Office of the General Counsel, Department of Education.
The Department publishes this guidance, dated August 7, 2020, pursuant to a memorandum from the Office of Management and Budget (OMB) directing all grant administering agencies to publish policies detailing how they will administer Federal Grants in compliance with Executive Order 13798, titled “Promoting Free Speech and Religious Liberty,” the Attorney General's October 6, 2017 Memorandum on Federal Law Protections for Religious Liberty, and OMB's Memorandum.
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FOR FURTHER INFORMATION CONTACT:
Patrick Shaheen, U.S. Department of Education, Office of the General Counsel, 400 Maryland Avenue SW, Room 6E300, Washington, DC 20202. Telephone: (202) 453-6339. Email: Patrick.Shaheen@ed.gov.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service, toll free, at 1-800-877-8339.
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The Department issues this guidance to comply with the law and to protect religious liberty in the administration of its grant programs. The guidance details the ways in which the Department's specific regulations protect the religious freedoms of institutions and individuals and introduces a process by which both faith-based organizations and individuals can inform the Department of a burden or potential burden on religious exercise under the Religious Freedom Restoration Act (RFRA). The guidance is in the Appendix of this notice.
Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the person listed under FOR FURTHER INFORMATION CONTACT.
Electronic Access to This Document: The official version of this document is the document published in the Federal Register. You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.
You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.
Reed D. Rubinstein,
Principal Deputy General Counsel delegated the authority to perform the functions and duties of the General Counsel.
Appendix—Guidance Regarding Department of Education Grants and Executive Order 13798
I. Purpose and Background
On May 4, 2017, the President signed Executive Order 13798, titled “Promoting Free Speech and Religious Liberty.” 
This decree, among other things, directed the Attorney General to provide guidance to Federal agencies on the requirements of Federal laws and policies protecting religious liberty. Accordingly, on October 6, 2017, the Attorney General issued a memorandum advising agencies on such laws and policies, including how they apply to the awarding of grants (Attorney General Memorandum).
Subsequently, the Office of Management and Budget (OMB) issued its own guidance on January 16, 2020 (OMB Memorandum), directing all grant administering agencies “within 120 days of the date of this Memorandum . . . [to] publish policies detailing how they will administer Federal grants in compliance with E.O. 13798, the Attorney General's memorandum, and this Memorandum.” 
The OMB Memorandum and the Attorney General's Memorandum remind agencies that religious organizations are entitled to compete on equal footing with secular organizations for Federal financial assistance, as clarified most recently by the Supreme Court of the United States in Espinoza v. Montana Department of Revenue 
and Trinity Lutheran Church of Columbia, Inc. v. Comer.
In particular, rules or grant terms that “expressly discriminate against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character” violate the Free Exercise Clause, unless the government can prove that such rules or terms are the least restrictive means of achieving a compelling government interest.
This is unconstitutional because it forces a religious institution to choose between “participat[ing] in an otherwise available benefit program or remain[ing] a religious institution.” 
As a result, Department grants must be available to all qualified organizations, regardless of their religious or non-religious character, and to all eligible individuals, regardless of their religion.
Furthermore, all agency actions—including, but not limited to, agency rules and grant terms—that impose a substantial burden on an organization or individual's exercise of religion violate the Religious Freedom Restoration Act (RFRA) 
if they do not survive strict scrutiny.
RFRA thus must inform all agency rulemaking.
The Department of Education (ED or Department) issues this guidance to comply with the law and to protect religious liberty in the administration of its grant programs. The sections that follow detail the ways in which the Department's specific regulations 
protect the religious freedoms of institutions and individuals, the process by which both faith-based organizations and individuals can inform the Department of a burden or potential burden on religious exercise under RFRA, and the role within the Department that the Center for Faith and Opportunity Initiatives plays as a resource on issues of religious liberty.
II. Equal Treatment of Religious Organizations and Students in Department of Education Programs
a. Equal Participation of Religious Organizations
The Free Exercise Clause, Supreme Court jurisprudence, and Federal grant regulations Start Printed Page 61737prohibiting discrimination 
require that religious organizations be equally eligible to participate in ED-administered programs as their secular counterparts.
i. Grant Applications and Awards
Under Department regulations, faith-based organizations are eligible to apply for and receive both direct grants and subgrants under a Department program on the same basis as any other organization, with respect to programs for which such other organizations are eligible.
Faith-based organizations are further eligible, on the same basis as any other organization, to contract with grantees and subgrantees, including States, with respect to contracts for which such other organizations are eligible.
The Department, its grantees, and their subgrantees—including States and local units of government—must not discriminate against an organization on the basis of the organization's religious character or affiliation.
Furthermore, decisions about awards of Federal financial assistance must be free from political interference, or even the appearance of such interference.
Award decisions must be made on the basis of merit, not on the basis of the organization's religion, religious belief, or the lack thereof.
