Flaws and Failings

Vast Majority of Schools Receiving Vouchers are Religious Schools

The vast majority of the voucher schools are religious schools, as to which there are serious concerns regarding government-funded discrimination on the basis of disability and religion, as well as religious coercion; also, DOE and WSF have failed to give voucher schools adequate guidance on applicable civil rights laws

The vast majority of private schools that D.C. students with vouchers are attending this school year are religious schools.26 Discrimination by such schools against voucher students with disabilities is a distinct possibility, given how WSF and DOE have explained the law to those schools. In a statement of “Frequently Asked Questions” posted on DOE’s website (and incorporated by WSF in its own set of FAQs to voucher schools), DOE has issued a very carefully crafted answer addressed to religious schools to the question of whether students with disabilities “have an equal right to participate in this program.” According to DOE,

The entity that administers this program must select students who are eligible to participate through a lottery that does not discriminate on the basis of disability and will help place those students in schools that best meet their needs. The issue of whether a student with a disability must be given an equal opportunity to attend a particular, participating private school is more complicated. No Federal law forbids a participating religious school from discriminating against students with disabilities in admissions, assuming the school does not receive Federal financial assistance under other programs.27

In other words, according to DOE and WSF, although a student with a disability cannot be barred from securing a voucher through the lottery, he or she can be denied admission to a participating religious school because such discrimination is not prohibited by federal law, which certainly would deprive that student of the educational “choice” that vouchers are supposed to provide.

Whatever the limitations of federal anti-discrimination law, however, both DOE and WSF have failed to inform religious schools participating in the voucher program that the District of Columbia Human Rights Act -- which applies in relevant part to any private as well as public “educational institution” in D.C. -- prohibits them from discriminating against voucher students on the basis of disability by denying, restricting, abridging, or conditioning the use of or access to any of their “facilities, services, programs, or benefits.” D.C. Code Title 2, Sec. 2-1402.41.

Inexcusably, even beyond the specific question regarding students with disabilities, both DOE and WSF have completely omitted any reference to the D.C. Human Rights Act -- the city’s preeminent civil rights law -- in their separate discussion of “civil rights requirements” that will apply to private schools participating in the voucher program.28 Instead, DOE and WSF have limited the guidance they have given to voucher schools to the federal voucher law, which does not protect students against discrimination on as many bases as does the D.C. Human Rights Act, and does not protect employees in the voucher schools at all.29

At the very least, DOE and WSF should immediately revise the written guidance they have published concerning civil rights laws applicable to religious and other private schools participating in the voucher program, and explain to them the applicability and substance of the D.C Human Rights Act, particularly insofar as it prohibits employment discrimination as well as discrimination against students on the basis of disability and other characteristics. Given the misleading information that they have previously published, the new guidance should be sent to each of the private schools currently participating in the voucher program and to any additional schools that may have expressed an interest in participating next year.

In keeping with their mission to inculcate students in the beliefs and practices of a particular faith, sectarian schools typically infuse religion and religious worship into the school day.30 Religious coercion is therefore also a possibility at religious voucher schools. Unlike the Wisconsin statute governing the Milwaukee voucher program, which allows parents of voucher students to “opt” their children out of “any religious activity” in the voucher schools, Wis. Stat. §119.23(7)(c), the D.C. voucher law has no provision protecting students in this manner, except that voucher schools cannot discriminate against voucher program applicants or participating students based on religion (or race, color, national origin, or sex).

Employment discrimination on the basis of religion is another possibility at religious schools participating in the voucher program. For example, all applicants for employment in an Archdiocesan Catholic School must sign a “statement of acceptance of guiding principles,” agreeing to “teach and exemplify” a stated set of guiding principles that include: “As Christian institutions committed to the teachings of the Catholic Church, Catholic schools prepare students to respond in faith to Jesus Christ and to understand his message [and] to view human existence in terms of divinely appointed goals . . . .”31 It cannot be doubted that some non-Catholics would not be comfortable signing such a statement as a prerequisite for employment. In addition, the Archdiocese of Washington states on its web site that “applicants wishing to be considered for the position of principal of a Catholic school must be practicing Catholics in good standing.”32

While religious schools are permitted under Title VII to engage in religious discrimination in hiring when using private funds, serious constitutional issues are raised when those private schools receive public funds. The law is unsettled on this point; at least one lower court has held that the Title VII exemption cannot properly apply to positions that are funded with government dollars. See Dodge v. Salvation Army, 1989 U.S. Dist. LEXIS 4797 (S.D. Miss. 1989). Federal taxpayers should not be required to subsidize private institutions that engage in religious discrimination in employment, however justifiable that discrimination may be for an institution when it is operated solely with private funds.

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