Charting the Path to the Outsourcing of Discrimination Through School Choice

ABSTRACT

The growth of state laws creating private school vouchers and charter schools has mounting and alarming ramifications for students’ rights, and those ramifications are shaped by a complex and shifting set of legal rules. This article explains the interplay between the increase of these school-choice programs, the U.S. Supreme Court’s recent free-exercise decisions, long-standing antidiscrimination laws, and the now-tenuous applicability of those legal protections for choice students. It concludes by considering the political ramifications of these changes, which will likely be very different in “blue” and “red” states.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

¹ This article does not address the complicated issues raised by discrimination against those who do not share the religious beliefs or church affiliation of those operating a school. Most—but not all—voucher laws allow for discrimination of that type (Eckes et al., 2016). Current law would prohibit such discrimination in charter schools, but those prohibitions may not survive a free-exercise challenge by a church-operated charter school.

² While conventional voucher policies are funded through tax revenues taken in by the state and then disbursed through the vouchers, neovoucher policies are funded through donations to private nonprofits, which bundle the donations and disburse them through vouchers (see Welner, 2008). The state backfills those donations through tax credits. In fact, in some states the tax credit is for 100% of the donation.

³ Maine’s town-tuitioning statute does contain this option, of school administrative units (districts) contracting with a specific private school rather than letting parents choose one (Me. Stat. tit. 20- A, § 5204[3]).

⁴ The Court in Zelman also focused on several other elements of the Cleveland voucher system, but it is unclear which if any of those other factors the current set of justices would find important.

⁵ It was also discussed, as a subordinate argument, by the Oklahoma Supreme Court in the 2024 decision about the St. Isidore charter school, discussed later in this article.

⁶ The Oklahoma decision to grant a charter to St. Isidore was followed by Guam’s decision to amend its charter school law to allow private, religious schools to convert to charter schools (Public Law 37–30). The law is silent on whether these new charter schools may engage in religious instruction, but the first private school granted a charter under the amended law, Our Lady of Mount Carmel Catholic School, has indicated that it will operate as a secular school (Taitano, 2023).

⁷ A similar decision was handed down just days before the Drummond decision. In California, a federal district court judge dismissed a complaint filed by Christian parents challenging the state’s secular-education rule as applied to “independent study” charter schools that serve homeschoolers (Woolard v. Thurmond, 2024). Applying the same reasoning as the Oklahoma Supreme Court, the judge explained that the Trinity trinity is not applicable to public schools and that the defendant charter schools are indeed public.

⁸ See also Bethel Ministries, Inc. v. Salmon (2022), involving a private religious school that has anti-LGBTQ+ policies but seeks to receive voucher funding in Maryland notwithstanding a state antidiscrimination law.

⁹ Three justices indicated that they wanted to overrule Smith completely. Two others indicated support for modifying Smith to increase application of free-exercise rights in some cases.

¹⁰ If the Court were to adopt such a test, it would place religious discrimination in a different legal class from racial discrimination and other recognized legal priorities that nonetheless require plaintiffs to prove that the discrimination is intentional before courts apply heightened scrutiny. Washington v. Davis (1976); City of Mobile v. Bolden (1980); United States v. Virginia (1996).

¹¹ The corporate board of the targeted company creates a shareholder rights plan (the poison pill), usually via the issuance of preferred stocks giving existing shareholders the ability to buy discounted shares if someone attempts to buy more than, for instance, 15% of the company. Hostile buyers look at the situation and realize that as soon as they get to the 15% threshold, their stake will be immediately diluted.

¹² Federal funding may come in the form of participation in the National School Lunch Program or other direct assistance. But equitable services programs under the Individuals With Disabilities Act (IDEA) and the Elementary and Secondary Education Act (ESEA) are provided by government employees or contractors to private school students, not private schools, and are not considered to be direct assistance.

¹³ The voucher program in Washington, DC was created by Congress. All other taxpayer-funded voucher programs are state created.

¹⁴ Movement Advancement Project map, https://www.lgbtmap.org/equality-maps/religious_exemption_laws/religious_exemption

¹⁵ See https://www.lgbtmap.org/equality_maps/profile_state/CA

Additional information

Notes on contributors

Kevin Welner

Kevin Welner is a Professor of Education Policy at the University of Colorado Boulder School of Education and (by courtesy) at the School of Law. He’s also the Director of the National Education Policy Center, housed at CU Boulder, which works to build bridges between the research world and the broader public.