ED must ensure that decisions are made fairly based on the substance of the proposals.
The following are some examples of the ways in which the Department administers its grant programs in accordance with these principles:
- Organizations that apply for and are qualified to become service providers under the Department's Upward Bound program, or any other Department program, must not be excluded from recognition as an available provider on account of their religious character or affiliation and must be included on provider lists furnished to participants.
- The Department may not prevent pervasively sectarian institutions of higher education from serving as fiscal agents in the Gaining Early Awareness and Readiness for Undergraduate Programs program (GEAR UP), which is reflected in the Department's recently promulgated Faith-Based Institutions and TEACH Grants Final Rule and is a change from prior regulations.
- The Department is working towards publishing a final rule regarding the equal participation of faith-based organizations in Department programs and activities that ensures, among other things, that faith-based social service providers are treated the same as their secular counterparts and that religious student organizations on college campuses are treated the same as their secular counterparts.
ii. Ongoing Operations
Religious organizations receiving Federal financial assistance under a Department program must comply with program-specific legislation and regulations, but may continue to carry out their missions and maintain their religious character. This autonomy includes, among other things, the right to use the organizations' facilities to provide ED-supported services without removing or altering religious art, icons, scriptures, or other religious symbols, the right to select board members and otherwise govern themselves according to their religious character, and the right to include religious references in their mission statements and other chartering or governing documents.
At the same time, direct Federal financial assistance may not be used for worship, religious instruction, or proselytization.
Attendance or participation in any explicitly religious activities by beneficiaries of the programs and services supported by the grant or subgrant must be voluntary.
This limit on explicitly religious activities, however, does not apply to a faith-based organization that provides services to a beneficiary under a program supported only by indirect Federal financial assistance.
Indirect financial assistance means that the choice of a service provider under a program of the Department is placed in the hands of the beneficiary, and the cost of that service is paid through a voucher, certificate, or other similar means of government-funded payment.
iii. The Impact of Blaine Amendments
Even when no Federal regulation or grant term penalizes or disqualifies grant applicants from participation based on their religious character, some States or grantees may still be engaging in this type of unconstitutional conduct pursuant to so-called Blaine Amendments or other “no aid” clauses in a State constitution. These are provisions that go beyond the U.S. Constitution and prevent State taxpayers from providing any aid to religious organizations. Blaine Amendments are named after the proponent of a failed constitutional amendment proposing the same restrictions to the U.S. Constitution. This proposal sprung from prejudice against Roman Catholics, and such provisions have since been condemned by the Supreme Court as rooted in bigotry:
Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow. Cf. Chicago v. Morales, 527 U.S. 41, 53-54, n. 20, 119 S. Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality opinion). Although the dissent professes concern for “the implied exclusion of the less favored,” post, at 2572, the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to “sectarian” schools acquired prominence in the 1870's with Congress' consideration (and near passage) of the Blaine Amendment, which would have amended the [U.S.] Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.” See generally Green,
The Blaine Amendment Reconsidered, 36 a.m. J. Legal Hist. 38 (1992). Notwithstanding its history, of course, “sectarian” could, on its face, describe the school of any religious sect, but the Court eliminated this possibility of confusion when, in Hunt v. McNair, 413 U.S., at 743, 93 S. Ct. 2868, it coined the term “pervasively sectarian”—a term which, at that time, could be applied almost exclusively to Catholic parochial schools and which even today's dissent exemplifies chiefly by reference to such schools. See post, at 2582, 2592-2593 (opinion of SOUTER, J.).
In short, nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it. This doctrine, born of bigotry, should be buried now.
Accordingly, the Supreme Court has repeatedly struck down the application of Blaine Amendments to religious educational programs as violative of the Free Exercise Clause.
Most recently, in Espinoza v. Montana Department of Revenue, the Supreme Court found that the Free Exercise Clause prohibited the application of a State Blaine Amendment that “bar[red] religious schools from public benefits solely because of the religious character of the schools.” 
The Court explained that the State was punishing the free exercise of religion “by disqualifying the religious from government aid[.]” 
The no-aid provision did not survive strict scrutiny because, among other reasons, “[a] State's interest `in achieving greater separation of church and State than is already ensured under the Establishment Clause . . . is limited by the Free Exercise Clause.' ” 
A State's application of its Blaine Amendment to prevent religious educational institutions and faith-based organizations from participating in Department programs violates the Free Exercise Clause, the precedents the Supreme Court established in Trinity Lutheran and Espinoza, and Department regulations regarding discrimination. Consequently, States that use Blaine Amendments as a basis to deny faith-based organizations contracts or grants under Department regulations will be in violation of Start Printed Page 61738Department regulations against discrimination on the basis of an organization's religious character or affiliation.
