choice for most

Chalkbeat explains: When can private schools discriminate against students?

PHOTO: Julia Donheiser

Over $16 million of public funds went to Indiana private schools with anti-LGBT policies last year, a recent Chalkbeat investigation found.

You might be asking: Is it legal to discriminate against those students?

The answer is yes, and that’s become a focus of the national debate about school choice. (U.S. Education Secretary Betsy DeVos fanned the flames on this one when she offered ambiguous answers about whether all students would be welcome in schools that participated in a potential national voucher program.)

But the rules are tricky when it comes to private schools, especially religious ones. Here’s your guide to understanding when, why and how private schools can say no to certain students.

Are there laws in place that prevent discrimination against LGBT students?

There is no federal legislation explicitly protecting LGBT students from discrimination in schools. That means when it comes to gender and sexuality, Title IX of the Civil Rights Act — which prohibits discrimination on the basis of sex — is the main piece of legislation in play.

Title IX applies to private schools that accept federal funds — and many private schools do, usually through school breakfast or lunch programs, grants, or funding for low-income students.

However, some schools qualify for exemptions. All-boys or all-girls schools are allowed to restrict their admissions accordingly, for example.

Most important to the discussion of LGBT students: Private schools run by religious organizations are exempt “to the extent that application of Title IX would be inconsistent with the religious tenets of the organization.” A majority of private schools in the U.S. are religious, which means that most private schools are free to discriminate against LGBT students on religious grounds.

In Indiana, Chalkbeat found that at least 27 schools that accept vouchers have policies that suggest or declare that LGBT students are unwelcome.

What about private schools that aren’t religious?

At non-religious private schools, Title IX’s nondiscrimination rules do apply. But a change in interpretation means the law offers fewer protections to transgender students than it has in the past.

Under the Obama administration, the ban on discriminating on the basis of sex was interpreted as related either to biological sex or to gender identity. However, the Trump administration rescinded guidance on that front — meaning the federal government considers Title IX to only bar discrimination based on a student’s biological sex.

Do any states have laws that prevent discrimination against LGBT students?

Many states have implemented their own nondiscrimination policies regarding sexual orientation and gender identity — in the world of public education. But no voucher programs have such policies in place, research shows.

As a result, private schools are free to turn away LGBT students while still receiving public funding for accepting vouchers.

What about other forms of discrimination?

Private schools can’t discriminate on the basis of race if they want tax-exempt status. The executive director of the Council for American Private Education, Joe McTighe, said he wasn’t “familiar with any nonprofit private schools that elect against tax-exempt status.”

If private schools accept federal funds, they are also bound to Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color or national origin.

When it comes to students with disabilities, private schools have more leeway to turn students away.

This is partly because students who choose to attend a private school — including through a voucher program — forfeit their right to a “free appropriate public education” that they are otherwise guaranteed by the Individuals with Disabilities Education Act.

Another law, the Americans with Disabilities Act, bars discrimination on the basis of disability and requires private schools to accept students so long as only “minor adjustments” are needed to accommodate them. But it exempts religiously run private schools.

Under a third law, Section 504 of the Rehabilitation Act, those protections apply to religious schools, too — if the school receives federal funds.

By the numbers

Trump’s proposed education budget: more for school choice, less for teacher training

PHOTO: Gabriel Scarlett/The Denver Post

In a similar proposal to last year, the Trump administration said Monday that it wants to spend more federal dollars on a school choice program — which includes private school vouchers — and less on after-school initiatives and teacher training.

Last year, the administration’s budget proposal was largely ignored, and many see this year’s as likely to suffer a similar fate.

The plan doubles down on the administration and its Secretary of Education Betsy DeVos’s belief that families should be able to use public money set aside for education to attend any school: public, private, charter, or virtual. It also highlights a key tension for DeVos, who praised the budget but has been sharply critical of past federally driven policy changes.

Overall, the administration is hoping to cut about 5 percent of funding — $3.6 billion — from the federal Department of Education. Keep in mind that federal dollars account for only  about 10 percent of the money that public schools receive, though that money disproportionately goes to high-poverty schools. (The budget initially sought even steeper cuts of over $7 billion, about half of which was restored in a quickly released addendum.)

The latest budget request seeks $1 billion to create a new “opportunity grants” program that states could use to help create and expand private school voucher programs. (The phrase “school voucher” does not appear in the proposal or the Department of Education’s fact sheet, perhaps a nod to the relative unpopularity of the term.) Another $500 million — a major increase from last year — would go to expand charter schools and $98 million to magnet schools.

The proposal would hold steady the funding students with disabilities through the Individuals with Disabilities Education Act.

But the request would take the axe to Title II, funding that goes toward teacher training and class-size reductions, and an after-school program known as the 21st Century Community Learning Centers. The administration has argued that both initiatives have proven ineffective. Teacher training advocates in particular have bristled at proposed cuts to Title II.

The budget is likely to get a chilly reception from the public education world, much of which opposes spending cuts and private school vouchers.

Meanwhile, the administration also put out $1.5 trillion infrastructure plan, but it doesn’t include any money specifically targeted for school facilities.

school choice word choice

The ‘V’ word: Why school choice advocates avoid the term ‘vouchers’

PHOTO: Grace Tatter
Students, parents and activists against vouchers fill a committee room at the Tennessee State Capitol.

A new poll by the pro-voucher group American Federation for Children is meant to illustrate Americans’ support for school choice. But it also offers some insight about how advocates choose how to talk about hot-button education issues.

What caught our eye was something buried in the polling memo: Voters said they narrowly opposed school vouchers, 47 to 49 percent, even though similar approaches like “education saving accounts” and “scholarship tax credits” garnered much more support.

These findings help explain why advocates of programs that allow families to use public money to pay private school tuition often avoid the word “voucher.” The website of National School Week, for instance, doesn’t feature the term, referring instead to “opportunity scholarships.” (Notably, Education Secretary Betsy DeVos, who led AFC before joining the cabinet, herself has been less shy about saying “vouchers.)

The debate on how to brand “school choice” — or to critics, “privatization” — has been long running, and Republican pollsters have advised advocates to avoid the word “voucher.”

This phenomenon may help explain the national rise of tax credit programs, which function like vouchers but usually go by a different name and have a distinct funding source. It also makes it quite difficult to accurately gauge public opinion on the policy, as small tweaks in how a question is worded can lead to very different results.

The recent AFC poll points to substantial support for “school choice,” with 63 percent of respondents supporting that concept. That’s in response to a question with very favorable wording — defining school choice as giving a parent the ability to “send their child to the public or private school which best serves their needs.”

Still, support for school choice dropped several percentage points from last year. That’s consistent with a poll from August that found support for charter schools was falling, too.

Showing how wording can matter, a 2017 survey from the American Federation of Teachers asked parents their view of “shifting funding away from regular public schools in order to fund charter schools and private school vouchers.” The vast majority were skeptical.

When school vouchers have been put up for a vote, they’ve almost always lost, including in DeVos’s home state of Michigan. Supporters and critics may get another shot this year in Arizona, where the fate of a recently passed voucher program will be on the ballot in November, barring a successful lawsuit by voucher advocates.