Schneider:
Heilig: In past discussions in this column, I’ve talked about how testing and underqualified teachers were examples of what we used to call discrimination, but now have been spun in the public discourse as civil rights efforts.
Vouchers are no different. After Brown v. Board, whites in the South began to claim that “quality” issues in the public schools necessitated vouchers from the state to send their students to private schools. In reality, the “segregation academies” that received white students were focused on empowering white parents to choose to avoid integration. Since the segregation academies were private schools, they were outside of the reach of the Brown ruling.
While vouchers are not explicitly a discriminatory vehicle, current case law suggests that private schools are able to discriminate however they desire based on race, ethnicity, religion, etc. Also, private schools are not accountable to the state for the public monies they receive—a particularly troubling fact when coupled with research demonstrating uneven provision of quality education among private schools. Finally, for parochial-based private schools, the traditional separation of church and state comes into play, even if public money has been laundered through a foundation or some other state-determined neo-voucher mechanism.
Schneider:
Heilig: I have never been convinced by the tug-at-the-heart-strings argument about poor kids and vouchers.
First we have to remember that the “only for the poor” angle is just a short term ruse. As we saw in Florida this year, vouchers were expanded from “only for the poor” to families of higher income levels.
So if vouchers won’t be limited to the poor, what should we expect from expanding vouchers? A number of studies have demonstrated Chile’s universal choice market has actually enhanced segregation at the expense of poor students. And as one might expect, this has negatively impacted the poor. In response, Chile is currently debating a variety changes to their system similar to what you are suggesting—a cap and quotas.
But I doubt our courts would permit a regulated voucher system, allowing the government to control what private schools charge for tuition and who they must admit. So, since these controls wouldn’t be on the table, students with capital (such as high test scores, dollars above the cap, transportation, etc.) would always be “winners” in the market. In short, vouchers have the potential to promote even more segregation and inequality than we see today.
Schneider:
[Schneider] fails to correct Heilig’s misstatement that “current case law suggests that private schools are able to discriminate based on race.” (They cannot; see Runyon v. McCrary). Worse still, both agree vouchers have a “sordid” racial history, without any recognition of the very real racist history of public education in America.
Yes, we did talk about private schools and racial discrimination a few years ago. There was a case in Hawai’i, which was decided by the Ninth Circuit in 2006, Doe v. Kamehameha Schools. The plaintiffs asserted that the school’s policy of giving preferences to students of Native Hawaiian ancestry violated 42 U.S.C. s. 1981, a federal statute which prohibits racial discrimination in the contracting. I have attached the case in this email. The court used the burden-shifting approach from Title VII cases to find that there were legitimate justifications for the policy… The Ninth Circuit was careful to point out that other courts used Title VII analysis for Section 1981 cases. One wonders what the Supreme Court would do if it ever had the chance to rule on an affirmative action Section 1981 case.
That is not the only question because they would be receiving public funding. They become a hybrid to which anti-discrimination rules apply. They would not be pure private schools. To allow such an exception would essentially permit the circumvention in Brown.
I saw that others responded so I did not answer but I thought I would quickly clarify a couple of points based on my understanding of the law. [My colleague] is partly right although not all private schools receive federal funds so Title VI (which prohibits disparate impact violations) does not always (and probably more often does not) impact private schools. This is important because the Runyan case was essentially folded into the Civil Rights Act of 1991, but that has been interpreted to only outlaw INTENTIONAL discrimination (not disparate impact discrimination) in the making of contracts based on race. So there is more wiggle room for private schools to discriminate. Can they hold up a sign that says: No Brown or Black Kids allowed? No. Can they hold up a sign that says Must have score in top 15% of ITBS to enroll? Maybe. Some private schools have prohibited the speaking of Spanish at all times in schools, as another example. That would not fly in a public school. The checking of students “civil rights” at the private school doorsteps is a currently a big concern for the civil rights [community].
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