Guidance Regarding Department of Education Grants and Executive Order 13798, 61736-61739 [2020-21648]

Download as PDF 61736 Federal Register / Vol. 85, No. 190 / Wednesday, September 30, 2020 / Notices cc: John B. Daukas, Principal Deputy Assistant Attorney General Civil Rights Division, U.S. Department of Justice Reed D. Rubinstein, Principal Deputy General Counsel delegated the Authority and Duties of the General Counsel Paul R. Moore, Chief Investigative Counsel Kevin D. Slupe, Special Counsel Chancellor Jim Malatras The State University of New York [FR Doc. 2020–21649 Filed 9–29–20; 8:45 am] BILLING CODE 4000–01–P DEPARTMENT OF EDUCATION Guidance Regarding Department of Education Grants and Executive Order 13798 Office of the General Counsel, Department of Education. ACTION: Notice. AGENCY: 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. 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. SUPPLEMENTARY INFORMATION: 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. jbell on DSKJLSW7X2PROD with NOTICES SUMMARY: VerDate Sep<11>2014 17:36 Sep 29, 2020 Jkt 250001 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.’’ * 1 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).2 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.’’ 3 * Other than statutory and regulatory requirements included in the document, the contents of this guidance do not have the force and effect of law and are not meant to bind the public. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. 1 Exec. Order No. 13798, 82 FR 21675 (May 4, 2017). 2 Jeff Sessions, Federal Law Protections for Religious Liberty, Memorandum for All Executive Departments and Agencies (Oct. 6, 2017), https:// www.justice.gov/opa/press-release/file/1001891/ download. 3 Office of Mgmt. & Budget, Exec. Office of the President, M–20–09, Guidance Regarding Federal Grants and Executive Order 13798 (January 16, 2020), https://www.whitehouse.gov/wp-content/ uploads/2020/01/M-20-09.pdf. PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 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 4 and Trinity Lutheran Church of Columbia, Inc. v. Comer.5 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.6 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.’’ 7 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) 8 if they do not survive strict scrutiny.9 RFRA thus must inform all agency rulemaking.10 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 11 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 4 Espinoza v. Mont. Dep’t of Revenue, No. 18– 1195 (U.S. June 30, 2020). 5 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017). 6 Id. at 2021. 7 Id. at 2021–22. 8 42 U.S.C. 2000bb, et. seq. 9 Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, No. 19–431, slip op. at 7 (U.S. July 8, 2020). 10 See id. at 21–22. 11 Note that amendments to the regulations at 34 CFR parts 75, 76, 106, 606, 607, 608, and 609, as well as 2 CFR part 3474 have been proposed, as announced in the notice of proposed rulemaking issued by the Office of the Secretary. See 85 FR 3190 (January 17, 2020). E:\FR\FM\30SEN1.SGM 30SEN1 Federal Register / Vol. 85, No. 190 / Wednesday, September 30, 2020 / Notices jbell on DSKJLSW7X2PROD with NOTICES prohibiting discrimination 12 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.13 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.14 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.15 Furthermore, decisions about awards of Federal financial assistance must be free from political interference, or even the appearance of such interference.16 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.17 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.18 • 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 12 2 CFR 200.300 (explaining that the Department must ensure that it expends Federal funds ‘‘in full accordance with U.S. statutory and public policy requirements,’’ including prohibiting discrimination). 13 34 CFR 75.52(a)(1); 34 CFR 76.52(a)(1). 14 2 CFR 3474.15(b)(1). 15 34 CFR 75.52(a)(2); 34 CFR 76.52(a)(2); 2 CFR 3474.15(b)(2). 16 Id. 17 34 CFR 75.52(a)(2); 34 CFR 76.52(a)(2). 