The Department will take all appropriate action, in a manner consistent with applicable law, to ensure that States refrain from this kind of discriminatory conduct in the administration of Federal grants. Such action may include, but is not limited to, utilizing the risk mitigation provisions set forth in 2 CFR 200.207 and the enforcement provisions set forth in 2 CFR 200.338, as appropriate.
b. Equal Treatment of Students, Borrowers, and Beneficiaries
Students and/or borrowers seeking to participate in Department loan programs and beneficiaries seeking to participate in Department social service programs may not be penalized or singled out for disadvantages on the basis of religion.
i. Loan Programs
The Department must administer its loan programs without burdening otherwise eligible individuals because of their membership in religious orders, their employment at faith-based organizations, or their status as full-time volunteers at organizations engaging in inherently religious activities. For example:
- Members of religious orders pursuing a course of study in an institution of higher education are eligible for certain Federal loans on the same basis as other eligible individuals.
- Borrowers who serve as full-time volunteers in tax-exempt organizations and engage in inherently religious activities are eligible to defer repayment of certain Federal loans on the same basis as other eligible individuals.
- Borrowers who voluntarily choose to work for non-profit employers that engage in inherently religious activities are eligible for the public service loan forgiveness program on the same basis as other eligible individuals.
ii. Social Service Programs
An organization that contracts with a grantee or subgrantee, including a State, may not discriminate against a beneficiary or prospective beneficiary in the provision of program goods or services on the basis of religion or religious belief, a refusal to hold a religious belief, or refusal to attend or participate in a religious practice.
However, an organization that participates in a program funded by indirect financial assistance need not modify its program activities to accommodate a beneficiary who chooses to expend the indirect aid on the organization's program.
c. Application to State and Local Funds
If a State, grantee, or subgrantee contributes its own funds in excess of those funds required by a matching or grant agreement to supplement Federally funded activities, the State or subgrantee has the option to segregate those additional funds or commingle them with the funds required by the matching requirements or grant agreement.
However, if the additional funds are commingled, the Department's regulations and policies regarding religious liberty apply to all of the commingled funds.
III. The Effect of the Religious Freedom Restoration Act on Recipients of ED Financial Assistance
“RFRA `provide[s] very broad protection for religious liberty.' ” 
In 1993, Congress enacted RFRA in response to the Supreme Court's decision in Employment Division, Department of Human Resources of Oregon v. Smith.
Smith held that a religion-neutral and generally applicable law need not be justified by a compelling governmental interest, even if such law incidentally affects religious practice.
Congress sought to undo the damage to religious liberty resulting from Smith and ensure that the government satisfies an “exceptionally demanding” 
standard before substantially burdening religious exercise. Under RFRA, “[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability,” 
unless the Government “demonstrates that application of the burden to the [organization] — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 
RFRA thus mandates strict scrutiny of any Federal law that substantially burdens the exercise of religion, even if the burden is incidental to the application of a religion-neutral rule.
Congress expressly applied RFRA to all Federal law, statutory or otherwise, whether adopted before or after its enactment.
RFRA therefore applies to all laws governing ED programs, including but not limited to non-discrimination laws 
such as Title IX of the Education Amendments Act of 1972,
the Family Educational Rights and Privacy Act (FERPA), Title I of the Elementary and Secondary Education Act of 1965 (ESEA), and the Higher Education Act (HEA).
RFRA further applies to all actions by ED, including rulemaking, adjudication, or other enforcement actions, and grant or contract distribution and administration.
Under RFRA, the term “exercise of religion” does not require that a burdened religious practice be compelled by, or central to, an organization's system of religious belief to be protected.
Relatedly, RFRA does not permit the government to assess the reasonableness of a religious belief, including the adherent's assessment of the religious connection between a belief asserted and what the government forbids, requires, or prevents.
A law substantially burdens religious exercise under RFRA if it “bans an aspect of the adherent's religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice.” 
However, where a law enforced by ED infringes on a religious practice that an organization itself regards as unimportant or inconsequential, no substantial burden has been imposed for purposes of RFRA.
Regarding the strict scrutiny standard, “broadly formulated interests justifying the general applicability of government mandates” are insufficient to constitute compelling government interests under RFRA.
The Supreme Court recently reinforced the Federal government's obligation to accommodate religion under RFRA in Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania.
There, the Court upheld as a permissible accommodation of religion certain Federal agency rules promulgating exemptions for religious entities, relieving them of requirements that would violate their sincerely held religious beliefs.
The Court Start Printed Page 61739explained that when Supreme Court precedent, other lawsuits, and/or public comments under the Administrative Procedure Act's rulemaking process make it clear that RFRA is implicated, it is incumbent upon Federal agencies to “look to RFRA's requirements . . . when formulating their [regulations]” or else “they would certainly be susceptible to claims that the rules were arbitrary and capricious for failing to consider an important aspect of the problem.” 
