Can Private Schools Discriminate on Race or Gender?
Private schools are a preferred method of schooling in many countries around the world and one of their appeals is a lack of direct interaction with the government. A private school, because it is not funded by a government entity, is able to make more of its own rules and laws. The concern then, is whether or not they are able to make their own rules similar to segregation and discrimination.
Private Schools cannot discriminate based on race or gender in the United States. Section 1981 of the Civil Rights Act (1866) stipulates that if an institution does not receive federal or governmental funding it cannot impair any educational function based on race or gender with some exceptions.
There are a lot of complicated laws and rules when it comes to schooling, and even more so with a private school.
In the United States, it is compulsory for all kids to attend school from the age of 5 to 8 all the way up to 16 or 18 years old, depending on the state. This requirement for children can be met through public schooling, private schooling, or homeschooling. With public schools, the state (or government) directly gives funds and supplies standards for education. The other two methods allow less regulation, but they aren’t free from everything.
Every standard and regulation concerning education in America is set by the US Department of Education. Everything I will be discussing will be using their resources to make sure everything is correct. They set the most general rules, but from there States can create more specific regulations based largely on what the people of their state want.
The precise rules of every school are impossible to summarize because every school has different values that it wants to emphasize, and additionally, every state follows a similar sentiment. I read through the U.S. Department of Education’s State Regulation of Private Schools to find out more. It is dense but helpful in summarizing the specifications of every state in America.
Where it gets tricky is that there are exempt and non-exempt schools for regulations like teacher certification and there is a general divide between church schools and non-church schools. Some places, like Alabama, require English to be the language of medium for private schools, with the exception of church schools.
So yeah, almost nothing is consistent when it comes to standards set by states, but it is encouraging that Arizona, Colorado, Connecticut, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Ohio, Pennsylvania, South Carolina, and South Dakota all have their own regulations about not discriminating against race or gender.
The Actual Law: Gender
So here is what the law actually says. If you accept federal funding (which most private schools do) you cannot discriminate based on gender thanks to the Civil Rights Act of 1866 and the Educational Amendment of 1972 including the famous Title IX. Here’s what it says in the summary included in Title IX:
The final regulations specify how recipients of Federal financial assistance covered by Title IX, including elementary and secondary schools as well as postsecondary institutions, (hereinafter collectively referred to as “recipients” or “schools”), must respond to allegations of sexual harassment consistent with Title IX’s prohibition against sex discrimination.Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
Not only can you not discriminate based on sex, but sexual harassment is also grounds for legal action. Federally funded schools are safe in this regard.
So what about religious schools and those that don’t accept federal funding? It is much more complicated.
Clearly, some schools are all-boys or all-girls schools, and they are legally allowed to block enrollment to those who are not the gender that matches what the school is for. So clearly you can to some degree. But schools exempt from Title IX are allowed to discriminate, but only in certain ways.
The Actual Law: Race
Because of Title VI of the Civil Rights Act, no institution can discriminate based on race. If a private school does, they can lose their non-profit designation and can then lose their tax-exemptions. Section 1981 of the Civil Rights Act also protects people based on race. Here is what it says:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.42 U.S. Code § 1981 – Equal rights under the law
To summarize, this section means that everyone, regardless of race, can make contracts, and can’t be refused a contract based on race. This means that if you want to form a contract with a private school with federal funding, meaning you want to enroll there, they cannot refuse you based on race.
But that is the confusing part. If a school does not accept federal funding and is okay paying higher taxes, doesn’t that mean they can discriminate based on race?
The answer is yes. The caveat is that it had to be religiously based, but if they have that reason, there then is nothing stopping them from refusing enrollment to a student because of what race they are.
The laws behind anti-discriminatory policies come from different places, but the outcome is the same.
Federally funded schools of any kind, public or private, cannot discriminate based on sex or race. End of story. Any that do will face harsh legal repercussions and are likely to lose certifications. Private schools still cannot discriminate based on race due to Section 1981.
Private schools, including religious schools, cannot discriminate based on race if they want to keep their non-profit designation and if they do discriminate, they can lose many of their tax exemptions. Schools can discriminate based on sex and race, but they have to have religious justification.
As race and gender are central focuses of politics, there are probably more regulations in the future to be made to ensure students can attend the school they desire without being rejected for race and sex.