18 84 FR 67787 (proposed Dec. 11, 2019) (codified at 34 CFR 694.10). The Department notes that the unofficial version of this rule was released on July 1, 2020, but the final rule will not go into effect until July 1, 2021. VerDate Sep<11>2014 17:36 Sep 29, 2020 Jkt 250001 as their secular counterparts and that religious student organizations on college campuses are treated the same as their secular counterparts.19 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 EDsupported 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.20 At the same time, direct Federal financial assistance may not be used for worship, religious instruction, or proselytization.21 Attendance or participation in any explicitly religious activities by beneficiaries of the programs and services supported by the grant or subgrant must be voluntary.22 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.23 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.24 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 socalled 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 19 85 FR 3190 (January 17, 2020) (proposed rule). CFR 3474.15(e)(2)(iii)–(v). 21 34 CFR 75.532; 34 CFR 76.532. 22 34 CFR 75.52(c)(1); 34 CFR 76.52(c)(1). 23 34 CFR 75.52(c)(2); 34 CFR 76.52(c)(2); 2 CFR 3474.15(b)(2). 24 34 CFR 75.52(c)(3)(ii); 34 CFR 76.52(c)(3)(ii). 20 2 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 61737 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.25 Accordingly, the Supreme Court has repeatedly struck down the application of Blaine Amendments to religious educational programs as violative of the Free Exercise Clause.26 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.’’ 27 The Court explained that the State was punishing the free exercise of religion ‘‘by disqualifying the religious from government aid[.]’’ 28 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.’ ’’ 29 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 faithbased organizations contracts or grants under Department regulations will be in violation of 25 Mitchell v. Helms, 530 U.S. 793, 828–29 (2000). e.g., Trinity Lutheran, 137 S. Ct. at 2021. 27 Espinoza, slip op. at 9. 28 Id. at 11. 29 Espinoza, slip op. at 18 (quoting Trinity Lutheran, 137 S. Ct. at 2024 (quoting Widmar v. Vincent, 454 U.S. 263, 276 (1981))). 26 See, E:\FR\FM\30SEN1.SGM 30SEN1 61738 Federal Register / Vol. 85, No. 190 / Wednesday, September 30, 2020 / Notices Department regulations against discrimination on the basis of an organization’s religious character or affiliation.30 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.31 • 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.32 • 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.33 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 jbell on DSKJLSW7X2PROD with NOTICES 30 34 CFR 75.52(a)(2); 34 CFR 76.52(a)(2); 2 CFR 3474.15(b)(2); 2 CFR 200.300. 31 34 CFR 674.9(c); 34 CFR 675.9(c); 34 CFR 676.9(c); 34 CFR 682.301(a); 34 CFR 690.75; 34 CFR 685.200(a); 34 CFR 690.75. The Department notes that the unofficial version of this rule was released on July 1, 2020, but the final rule will not go into effect until July 1, 2021. 32 34 CFR 674.35(c); 34 CFR 674.36(c); 34 CFR 682.210(m). The Department notes that the unofficial version of this rule was released on July 1, 2020, but the final rule will not go into effect until July 1, 2021. 33 34 CFR 685.219(b). The Department notes that the unofficial version of this rule was released on July 1, 2020, but the final rule will not go into effect until July 1, 2021. VerDate Sep<11>2014 17:36 Sep 29, 2020 Jkt 250001 participate in a religious practice.34 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.35 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.36 However, if the additional funds are commingled, the Department’s regulations and policies regarding religious liberty apply to all of the commingled funds.37 III. The Effect of the Religious Freedom Restoration Act on Recipients of ED Financial Assistance a. Background ‘‘RFRA ‘provide[s] very broad protection for religious liberty.’ ’’ 38 In 1993, Congress enacted RFRA in response to the Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith.39 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.40 Congress sought to undo the damage to religious liberty resulting from Smith and ensure that the government satisfies an ‘‘exceptionally demanding’’ 41 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,’’ 42 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.’’ 43 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 religionneutral rule. Congress expressly applied RFRA to all Federal law, statutory or otherwise, whether adopted before or after its enactment.44 RFRA 34 2 CFR 3474.15(f); 34 CFR 75.52(e); 34 CFR 76.52(e). 35 2 CFR 3474.15(f). 36 34 CFR 75.52(f); 34 CFR 76.52(f). 