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Privately Provided Equitable Services: Root out Unconstitutional 'Secular, Neutral, and Nonideological' Restrictions from Education Law. Issue Brief

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Title: Privately Provided Equitable Services: Root out Unconstitutional 'Secular, Neutral, and Nonideological' Restrictions from Education Law. Issue Brief
Language: English
Authors: Nicole Stelle Garnett, Sean Tehan, Manhattan Institute (MI)
Source: Manhattan Institute for Policy Research. 2025.
Availability: Manhattan Institute for Policy Research. 52 Vanderbilt Avenue, New York, NY 10017. Tel: 212-599-7000; Fax: 212-599-3494; Web site: http://www.manhattan-institute.org
Peer Reviewed: N
Page Count: 15
Publication Date: 2025
Document Type: Reports - Descriptive
Education Level: Elementary Secondary Education
Descriptors: Federal Legislation, Educational Legislation, Equal Education, Public Schools, Private Schools, Elementary Secondary Education, Students with Disabilities, Religion, Constitutional Law, Religious Discrimination, Religious Organizations, Court Litigation, Federal Regulation
Laws, Policies and Program Identifiers: Elementary and Secondary Education Act, Individuals with Disabilities Education Act, First Amendment, Lemon v Kurtzman, Establishment Clause
Abstract: Several provisions of federal education law, including the Elementary and Secondary Education Act of 1965 (ESEA) and the Individuals with Disabilities Education Act (IDEA), require public school districts to provide certain educational services to students attending private schools on an "equitable" basis. Both ESEA and IDEA give districts the option of providing these services "directly" or by contracting with a public or private entity. Both further require federally funded educational services to students in private schools to be "secular, neutral, and nonideological," even when they are provided by a private contractor. In "Carson v. Makin" (2022), the U.S. Supreme Court held that the First Amendment's prohibition on religious discrimination in public benefit programs applies with equal force to laws that exclude religious activities and instruction from public benefit programs as to laws that categorically exclude religious organizations from them altogether. On April 9, 2025, President Trump directed the heads of all federal agencies to identify and cease enforcing any regulations that run afoul of 10 recent U.S. Supreme Court decisions, including "Carson v. Makin." In the spirit of this order, the Department of Education should take immediate action to clarify that the "secular, neutral, and nonideological" restriction on the services provided by private third-party providers under ESEA and IDEA is unconstitutional and will not be enforced. It should further undertake a comprehensive audit of all federal education laws and regulations to identify other rules that disfavor religion in contravention of "Carson v. Makin" and make clear that these requirements also will not be enforced. Congress should take immediate steps to remove them from federal law. This paper includes an appendix with model federal legislation language to accomplish this end.
Abstractor: ERIC
Entry Date: 2025
Accession Number: ED676224
Database: ERIC
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  Data: Privately Provided Equitable Services: Root out Unconstitutional 'Secular, Neutral, and Nonideological' Restrictions from Education Law. Issue Brief
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  Data: <searchLink fieldCode="AR" term="%22Nicole+Stelle+Garnett%22">Nicole Stelle Garnett</searchLink><br /><searchLink fieldCode="AR" term="%22Sean+Tehan%22">Sean Tehan</searchLink><br /><searchLink fieldCode="AR" term="%22Manhattan+Institute+%28MI%29%22">Manhattan Institute (MI)</searchLink>
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  Data: Manhattan Institute for Policy Research. 52 Vanderbilt Avenue, New York, NY 10017. Tel: 212-599-7000; Fax: 212-599-3494; Web site: http://www.manhattan-institute.org
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  Data: Several provisions of federal education law, including the Elementary and Secondary Education Act of 1965 (ESEA) and the Individuals with Disabilities Education Act (IDEA), require public school districts to provide certain educational services to students attending private schools on an "equitable" basis. Both ESEA and IDEA give districts the option of providing these services "directly" or by contracting with a public or private entity. Both further require federally funded educational services to students in private schools to be "secular, neutral, and nonideological," even when they are provided by a private contractor. In "Carson v. Makin" (2022), the U.S. Supreme Court held that the First Amendment's prohibition on religious discrimination in public benefit programs applies with equal force to laws that exclude religious activities and instruction from public benefit programs as to laws that categorically exclude religious organizations from them altogether. On April 9, 2025, President Trump directed the heads of all federal agencies to identify and cease enforcing any regulations that run afoul of 10 recent U.S. Supreme Court decisions, including "Carson v. Makin." In the spirit of this order, the Department of Education should take immediate action to clarify that the "secular, neutral, and nonideological" restriction on the services provided by private third-party providers under ESEA and IDEA is unconstitutional and will not be enforced. It should further undertake a comprehensive audit of all federal education laws and regulations to identify other rules that disfavor religion in contravention of "Carson v. Makin" and make clear that these requirements also will not be enforced. Congress should take immediate steps to remove them from federal law. This paper includes an appendix with model federal legislation language to accomplish this end.
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      – Text: English
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      – SubjectFull: Federal Legislation
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      – SubjectFull: Educational Legislation
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      – TitleFull: Privately Provided Equitable Services: Root out Unconstitutional 'Secular, Neutral, and Nonideological' Restrictions from Education Law. Issue Brief
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