the beneficiary to an alternative provider.” These protections for beneficiaries’ religious freedoms would disappear if the proposed rule is enacted.

The proposed rules are a response to the Trump administration’s Executive Order 13831 and the 2017 Supreme Court case Trinity Lutheran Church of Columbia v. Comer. In Comer, the Court found that state governments cannot exclude churches from their secular aid programs, creating a new standard for the use of state funds by religious institutions. Executive Order 13831 reversed some of the Obama administration’s religious freedom protections and established the White House Faith and Opportunity Initiative, an office tasked with making policy recommendations to the President on the regulation of faith-based service providers.

Significantly, EO 13831 revoked the requirement that federally funded organizations refer beneficiaries to alternate providers if they refused to provide services for religious reasons, a change that would be implemented by the ED’s proposed rule. Civil rights advocates criticized the order for its potential detrimental impacts on LGBTQ people; Camilla B. Taylor, Director of Constitutional Litigation at Lambda Legal, called it an “unmistakable signal to religious organizations who take government money that they can discriminate without any repercussions whatsoever.”

The rules are part of a series of steps by the Trump administration to undermine the separation of church and state and individuals’ religious freedom rights under the guise of expanding religious freedom. In addition to establishing the Faith and Opportunity Initiative, in 2018, the administration established a new Conscience and Religious Freedom Division in the Department of Health and Human Services and the Department of Justice announced a new emphasis on preserving religious liberty. The Department of Education also recently issued new guidance on prayer in public schools.

Sources: US Department of Education Press Office 1/16/20; National Women’s Law Center 1/17/20; NBC News 5/7/2018

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