By: Olivia Perry<\/p>\n\n\n\n
Vice President Pence\u2019s wife, Karen, recently made the news<\/a> 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<\/a>: \u201cI understand that the term \u2018marriage\u2019 has only one meaning; the uniting of one man and one woman in a single, exclusive covenant union as delineated in Scripture.\u201d <\/p>\n\n\n\n As it turns out, these types of pledges at religious private\nschools are not uncommon. Many of these schools also require students to sign\nsimilar pledges. Religious private schools may also have specific\nstatements<\/a> in their student handbooks that the school refuses to admit and\nwill expel students based on their LGBT status or the sexuality of their\nparents. This discrimination becomes particularly problematic when private\nschools with these controversial views participate in voucher programs. <\/p>\n\n\n\n Voucher\nprograms<\/a> are becoming increasingly popular nationwide. States with voucher\nprograms allow private schools to receive public tax dollars, if they accept\nqualifying low-income students. The purpose of these programs is to provide\nlow-income students with additional educational options that they otherwise\nwould not have. The vast\nmajority<\/a> of private schools participating in voucher programs are\nreligious. Many maintain anti-LGBT policies. Critically, the public is\nessentially funding anti-LGBT rhetoric when private religious schools are\npermitted to participate in voucher programs. <\/p>\n\n\n\n Although most states, including North\nCarolina<\/a>, haven\u2019t addressed this critical flaw in voucher programs, others\nhave tried to correct for it in different ways. Maine<\/a> and Vermont<\/a> do not\nallow religious schools to receive vouchers. Wisconsin<\/a>\nallows students attending private schools with vouchers to refuse to\nparticipate in religious activities at their schools. Maryland<\/a>\nrequires private schools accepting vouchers to pledge that they will not\ndiscriminate against LGBT students. However, no state with a voucher program\nexplicitly prohibits discrimination against LGBT students in its voucher antidiscrimination\nprovision.<\/p>\n\n\n\n Justice Wynn seems to have foreseen this issue. The North Carolina Supreme Court in Hart v. State<\/a><\/em> upheld the constitutionality of the state\u2019s voucher program, known as the Opportunity Scholarship Program<\/a>. However, in his short but strongly-worded dissent<\/a>, Justice Wynn called the program a \u201ccruel illusion\u201d 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\u2019s religious affiliation or sexual orientation. <\/p>\n\n\n\n If public schools are barred from discriminating against\nLGBT students in their policies, then how are private schools discriminating on\nthe basis of sex and religion when, like public schools, they receive\ngovernment funding? The short answer is, constitutionally, neither should. <\/p>\n\n\n\n Because vouchers are a form of government funding, they are\nalso considered a form of government speech. As a result, states need to be\nconcerned with what type of message they are sending when they provide vouchers\nto private schools. When a private school that discriminates against LGBT\nstudents with its acceptance policies and student handbooks receives public\nschool dollars, the government is in effect facilitating LGBT discrimination. <\/p>\n\n\n\n The Supreme Court described this concept in Rosenburger v. Rector and Visitors of\nUniversity of Virginia<\/em><\/a>. There, the Court stated that \u201c[w]hen the\ngovernment disburses public funds to private entities to convey a governmental\nmessage, it may take legitimate and appropriate steps to ensure that its\nmessage is neither garbled nor distorted by the grantee.\u201d On the other hand, when\nthe government is not itself \u201cspeak[ing] or subsidiz[ing] transmittal of a\nmessage it favor[ed] but instead expending funds to encourage a diversity of\nviews from private speakers,\u201d viewpoint-based restrictions are\nunconstitutional. <\/p>\n\n\n\n With voucher programs, there isn\u2019t a\ndiversity of views from private speakers, as shown by the fact that the vast\nmajority of schools receiving vouchers are religious schools. Therefore, voucher\nschools are participants in a government program and effectively transmit the\ngovernment\u2019s message. Because voucher schools replace the role of public schools\nfor students receiving vouchers, voucher schools should be seen as government\nactors in this context. As a result, states have the right to ensure that the\nschools receiving vouchers do not discriminate against LGBT students. <\/p>\n\n\n\n The Supreme Court has already concluded that laws that\ndiscriminate based on sexual orientation should be given a higher level of\nscrutiny. In Romer v. Evans<\/em><\/a>, the Court ruled that\nLGBT individuals cannot be placed into a solitary class. \u201c[A] law declaring\nthat in general it should be more difficult for one group of citizens than for\nall others to seek aid from government is itself a denial of equal protection\nof the laws in the most literal sense.\u201d <\/p>\n\n\n\n This same principle applies here. Vouchers are a form of\ngovernment aid designed to provide low-income students with more educational\noptions. Therefore, when private schools receive vouchers and still refuse to\nadmit LGBT students, low-income students receiving vouchers have fewer options\nthan their non-LGBT counterparts. Thus, discrimination against LGBT students by\nprivate schools receiving vouchers poses a significant Equal Protection issue. <\/p>\n\n\n\n As Justice Wynn foreshadowed, voucher programs have\npermitted state-facilitated discrimination against LGBT students. Now that the\npolicies of numerous private schools receiving vouchers have made\nthe news<\/a> for their discriminatory policies, states must take action to\nensure that this discrimination ends. Be on the lookout for my note titled\nLearning to Discriminate: Vouchers and Private School Policies\u2019 Impact on\nHomosexual Students, which takes an in-depth look at voucher programs and\ndiscrimination against LGBT students. <\/p>\n","protected":false},"excerpt":{"rendered":" By: Olivia Perry Vice President Pence\u2019s 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: \u201cI understand that the …<\/a><\/p>\n","protected":false},"author":10,"featured_media":2509,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[6],"tags":[56,164,211,289,300,373],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2508"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=2508"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2508\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/2509"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=2508"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=2508"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=2508"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}