37 Id. 38 Little Sisters, slip op. at 19 (quoting Burwell v. Hobby Lobby Stores, 573 U.S. 682, 693 (2014)). 39 494 U.S. 872 (1990). 40 Id. at 878–79. 41 Hobby Lobby, 573 U.S. at 728. 42 42 U.S.C. 2000bb–1(a). 43 Id. § 2000bb–1(b). 44 See id. § 2000bb–3(a) (RFRA applies ‘‘to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.’’ 42 U.S.C. 2000bb–3(a)(2000)). The only exception that PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 therefore applies to all laws governing ED programs, including but not limited to nondiscrimination laws 45 such as Title IX of the Education Amendments Act of 1972,46 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).47 RFRA further applies to all actions by ED, including rulemaking, adjudication, or other enforcement actions, and grant or contract distribution and administration.48 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.49 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.50 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.’’ 51 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.52 Regarding the strict scrutiny standard, ‘‘broadly formulated interests justifying the general applicability of government mandates’’ are insufficient to constitute compelling government interests under RFRA.53 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.54 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.55 The Court exists is for statutes that explicitly exclude the application of RFRA. Id. § 2000bb–3(b). 45 The Supreme Court recognized in Bostock v. Clayton County that ‘‘[b]ecause RFRA operates as a kind of super statute displacing the normal operation of other federal laws, it might supersede [nondiscrimination statutes] in appropriate cases.’’ No. 17–1618, slip op. at 32 (U.S. June 15, 2020). 46 Title IX also includes an exemption for educational institutions that are controlled by a religious organization to the extent that application of Title IX would be inconsistent with the religious tenets of the organization. 20 U.S.C. 1681(a)(3); 34 CFR 106.12. 47 See 34 § 76.102 for a more comprehensive list of Department programs and their authorizing statutes. 48 Attorney General Memorandum at 3 (citing Sherbert v. Verner, 374 U.S. 398, 405–06 (1963)). 49 See 42 U.S.C. 2000bb–2(4). 50 Hobby Lobby, 573 U.S. at 724. 51 Attorney General Memorandum at 5a. 52 Attorney General Memorandum at 5a. 53 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006). 54 No. 19–431 (U.S. July 8, 2020). 55 Little Sisters, slip op. at 26. E:\FR\FM\30SEN1.SGM 30SEN1 Federal Register / Vol. 85, No. 190 / Wednesday, September 30, 2020 / Notices explained 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.’’ 56 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,57 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.58 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.’’ 59 56 Id. at 22. jbell on DSKJLSW7X2PROD with NOTICES 57 Attorney General Memorandum at 4. U.S.C. 2000bb, et. seq. 59 Information submitted to the Department is treated confidentially and is protected under the provisions of the Privacy Act of 1974. Names or other identifying information about individuals are disclosed when, among other reasons, it is necessary for the investigation of possible discrimination. When disclosure of the identity of 58 42 VerDate Sep<11>2014 17:36 Sep 29, 2020 Jkt 250001 • 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. the burdened person is necessary in order to address the information submitted, OGC will require written consent before proceeding. A person submitting information on behalf of another burdened person is responsible for securing any necessary written consent from that individual, including when a parent files for a student over the age of 18. Where the person is a minor (under the age of 18) or a legally incompetent adult, this statement must be signed by that person’s parent or legal guardian. Parental or legal guardian consent may not be required for persons under the age of 18 if they are emancipated under State law and are therefore considered to have obtained majority. Proof of emancipation or incompetence must be provided under such circumstances. PO 00000 Frm 00022 Fmt 4703 Sfmt 9990 61739 IV. Grant Applicants and the Center for Faith and Opportunity Initiatives On May 3, 2018, the President signed Executive Order 13831,60 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. [FR Doc. 2020–21648 Filed 9–29–20; 8:45 am] BILLING CODE 4000–01–P 60 Exec. Order No. 13831, 83 FR 20715 (May 3, 2018). E:\FR\FM\30SEN1.SGM 30SEN1

