The Florida Department of Education recently ended its discriminatory exclusion of a Christian college from one of its tuition assistance programs.

The Department excluded Florida Christian College (FCC) and its students from the Florida Resident Access Grant (FRAG) program, through which the state provides over $2000 each year to Florida residents attending private colleges in the state. The Department based its exclusion on FCC’s religious character. On behalf of FCC and four of its students, Alliance Defending Freedom filed a civil rights lawsuit in federal court back in March. On November 14, the Department agreed to admit FCC to the program and to stop using unconstitutional criteria to assess schools’ eligibility.

The story behind the Department’s exclusion of FCC from the FRAG program is rather curious, and reflects the continuing confusion many government officials have about the constitutional limits on including religious entities in publicly-funded programs. Back in 1979, the Florida legislature created the State Tuition Voucher (STV) program, the predecessor to FRAG. The legislature was apparently worried that it might violate the First Amendment’s Establishment Clause by including certain religious schools in the program and included a provision it thought would ensure compliance with that provision. It excluded students attending “pervasively sectarian” institutions. Unfortunately, such an exclusion was not required by the Establishment Clause, even as it was then interpreted by the Supreme Court. The Department of Education excluded a number of religious schools based upon this provision. Many of these schools subsequently persuaded the Department to admit them to the program.

In 1989, for reasons that remain unclear, the legislature eliminated the exclusion of students attending “pervasively sectarian” schools. But it added a new religion-related requirement: students could get STV grants only if they attended an institution “which has a secular purpose, so long as the receipt of state aid by students at the institution would not have the primary effect of advancing or impeding religion or result in an excessive entanglement between the state and any religious sect.” Through this requirement, the legislature was plainly trying to comply with the First Amendment’s Establishment Clause as interpreted by the Supreme Court in its 1971 decision in Lemon v. Kurtzman. But they botched it. The Court had said that the Establishment Clause required government programs themselves – not the participants in the programs – to have a secular purpose. The legislature essentially told the Department to ask the wrong question. In addition, the Supreme Court has made it abundantly clear since no later than 1986 that the Establishment Clause imposes no significant limits on the power of government to include students at religious schools – even seminaries – in higher education tuition assistance programs open to secular and religious schools alike.

Making matters worse, the Department misinterpreted and misapplied the statutory “secular purpose” requirement. First, on the application form it sent to colleges, it asked them not whether they had a secular purpose, but whether they were “secular” or “non-secular.” FCC’s many purposes include secular ones, but it was unwilling to declare itself to be “secular.” The Department relied heavily upon FCC’s unwillingness to deem itself “secular” when it excluded FCC from FRAG program. Second, the Department essentially interpreted the “secular purpose” requirement to be an exclusion of “pervasively sectarian” schools, i.e., schools that are “too religious.” Third, the Department did not apply its own test consistently or accurately, admitting a number of intentionally religious schools to the FRAG program while making a series of factual errors about those schools’ attributes.

Even more curiously, the Florida legislature included the religious restriction in only two of its over 15 state tuition assistance programs. As a consequence, FCC itself was able to participate in four programs while being excluded from FRAG. There is nothing unique or different about the FRAG program compared to the others that makes its religious exclusion appropriate or necessary. The Florida legislature simply has not been consistent or coherent in how it handles religious schools in its various tuition assistance programs. It behooves the legislature to fix the mess it made and to issue clear guidance to the Department of Education so that it avoids constitutional violations in the future. In the meantime, we are grateful that the Department finally did the right thing and stopped discriminating against FCC and its students.

This post originally appeared here.