Discrimination 101: Vouchers, LGBT Students, and the First Amendment

By: Olivia Perry

Vice President Pence’s wife, Karen, recently made the news for accepting a part-time teaching position at a Christian private school with a controversial anti-LGBT stance. The school makes its stance very clear. Specifically, it requires prospective employees to disavow gay marriage and the trans community in a pledge: “I understand that the term ‘marriage’ has only one meaning; the uniting of one man and one woman in a single, exclusive covenant union as delineated in Scripture.”

As it turns out, these types of pledges at religious private schools are not uncommon. Many of these schools also require students to sign similar pledges. Religious private schools may also have specific statements in their student handbooks that the school refuses to admit and will expel students based on their LGBT status or the sexuality of their parents. This discrimination becomes particularly problematic when private schools with these controversial views participate in voucher programs.

Voucher programs are becoming increasingly popular nationwide. States with voucher programs allow private schools to receive public tax dollars, if they accept qualifying low-income students. The purpose of these programs is to provide low-income students with additional educational options that they otherwise would not have. The vast majority of private schools participating in voucher programs are religious. Many maintain anti-LGBT policies. Critically, the public is essentially funding anti-LGBT rhetoric when private religious schools are permitted to participate in voucher programs.

Although most states, including North Carolina, haven’t addressed this critical flaw in voucher programs, others have tried to correct for it in different ways. Maine and Vermont do not allow religious schools to receive vouchers. Wisconsin allows students attending private schools with vouchers to refuse to participate in religious activities at their schools. Maryland requires private schools accepting vouchers to pledge that they will not discriminate against LGBT students. However, no state with a voucher program explicitly prohibits discrimination against LGBT students in its voucher antidiscrimination provision.

Justice Wynn seems to have foreseen this issue. The North Carolina Supreme Court in Hart v. State upheld the constitutionality of the state’s voucher program, known as the Opportunity Scholarship Program. However, in his short but strongly-worded dissent, Justice Wynn called the program a “cruel illusion” that only exacerbates educational inequities. He explained that as a result of vouchers, public schools may be left only with the students private schools reject because of the individual’s religious affiliation or sexual orientation.

If public schools are barred from discriminating against LGBT students in their policies, then how are private schools discriminating on the basis of sex and religion when, like public schools, they receive government funding? The short answer is, constitutionally, neither should.

Because vouchers are a form of government funding, they are also considered a form of government speech. As a result, states need to be concerned with what type of message they are sending when they provide vouchers to private schools. When a private school that discriminates against LGBT students with its acceptance policies and student handbooks receives public school dollars, the government is in effect facilitating LGBT discrimination.

The Supreme Court described this concept in Rosenburger v. Rector and Visitors of University of Virginia. There, the Court stated that “[w]hen the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” On the other hand, when the government is not itself “speak[ing] or subsidiz[ing] transmittal of a message it favor[ed] but instead expending funds to encourage a diversity of views from private speakers,” viewpoint-based restrictions are unconstitutional.

With voucher programs, there isn’t a diversity of views from private speakers, as shown by the fact that the vast majority of schools receiving vouchers are religious schools. Therefore, voucher schools are participants in a government program and effectively transmit the government’s message. Because voucher schools replace the role of public schools for students receiving vouchers, voucher schools should be seen as government actors in this context. As a result, states have the right to ensure that the schools receiving vouchers do not discriminate against LGBT students.

The Supreme Court has already concluded that laws that discriminate based on sexual orientation should be given a higher level of scrutiny. In Romer v. Evans, the Court ruled that LGBT individuals cannot be placed into a solitary class. “[A] law declaring that in general it should be more difficult for one group of citizens than for all others to seek aid from government is itself a denial of equal protection of the laws in the most literal sense.”

This same principle applies here. Vouchers are a form of government aid designed to provide low-income students with more educational options. Therefore, when private schools receive vouchers and still refuse to admit LGBT students, low-income students receiving vouchers have fewer options than their non-LGBT counterparts. Thus, discrimination against LGBT students by private schools receiving vouchers poses a significant Equal Protection issue.

As Justice Wynn foreshadowed, voucher programs have permitted state-facilitated discrimination against LGBT students. Now that the policies of numerous private schools receiving vouchers have made the news for their discriminatory policies, states must take action to ensure that this discrimination ends. Be on the lookout for my note titled Learning to Discriminate: Vouchers and Private School Policies’ Impact on Homosexual Students, which takes an in-depth look at voucher programs and discrimination against LGBT students.