Private voucher schools and the First Amendment right to discriminate.

• Author: Kavey, Michael
• Position: Case Note

INTRODUCTION

At the end of its 2001 Term, the Supreme Court settled one of the most contentious educational debates in recent history, ruling in Zelman v. Simmons-Harris that the inclusion of religious schools in a state school voucher program did not violate the Establishment Clause of the Constitution. (1) There are, however, complex constitutional questions about vouchers that linger in Zelman's wake. This Note addresses one such issue that has only just begun to receive scholarly attention: Can states require private voucher schools--including religious schools--to comply with antidiscrimination policies, or would the enforcement of those policies violate the First Amendment rights of the schools? (2) For example, could a state require a private school to admit racial minorities, women, and gays and lesbians as a condition for eligibility in a state voucher program? What if the school administrators object on principle--perhaps religious principle--to racial integration, coeducational schooling, or homosexuality? Doesn't the First Amendment protect the schools' views?

The Supreme Court's jurisprudence does not provide easy answers to these questions, and the relevant body of case law is inconsistent. This Note seeks to make sense of the doctrine and to demonstrate that, as applied to private voucher schools, antidiscrimination laws can--and should--survive a First Amendment challenge. (3)

Part I provides a brief overview of the current status of voucher laws and proposals, and discusses the opposition of civil rights organizations to these laws. Part II then analyzes the free speech problems that may arise if states require voucher schools to adhere to antidiscrimination norms. I argue first that voucher programs are a form of "government speech through private actors," and that in such cases the Free Speech Clause does not preclude states from making viewpoint-based distinctions. The remainder of Part II deals with the possibility that courts will reject this analysis. I discuss the various constitutional tests to which courts may subject antidiscrimination requirements, and I argue that antidiscrimination policies should survive any of them. Because the Free Speech Clause poses the most complex problems for antidiscrimination policies, the bulk of the Note centers on this issue.

Part III addresses issues raised by the Free Exercise and Establishment Clauses, and argues that religious voucher schools can also be bound to antidiscrimination policies without violating the schools' First Amendment freedoms. The only exception would be for clerical teacher employment disputes at religious schools; such suits are nonjusticiable due to a mixture of Free Exercise and Establishment Clause concerns. (4)

1. VOUCHER SCHOOLS AND THE OPPOSITION OF CIVIL RIGHTS GROUPS: AN OVERVIEW

   Though programs may differ in many ways, the basic structure of a voucher program is simple: The state offers parents--typically only low-income parents--government vouchers that can be used to pay for their children's education at eligible private schools within the state. The state pays for the vouchers with the public tax dollars that would otherwise pay for those students' public education. The flow of money from the government to the private schools is indirect: The voucher money passes first into the hands of parents, who then direct the funds to the private schools of their choice. (5)

   The voucher movement has produced odd coalitions. Some liberals and advocates for minority youth, frustrated by the failures of public schools, have joined with conservatives eager to secure public funding for religious education to form a unique and diverse political coalition. In opposition stand mainstream civil rights groups, teachers' unions, and suburban parents wishing to maintain the status quo. (6)

   Advocates claim that vouchers are one solution to the failures of public education and that they rightly give poor parents the same options that wealthy parents already have. (7) Opponents claim that vouchers provide only a false hope, drain money from financially strapped public schools, and facilitate racial segregation. (8)

   In opposing vouchers, a wide array of civil rights and educational groups have also expressed concern that participating schools will be free to discriminate against disfavored groups, such as racial and religious minorities, women, and gays and lesbians. Organizations such as the National Education Association, the National PTA, the American Civil Liberties Union, the National Alliance of Black School Educators, and the Leadership Conference on Civil Rights have criticized voucher legislation for authorizing government-funded discrimination. (9) The Gay, Lesbian and Straight Education Network has warned that under most voucher programs, "a private school could theoretically expel a student because of his or her sexual orientation," and that participating schools "would not be required to protect any LGBT [lesbian, gay, bisexual, or transgender] student from in-school harassment." (10) The Anti-Defamation League has adopted a particularly alarmist tone, claiming that "the proud legacy of Brown v. Board of Education may be tossed away as tax dollars are siphoned off to deliberately segregated schools." (11)

