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 However, the Trump administration rescinded guidance on that front — meaning the federal government considers Title IX to only bar discrimination based on a student’s biological sex.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

school choice word choice

The ‘V’ word: Why school choice advocates avoid the term ‘vouchers’

PHOTO: Grace Tatter
Students, parents and activists against vouchers fill a committee room at the Tennessee State Capitol.

A new poll by the pro-voucher group American Federation for Children is meant to illustrate Americans’ support for school choice. But it also offers some insight about how advocates choose how to talk about hot-button education issues.

What caught our eye was something buried in the polling memo: Voters said they narrowly opposed school vouchers, 47 to 49 percent, even though similar approaches like “education saving accounts” and “scholarship tax credits” garnered much more support.

These findings help explain why advocates of programs that allow families to use public money to pay private school tuition often avoid the word “voucher.” The website of National School Week, for instance, doesn’t feature the term, referring instead to “opportunity scholarships.” (Notably, Education Secretary Betsy DeVos, who led AFC before joining the cabinet, herself has been less shy about saying “vouchers.)

The debate on how to brand “school choice” — or to critics, “privatization” — has been long running, and Republican pollsters have advised advocates to avoid the word “voucher.”

This phenomenon may help explain the national rise of tax credit programs, which function like vouchers but usually go by a different name and have a distinct funding source. It also makes it quite difficult to accurately gauge public opinion on the policy, as small tweaks in how a question is worded can lead to very different results.

The recent AFC poll points to substantial support for “school choice,” with 63 percent of respondents supporting that concept. That’s in response to a question with very favorable wording — defining school choice as giving a parent the ability to “send their child to the public or private school which best serves their needs.”

Still, support for school choice dropped several percentage points from last year. That’s consistent with a poll from August that found support for charter schools was falling, too.

Showing how wording can matter, a 2017 survey from the American Federation of Teachers asked parents their view of “shifting funding away from regular public schools in order to fund charter schools and private school vouchers.” The vast majority were skeptical.

When school vouchers have been put up for a vote, they’ve almost always lost, including in DeVos’s home state of Michigan. Supporters and critics may get another shot this year in Arizona, where the fate of a recently passed voucher program will be on the ballot in November, barring a successful lawsuit by voucher advocates.

a closer look

Fact-check: Weighing 7 claims from Betsy DeVos’s latest speech, from Common Core to PISA scores

PHOTO: Dylan Peers McCoy

In a speech Tuesday at the American Enterprise Institute, U.S. Education Secretary Betsy DeVos made the case for giving up on the type of school improvement efforts favored by Presidents Obama and George W. Bush. In its place, she argued, the federal government should encourage tech-infused innovation and school choice.

Looking to weigh her claims? Here’s a closer look at a few.

1. DeVos: “The most recent Program for International Student Assessment, or PISA, report, with which you are all familiar, has the U.S. ranked 23rd in reading, 25th in science and 40th in math. And, you know this too: it’s not for a lack of funding. The fact is the United States spends more per pupil than most other developed countries, many of which perform better than us in the same surveys.”

This stats are accurate, but may not be fair. The U.S. does spend more per pupil, in raw dollars, than most other countries. But international comparisons of these sorts are complicated, and American spending is similar to countries with similarly sized economies.

As we’ve written previously, it’s also misleading to say that more money wouldn’t help American schools. A number of studies have found precisely the opposite, including a recent one showing how cuts to schools during the Great Recession lowered student test scores and graduation rates.

2. DeVos appeared to refer to Common Core as “federal standards,” saying, “Federally mandated assessments. Federal money. Federal standards. All originated in Washington, and none solved the problem.”

That’s off the mark. As advocates for the Common Core never tire of pointing out, the creation of the standards was driven by state leaders through the National Governors Association and Council of Chief State School Officers, with the support of several private organizations, most prominently the Gates Foundation. (Gates is a funder of Chalkbeat.) As DeVos notes earlier in the speech, the Obama administration did incentivize states to adopt the standards, though, and Secretary Arne Duncan was a vocal champion.

3. DeVos: “At the U.S. Department of Education, Common Core is dead.”

This is true, in a sense — the Every Student Succeeds Act, which passed before DeVos became secretary, prohibits the federal government from pushing states to adopt specific standards. But DeVos doesn’t control what academic standards states adopt, and most states are still using use some version of the Common Core.

4. DeVos: “Throughout both initiatives, the result was a further damaged classroom dynamic between teacher and student, as the focus shifted from comprehension to test-passing. This sadly has taken root, with the American Federation of Teachers recently finding that 60 percent of its teachers reported having moderate to no influence over the content and skills taught in their own classrooms. Let that sink in. Most teachers feel they have little – if any — say in their own classrooms.”

The statistic DeVos pulled from this poll is accurate, though her framing may be more negative than the results suggest. It asked teachers to rate how much control they had over “setting content, topics, and skills to be taught.” The most common answer was “a great deal” (at about 40 percent of teachers), and another 30 percent or so chose moderate control. Twenty percent said minor, and only 10 percent said they had no control.

5. DeVos: “To a casual observer, a classroom today looks scarcely different than what one looked like when I entered the public policy debate thirty years ago. Worse, most classrooms today look remarkably similar to those of 1938 when AEI was founded.”

This statement is misleading but has a grain of truth. We examined a similar claim when the TV program produced by the XQ prize argued that schools haven’t changed in 100 years. In short, DeVos is right that many basic trappings of school — a building, a teacher at the front of the class, a focus on math, reading, science, and social studies — have remained consistent. But this glosses over some substantial changes since 1938: the end of legally mandated race-based segregation, the rise of standards for special education students, and the expanded use of testing, among others.

6. DeVos: “While we’ve changed some aspects of education, the results we all work for and desire haven’t been achieved. The bottom line is simple: federal education reform efforts have not worked as hoped.”

This is a big assertion, and it’s always tricky to judge whether something in education “worked.” As DeVos pointed out, a federal study showed the federal school turnaround program didn’t help students. She also highlighted relatively flat international test scores, and others have pointed to flat national scores in recent years.

That said, there were substantial gains in math in fourth and eighth grade, particularly in the early 2000s.

But raw trend data like this can’t isolate the effects of specific policies, particularly when other unrelated changes — like the Great Recession — can also make a big difference. Studies on No Child Left Behind have shown positive results in math, but little or no effect in reading. An analysis of Race to the Top was inconclusive.

One bright spot: a program that paid performance bonuses through the federal Teacher Incentive Fund led to small test score bumps, according to a recent study by DeVos’s Department of Education.

7. In response to a question about school performance in Detroit, DeVos said she shouldn’t be credited — or blamed — for the results in the city. “You’re giving me a whole lot of credit to suggest that whatever happened in Detroit was as a result of what I did,” she said. “We have been long-term supporters of continued reform and choice in Michigan.”

This one is up for debate, though it’s clear DeVos has long been a major player in Detroit’s education scene. She has supported charter schools, which educate about half the public school students in that city, and been a major donor to Republican politicians and causes in the state. She started an influential advocacy group in the state called Great Lakes Education Project.

She was also a key opponent of a commission that would more tightly oversee Detroit charter schools, which ultimately failed amid GOP opposition. It’s clear she has had an impact in the city, but that doesn’t mean she’s gotten everything she’s wanted: in 2000, Michigan voters rejected a DeVos-funded effort to fund vouchers for private schools. She also hasn’t gotten her wish that Detroit have a traditional school district eliminated entirely.