How far can private schools that take taxpayer-funded vouchers go in selecting students without running afoul of civil rights and antidiscrimination laws?
The answer is complicated—and less than reassuring to those concerned about the rights of students of color, LGBT students, and children with disabilities.
And it’s a question supercharged now by the Trump administration’s strong advocacy for expanding school choice and U.S. Secretary of Education Betsy DeVos’ opaque stance on the issue, especially in recent testimony before members of Congress.
This tension took center stage in a recent congressional hearing on Trump’s proposed education budget—which includes $250 million in competitive grants to fund vouchers, and to study their effects—as Democrats pushed DeVos to say whether she would prohibit federally funded vouchers from going to private schools that don’t admit certain groups of students.
DeVos did not name an instance of discrimination that would rule out a private school from participating. But she did stress that her agency would investigate any alleged civil rights violations in schools.
Federal anti-discrimination laws include protections for race, color, and national origin under Title VI, for those with disabilities under provisions of the Americans with Disabilities Act, and for gender under Title IX, among others.
In a recent panel discussion in Washington, Lindsey Burke, the director of the Heritage Foundation’s Center for Education Policy, dismissed the possibility that private schools using federally backed vouchers could racially discriminate against students.
Yet a federal program’s details matter a great deal for the application of various civil rights laws, said Art Coleman, a co-managing partner of EducationCounsel, a Washington consulting firm.
One key question is whether the private schools would be considered true “recipients” of federal funds, he noted.
“Generally, courts have attempted to glean the best indicators of congressional, legislative intent to resolve that question,” said Coleman, who previously served as a deputy assistant secretary for civil rights at the U.S. Department of Education under President Bill Clinton. “The design and the operation and the effects of any federal program that may be proposed will, therefore, likely matter … and matter a lot.”
But there’s more legal ambiguity when it comes to whether private schools can deny admissions to students based on their religion or sexual orientation, especially for schools that are participating in voucher programs funded by states.
A recent review of state statutes for voucher programs conducted by Indiana University and University of Wisconsin researchers found that no state lays out protections for all marginalized groups of students, whether based on their religion, race, ethnicity, disability, sex, or sexual orientation.
Most states only furnish explicit protections for race and ethnicity.
Leeway for Private Schools
Not a single state protects LGBT students within its voucher law’s anti-discrimination language, the researchers found.
While several voucher programs are geared solely for students with disabilities, private schools that accept vouchers can still turn away students if they do not have the means to provide for a child’s specific needs. Parents in several states must waive certain disability rights for their children under federal education law in order to participate in a special-education-specific voucher program.
But reviews of statutes and case law leave plenty of questions on what solid protections exist for different groups of students between overlapping federal and state laws, said Suzanne Eckes, a professor of education at Indiana University.
“You’d be on thin ice to say, ‘We’re a private school, and even though we’re not taking vouchers, we’re not going to admit African-Americans,’” she said.
She pointed to a 1983 Supreme Court case—Bob Jones University v. United States—in which the court ruled it was constitutional for the Internal Revenue Service to revoke the tax-exempt status of the university because it used racially discriminatory admissions policies and it prohibited interracial dating and marriage for students.
“We don’t have a similar case dealing with admissions and LGBT students,” said Eckes, one of the researchers who reviewed voucher laws.
In other instances, private, religious schools tangled with thorny issues related to how public funds are used.
In a 1997 ruling in Agostini v. Felton, the Supreme Court ruled that having public school teachers provide instruction in a private religious school (through a provision of Title I law concerning disadvantaged students) did not violate the Constitution’s prohibition on the federal government establishing an official religion or giving a marked preference to any particular religion.
And in 2002, the Supreme Court ruled in Zelman v. Simmons-Harris that an Ohio voucher program in which tuition aid went to religious schools did not violate the establishment clause.
“The Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district,” Chief Justice William Rehnquist wrote in the majority opinion.
Negative Attention
The D.C. Opportunity Scholarship Program in the nation’s capital, the only federally funded voucher program, could provide some clues as to how a broader federal school voucher program might work.
In the 2016-17 school year, about 1,200 students were awarded vouchers and 47 private schools participated.
Students using the vouchers “are not required to waive any due process rights or civil rights protections,” said Rachel Sotsky, the executive director of Serving Our Children, which administers the program. “The federal legislation creating the program specifically provides that schools participating in the program may not discriminate on the basis of race, color, sex, national origin, or religion.” However, the language governing D.C.'s vouchers doesn’t guarantee that students won’t lose certain rights under the IDEA, said Selene Almazan, the legal director of the Council of Parent Attorneys and Advocates, an advocacy group for special-needs students. “Without that assurance, we remain opposed” to the voucher program, Almazan said.
As congressional Democrats and others sharpen this line of attack on Trump and his surrogates, concern is growing among some voucher advocates that a federal push to expand private school choice is no longer an asset, but a liability.
“If you’re asking me, ‘has [Betsy DeVos] created an environment where this is becoming more and more talked about?’ Yeah,” said Robert Enlow, the president and CEO of EdChoice, a group that advocates for school choice.
“What’s sad about it is, as a result, we haven’t had the kind of positive debate I had hoped. The saddest thing to me in this political environment, is that programs that are helping kids, particularly low-income kids and often overwhelmingly children of color, are being seen as negative.”
