Under the Law: Discriminatory practices in voucher programs

Abstract

A recent case in Maryland raises the question of how state policies related to school funding apply to religious schools with discriminatory practices. A private Maryland school was denied voucher funds when the state learned that the school’s handbook required that dress codes, pronoun use, and restroom choice align with a student’s sex assigned at birth. The school sued, claiming that the policy was not discriminatory because it does not apply to student admission. Suzanne Eckes and Julie Mead consider this case in light of past cases involving school discrimination.

Keywords

education law discrimination freedom of religion First Amendment private school vouchers LGBTQ

In this month’s Under the Law column, Suzanne Eckes and Julie Mead offer insight into recent litigation. Regular columnist Julie Underwood will return in April.

Many Americans will agree that taxpayer money should not be used to support private religious schools that openly discriminate against certain kinds of students. Indeed, in all 14 of the states (plus the District of Columbia) that currently operate private school voucher programs, those programs are barred explicitly from discriminating against students on the basis of race.

However, most of those states have done little or nothing to prevent other forms of discrimination (see Eckes, Mead, & Ulm, 2016). To date, only Maryland has specifically prohibited voucher programs from discriminating against a broader range of historically marginalized student populations.

In 2019, the Maryland State Department of Education (MSDE) decided that a private religious school that employs anti-LGBTQ policies could not receive certain state funds. In turn, the school sued, alleging that the state violated its religious freedom. As we discuss in this article, this pending lawsuit — the nation’s first of its kind — will be closely watched by other states that are just beginning to grapple with similar conflicts over their voucher programs (Cramer, 2017; Donheiser, 2017).

In 2019, the Maryland State Department of Education decided that a private religious school that employs anti-LGBTQ policies could not receive certain state funds.

The Maryland lawsuit

Bethel Christian Academy, the private religious school involved in this case, had applied for and received scholarship funding for some of its low-income students through Maryland’s Broadening Options and Opportunities for Students Today (BOOST) program. Additionally, the school had received funding from two other state programs designed to provide instructional materials and help pay for facilities development at nonpublic schools where 40% or more of the students are eligible for free or reduced-price meals. At the time, these programs explicitly prohibited schools from denying students admission on the basis of their sexual orientation; subsequently, Maryland expanded its policy to prevent discrimination on the basis of gender identity or expression, as well.

For two years, starting in 2016, Bethel participated in these programs, agreeing to the antidiscrimination provisions in place. In a review of the school’s policies, however, MSDE found that Bethel’s handbook included discriminatory statements related to same-sex marriage and gender identity. The department then blocked the school from receiving support under BOOST and the other funding streams for the 2018-19 and 2019-20 academic years.

Bethel’s leaders sued the state superintendent of schools and other state officials who oversee those funds (Bethel Ministries v. Salmon, 2019), stating that the school community’s “sincerely held religious beliefs include beliefs that there are two immutable and complementary genders; that marriage is the consensual, lifelong, exclusive union of one man and one woman; and that sexual relations must be reserved for marriage.” The school also requires that dress codes, pronoun use, and restroom choice align with a student’s gender assigned at birth. School officials contend that these statements and requirements do not violate the state’s antidiscrimination policy because they do not specifically relate to student admissions. In November 2019, a federal district court judge denied the defendant’s motion to dismiss this claim, and the U.S. Department of Justice (2019) filed a Statement of Interest in support of the religious school. The case is ongoing.

Earlier litigation and current arguments

While concerns about discriminatory practices in private schools currently center on LGBTQ students, previous litigation focused mainly on racial discrimination. For example, in Norwood v. Harrison (1973), the U.S. Supreme Court struck down a state-funded textbook program that provided books to private schools that engaged in racially discriminatory practices. The Court found that ”if the school engages in discriminatory practices the State by tangible aid in the form of textbooks thereby gives support to such discrimination. Racial discrimination in state-operated schools is barred by the Constitution” (p. 464-465).

In a 1983 case that appears to bear more directly on Bethel Ministries v. Salmon, the Court considered whether a K-12 private school and a private university that practiced racially discriminatory admissions standards based on religious doctrine could still qualify as tax-exempt organizations. The private K-12 school (Goldsboro Christian Schools) generally only accepted White students, but it occasionally admitted students from racially mixed marriages if one of the parents was White. Its brief submitted to the Supreme Court included the following justification of the practice:

In Goldsboro Christian Schools we would seek to discourage any kind of social intermingling by our students that could eventually lead to intermarriage of the races and a corresponding breakdown of distinctives established by almighty God. It is our conviction that since such a breakdown is contrary to God’s plan, a co-mingling of races leading in this direction can only eventually breed racial disrespect rather than God-fearing racial respect…. It is for these reasons that Goldsboro Christian Schools does not retain an open admissions policy to blacks or to anybody else who would be unwilling to cooperate with the school in its Christian teaching and philosophy. (Goldsboro Christian Schools v. U.S., Brief, 1981, p. 13)

The private university (Bob Jones University) excluded Black applicants until 1971, but from 1971 to 1975, Black students were admitted if they were married. After 1975, unmarried Black students were permitted to enroll, but they were prohibited, based on religious doctrine, from interracial dating or marriage (Bob Jones University v. U.S., 1983).

