Oppose the Family Education Reimbursement Act of 2005

Media 10.26.05

Recipient: U.S. House of Representatives

Dear Representative:

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 the Family Education Reimbursement Act of 2005, which has been referred to the Committee on Education and the Workforce. The bill would allow for education funds to go to private schools without ensuring that the funds could not be used to discriminate.*

LCCR strongly opposes the bill 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.

LCCR supports swift action to meet the educational needs of children displaced by the hurricane. However to be effective, congressional action must be targeted to the most pressing needs of affected students and districts and must adhere to civil rights and constitutional principles. Effective legislation must include:

  • 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.
  • Mans 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 Boehner bill 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.


Wade Henderson
Executive Director

Nancy Zirkin
Deputy Director