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.Continue reading