There are many flaws in President Joe Biden’s Build Back Better plan for childcare and universal preschool. But one flaw that deserves particular attention is the detrimental impact the BBB could have on parents’ ability to choose faith-based providers.

The legislation ostensibly includes religious providers. The childcare language states, “Nothing in this section shall preclude the use of such certificates for sectarian [religious] childcare services if freely chosen by the parent.” The universal preschool language calls for states to ensure mixed-delivery options, which supporters point to as evidence that faith-based providers will be eligible.

But, like all legislation, the devil is in the details.

While those provisions sound like they would enable religious providers to participate, other language makes that a risky proposition. The BBB legislation that passed the House of Representatives on Nov. 19 says, “Childcare certificates shall be considered Federal financial assistance to the provider.” The universal preschool language states that “any program or activity that receives funds” under the program is subject to the non-discrimination provisions of several federal laws. But religious entities are currently exempt from some of those requirements due to potential conflicts with religious teachings.

According to Jennifer Daniels at the U.S. Conference of Catholic Bishops, “The Build Back Better legislation differs from other federal early childhood programs in that it treats providers as recipients of federal assistance and adds new compliance obligations without any protections for faith-based providers. Religious schools should not have to choose between retaining their religious independence and participating in childcare and preschool programs that are available to secular providers.”

On Dec. 1, a coalition of faith organizations sent Sens. Patty Murray and Richard Burr a letter expressing concerns that the legislation would “severely limit the options for parents, suffocate the mixed delivery system for child care and pre-kindergarten, and greatly restrict the number of providers available for a successful national program.” The coalition is comprised of Christian, Jewish, and Muslim organizations generally supportive of increased access to early childhood education.

One concern is the BBB language incorporating Head Start’s prohibitions against discrimination based on sex, creed, and beliefs. This could prevent religious providers from only hiring teachers who share their beliefs — including fundamental religious doctrine. It could even prohibit providers from having male and female restrooms.

The current legislation also mandates compliance with Title IX, which prohibits sex discrimination in educational institutions that receive federal funding. It is unclear how widely this would be interpreted, but it could be problematic for religious organizations. Consider the Biden Department of Justice’s decision to include sexual orientation and gender identity when enforcing Title IX, which runs counter to many religious teachings.

Since Title IX rules cover all operations of an organization that receives funds, this could affect other programs. If a church, synagogue, or mosque wants to participate in the Biden preschool plan, its other offerings, such as marriage preparation programs or men’s and women’s ministries, could be subject to Title IX.

Supporters of the Biden plan are either misinformed or disingenuous when they dismiss the concerns of religious providers. Allowing religious entities to participate isn’t helpful if the bill’s provisions make it impossible for them to do so. Many parents prefer a faith-based option for their children. In a December 2020 poll by the Bipartisan Policy Center, 53% of families who used center-based care said they chose religiously affiliated providers. This isn’t surprising since education helps shape a child’s values. For parents who follow a particular faith tradition, educating their children in it is crucial.

Providers can attempt to remain open without participating in the Biden childcare and preschool programs to protect their religious independence. But as we’ve seen in K‑12 education, it’s hard to compete with “free.” Even if parents prefer a religious option, they may be pushed into a program that abides by the program’s restrictions due to finances. This would make it difficult for religious providers to remain in operation.

The potential negative impact on faith-based early childhood care providers is one of many problems with the Biden plan. While the legislation is called BBB, the resulting landscape will not be better for the thousands of families who prefer a religious childcare option.