If you’ve decided to send your children to a private school, does that mean that you’re giving up their legal rights under antidiscrimination laws that apply to public schools? Can private schools turn down applicants or treat students differently based on their ethnicity, gender, sexual orientation, religion, or disability?
The answers to those questions may depend on the specifics, especially:
- whether the school receives any kind of public funding,
- the type of discrimination involved, and
- whether the school is run by a religious organization (known as a sectarian or church school) or is nonsectarian (meaning that it’s run by individuals, groups, or businesses that aren’t connected to a religious group).
Federal Dollars Come With Strings Attached
Many private schools receive some kind of funding from the federal government. In the context of elementary and secondary schools, common examples of this financial assistance include:
- school lunch or breakfast programs
- remedial assistance to schools with low-income students, and
- grants to upgrade technology.
When private schools accept this money, they have to obey important federal antidiscrimination laws that apply to programs or activities receiving federal financial assistance:
- Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin.
- Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681-1688) prohibits discrimination based on sex in educational programs or activities. The law makes exceptions for religious schools (more on that below) and for admissions policies in K-12 schools and some colleges—which means that all-boy or all-girl schools can still restrict enrollment to one gender.
- Section 504 of the Rehabilitation Act (29 U.S.C. § 794) prohibits discrimination based on disability. Under this law and the relevant federal regulations, schools must ensure that students with physical and mental disabilities receive an appropriate education, including accommodations to help with special needs. Private schools receiving federal funds can’t exclude qualified students with disabilities or charge them more, as long as only “minor adjustments” are needed to provide an appropriate education. (Section 504 is separate from the Individuals with Disabilities Education Act, which applies only to public schools.)
When Harassment is Discrimination
Harassment based on sex, race, or national origin is a form of illegal discrimination. That means that private schools receiving federal funds must take action to stop this kind of harassment, whether it’s coming from fellow students or from school employees.
Title IX doesn’t mention discrimination based on sexual orientation, so it doesn’t prevent private schools from denying admission to students because they (or their parents) are gay. But according to the U.S. Department of Education’s Office for Civil Rights (OCR), the law bars harassment based on gender, including a student’s perceived sex, gender identity, or gender expression.
Other Limits on Racial Discrimination
Regardless of federal funding, the U.S. Supreme Court held that another civil rights law known as Section 1981 (which prohibits racial discrimination in “making and enforcing contracts”) prohibits all private, nonsectarian schools from denying admission to students based on their race, because the restriction interferes with their parents’ ability to contract for educational services (Runyon v. McCrary, 427 U.S. 160 (1976)). Even when a private school’s race-based admissions policy was intended to be remedial by giving preference to native Hawaiians, a federal appellate court held that section 1981 barred the policy (Doe v. Hamehameha Schools, 416 F.3d 1025 (9th Cir. 2005)).
Also, private schools—including religious schools—can’t qualify as tax-exempt organizations if they have racially discriminatory admission standards (Bob Jones University v. United States, 461 U.S. 574 (1983)).
Where Religion Meets Discrimination
As we’ve seen, lawmakers and courts have made allowances for practices by religious schools that some people might consider discriminatory:
- In Runyon, the Supreme Court said that its decision didn’t apply to sectarian schools that exclude students of certain races based on religious grounds.
- Title IX makes an exception for any school controlled by a religious organization if the law's prohibition on sex discrimination would violate the organization’s “religious tenets.”
- Title VI doesn’t include religious discrimination (even though another part of the Civil Rights Act bars employment discrimination based on religion). So private schools—including church schools—can restrict enrollment or charge higher fees based on the students’ religion, even if the school receives federal funds. It’s worth noting, however, that the law still protects students who are being harassed because they come from a place where a particular religion is dominant (such as a Muslim-majority nation or region).
Talking With a Lawyer
If a private school is discriminating against your child based on ethnicity or disability, consider consulting with a lawyer. An attorney experienced in education or civil rights law should be able to explain the anti-discrimination laws that apply to your situation (including any state laws that may provide broader protection than federal law), as well as the process for filing a discrimination complaint with OCR and any legal reasons (or “grounds”) you might have for filing a lawsuit against the school. Other questions you might discuss with a lawyer include:
- How can I find out if my child’s private school is receiving federal financial assistance? Would it count if the school received grants from a nonprofit organization that gets federal funding?
- If a private school participates in a voucher program, does it have to provide adequate services to address my child’s disability?
- Other students at my daughter’s Catholic school are picking on her because of her ethnicity, but the school won’t do anything about it. Do I have any legal options?
- My son has severe allergies to all perfumes. Can I get his private school to enforce a fragrance-free policy?
- What can I do if a private school refuses to admit my daughter because it would cost too much to accommodate her disabilities?