It’s widely known that private schools that receive state-funded tuition vouchers may discriminate against students and families on the basis of religion, sexual orientation and gender identity. Shouldn’t that be illegal? A law journal article suggests it may be.
The article, “Covenants to Discriminate,” argues that voucher programs like Indiana’s could be vulnerable to a legal challenge focused on a state’s role in supporting discrimination. Preston Green of the University of Connecticut, Julie Mead of the University of Wisconsin-Madison, and Suzanne Eckes of Indiana University Bloomington are authors of the article, published in the New Hampshire Law Review.
Green, the lead author, said supporters promote vouchers to expand opportunities for students and families. But, as the programs expand, state officials often enable them to deny those benefits to entire groups of students.
“Vouchers were sold as program that all could benefit from, but the anti-LGBT provisions give the lie to that statement,” Green said.
Voucher programs come in a variety of forms, but all provide ways for states to provide full or partial tuition funding to private schools for qualifying students. Indiana’s program, established in 2011, serves over 36,000 students in more than 300 private schools, nearly all of them religious schools, at a cost of $172.8 million. Lawmakers want to expand the program and extend it to upper-income families.
Articles by Eckes and Mead, as well as news media reports, have shown that some voucher schools refuse to admit students who are gay or transgender, students with disabilities, and students whose families won’t sign statements that endorse religious dogma. But the Constitution typically doesn’t address discrimination by private parties, such as private schools. A challenge would have to show that “state action” is depriving students of their rights to equal protection or due process of law.
Green, Mead and Eckes examine several theories of state action and identify two that seem promising. One is that states are, in effect, compelling private-school actions that include discriminating against students. The other is that the states enforce practices and policies that include discrimination.
Evidence could come from state laws that establish and govern the voucher programs. For example, Indiana requires private schools that accept vouchers to register with the state and share their enrollment policies. Attorneys could argue that, by approving schools with discriminatory policies, the state is in effect compelling discrimination.
Indiana’s voucher law also says the state “may no in any way regulate the educational program” of participating schools. It says the schools “may not discriminate on the basis of race, color, or national origin,” sending a clear signal that discrimination on other grounds will be supported.
Green, Mead and Eckes cite a debate on voucher discrimination in the Florida legislature, in which lawmakers defended the right of religious schools to set their own admissions policies. “I’m a champion of the G-O-S-P-E-L. The gospel of Jesus Christ,” one legislator declared.
“This is no longer neutrality,” Green said. “It’s just a basic statement that ‘schools can discriminate, and we have no problem with it.’”
A similar debate took place in the Indiana House in February 2019, when a Democratic member introduced an amendment to prohibit discrimination by schools that receive vouchers. Republicans defended the schools, with one theatrically declaring that Christian congregations should be able to “live out their sincerely held moral beliefs that they have held for thousands of years.”
A Democratic state senator introduced bills to ban discrimination in Indiana voucher schools in 2019 and 2020, but they were not granted a hearing.
When it comes to the idea that states enforce discrimination, the legal scholars set forth a strategy built on Shelley v. Kraemer, a 1948 U.S. Supreme Court that blocked state enforcement of property deed covenants that prevented Black people from living in certain neighborhoods. They argue that, much as the courts were used to enforce housing discrimination, states have created a right to public funding of private education but carry out a program that denies the benefit to gay and transgender students.
“In effect, the argument would be that anti-LGBT policies are the restrictive covenants of voucher program participation,” they write – hence the title “Covenants to Discriminate.”
Voucher supporters would argue that LGBT students aren’t being denied an education because they can attend other schools. Green said supporters of racially segregated schools made the same argument.
“I’m so offended hearing that as a Black person,” Green said. “The discriminatory treatment we’re seeing, there’s similarities to the treatment of Black kids in the ‘50s and ‘60s.”
Green acknowledged that challenging discrimination could be difficult at a time when the Supreme Court has moved sharply to the right. It ruled that a Montana school voucher program couldn’t exclude religious schools. And the newest justice, Amy Coney Barrett, was once a board member of a South Bend school that received voucher funding and reportedly practiced discrimination.
On the other hand, federal courts, including the Supreme Court, have increasingly recognized that gay and transgender people have legal rights, something that was hard to imagine not long ago.
“Right now, the way the Supreme Court is going … there’s a good chance they may find in favor of these private institutions,” Green said. “But you make the argument anyway and hope for the best. Sometimes you just have to do the right thing.”