The Department remains committed to following this mandate and has instituted the foregoing RFRA information process to further protect the religious liberties of institutions and individuals participating in ED programs.
b. Department RFRA Information Submission Process
RFRA protects the free exercise of religion by individuals and by organizations,
including institutions of higher education. Any person may have a private right of action under RFRA based on a burden to religious exercise, and may inform the Department of that fact.
Informing the Department of a burden imposed on a person's exercise of religion, or choosing not to do so, has no impact on the ability of that individual or organization to bring an independent lawsuit against the Department under RFRA. For example, electing not to inform the Department does not constitute a failure to exhaust administrative remedies nor does it bar a person from bringing a RFRA action.
Who may submit information about a RFRA burden?
You may inform the Department of a burden or potential burden under RFRA on behalf of yourself, another person, or an organization.
What information should I include in my submission?
Your submission should include the following information:
- Filer name
- Filer address
- Filer email address
- Filer phone number
- Burdened person name (if different from filer)
- Burdened person address (if complainant is an organization)
- The following statement, followed by the signature of the burdened person or the signature of the burdened person's parent or legal guardian in appropriate circumstances: “I give the Department of Education my consent to reveal my identity (and that of my minor child/ward on whose behalf the submission is filed) to others to further the Department's investigation and enforcement activities.” 
- Description of religious exercise at issue
- Explanation of whether religious exercise stems from sincerely held religious belief
- Description of Department program at issue
- Description of how the Department has substantially burdened or could substantially burden religious exercise (please be as specific as possible)
- Description of how any other entity or individual has substantially burdened or could substantially burden religious exercise in the use of Department funds
- The date(s) of any alleged violation, and whether it is ongoing
- Any additional information that might help the Department when reviewing the submission
How do I submit my information?
Submit your information by any of the following methods:
- Email your submission to RFRA@ed.gov. Please note that communication by unencrypted email presents a risk that personally identifiable information contained in such an email may be intercepted by unauthorized third parties.
- Mail or fax your submission to our office at the address below. Please note that it will take longer to process your submission if submitted by mail or fax.
U.S. Department of Education, Office of the General Counsel, 400 Maryland Avenue SW, Washington, DC 20202-1500, Fax: (202) 245-7047.
What happens next?
After you submit your information, it will be forwarded to the Department's Office of the General Counsel (OGC) and the Department's Center for Faith and Opportunity Initiatives. OGC, in consultation with other Department offices or Federal agencies when appropriate, will review your information and determine whether further investigation is warranted. Within 30 calendar days of the Department's receipt of your submission, the Department will apprise you in writing of any additional actions the Department will take with respect to your submission. Courses of action may include actions such as the following: following up for more information from you or from third parties, directing you to another organization for further help, or initiating existing remedies for noncompliance against a grant recipient including a State, as outlined in Title 34 of the Code of Federal Regulations, Subpart G of Part 75 and Subpart I of Part 76.
IV. Grant Applicants and the Center for Faith and Opportunity Initiatives
On May 3, 2018, the President signed Executive Order 13831,
titled “Establishment of a White House Faith and Opportunity Initiative,” creating an office in the White House to ensure that faith-based and community organizations are included in policymaking at the Federal level. The President recognized the essential contributions of faith-based and community organizations and encouraged them to be active partners in policy creation and implementation. The President also required any Federal agency that did not already have a Center for Faith and Opportunity Initiatives (CFOI) to designate a Liaison for Faith and Opportunity Initiatives.
The Department houses its own CFOI, which collaborates with faith and community leaders to maximize participation of religious organizations in Department programs while eliminating barriers in the grantmaking or regulatory process to safeguard religious liberty.
A significant component of CFOI's role is communication and outreach. Outreach to stakeholders and faith and community leaders at the Federal, State, and local level is designed to communicate Department actions in a timely manner. CFOI has also hosted webinars providing assistance to foster and homeless students with the Free Application for Federal Student Aid (FAFSA), resources for citizens re-entering society from the prison system as they navigate career, technical, and apprenticeship opportunities, and information for community- and faith-based organizations on applying for Department grants.
CFOI staff appreciate hearing from stakeholders and are honored to share their concerns and feedback with key leaders within the Department. CFOI also coordinates with its counterparts at the White House and across the Federal government as appropriate.
Additionally, CFOI provides recommendations to the Department on education programs and policies in which faith-based and community organizations may partner and/or deliver more effective solutions without discrimination or unduly burdensome involvement by the Federal government. CFOI is committed to ensuring that faith-based organizations in States with discriminatory Blaine Amendments remain eligible for ED grants, in light of the Supreme Court's ruling in Espinoza.
Finally, the Department emphasizes that CFOI does not make funding decisions; these decisions are made through procedures established by each Department grant program.
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[FR Doc. 2020-21648 Filed 9-29-20; 8:45 am]
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