Scholars show how to challenge voucher discrimination

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.

Photo of Preston Green
Preston Green. (University of Connecticut photo).

“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.

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School vouchers and a Supreme Court nominee

Here’s a topic that hasn’t come up but probably should in the debates over Amy Coney Barrett’s likely tenure on the U.S. Supreme Court: public funding of private schools that discriminate.

Barrett served from 2015-17 on the board of Trinity School at Greenlawn, a South Bend Catholic school, the New York Times reported. Trinity had a policy during Barrett’s time on the board that effectively prohibited same-sex couples from enrolling their children in the school, according to the Times.

Amy Coney Barrett (University of Notre Dame photo)

That would seem to cast doubt on Barrett’s claim in her confirmation hearing that she had “never discriminated on the basis of sexual preference” and would not do so. It also raises policy questions about whether publicly funded institutions should practice discrimination.

In the two years that Barrett was on the Trinity board, the school received over a half million dollars in Indiana voucher program funding. Since the start of the state’s voucher program, Trinity School at Greenlawn has received nearly $2 million in state support for student tuition.

Indiana established its school voucher program in 2011, providing state funding to help families pay tuition at private schools, most of which are religious schools. Students qualify for the program by family income and other factors.

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Court broadens ‘ministerial exception’ in blow to teachers

The Supreme Court ruled Wednesday that teachers in Catholic schools fall under the “ministerial exception” to anti-discrimination laws, potentially stripping protection from thousands of church employees.

Supreme Court Building

Supreme Court Building

The ruling could be a legal setback for counselors and a teacher at Indianapolis high schools who sued the local archdiocese after losing their jobs for being in same-sex marriages, although it’s too early to know for sure.

In a 7-2 decision, the court ruled that two California elementary-school teachers performed “vital religious duties” even though they were lay teachers who were primarily responsible for teaching general academic subjects.

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Court removes one hurdle on discrimination

The Supreme Court delivered a huge victory for LGBTQ rights Monday. It remains to be seen whether it will be enough to help teachers and counselors who were fired by Indianapolis Catholic schools for their sexual orientation.

Supreme Court Building

Supreme Court Building

In a landmark 6-3 decision, the court ruled that Title VII of the Civil Rights Act of 1964 prohibits job discrimination against gay or transgender employees.

“I think it’s a really big deal,” said Suzanne Eckes, an education law professor at Indiana University. “It’s just wonderful news for equity.”

The opinion, written by Justice Neil Gorsuch and joined by conservative Chief Justice John Roberts and the four liberal justices, concluded that the law’s ban on discrimination by sex applies to sexual orientation and gender identity.

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Court could weaken discrimination protections

Counselors and teachers at Indianapolis Catholic high schools looked to have a solid case when they sued after being fired for being married to same-sex partners. But the legal ground may be shifting beneath them.

Arguments heard Monday by the U.S. Supreme Court could result in religious schools being given a blank check for widespread employment discrimination.

Supreme Court Building

“It’s important,” said Dan Conkle, a constitutional law expert at the Indiana University Maurer School of Law. “And depending on how the court decides, it could have pretty dramatic implications for parochial school teachers.”

The case heard Tuesday involves two fifth-grade teachers at California Catholic schools who said they were unjustly fired, one because of her age and the other because she needed time off for cancer treatment. The schools countered with the so-called ministerial exception, which says ministers and others who perform important religious functions aren’t covered by anti-discrimination laws.

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Bill to ban school voucher discrimination should be heard

Legislators have filed around 900 bills in the current session of the Indiana General Assembly, and there won’t be time in the short session to hear them all. One that should be a priority is Senate Bill 250, Sen. J.D. Ford’s proposal to ban discrimination by schools that receive state funding.

Sen. J.D. Ford, head shot

Sen. J.D. Ford

The legislation pertains to Indiana’s $161 million voucher program, which funds tuition scholarships for students who attend private schools, nearly all of which are religious schools. Some of those schools discriminate against students and employees based on sexual orientation, disability and other factors.

“No Hoosier should have their own tax dollars used against them in a discriminatory way,” Ford, an Indianapolis Democrat, said in a news release.

The issue gained attention when guidance counselors and a teacher at two Indianapolis Catholic high schools lost their jobs after church officials discovered they were in same-sex marriages. Those two schools, Roncalli and Cathedral, have received over $12 million in state voucher funding in the past six years.

Also, some voucher-funded Christian schools condemn homosexuality and require families and employees to sign “statements of faith.” Some voucher schools do not serve students with disabilities.

SB 250 would bar state voucher funding for schools that discriminate by disability, race, color, gender, gender identity or expression, sexual orientation, marital status, national origin, religion, or ancestry. (Current law prohibits discrimination by race, color or national origin).

At a news conference to promote the bill, Ford was joined by Superintendent of Public Instruction Jennifer McCormick and Dominic Conover, a 2019 Roncalli High School graduate who said school officials warned him to be silent after he organized support for the school’s counselors.

McCormick said it’s contrary to Hoosier hospitality for the state to fund schools that turn away students and staff because of who they are and whom they love.

“We’re talking about Indiana being a state where people want to work and live,” she said. “That should be for everyone who wants to come here and feel accepted and respected.”

