With the current administration coming out in favor of school choice reforms, the ongoing debate over the fairness and the efficacy of school voucher programs and charter schools seems to be picking up steam. Both President Trump and education secretary Betsy DeVos clearly believe in giving parents more control over their children’s education. As they see it, greater choice leads to better student outcomes. Consequently, they have increased funds for states to start new charter programs in addition to earmarking more money for school voucher initiatives. On the other hand, critics question whether laws that protect public school students will now apply to these institutions. More specifically, do private schools that accept federal funding have to adhere to the same anti-discrimination laws as public schools? Or, are they allowed to discriminate against students based on things such as religion, disability status, and sexual orientation?
Factors Allowing Discrimination
A recent policy brief by the law scholars Julie Mead and Suzanne Eckes explores the loopholes that permit discrimination in some of our nation’s schools. They cite three factors in their study:
- Federal law bans discrimination in public spaces but not necessarily in private spaces, including institutions that receive vouchers from public funds
- State legislatures have backed away from discrimination matters with respect to laws for voucher programs. Charter laws offer more protection but neither type properly examines this topic
- Since charter and private schools are free to construct their own programs, they can effectively exclude certain populations by, for instance, neglecting to provide services for students with disabilities.
Examples
Consequently, several states have taken advantage of some legal loopholes to practice different forms of discrimination.
A private religious high school in Indianapolis, for example, suspended a guidance counselor because she married her female partner. This school, however, has received over $6.5 million in public money from the school voucher program. Since three quarters of private schools are affiliated with religious groups, according to the U.S. Department of Education, there are plenty of opportunities for religious discrimination. Also, diverting federal funds to religious schools through vouchers amounts to using taxpayer money to support religious orders. This development in effect threatens our First Amendment guarantee of religious freedom.
Furthermore, many private schools have chosen not to accommodate students with disabilities. As a result, those schools often have far lower enrollments of children with disabilities. For instance, in Milwaukee children with disabilities comprise anywhere from 12-20% of the public-school population. However, they make up only 2% of the enrollments in private schools that take part in the city’s voucher program. Charter schools also have a much lower percentage of students with disabilities than the public-school system.
Thus, the problem remains that although these schools cannot discriminate based on color or race, they can discriminate based on sexual identity, religion, or disability status.
What Is the Solution?
In their study, Mead and Eckes outlined a number of reforms that need to happen to make publicly funded programs available to all students. Firstly, the federal government needs to change the laws to make sure that states diverting public money to voucher and charter schools cannot allow discriminatory policies within those schools. Furthermore, government agencies should consider withholding funds from private schools that fail to comply with the laws. Finally, state legislatures need to weigh in by amending their voucher laws to prohibit any type of discrimination among private schools that use them. They also need to change their charter school laws to ensure there is no room for discrimination and to make them accountable if such discrimination persists. In other words, comply with the state laws or risk using your charter.
What’s At Stake
Critics of the system charge that charter and private schools practice discrimination against certain segments of the population with respect to their enrollments and their employees. On the other hand, defenders say these schools have not broken any laws. The problem is that both sides may be correct. Clearly, we have waded into some murky legal waters by intermingling public funds with private education.
At the heart of the issue is whether we will allow any form of discrimination to exist within schools that derive some of their funding from taxpayers. Essentially, we need to ask why we would enact reforms that open the door for injustices within our educational system. With staunch proponents of voucher programs and charter schools in both the White House and atop the Department of Education, the debate will only continue to gain momentum in the next couple of years. In addition to the concern of critics who maintain that voucher programs do not provide advantages over traditional public schools, instances of discrimination against the LGBT community, and children with disabilities have only added fuel to the fire. Prior to a wholesale expansion of school choice programs, the federal and state governments need to cooperate to formulate policies which will not only ban this type discrimination, but will also penalize those institutions that run afoul of the law.
In a country that was founded on ideals such as religious freedom and the importance of civil rights, policymakers cannot afford to look the other way while certain people’s individual freedoms are being compromised.
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