Schools biased against LGBT people should be banned from scholarships

The Illinois Legislature last week approved tax credits for donations to private school scholarships, but failed to protect vulnerable children and minority employees. Illinois must exclude from the scholarship program schools that discriminate against the gay, lesbian, bisexual, and transgender community.

The new program prohibits private schools that avail themselves of the scholarships from discriminating on the basis of race, color, or national origin, but it does not include a mandate that they protect LGBT students and staff from discrimination. As a consequence, the state will effectively subsidize educational institutions that mistreat kids and teachers.

An examination of the current policy handbooks for private sectarian schools is shocking and revealing. Consider these examples from primary and secondary private schools in Illinois, which could benefit from the legislation:

“We believe that any form of sexual immorality (including adultery, fornication, homosexual behavior, bisexual conduct, bestiality, incest, and use of pornography) is sinful and offensive to God” and the school will deny admission or continued enrollment to any student “whose personal or family life-style is not in harmony with the stated philosophy.”

“We believe Christians ought to only date other Christians and follow the biblical principles of not practicing a promiscuous lifestyle or practicing a homosexual relationship (I Corinthians 6:9-10). Both of these actions would result in immediate expulsion.”

“We believe that any form of homosexuality, lesbianism, bisexuality, bestiality, incest, fornication, adultery, and pornography are sinful perversions of God’s gift of sex. We believe that God disapproves of and forbids any attempt to alter one’s gender by surgery or appearance.” This high school “retains the right to terminate any employee or refuse enrollment to or expel any student…who identifies as homosexual/bisexual/transgender.”

In Illinois, it is generally illegal to discriminate against LGBT persons in employment, housing and public accommodations. Under state law, it is illegal for licensed medical professionals to abuse children with so-called reparative therapies that seek to alter a minor’s sexual orientation or gender identity. Illinois law vigorously protects the rights of LGBT students in public schools, safeguarding them from bullying.

Given the public policy of Illinois, does it now make sense for the state to assist institutions that deny basic workplace fairness to LGBT persons or will expel students after they come to terms with their sexual identities?

Special tax benefits, like the scholarship program, should be extended only to educational institutions that uphold principles of equality. History is instructive here.

The Internal Revenue Service in 1970 promulgated a policy that it no longer would confer tax-exempt statuses on private educational institutions that engage in racial discrimination. Bob Jones University in Greenville, South Carolina, prohibited the admission of applicants in interracial relationships, banned students from marrying persons of another race, and punished those who advocated for interracial marriage. The IRS determined that Bob Jones’ policies were contrary to the public interest and stripped its tax-exempt status.

Bob Jones filed suit, claiming the university’s religious freedom rights were violated. In 1982, the U.S. Supreme Court rejected Bob Jones’ claim noting, “racial discrimination in education is contrary to public policy.” This fundamental principle, of course, had been true of public schools since Brown v. Board of Education in 1954. The Bob Jones decision expanded this basic tenet of the American social contract to private higher education.

While tax-exempt status and Illinois’ scholarship credit program are distinct issues, the underlying lesson of the Supreme Court’s decision should guide lawmakers: using the arm of the state to underwrite discrimination in education through the back door is incompatible with Illinois’ civil rights tradition.

Discriminatory schools impose harmful stigma on young people and endorse tolerance for anti-LGBT animus. As LGBT children are often vulnerable to adverse mental health issues stemming from exposure to bias, humiliation and ridicule, these private schools’ anti-LGBT policies can inflict a tremendous amount of untold harm.

While it may be lawful in some circumstances under existing civil rights laws for a school to ban a class of persons from its student body or its staff, it is nevertheless morally repugnant and worthy of condemnation. Our state should not create tax credits to assist schools that target LGBT kids for disparate treatment.

The Illinois General Assembly must swiftly adopt legislation to prohibit the use of government sponsored scholarship funds to discriminatory institutions.

Anthony Michael Kreis is a law professor at Chicago-Kent College of Law, where he specializes in LGBT civil rights issues.

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