Voucher lawsuit closely watched
Ban of Christian school from state program triggers broad legal implications
A private Christian Academy whose conservative values don’t accept same-sex marriage or transgender people says Maryland unfairly threw it out of a school voucher program because of its religious beliefs.
Administrators of the multimillion-dollar scholarship program counter that the state can’t allow taxpayer money to go to any institution – religious or otherwise – that discriminates against students because of their sexual orientation.
Now, a federal court has been asked to decide who is right in a case with broad implications for the voucher system, antidiscrimination laws and the battle between those championing religious liberties and others hoping to strengthen the rights of LGBTQ students.
The Bethel Christian Academy in Savage filed suit in federal court last month saying the state is infringing on its First Amendment right to religious freedom by kicking it out of a program that pays tuition for low-income children to attend the school. It wants a judge to order the state to put it back into the program.
“The Supreme Court has been very clear that there is no place in our society for religious hostility,” said Christiana Holcomb, the school’s legal counsel. “That is the crux of the issue of this case.” She said the state pushed Bethel out of the voucher program based “solely on the fact that Bethel has a particular religious belief around marriage.”
The school is represented by the Alliance Defending Freedom, a legal organization that has been actively fighting gay rights. Their attorneys brought the case of a Colorado baker who refused to make a cake for a gay couple all the way to the U.S. Supreme Court, winning a narrow victory.
The issues addressed in the Bethel lawsuit are being contested nationwide, and depending on the ruling, could reach far beyond Maryland, experts said.
“Right now there is a great deal of debate across the country about government funding to organizations that have a conservative religious position on LGBT issues,” said Charles Haynes, vice president of the nonpartisan Freedom Forum Institute.
The debate, he said, extends beyond schools to social services and adoption agencies. So far there are no clear legal answers to the questions that have been raised over religious freedom versus civil rights.
“I think people are going to pay attention to this case if it goes to court,” said Charles Russo, a law professor at the University of Dayton.
Maryland’s education leaders decided to deny vouchers to Bethel Christian Academy in 2018 after it read the school’s handbook, which says that it believes marriage can only be between a man and a woman and that God assigns a gender to a child at birth.
“Therefore, faculty, staff and student conduct is expected to align with this view,” the handbook states. “Faculty, staff and students are required to identify with, dress in accordance with, and use the facilities associated with their biological gender.”
State officials would not comment on the case.
Documents included in Bethel’s lawsuit, however, show that in August 2018, Matthew Gallagher, chair of an advisory board that oversees the vouchers, wrote the school saying the state viewed the policy as discriminatory.
“A non-heterosexual student may reasonably view the policy as one that allows denial of admission or discipline or expulsion on the basis of his or her sexual orientation,” Gallagher wrote. “Therefore, the Board concluded that this policy, on its face, was in conflict with the nondiscrimination clause contained in the … law.”
David Rocah, an attorney with the ACLU of Maryland, sees the case as part of nationwide attempt to undercut laws against discrimination based on sex, and potentially important to discrimination law in the country.
“I think it is part of a larger attempt by the religious right in this country to create a license to discriminate on the basis of religion,” Rocah said. He said the lawsuit, if successful, “threatens to undermine the entire fabric of anti-discrimination law in this country with profound consequences.”
Maryland’s voucher program, begun in the 2016-2017 school year under Republican Gov. Larry Hogan, offers students a taxpayer-funded scholarship to attend a private school. Called Broadening Options and Opportunities for Students, or BOOST, the program’s $7 million budget is enough to support more than 3,000 students. The scholarships go to low-income students who want to attend a school where the tuition is less than $14,000.
After the first year of the program, the BOOST board learned that a Harford County religious school had what it called discriminatory language in its handbook and banned the use of vouchers there. It also launched a complete review of the handbooks of all 176 participating schools. The board said 22 schools had questionable language in their guides. Nine of those schools were ruled ineligible. Another 10 schools were disqualified and required to refund payments they had already received from the state. Of those 10 schools, six revised the language in their handbook and were approved to participate.
Some Christian academies said they would not accept students who were homosexual and would expel them if they exhibited “homosexual conduct.” The schools say they believe marriage can only be between a man and a woman.
After it rescinded Bethel’s approval, the BOOST board told Bethel to pay back the $106,000 in state funds it had received. In the lawsuit, Bethel asks the court to both reinstate the school in the voucher program and not require it to pay back the money.
The voucher program was controversial from the start. Opponents — including teachers unions, local public school superintendents and school boards — argue that public money shouldn’t go to support private school tuition.
A Bethel win in the courts likely would not be a victory for most of the schools that accept vouchers.
Del. Maggie McIntosh, a Baltimore Democrat and chair of the House Appropriations Committee, said the legislature has been very clear that schools cannot have discriminatory policies and get tax money.
“If they were to win and it opened up the door to discrimination, I think you would find a strong movement in the legislature to end BOOST. We are just not going to use tax dollars to discriminate against anyone,” she said.
Catholic schools, which are not involved in the suit, have benefited from BOOST.
“We’re not privy to the decisions made by this school in moving forward with this lawsuit. Our Catholic schools have and will continue to support the BOOST Program and have been committed to complying with the BOOST Program nondiscrimination requirements,” said Garrett J. O’Day, deputy director of the Maryland Catholic Conference. “To take the Program away would hurt thousands of low-income and minority students and in doing so threaten the stability of these community anchors.”
Holcomb, the Alliance Defending Freedom attorney, said concern that the program would be eliminated is “silly.”
She said Bethel has an open admissions policy that will accept anyone who meets the school’s academic standards. In addition, she said all students are treated equally in being disciplined for sexual behavior. Students are prohibited from having any sexual contact, and even holding hands is forbidden.
She said the state “cannot point to any evidence of discrimination.”
Bethel principal Claire Dant said the pre-kindergarten through grade 8 school doesn’t ask a student’s sexual orientation during the admission process. Dant said the school is diverse with students from different economic and racial backgrounds. She said she doesn’t know if the school has had any gay students.
“None that have been so visible that it has been an issue or that we were aware of them,” she said.”
She said if a student were gay “it is invisible.”
Experts on First Amendment and education law said they do not believe the case is clear, largely because there is inherent conflict between the state saying a school does not have to adopt any policy that goes against its religious beliefs on the one hand, and the state’s determination that the school’s religious beliefs are discriminatory on the other hand.
Russo said the state’s case would be stronger if it had an example of a student who had been discriminated against. Haynes said if schools can prove they don’t discriminate in their admissions process, he is not sure the government can go any further. “I don’t see where the state of Maryland sees its responsibility to investigate what these Christian schools believe and are teaching. The teaching of the school should be no business of the state.”