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Private Voucher Schools and the First Amendment Right To Discriminate |
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Michael Kavey [View as PDF]
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113 Yale L.J. 743 (2003)
At the end of its 2001 Term, the Supreme Court settled one of the most contentious educational debates in recent history, ruling in Zelman v. Simmons-Harris that the inclusion of religious schools in a state school voucher program did not violate the Establishment Clause of the Constitution. There are, however, complex constitutional questions about vouchers that linger in Zelman's wake. This Note addresses one such issue that has only just begun to receive scholarly attention: Can states require private voucher schools--including religious schools--to comply with antidiscrimination policies, or would the enforcement of those policies violate the First Amendment rights of the schools? For example, could a state require a private school to admit racial minorities, women, and gays and lesbians as a condition for eligibility in a state voucher program? What if the school administrators object on principle--perhaps religious principle--to racial integration, coeducational schooling, or homosexuality? Doesn't the First Amendment protect the schools' views?
The Supreme Court's jurisprudence does not provide easy answers to these questions, and the relevant body of case law is inconsistent. This Note seeks to make sense of the doctrine and to demonstrate that, as applied to private voucher schools, antidiscrimination laws can--and should--survive a First Amendment challenge.
Part I provides a brief overview of the current status of voucher laws and proposals, and discusses the opposition of civil rights organizations to these laws. Part II then analyzes the free speech problems that may arise if states require voucher schools to adhere to antidiscrimination norms. I argue first that voucher programs are a form of "government speech through private actors," and that in such cases the Free Speech Clause does not preclude states from making viewpoint-based distinctions. The remainder of Part II deals with the possibility that courts will reject this analysis. I discuss the various constitutional tests to which courts may subject antidiscrimination requirements, and I argue that antidiscrimination policies should survive any of them. Because the Free Speech Clause poses the most complex problems for antidiscrimination policies, the bulk of the Note centers on this issue.
Part III addresses issues raised by the Free Exercise and Establishment Clauses, and argues that religious voucher schools can also be bound to antidiscrimination policies without violating the schools' First Amendment freedoms. The only exception would be for clerical teacher employment disputes at religious schools; such suits are nonjusticiable due to a mixture of Free Exercise and Establishment Clause concerns.
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