Agencies

DEPARTMENT OF EDUCATION

[Federal Register Volume 85, Number 190 (Wednesday, September 30, 2020)]
[Notices]
[Pages 61736-61739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21648]


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DEPARTMENT OF EDUCATION


Guidance Regarding Department of Education Grants and Executive 
Order 13798

AGENCY: Office of the General Counsel, Department of Education.

ACTION: Notice.

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SUMMARY: 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.

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: 
[email protected].
    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.

SUPPLEMENTARY INFORMATION: 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.'' \*\ \1\ 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).\2\ 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.'' \3\
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    \*\ Other than statutory and regulatory requirements included in 
the document, the contents of this guidance do not have the force 
and effect of law and are not meant to bind the public. This 
document is intended only to provide clarity to the public regarding 
existing requirements under the law or agency policies.
    \1\ Exec. Order No. 13798, 82 FR 21675 (May 4, 2017).
    \2\ Jeff Sessions, Federal Law Protections for Religious 
Liberty, Memorandum for All Executive Departments and Agencies (Oct. 
6, 2017), https://www.justice.gov/opa/press-release/file/1001891/download.
    \3\ Office of Mgmt. & Budget, Exec. Office of the President, M-
20-09, Guidance Regarding Federal Grants and Executive Order 13798 
(January 16, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/01/M-20-09.pdf.
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    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 \4\ and 
Trinity Lutheran Church of Columbia, Inc. v. Comer.\5\ 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.\6\ 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.'' \7\ 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.
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    \4\ Espinoza v. Mont. Dep't of Revenue, No. 18-1195 (U.S. June 
30, 2020).
    \5\ Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. 
Ct. 2012 (2017).
    \6\ Id. at 2021.
    \7\ Id. at 2021-22.
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    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) \8\ if they do not survive 
strict scrutiny.\9\ RFRA thus must inform all agency rulemaking.\10\
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    \8\ 42 U.S.C. 2000bb, et. seq.
    \9\ Little Sisters of the Poor Saints Peter & Paul Home v. 
Pennsylvania, No. 19-431, slip op. at 7 (U.S. July 8, 2020).
    \10\ See id. at 21-22.
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    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 \11\ 
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.
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    \11\ Note that amendments to the regulations at 34 CFR parts 75, 
76, 106, 606, 607, 608, and 609, as well as 2 CFR part 3474 have 
been proposed, as announced in the notice of proposed rulemaking 
issued by the Office of the Secretary. See 85 FR 3190 (January 17, 
2020).
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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

[[Page 61737]]

prohibiting discrimination \12\ require that religious organizations 
be equally eligible to participate in ED-administered programs as 
their secular counterparts.
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    \12\ 2 CFR 200.300 (explaining that the Department must ensure 
that it expends Federal funds ``in full accordance with U.S. 
statutory and public policy requirements,'' including prohibiting 
discrimination).
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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.\13\ 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.\14\ 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.\15\
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    \13\ 34 CFR 75.52(a)(1); 34 CFR 76.52(a)(1).
    \14\ 2 CFR 3474.15(b)(1).
    \15\ 34 CFR 75.52(a)(2); 34 CFR 76.52(a)(2); 2 CFR 
3474.15(b)(2).
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    Furthermore, decisions about awards of Federal financial 
assistance must be free from political interference, or even the 
appearance of such interference.\16\ 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.\17\ ED must ensure that 
decisions are made fairly based on the substance of the proposals.
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    \16\ Id.
    \17\ 34 CFR 75.52(a)(2); 34 CFR 76.52(a)(2).
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    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.\18\
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    \18\ 84 FR 67787 (proposed Dec. 11, 2019) (codified at 34 CFR 
694.10). The Department notes that the unofficial version of this 
rule was released on July 1, 2020, but the final rule will not go 
into effect until July 1, 2021.
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     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.\19\
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    \19\ 85 FR 3190 (January 17, 2020) (proposed rule).
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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.\20\
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    \20\ 2 CFR 3474.15(e)(2)(iii)-(v).
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    At the same time, direct Federal financial assistance may not be 
used for worship, religious instruction, or proselytization.\21\ 
Attendance or participation in any explicitly religious activities 
by beneficiaries of the programs and services supported by the grant 
or subgrant must be voluntary.\22\
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    \21\ 34 CFR 75.532; 34 CFR 76.532.
    \22\ 34 CFR 75.52(c)(1); 34 CFR 76.52(c)(1).
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    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.\23\ 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.\24\
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    \23\ 34 CFR 75.52(c)(2); 34 CFR 76.52(c)(2); 2 CFR 
3474.15(b)(2).
    \24\ 34 CFR 75.52(c)(3)(ii); 34 CFR 76.52(c)(3)(ii).
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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.\25\
---------------------------------------------------------------------------

