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Equal Participation of Faith-Based Organizations in the Federal Agencies' Programs and Activities rule (2021)

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The Equal Participation of Faith-Based Organizations in the Federal Agencies' Programs and Activities rule is a significant rule issued by the U.S. Department of Education, the U.S. Department of Homeland Security, the U.S. Department of Agriculture, the Agency for International Development, the U.S. Department of Housing and Urban Development, the U.S. Department of Justice, the U.S. Department of Labor, the U.S. Department of Veterans Affairs, and the U.S. Department of Health and Human Services effective January 19, 2021, that amended department regulations concerning the rights of faith-based organizations in relation to federal financial assistance programs. The rule was issued to implement the provisions of Executive Order 13831, titled "Establishment of a White House Faith and Opportunity Initiative."[1]

HIGHLIGHTS
  • Name: Equal Participation of Faith-Based Organizations in the Federal Agencies' Programs and Activities
  • Code of Federal Regulations: 2 CFR 3474; 6 CFR 19; 7 CFR 16; 22 CFR 205; 24 CFR Parts 5, 92, and 578; 28 CFR 38; 29 CFR 2; 34 CFR Parts 75 and 76; 38 CFR Parts 50, 61, and 62; 45 CFR Parts 87 and 1060
  • Agency: Department of Education, Department of Homeland Security, Department of Agriculture, Agency for International Development, Department of Housing and Urban Development, Department of Justice, Department of Labor, Department of Veterans Affairs, Department of Health and Human Services
  • Action: Final rule
  • Type of significant rule: Other significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    • January 19, 2021: The final rule took effect.[1]
    • December 17, 2020: The Department of Education, Department of Homeland Security, Department of Agriculture, Agency for International Development, Department of Housing and Urban Development, Department of Justice, Department of Labor, Department of Veterans Affairs, and Department of Health and Human Services published a final rule.[1]
    • February 18, 2020: The Department of Education closed the comment period.[2]
    • January 17, 2020: The Department of Education published a notice of proposed rulemaking and opened the comment period.[2]
    • May 3, 2018: President Donald Trump (R) issued an executive order to direct executive agencies on operating the White House Faith and Opportunity Initiative.[3]

    Background

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    The White House Office of Faith-Based and Community Initiative was established by President George W. Bush (R) on January 29, 2001, in Executive Order 13199. The order aimed to "establish policies, priorities, and objectives for the Federal Government's comprehensive effort to enlist, equip, enable, empower, and expand the work of faith-based and other community organizations to the extent permitted by law." The initiative was further developed by Executive Order 13279 which was issued on December 12, 2002, to direct executive agencies on practices to ensure equal eligibility to faith-based and community organizations for federal financial assistance programs. The Department of Education issued regulations on June 4, 2004, in an effort to further the stated goals of the executive orders. Other executive agencies issued similar regulations between 2003 and 2004.[4][5][6][2]

    President Barack Obama (D) issued Executive Order 13498 on February 5, 2009, to modify the Bush administration orders. The order changed the White House Office of Faith-Based and Community Initiative to the White House Office of Faith-Based and Neighborhood Partnerships and established the President's Advisory Council on Faith-Based and Neighborhood Partnerships. President Obama issued Executive Order 13559 on November 17, 2010, which modified the policymaking criteria for partnerships with faith-based organizations. The order amended E.O. 13279 to require protections for beneficiaries of social service programs and establish standards and eligibility requirements for participating faith-based organizations in federal programs. The executive order also established the Interagency Working Group on Faith-Based and Other Neighborhood Partnerships which aimed to evaluate federal agency policies to ensure compliance with the order. In response, the Department of Education and other executive agencies issued regulations in 2016 to establish policies that complied with the executive order.[7][8][2]

    President Donald Trump (R) issued Executive Order 13798 on May 4, 2017, which directed the attorney general to issue guidance to direct executive agencies on interpreting religious liberty protections. Following the attorney general's recommendations, President Trump issued Executive Order 13831 on May 3, 2018, which modified the White House Office of Faith-Based and Neighborhood Partnerships and directed agencies to establish liaisons for faith and opportunity initiatives. [9][3]

    In response to the Trump administration's executive orders, the Department of Education, U.S. Department of Homeland Security, U.S. Department of Agriculture, Agency for International Development, U.S. Department of Justice, U.S. Department of Labor, U.S. Department of Veterans Affairs, and U.S. Department of Health and Human Services issued proposed regulations on January 17, 2020, to align department regulations with the stated goals of the order.[2]

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:

    “ This rule amends the regulations of the agencies listed above (“the Agencies”) to implement Executive Order 13831 of May 3, 2018 (Establishment of a White House Faith and Opportunity Initiative). This rule provides clarity about the rights and obligations of faith-based organizations participating in the Agencies' Federal financial assistance programs and activities. This rulemaking is intended to ensure that the Agencies' Federal financial assistance programs and activities are implemented in a manner consistent with the requirements of Federal law, including the First Amendment to the Constitution and the Religious Freedom Restoration Act.[1][10] ”

    Summary of provisions

    The following is a summary of the provisions from the rule's entry in the Federal Register:[2]

    “ These NPRMs proposed to do the following:
    • Remove the notice-and-referral requirements that were required of faith-based organizations but were not required of other organizations;
    • Require the Agencies' notices or announcements of award opportunities and notices of awards or contracts to include language clarifying the rights and obligations of faith-based organizations that apply for and receive Federal funding. ED, DHS, USDA, DOJ, DOL, HUD, VA, and HHS proposed specific language in these notices to clarify that, among other things, a faith-based organization may apply for awards on the same basis as any other organization, the Agencies will not discriminate in selection on the basis of the organization's religious exercise or affiliation, a participating faith-based organization retains its independence and may carry out its mission consistent with—and may be able to seek an accommodation under—religious freedom protections in Federal law, and a faith-based organization may not discriminate against beneficiaries on certain religious bases;
    • Clarify that accommodations are available to faith-based organizations under existing Federal law and directly reference the definition of “religious exercise” from RFRA;
    • Update the prohibitions against the Agencies (and, for some Agencies, their intermediaries) discriminating in selection and disqualifying an organization, so as to prohibit such conduct on the basis of religious exercise and affiliation;
    • Update the definition of “indirect Federal financial assistance” to align more closely with the Supreme Court's decision in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), by removing the requirement that beneficiaries have at least one secular option;
    • Clarify the existing provision that a faith-based organization participating in an indirect Federal financial assistance program or activity need not modify its program to accommodate a beneficiary, so that it expressly states that such an organization need not modify its policies that require attendance in “all activities that are fundamental to the program;”
    • Clarify that faith-based organizations participating in Agency-funded programs shall retain their autonomy, right of expression, religious character, and independence;
    • Clarify that none of the guidance documents that the Agencies or their intermediaries use in administering the Agencies' financial assistance shall require faith-based organizations to provide assurances or notices where similar requirements are not imposed on secular organizations, and that any restrictions on the use of grant funds shall apply equally to faith-based and secular organizations;
    • Clarify that faith-based organizations need not remove, conceal, or alter any religious symbols or displays;
    • Clarify the standard for permissible discrimination on the basis of religion with respect to employment or board membership, as relevant;
    • Clarify the methods that can be used to demonstrate nonprofit status;
    • Update the terminology to refer to “faith-based organizations,” not “religious organizations;” and
    • Clarify that the Agencies and their intermediaries cannot advantage or disadvantage faith-based organizations affiliated with historic or well-established religions or sects in comparison with other religions or sects.[10]
    		 ”

    Significant impact

    See also: Significant regulatory action

    The Office of Management and Budget (OMB) deemed this rule significant pursuant to Executive Order 12866. An agency rule can be deemed a significant rule if it has had or might have a large impact on the economy, environment, public health, or state or local governments. The term was defined by E.O. 12866, which was issued in 1993 by President Bill Clinton.[1]

    Text of the rule

    The full text of the rule is available below:[1]

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 Federal Register, "Equal Participation of Faith-Based Organizations in the Federal Agencies' Programs and Activities," December 17, 2020
    2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 Federal Register, "Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Direct Grant Programs, State-Administered Formula Grant Programs, Developing Hispanic-Serving Institutions Program, and Strengthening Institutions Program," January 17, 2020
    3. ↑ 3.0 3.1 Federal Register, "Establishment of a White House Faith and Opportunity Initiative," May 8, 2018
    4. ↑ Federal Register, "Establishment of White House Office of Faith-Based and Community Initiatives," January 31, 2001
    5. ↑ Federal Register, "Equal Protection of the Laws for Faith-Based and Community Organizations," December 16, 2002
    6. ↑ Federal Register, "Participation in Education Department Programs by Religious Organizations; Providing for Equal Treatment of All Education Program Participants," June 4, 2004
    7. ↑ Federal Register, "Amendments to Executive Order 13199 and Establishment of the President's Advisory Council for Faith-Based and Neighborhood Partnerships," February 9, 2009
    8. ↑ Federal Register, "Fundamental Principles and Policymaking Criteria for Partnerships With Faith-Based and Other Neighborhood Organizations," November 22, 2010
    9. ↑ Federal Register, "Promoting Free Speech and Religious Liberty," May 9, 2017
    10. ↑ 10.0 10.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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