“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” reads the First Amendment to the United States Constitution.
One would think that any cabinet member who as their oath of office are required to “solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God” would be quickly ousted if they purposefully violated their oath to abide by the spirit and letter of the nation’s founding document.
Still, we have yet to receive the resignation of Secretary of Education Betsy DeVos who announced yesterday her unilateral decision to cease enforcement of a federal law that bans religious organizations from being funded with taxpayer dollars for secular projects.
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According to an account of Devos’ move in The New York Times, the Education Secretary based her action on a novel interpretation of a 2017 Supreme Court decision, Trinity Lutheran Church of Columbia Inc. v. Comer, which found that the state of Missouri had unconstitutionally engaged in religious discrimination when it denied a church-run preschool publicly funded tire scraps for its playground.
“Ms. DeVos said that after consultation with the Justice Department, education officials determined that a provision in the Elementary and Secondary Education Act, the federal law governing the nation’s elementary, middle and high schools, was also unconstitutional. The law calls for students in public and private schools to receive ‘equitable services,’ such as special education, tutoring or mentoring, and allows districts to hire contractors to deliver those services. But the law requires that those contractors be independent of ‘any religious organization’,” The Times reported.
The law was written by Congress because of the long-standing interpretation of the First Amendment as banning government involvement with religious organizations as contractors because the risk of choosing a vendor from one group over that from another religion would constitute the type of easily manipulated favoritism that the amendment specifically bans.
DeVos’ decision to turn the Supreme Court ruling on its head by unilaterally determining that a religious group can face discrimination as a vendor rather than as a recipient of state aid is controversial and is being scrutinized by Democratic lawmakers as to its validity.
“House Democrats are carefully reviewing the legality of the administration’s new policy,” said Joshua Weisz, a spokesman for the House Education Committee.
The independently wealthy Education Secretary tried to justify her policy change with a statement that played into the myth that evangelical Christians are victims of widespread discrimination, forced to compromise their religious values by baking wedding cakes for people they want to discriminate against — raising the sort of dual loyalty conversation that is often used against Jews, Catholics, and Muslims, but is rarely is applied to the Christian right.
“The Trinity Lutheran decision reaffirmed the long-understood intent of the First Amendment to not restrict the free exercise of religion,” Ms. DeVos said in a statement. “Those seeking to provide high-quality educational services to students and teachers should not be discriminated against simply based on the religious character of their organization.”
Perhaps those seeking to provide high-quality educational services to students and teachers should simply open a religiously unaffiliated private company to provide those services and leave religion out of the equation altogether.
Since the Education Department said it would continue to enforce the other provisions of the law in question that require contractors to be independent of a private school and that the services they provide be “secular, neutral and nonideological,” the idea that a religious organization would be the ideal vendor is questionable to say the least.
It’s unfortunate that DeVos takes her duty to uphold the Constitution so lightly. Her scant qualifications for the job she was given is enough of a reason for her ouster from the Education Department, but her active undermining of a key constitutional principle demands that she be the next Trump cabinet member to leave.
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Original reporting by Erica L. Green at The New York Times.