    \25\ Mitchell v. Helms, 530 U.S. 793, 828-29 (2000).
---------------------------------------------------------------------------

    Accordingly, the Supreme Court has repeatedly struck down the 
application of Blaine Amendments to religious educational programs 
as violative of the Free Exercise Clause.\26\ 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.'' 
\27\ The Court explained that the State was punishing the free 
exercise of religion ``by disqualifying the religious from 
government aid[.]'' \28\ 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.' '' \29\
---------------------------------------------------------------------------

    \26\ See, e.g., Trinity Lutheran, 137 S. Ct. at 2021.
    \27\ Espinoza, slip op. at 9.
    \28\ Id. at 11.
    \29\ Espinoza, slip op. at 18 (quoting Trinity Lutheran, 137 S. 
Ct. at 2024 (quoting Widmar v. Vincent, 454 U.S. 263, 276 (1981))).
---------------------------------------------------------------------------

    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

[[Page 61738]]

Department regulations against discrimination on the basis of an 
organization's religious character or affiliation.\30\
---------------------------------------------------------------------------

    \30\ 34 CFR 75.52(a)(2); 34 CFR 76.52(a)(2); 2 CFR 
3474.15(b)(2); 2 CFR 200.300.
---------------------------------------------------------------------------

    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.\31\
---------------------------------------------------------------------------

    \31\ 34 CFR 674.9(c); 34 CFR 675.9(c); 34 CFR 676.9(c); 34 CFR 
682.301(a); 34 CFR 690.75; 34 CFR 685.200(a); 34 CFR 690.75. The 
Department notes that the unofficial version of this rule was 
released on July 1, 2020, but the final rule will not go into effect 
until July 1, 2021.
---------------------------------------------------------------------------

     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.\32\
---------------------------------------------------------------------------

    \32\ 34 CFR 674.35(c); 34 CFR 674.36(c); 34 CFR 682.210(m). The 
Department notes that the unofficial version of this rule was 
released on July 1, 2020, but the final rule will not go into effect 
until July 1, 2021.
---------------------------------------------------------------------------

     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.\33\
---------------------------------------------------------------------------

    \33\ 34 CFR 685.219(b). The Department notes that the unofficial 
version of this rule was released on July 1, 2020, but the final 
rule will not go into effect until July 1, 2021.
---------------------------------------------------------------------------

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.\34\ 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.\35\
---------------------------------------------------------------------------

    \34\ 2 CFR 3474.15(f); 34 CFR 75.52(e); 34 CFR 76.52(e).
    \35\ 2 CFR 3474.15(f).
---------------------------------------------------------------------------

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.\36\ However, if the additional funds are commingled, the 
Department's regulations and policies regarding religious liberty 
apply to all of the commingled funds.\37\
---------------------------------------------------------------------------

    \36\ 34 CFR 75.52(f); 34 CFR 76.52(f).
    \37\ Id.
---------------------------------------------------------------------------

III. The Effect of the Religious Freedom Restoration Act on Recipients 
of ED Financial Assistance

a. Background

    ``RFRA `provide[s] very broad protection for religious liberty.' 
'' \38\ In 1993, Congress enacted RFRA in response to the Supreme 
Court's decision in Employment Division, Department of Human 
Resources of Oregon v. Smith.\39\ 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.\40\ Congress sought to undo the damage to 
religious liberty resulting from Smith and ensure that the 
government satisfies an ``exceptionally demanding'' \41\ 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,'' \42\ 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.'' \43\ 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.
---------------------------------------------------------------------------

    \38\ Little Sisters, slip op. at 19 (quoting Burwell v. Hobby 
Lobby Stores, 573 U.S. 682, 693 (2014)).
    \39\ 494 U.S. 872 (1990).
    \40\ Id. at 878-79.
    \41\ Hobby Lobby, 573 U.S. at 728.
    \42\ 42 U.S.C. 2000bb-1(a).
    \43\ Id. Sec.  2000bb-1(b).
---------------------------------------------------------------------------

    Congress expressly applied RFRA to all Federal law, statutory or 
otherwise, whether adopted before or after its enactment.\44\ RFRA 
therefore applies to all laws governing ED programs, including but 
not limited to non-discrimination laws \45\ such as Title IX of the 
Education Amendments Act of 1972,\46\ 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).\47\ RFRA further applies to all actions by ED, including 
rulemaking, adjudication, or other enforcement actions, and grant or 
contract distribution and administration.\48\
---------------------------------------------------------------------------

