No Choice Left: School Voucher Programs and the Gay Exception

Religious creed has long been at odds with LGBT acceptance. Not because of fundamental conflicts between the two, but because those who subscribe to some forms of religion have historically used biblical verse as grounds for discrimination. Recently however, a trend within religious communities toward acceptance or tolerance of LGBT people has created the illusion, particularly to those outside religious communities, that the two are on a general path toward reconciliation. But this is not the case everywhere. The beliefs of religious and pro-LGBT people are very much still in battle.

Their arena? School voucher programs.

A recent report by Suzanne Eckes, Julie Mead, and Sarah Ulm, researchers from Indiana University and the University of Wisconsin, Madison considers the unintended consequences of traditional vouchers and education savings accounts. Both programs redirect state tax dollars into scholarships that allow students to attend the private school of their choice. The researchers analyzed four such programs: city-specific; statewide; those which are designed specifically for students with disabilities; and those which provide tuition in school districts that do not operate public schools at that grade level. The report explores the consequences these voucher programs may have on many groups of students, but the unfavorable implications for LGBT students in particular appear most clearly tied to religious ideology.  

In total, voucher programs operate in fifteen states and the District of Columbia (excluding those that offer tax-credit scholarships). The report examined the voucher statutes of each of these programs, looking specifically at language preventing choice schools from discriminating against students of particular groups during admissions processes.

The results show that while many statutes do have clauses barring discrimination in some form, the clauses are neither uniform nor comprehensive. The most common clause, found in six statutes, incorporates Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d), protecting students from discrimination on the bases of race, color, and nationality. Four other states offer the same protections but do not cite Title VI. With the exception of Washington, D.C., the remainder of the statutes use slightly varied wording to include the same protections. The nation’s capital is an anomaly with the most comprehensive nondiscrimination clause out of any program, barring discrimination on the bases of race, ethnicity, national origin, religion, and sex.

No programs have statutes that explicitly protect students from discrimination on the bases of sexual identity or orientation. To the contrary, many states allow religious schools to discriminate against students on these bases. Voucher laws in eight states — Arizona, Florida, Georgia, Louisiana, Mississippi, Nevada, Oklahoma, and Tennessee — have provisions regarding compliance with school policies. Georgia’s law, for example, states that “schools need not alter “curriculum or program of instruction to participate, and [that] parents and students must comply with all published private school policies.” This presents a major threat to LGBT students in religious states, whose options mainly consist of schools like Shiloh Hills Christian School in Kennesaw, Georgia. Shiloh Hills’ policy maintains “participating in, promoting, or supporting homosexual activity” as grounds for expulsion.

The map below shows religiosity by state. The darkest states have the highest percentage of adult residents who are religious. The eight states with policy compliance clauses in their voucher statutes are among some of the most religious in the country. To compound this, statistics show that roughly 70% of private K-12 schools across the country are religiously-affiliated. In a state like Georgia, where the voucher program is statewide and 60-69% of the state is religious, LGBT students’ choices in which school to attend may be dramatically fewer than those of their straight counterparts. 

Indeed, for students in any state at the intersection of these two groups — highly religious states and those whose voucher statutes allow discrimination on the basis of religion — actual school choice may be severely limited. According to many of these statutes, students may be lawfully turned away from religious choice schools for being LGBT, for coming from an LGBT family, or for being an ally. The results from this study not only highlight the ways in which LGBT acceptance and religion are pitted against each other in voucher programs, but they also raise a number of concerns about actual choice and its legal ramifications.

In support of schools’ right to use criteria of this kind, some argue it is protected by the very intention of the program — choice. Students can choose to go to a religious school or to a non-religious school, and any given school can justify selective admissions because they are only one of many options for voucher recipients. Schools such as Pride School Atlanta, and other institutions aimed at inclusivity and acceptance for all, may be favorable choices for LGBT students in the religious South. What’s more, schools such as this one may offer sanctuary for LGBT students experiencing bullying in public school. This very well could be, for students who happen to live in Atlanta. But, there are far fewer LGBT-accepting choice schools in religious states than there are schools that forbid it. An LGBT student very well may not live within commuting distance to an accepting choice school.

The example of choice in Georgia, a state with both special needs vouchers and tax-credit scholarships, raises issues of legal concern as well. The Establishment Clause of the First Amendment both ensures the free exercise of religion and forbids federal law from “respecting the establishment of [it].” Both traditional public schools and public charter schools are prohibited from discriminating against disfavored groups in admissions processes. The line is blurred however, with programs that put public tax dollars toward private school education. Private schools receiving public funds are not required to adhere to the same nondiscriminatory admissions standards as public schools.

In Zelman v. Simmons-Harris (2002), a divided U.S. Supreme Court overturned its previous ruling, allowing states to enact voucher programs that include private religious schools. But, the Court concluded, participating programs must meet three criteria: (1) the program must serve a legitimate secular purpose, (2) the program may not define recipients of the voucher using religious criteria, and (3) parents must have a genuine choice among religious and nonreligious options. Voucher programs in the eight states mentioned fall short in meeting two of these three criteria. Although no programs require students to outright identify as the religion of the school, they do require students to adhere to all policies incorporated as a result of that religion. Furthermore, there is no definition of “genuine choice” and no way to track parent decision-making processes.

Many of the existing protections for racial and geographic minorities are also the results of divided Supreme Court rulings. The Court ruled in Runyon v McCrary (1976) that religious schools cannot discriminate against students on the basis of race. Similar cases have resulted in religious schools’ inability to discriminate on the bases of color and national origin, together, the three protections now commonly offered in voucher statutes. In 2017, there is still no such protection for LGBT students. Kavey (2003) refers to this tendency of federal courts to twist otherwise unambiguous legal principles in order to exclude specifically gays and lesbians as the “gay exception.” He argues that no school, religious or not, can exclude students because of their race or national origin because belonging to a minority of this type is not seen as optional. Conversely, the justices charged with making federal decisions on nondiscrimination clauses did, to some extent, believe that students choose to be LGBT; that homosexuality pertains to behavior where other minorities do not. This distinguishes discrimination of LGBT people from that against other groups and justifies religious institutions in selectively admitting students despite existing law.

As it stands now, religious choice schools across the nation legally reserve the right to exclude LGBT students and families. Schools’ right to do so, coupled with a lack of protection against discrimination on the basis of sexual identity and orientation, sustain a system that uses public tax dollars to serve the public unequally. These exclusive statutes have the power to affect more than a margin. Although religious states have comparatively low percentages of LGBT people, the number of students with few real choices is significant. Unless protections are added to existing statutes, voucher programs will remain a legal battleground for religious beliefs and equal rights, at the expense of hundreds of thousands of LGBT students.


Sabia Prescott is an administrative assistant with the Education Policy program at New America.