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 However, the Trump administration rescinded guidance on that front — meaning the federal government considers Title IX to only bar discrimination based on a student’s biological sex.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.

devos watch

Asked again about school staff referring students to ICE, DeVos says ‘I don’t think they can’

Education Secretary Betsy DeVos testifies during a Senate Appropriations Subcommittee hearing on Capitol Hill, June 5, 2018 in Washington, DC. (Photo by Mark Wilson/Getty Images)

Pressed to clarify her stance on whether school staff could report undocumented students to immigration authorities, Education Secretary Betsy DeVos avoided giving a clear answer before eventually saying, “I don’t think they can.”

It was an odd exchange before the U.S. Senate Appropriations Subcommittee, during a hearing that was meant to focus on budget issues but offered a prime opportunity for Senate Democrats to grill DeVos on other topics.

Chris Murphy, a Democratic senator from Connecticut, focused on DeVos’s comments a few weeks ago at House hearing where she said that it was “a school decision” whether to report undocumented students to Immigration and Customs Enforcement.

Civil rights groups responded sharply, calling it an inaccurate description of the department’s own rules and the Supreme Court case, Plyler v. Doe, that says schools must educate undocumented students.

In a statement after that hearing, DeVos seemed to walk back her comments, saying, “Schools are not, and should never become, immigration enforcement zones.” DeVos also referenced the Plyler case on Tuesday, while initially avoiding multiple chances to offer a yes or no response to whether school officials could call ICE on a student.

In response to DeVos’s latest remarks, her spokesperson Liz Hill said, “She did not avoid the question and was very clear schools are not, and should not ever become, immigration enforcement zones. Every child should feel safe going to school.”

Here’s the full exchange between DeVos and Murphy:

Murphy: Let me ask you about a question that you were presented with in a House hearing around the question of whether teachers should refer undocumented students to ICE for immigration enforcement. In the hearing I think you stated that that should be up to each individual state or school district. And then you released a follow-up statement in which you said that, ‘our nation has both a legal and moral obligation to educate every child,’ and is well-established under the Supreme Court’s ruling in Plyler and has been in my consistent position since day one. I’m worried that that statement is still not clear on this very important question of whether or not a teacher or a principal is allowed to call ICE to report an undocumented student under federal law. Can a teacher or principal call ICE to report an undocumented student under current federal law?

DeVos: I will refer back again to the settled case in Plyler vs. Doe in 1982, which says students that are not documented have the right to an education. I think it’s incumbent on us to ensure that those students have a safe and secure environment to attend school, to learn, and I maintain that.

Murphy: Let me ask the question again: Is it OK – you’re the secretary of education, there are a lot of schools that want guidance, and want to understand what the law is — is it OK for a teacher or principal to call ICE to report an undocumented student?

DeVos: I think a school is a sacrosanct place for student to be able to learn and they should be protected there.

Murphy: You seem to be very purposefully not giving a yes or no answer. I think there’s a lot of educators that want to know whether this is permissible.

DeVos: I think educators know in their hearts that they need to ensure that students have a safe place to learn.

Murphy: Why are you so — why are you not answering the question?

DeVos: I think I am answering the question.

Murphy: The question is yes or no. Can a principal call ICE on a student? Is that allowed under federal law? You’re the secretary of education.

DeVos: In a school setting, a student has the right to be there and the right to learn, and so everything surrounding that should protect that and enhance that student’s opportunity and that student’s environment.

Murphy: So they can’t call ICE?

DeVos: I don’t think they can.

Murphy: OK, thank you.

DeVos in Detroit

Betsy DeVos’s first Detroit visit featured Girl Scouts, robots, and talk of beluga whales

PHOTO: Kimberly Hayes Taylor
U.S. Education Secretary Betsy DeVos takes pictures on her phone during the FIRST Robotics World Championship, held in Detroit on April 27, 2018.

Betsy DeVos was all smiles on Friday as she toured the world’s largest robotics competition and congratulated student contestants.

The event was her first visit to Detroit as education secretary. DeVos, a Michigan-based philanthropist before joining the cabinet, has a long history of involvement with the city’s education policies.

It was a friendly environment for the secretary, who has often faced protesters who disagree with her stance on private school vouchers or changes to civil rights guidance at public events. (Even her security protection appeared to be in a good mood on Friday.)

Here are four things we noticed about DeVos’s visit to downtown and the FIRST Robotics World Championship.

1. She got to talk to some local students after all.

DeVos didn’t visit any Detroit schools, and didn’t answer any questions from reporters about education in Michigan. But as she toured the junior LEGO competition, she did stop to talk to a handful of Girl Scouts from the east side of the city.

PHOTO: Kimberly Hayes Taylor

2. She knows a thing or two about beluga whales.

She also stopped to stop to chat with students from Ann Arbor who called themselves the Beluga Builders and designed a water park that economizes water. DeVos asked how they came up with their name, and they told her how much they love the whales. “They have big humps on their heads, right?” DeVos said. “Yes,” they answered in unison.

3. She is an amateur shutterbug.

She stopped often during her tour to shoot photos and videos with her own cell phone. She took photos of the elementary and middle school students’ LEGO exhibits and photos of the robotics competition.

PHOTO: Kimberly Hayes Taylor

4. She was eager to put forth a friendly face.

As she stopped by students’ booths, she often knelt down to children’s eye level. When she posed for group pictures, she directed students into position. And she shook lots of hands, asking kids questions about their projects.