    \44\ See id. Sec.  2000bb-3(a) (RFRA applies ``to all Federal 
law, and the implementation of that law, whether statutory or 
otherwise, and whether adopted before or after November 16, 1993.'' 
42 U.S.C. 2000bb-3(a)(2000)). The only exception that exists is for 
statutes that explicitly exclude the application of RFRA. Id. Sec.  
2000bb-3(b).
    \45\ The Supreme Court recognized in Bostock v. Clayton County 
that ``[b]ecause RFRA operates as a kind of super statute displacing 
the normal operation of other federal laws, it might supersede 
[nondiscrimination statutes] in appropriate cases.'' No. 17-1618, 
slip op. at 32 (U.S. June 15, 2020).
    \46\ Title IX also includes an exemption for educational 
institutions that are controlled by a religious organization to the 
extent that application of Title IX would be inconsistent with the 
religious tenets of the organization. 20 U.S.C. 1681(a)(3); 34 CFR 
106.12.
    \47\ See 34 Sec.  76.102 for a more comprehensive list of 
Department programs and their authorizing statutes.
    \48\ Attorney General Memorandum at 3 (citing Sherbert v. 
Verner, 374 U.S. 398, 405-06 (1963)).
---------------------------------------------------------------------------

    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.\49\ 
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.\50\
---------------------------------------------------------------------------

    \49\ See 42 U.S.C. 2000bb-2(4).
    \50\ Hobby Lobby, 573 U.S. at 724.
---------------------------------------------------------------------------

    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.'' \51\ 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.\52\ Regarding the strict scrutiny 
standard, ``broadly formulated interests justifying the general 
applicability of government mandates'' are insufficient to 
constitute compelling government interests under RFRA.\53\
---------------------------------------------------------------------------

    \51\ Attorney General Memorandum at 5a.
    \52\ Attorney General Memorandum at 5a.
    \53\ Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 
546 U.S. 418, 431 (2006).
---------------------------------------------------------------------------

    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.\54\ 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.\55\ The Court

[[Page 61739]]

explained 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.'' \56\ 
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.
---------------------------------------------------------------------------

    \54\ No. 19-431 (U.S. July 8, 2020).
    \55\ Little Sisters, slip op. at 26.
    \56\ Id. at 22.
---------------------------------------------------------------------------

b. Department RFRA Information Submission Process

    RFRA protects the free exercise of religion by individuals and 
by organizations,\57\ 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.
---------------------------------------------------------------------------

    \57\ Attorney General Memorandum at 4.
---------------------------------------------------------------------------

    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.\58\
---------------------------------------------------------------------------

    \58\ 42 U.S.C. 2000bb, et. seq.
---------------------------------------------------------------------------

    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.'' 
\59\
---------------------------------------------------------------------------

    \59\ Information submitted to the Department is treated 
confidentially and is protected under the provisions of the Privacy 
Act of 1974. Names or other identifying information about 
individuals are disclosed when, among other reasons, it is necessary 
for the investigation of possible discrimination. When disclosure of 
the identity of the burdened person is necessary in order to address 
the information submitted, OGC will require written consent before 
proceeding. A person submitting information on behalf of another 
burdened person is responsible for securing any necessary written 
consent from that individual, including when a parent files for a 
student over the age of 18. Where the person is a minor (under the 
age of 18) or a legally incompetent adult, this statement must be 
signed by that person's parent or legal guardian. Parental or legal 
guardian consent may not be required for persons under the age of 18 
if they are emancipated under State law and are therefore considered 
to have obtained majority. Proof of emancipation or incompetence 
must be provided under such circumstances.
---------------------------------------------------------------------------

 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 [email protected]. 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,\60\ 
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.
---------------------------------------------------------------------------

    \60\ Exec. Order No. 13831, 83 FR 20715 (May 3, 2018).
---------------------------------------------------------------------------

    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.

[FR Doc. 2020-21648 Filed 9-29-20; 8:45 am]
BILLING CODE 4000-01-P

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