The Internal Revenue Service (IRS) had found both Goldsboro’s and Bob Jones’ policies to be discriminatory, and it revoked the schools’ tax-exempt status. In response, Goldsboro and Bob Jones filed suit and sought a refund of their tax payments on the grounds that the IRS had abridged their religious liberty.

The Supreme Court affirmed the circuit courts’ decisions, holding that the IRS was correct that federal policy precluded tax-exempt status for private schools with racially discriminatory policies (see Mead & Eckes, 2018). According to the Court, the state has a fundamental, overriding interest in eradicating racial discrimination, which substantially outweighed whatever burden the denial of tax benefits placed on the schools’ abilities to freely exercise their religious beliefs. Likewise, the Court found there to be no violation of the Establishment Clause because the IRS policy was implemented on a neutral, secular basis (see Eckes, Mead, & Ulm, 2016).

How is this precedent likely to influence the current litigation in Bethel Ministries v. Salmon? The attorney representing Bethel Christian Academy has asserted that “[t]he Supreme Court has been very clear that there is no place in our society for religious hostility.” However, in the 1983 case, the Court held that a private religious school’s sincerely held religious beliefs can be trumped by public policy concerns that seek to ensure non-discrimination.

Religious discrimination and vouchers

Past attempts to rely on sincerely held religious beliefs to justify school segregation (and slavery and other discriminatory practices) are well documented (see Carter, 2000; Crespino, 2008; Eskridge, 2011; Haynes, 2002), but they have declined steeply since the enactment of federal and state laws that specifically prohibit racial discrimination in both public and private schools. It is unclear whether those beliefs have evolved (i.e., the given educators no longer interpret the Bible in this way), or if those school leaders have simply come to terms with the law. But in either case, it has become exceedingly rare for schools to argue openly for racial segregation on the basis of religious freedom.

In discussing Bethel Ministries v. Salmon, supporters of the school’s position often point to the 2002 decision in Zelman v. Simmons Harris, in which the Supreme Court found that voucher programs involving private religious schools do not violate the Establishment Clause. However, while that may be true, it has little bearing on the present case. Zelman merely addressed whether a state could permit religious schools to participate in a publicly funded voucher program. It did not specifically address a discrimination claim.

The Bethel case is different because the State of Maryland requires that any private school that wishes to accept public funds in the form of a voucher must be willing to accept any member of the public as a student. Much as the IRS conditions the benefit of tax-exempt status on schools’ nondiscriminatory policies and practices, Maryland has conditioned the receipt of voucher funds on nondiscriminatory policies and practices. As the Supreme Court asserted nearly 50 years ago, ”discriminatory treatment exerts a pervasive influence on the entire educational process” (Norwood v. Harrison, 1973, pp. 593-594). Maryland’s policies recognize and guard against that pervasive influence.

Other states should follow Maryland’s lead, making clear that discrimination in all its forms, and in all its taxpayer-funded educational programs, is contrary to the public interest.

References

Bethel Ministries v. Salmon, Complaint, 1:19-cv-01853-ELH (D. MD 2019).

Bob Jones University v. U.S., 461 U.S. 574 (1983).

Carter

(2000). God’s name in vain: The wrongs and rights of religion in politics. New York, NY: Basic Books.

Cramer

(2017). 14 percent of U.S. schools accepting vouchers have anti-LGBT policies, according to a new investigation. Chalkbeat.

Crespino

(2008). Civil rights and the religious right. In Schulman

B.J.

Zelizer

J.E.

(Eds.), Rightward bound: Making America conservative in the 1970s (pp. 90–97). Cambridge, MA: Harvard University Press.

Donheiser

(2017). Choice for most: In nation’s largest voucher program, $16 million went to schools with anti-LGBT policies. Chalkbeat.

Eckes

Mead

Ulm

(2016). Dollars to discriminate: The (un)intended consequences of school vouchers. Peabody Journal, 91 (4), 537–558.

Eskridge

W.N.

(2011), Noah’s curse: How religion often conflates status, belief, and conduct to resist antidiscrimination norms. Georgia Law Review, 45 (3), 657–720.

Goldsboro Christian Schools v. U.S., Brief, 1981 U.S. S. Ct. Briefs 1354 (1981).

10.

Haynes

(2002). Noah’s curse. The biblical justification of American slavery. New York, NY: Oxford University Press.

11.

Mead

Eckes

(2018, December). How school privatization opens the door for discrimination. Boulder, CO: National Education Policy Center.

12.

Norwood v. Harrison, 413 U.S. 455 (1973).

13.

U.S. Department of Justice (2019, November 26). United States files brief explaining that Maryland improperly excluded christian school from scholarship program [Press release]. Washington, DC: Author.

14.

Zelman v. Simmons-Harris, 536 U.S. 639 (2002).