Oppose Landrieu Amendment SA 2252: It Removes Civil Rights Protections that Should Always Be Required when Spending Federal Funds

Recipient: U.S. Senate

Dear Senator:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, with more than 190 member organizations, we are writing to urge you to oppose SA 2252, which has been filed by Senator Landrieu as an amendment to the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2006. The amendment would allow for education funds to go to private schools without ensuring that the funds could not be used to discriminate.¹

LCCR strongly opposes the amendment because it would remove existing civil rights protections under the Individuals with Disabilities Education Act, Titles VI and VII of the Civil Rights Act, Title IX of the Education Amendments of 1972, and the Rehabilitation Act of 1973. The amendment defines the federal funding that would support private and religious schools as not being “federal financial assistance,” which would exempt recipients of federal taxpayer dollars from the civil rights laws that should always attach to federal funding. Further, the amendment would permit taxpayer dollars to support sex discrimination by funding single-sex programs, regardless of the justification for them, and regardless of whether any programs are available to the excluded sex.

LCCR opposes allowing government-funded employment discrimination. If federal education relief money is allowed to flow through public school districts to reimburse private and religious schools for expenses incurred from accepting hurricane victims, there must be sufficient civil rights protections to ensure that the money is not used to promote or fund employment discrimination. The courts have affirmed the principle that federal funds cannot be used to discriminate. The leading case on the question of government-aided discrimination is Norwood v. Harrison, 413 U.S. 455 (1973). In a unanimous decision, the U.S. Supreme Court held that “the Constitution does not permit the state to aid discrimination.” Id. 465-66. The principles set out in Norwood were affirmed in Justice O’Connor’s opinion in City of Richmond v. J.A. Croson Co. 488 U.S. 469, 492 (1989), which stated, “It is beyond dispute that any public entity, state or federal, has a compelling interest in assuring that public dollars, drawn from the tax contributions of all citizens, do not serve to finance the evil of private prejudice.” Her opinion quoted Norwood with approval for the proposition that “[i]t is … axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”

Although the Supreme Court has affirmed an exemption from Title VII of the Civil Rights Act of 1964 for privately-funded religious employers, it did not authorize federally-funded employment discrimination. See Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987). We believe, based on analysis of Amos, that if federal funds are used by religious organizations to hire only persons of their own faith, then the federal government is affirmatively acting to advance employment discrimination.

• Repairing damaged public schools. Relief legislation must include sufficient funding dedicated to assisting hurricane damaged districts repair and reopen public schools. Reopening damaged public schools as quickly as possible is essential for displaced families to be able to return home and to restore normalcy for school children.
  
• Means testing benefits. For funding that follows displaced students to new school districts, any use of the funds for students in non-public schools, whether religious or secular, must be means tested to ensure that the funds are not used to subsidize wealthy families who do not need the assistance.
  
• Protecting civil rights. In the event that any of the funding is passed on from public school districts to religious schools that have enrolled displaced children, the money must be strictly
  limited to secular education and activities and carry clear non-discrimination requirements for both the acceptance of students and the hiring of staff. The funding should also be distributed through existing law under Title I of Elementary and Secondary Education Act and not by creating a new and divisive voucher system.

LCCR urges you to oppose the Landrieu amendment and to work to pass legislation that follows the principles laid out above. Doing so is the only way ensure rapid, non-controversial relief to students and families in need and to prevent the erosion of crucial civil rights and constitutional protections. If you have any questions, please contact Nancy Zirkin at 202/263-2880, or David Goldberg, program manager and special counsel, at 202/466-0087, regarding this or any issue.

Sincerely

Wade Henderson
Executive Director

Nancy Zirkin
Deputy Director

1. Some organizations in the Leadership Conference do not join in this position because they disagree that allowing religious entities, including those participating in federally funded programs, to consider religion in hiring constitutes a threat to or violation of fundamental civil rights.