School With Ties to Barrett Gets Voucher Money, as Report Cites Anti-LGBTQ Climate

By Mark Walsh — October 21, 2020 6 min read
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A Christian school in South Bend, Ind., for which U.S. Supreme Court nominee Amy Coney Barrett served on the board of trustees for nearly three years has received hundreds of thousands of public dollars from Indiana’s private school voucher program, but a new report says it has long had a climate that discriminates against LGBTQ people and their children.

The attention to the school comes at a time when some courts and legislatures are grappling with whether private religious schools should have to abide by nondiscrimination requirements, a question that could eventually work its way up to Barrett if she is confirmed to the high court.

The Associated Press reported Monday that Trinity Schools Inc., a private institution with schools in three states, effectively barred admission to children of same-sex parents and made clear that openly gay and lesbian teachers weren’t welcome in its classrooms.

Barrett was a trustee of the organization from 2015 to 2017, and some of her children still attend Trinity School of Southlawn in South Bend. It was unclear what role Barrett may have played, if any, in maintaining what the AP described as long-term practices that were inhospitable to LGBTQ families. Democrats on the Senate Judiciary Committee declined to ask Barrett about her board service or about her religious beliefs in general during confirmation hearings this month.

The AP quoted a 2018-19 enrollment agreement for Trinity Schools, which also has campuses in Minnesota and Virginia, that says “the only proper place for human sexual activity is marriage, where marriage is a legal and committed relationship between one man and one woman.” The AP spoke to more than two dozen former students or workers at Trinity Schools who described their experiences.

Barrett has not discussed her role with Trinity Schools in any detail. In her Judiciary Committee questionnaire, she said that as a board member, “I attended and participated in meetings of the board.”

Jon Balsbaugh, the president of Trinity Schools, told the AP in an email that Barrett was not involved in the formulation or passage of any policies pertaining to “homosexuality.” The AP reported that he said Barrett served on the Trinity board from July 2015 to March 2017, and that he denied that the school’s leadership considered or formulated any new policy related to homosexuality during that time.

A check by Education Week found that Trinity’s South Bend school has participated in Indiana’s Choice Scholarship, which was created in 2011, since its second year. During the years Barrett was on the Trinity board, the South Bend campus had about 60 voucher students each year, and received between $261,000 to $281,000 over those three years, according to the program’s annual reports with the Indiana Department of Education.

In the 2019-20 school year, Trinity School of Greenlawn enrolled 85 program recipients and received nearly $402,000, the state report said.

The state requires participating schools to assure that they “will not discriminate against any potential students based on race, color, national origin, or disability, and will follow the school’s admissions policy in regard to Choice Scholarship students.”

The requirement does not cover sexual orientation, which is not protected under Indiana law, or such factors as parents’ marital status or whether they married same-sex partners. The program is funded by a tax credit for contributions to scholarship-granting organizations.

Balsbaugh told AP that “Trinity Schools does not unlawfully discriminate with respect to race, color, gender, national origin, age, disability, or other legally protected classifications under applicable law, with respect to the administration of its programs.”

He did not respond to an email from Education Week seeking comment.

Cases and Controversies

The scrutiny of Trinity Schools comes at a time when there is an intense debate about whether religious organizations have legitimate reasons for exemption from state and federal anti-discrimination policies based on their beliefs.

On Nov. 4, the Supreme Court will hear arguments in Fulton v. City of Philadelphia, a case about whether the city must permit a Roman Catholic social service agency to keep its longtime role in the foster care system despite its refusal to consider same-sex couples as foster parents.

The decision in the case, which Barrett will participate in if she is confirmed by the Senate next week as Republicans hope, could settle some aspects of the tug-of-war between nondiscrimination policies and religious liberty interests.

Even more specifically, the question of whether religious schools should be able to participate in public programs such as school vouchers if they have exclusionary policies has arisen in at least two court cases and in one state legislature.

In January, the Orlando Sentinel found that 83 private schools participating in Florida’s various voucher and tax-credit programs had written policies barring attendance by LGBTQ students or, in some cases, the children of same-sex couples. Florida lawmakers considered anti-discrimination measures to cover such bias, but the measures did not pass.

In North Carolina, several parents sued in state court in July claiming that the state’s Opportunity Scholarship program aids private schools that discriminate on the basis of religion and sexual orientation. The case is pending.

And in a case filed in federal district court in Maryland, a Pentecostal Christian church that operates a private Christian school has sued state education officials for its exclusion from the state’s BOOST program of scholarships for low-income students. The state cited language in Bethel Christian Academy’s handbook that the school “supports the biblical view of marriage defined as a covenant between one man and one woman” and that “faculty, staff, and students are required to identify with, dress in accordance with, and use the facilities associated with their biological gender.”

President Donald Trump’s administration has filed a statement of interest in the Maryland case, arguing that there is no evidence the school ever denied admission or expelled a student based on sexual orientation.

“By penalizing Bethel for its professed beliefs in the biblical view of marriage and that God makes people male or female, and for expecting students to abide by these principles at school, [the state] defendants have engaged in presumptively unconstitutional viewpoint discrimination,” the Trump administration’s filing said.

That case is pending as well.

A 1983 Supreme Court Decision

Suzanne E. Eckes, an education professor at the University of Indiana, Bloomington, said the key issue in the debate is, “Do we want public money used to support private schools that are allowed to discriminate?”

Her answer is no. “We should ensure that all students are given equal educational opportunities,” she said.

Eckes and a professional colleague, Julie F. Mead, a professor and associate dean at the School of Education at the University of Wisconsin, Madison, have written widely on their view that a key Supreme Court decision on race and discrimination in education has some relevance for the battles over LGBTQ policies.

In 1983, the high court held that a private university and a private K-12 school that had racially discriminatory admissions policies could be denied federal tax-exempt status. The consolidated cases were Bob Jones University v. United States and Goldsboro Christian Schools v. United States.

“If you go read Bob Jones University, it’s not a case that turns on [the 14th Amendment’s] equal protection [clause], or on Title VI” of the Civil Rights Act of 1964, she said, referring to federal provisions that bar race discrimination.

“The case turns on the fact that it was contrary to U.S. public policy to discriminate in this way,” Eckes said. “You can take the precedent in Bob Jones and apply it to discrimination in schools against LBGTQ students.”

There are advocates who would take a different view than Eckes. But if the question reaches the Supreme Court, Barrett is poised to be one of the justices who decides the question.

A version of this news article first appeared in The School Law Blog.