   Given the current state of voucher programs and proposals, the fears expressed by these organizations should come as no surprise. Most voucher legislation--whether already enacted or only proposed--contains only limited antidiscrimination protections. Consider, for example, the four existing voucher statutes that allow for the participation of religious schools. Ohio's statute only requires that participating schools "not discriminate on the basis of race, religion, or ethnic background." (12) It further mandates that schools not "teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion." (13) Florida's program requires schools to comply with Title VI, which only bans discrimination on the basis of race, color, or national origin. (14) Wisconsin's voucher statute contains the same requirement. (15) Civil rights advocates in Wisconsin have been unsuccessful in their repeated efforts to include a more comprehensive antidiscrimination policy in that state's voucher law, despite the fact that Wisconsin public schools are held to one of the most expansive antidiscrimination laws in the nation. (16) Colorado's voucher law--the most recently enacted of voucher laws--bans discrimination in participating schools only on the basis of "race, color, religion, national origin, or disability." (17) A vague but potentially expansive provision of Colorado's law also bans schools from "teach[ing] hatred of any person or group." (18)

   Most proposed voucher bills include civil rights protections that would ban discrimination by voucher schools on the basis of race and national origin but do not contain provisions banning discrimination based on religion or sexual orientation. (19) One obvious explanation for this pattern is that discrimination against religious groups or gays and lesbians is more often considered justified by religious teachings, and legislators wish to respect religious schools' rights to free exercise of religion. Another obvious explanation for the exclusion of sexual orientation is simply that in many parts of the country such discrimination is still socially and politically acceptable, regardless of whether there is a religious motivation. Despite these obstacles, legislators concerned about civil rights have not given up on efforts to include classifications like religion and sexual orientation in voucher laws. (20)

   Voucher legislation also tends not to ban discrimination based on sex, (21) perhaps because of the common--though certainly not universal--acceptance of single-sex schools as consistent with antidiscrimination norms. Some voucher legislation not only lacks civil rights protections altogether, but also includes provisions that could, among other things, affirmatively protect a school's "right" to discriminate. For example, voucher legislation proposed in Kansas includes a provision stating that "[n]othing in this act shall be applied or construed in any manner so as to regulate or prohibit free exercise in matters of curriculum, creed or practice of any nonpublic Kansas school of choice." (22)

   Opposition to vouchers is driven not only by legislators' tendency to exclude comprehensive antidiscrimination provisions from voucher proposals, but also by a fear that private schools would be constitutionally exempted from antidiscrimination policies even if legislatures attempted to impose them. The First Amendment protects expressive association and, as the Supreme Court has recently held, this may include discriminatory conduct. (23) Would voucher schools therefore be constitutionally immune from antidiscrimination regulations? In addressing this issue, I turn first to the Free Speech Clause.

2. FREE SPEECH AND ANTIDISCRIMINATION POLICIES

   1. Overview of the Free Speech Problem

      Though the weight of the precedent is now unclear, the Supreme Court has upheld the government's authority to impose antidiscrimination policies on private schools. Language from two opinions in particular would seem to suggest, at first, that there is no conflict at all between free speech rights and a requirement that voucher schools adhere to antidiscrimination norms.

      In Runyon v. McCrary, two African-American students challenged a private school's policy of denying admission to blacks. (24) The Supreme Court held that 42 U.S.C. [section] 1981 prohibited private, commercially operated, nonsectarian schools from discriminating on the basis of race in admissions. In so holding, the Court flatly rejected the school's contention that [section] 1981, as applied, violated its constitutionally protected rights of free association:

      [T]he Court has recognized a First Amendment right to engage in...