Ford introduced a similar bill as a freshman legislator in 2019, but it didn’t get a hearing. Why might this year be different? For one thing, Ford said he has developed relationships that will help him make the case for the bill. For another, the issue has received a lot of attention, with fired Roncalli guidance director Shelly Fitzgerald the subject of media stories and an appearance on the “Ellen” show.

Religious conservatives have a lot of clout with the General Assembly, and it’s likely that the Republicans who control the House and Senate would like for the bill to die a quiet death.

But lawmakers also answer to their constituents. If you think state-funded discrimination is an issue that the legislature should at least discuss, contact your representatives and let them know.

Indiana schools that discriminate receive public funding

It’s great that the firing of gay teachers by Indiana Catholic schools is generating national attention – and a great deal of outrage. But the bigger issue is that Hoosier taxpayers are subsidizing this discrimination through the state’s voucher program.

And the incidents in the news, involving three Indianapolis high schools, are just the tip of the iceberg.

Schools under the purview of the Archdiocese of Indianapolis are now being required to terminate teachers who are in a same-sex marriage, and those schools received $38.6 million in voucher funds in the 2018-19 school year, according to Indiana Department of Education data.

But Indiana law lets private schools that receive vouchers discriminate against against students and their families as well as against employees. As Indiana University professor Suzanne Eckes and other scholars have shown, voucher programs in Indiana and other states allow schools to exclude students on the basis of religion, sexual orientation, gender identity and disability.

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Legislators OK with discrimination

Indiana House Republicans lined up four-square in favor of discrimination last week. They rejected a proposal to prohibit private schools that receive state funding from discriminating against students and staff because of disability, sexual orientation or gender identification.

The House voted 62-33 against the proposal, offered by Rep. Dan Forestal as an amendment to House Bill 1641, which deals with charter school issues. Sixty-two Republicans voted against it. Voting in favor were 32 Democrats and one brave Republican, Rep. Sean Eberhart of Shelbyville.

The proposal was sparked by controversy over Indianapolis Roncalli High School’s suspension of longtime counselor Shelly Fitzgerald after school officials discovered she was married to a woman. Roncalli has been receiving about $1.5 million per year in voucher funding. Indiana spent $154 million last year on tuition vouchers for private schools, nearly all of which are religious schools.

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Weak laws allow discrimination in voucher, charter schools

School voucher programs and charter schools practice discrimination in enrollment and hiring because they can, according to a recent policy brief from the National Education Policy Center. Federal and state laws permit discrimination in private schools that receive public funding. And charter schools are held to looser standards than traditional public schools when it comes to selecting students.

The policy brief, by education law scholars Julie Mead of the University of Wisconsin and Suzanne Eckes of Indiana University, examines the legal landscape that allows for discrimination and recommends changing laws to ensure publicly funded schools are open to all.

“To the extent that states have determined that voucher programs and charter schools are part of the menu of educational opportunities” they write, “those programs must also ensure equitable access to both students and employees. To do anything else is to return to the days of separate and inherently unequal education.”

Mead and Eckes identify three factors that allow for discrimination.

  • Federal law largely prohibits discrimination in public spaces but may allow it in private spaces such as private schools, even those that receive public funding via vouchers.
  • Private schools and charter schools design their own programs and may not offer adequate services for certain students: for example, students with disabilities and English learners.
  • State legislatures have taken a hands-off approach to discrimination in voucher or voucher-like programs, which now exist in 28 states.

In Indiana, for example, voucher schools are barred from discriminating by race, color or national origin but may discriminate by religion, sexual orientation, gender identity, disability status or other factors.

The policy brief cites the example of Indianapolis Roncalli High School, which indefinitely suspended a guidance counselor after learning she had married her longtime female partner. The school has received almost $6 million in state voucher funding over the past four years.

It also points to reports that Indiana voucher schools refuse to enroll students because of their religion or sexual orientation and research that finds many charter schools are racially homogenous and enroll fewer special-education students and English learners than public schools.

Mead and Eckes recommend four changes:

  • Congress should prohibit discrimination by schools that receive public funding.
  • Federal agencies should consider withholding funds from schools that discriminate.
  • States should revise voucher laws to ban discrimination by sexual orientation, gender identity, disability, first language and other factors.
  • States should strengthen laws to ensure that charter schools are accessible to all students.

Vouchers and charter schools may have been created with good intentions, Mead and Eckes write, but “we can ill afford to experiment with equity and access in programs funded by public dollars. Insisting that publicly funded programs ensure access to the entirety of the public should be beyond argument.”

Roncalli flap could prompt debate on vouchers and discrimination

Hats off to State Rep. Dan Forestal. Responding to a flap over Roncalli High School’s threat to fire a popular guidance counselor, the Indianapolis Democrat said Wednesday that he will introduce legislation to outlaw discrimination by private schools that receive voucher funding from the state.

There’s not much chance the proposal will become law, but it could spark debate about one of the most offensive aspect of Indiana’s voucher program: Schools that receive millions of dollars in state funding are free to discriminate in employment and in the enrollment of students.

The controversy at Roncalli, a Catholic high school in Indianapolis, involves Shelly Fitzgerald, a longtime counselor who was placed on paid leave after school and church officials learned she had been married to a woman since 2014. She told news media that school officials said she could dissolve her marriage, resign, be fired or keep quiet and leave her job at the end of the year.

Roncalli students have received almost $6 million in state tuition vouchers in the past four years, according to reports from the Indiana Department of Education.

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