US justice department supports Christian school banned from voucher program

Baltimore, Md., Nov 27, 2019 / 11:30 am

The United States Department of Justice on Tuesday filed a statement of interest in support of a Christian school in Maryland that says it was banned from a voucher program due to its religious beliefs.

The DOJ said it found no evidence that the school had discriminated against students or violated the rules for religious schools set forth by the voucher program.

Bethel Ministries, an ecclesial community that runs Bethel Christian Academy, filed a lawsuit in June against the Maryland Department of Education, after the department disqualified the academy from participating in the state's Broadening Options and Opportunities for Students Today (BOOST) voucher program, which benefits low-income students.

The school claims it was disqualified from the program on account of its religious beliefs in Christian marriage and sexuality, stated in its handbook. The handbook was reviewed by the state's department of education before the school was banned from the program.

Bethel is a kindergarten through eighth-grade academy with a diverse student population of 85% non-white students, according to the DOJ. It had participated in the BOOST program since the 2016-2017 school year. 

Earlier this month, a federal district court judge denied Maryland's motion to dismiss the school's lawsuit.

In its Nov. 26 statement, the DOJ said, "The United States is resolutely committed to protecting the freedoms guaranteed by the First Amendment. The First Amendment enshrines both the right to 'the free exercise' of religion and 'the freedom of speech' at the bedrock of the Nation's constitutional system. These freedoms lie at the heart of a free society and are the 'effectual guardian of every other right.'"

The DOJ also noted that it has an interest in enforcing Title IV of the Civil Rights Act of 1964, "which allows the Attorney General to file suit when a school board deprives children of equal protection of the law, or when a public college excludes persons based on race, color, religion, sex, or national origin." The department stated that it found Bethel Christian Academy does not discriminate against its students and that the school's lawsuit was likely to succeed on the grounds of freedom of speech and freedom of religion.

"Bethel has introduced a declaration, made under penalty of perjury, stating that it 'does not ask about, or consider' sexual orientation, gender identity, or gender expression 'in its student admission decisions,'" the DOJ stated.

"And Bethel has represented to the Court that it 'has not, and will not, discriminate against any student based on sexual orientation, either in admissions or beyond,' that 'Bethel discriminates against no one,' and that its 'conduct policies apply equally to every student and only when at school.'"

The school requires all of its students to use facilities according to their biological sex and to refrain from discussions of a sexual nature or from public displays of affection. Its uniform policy has a unisex option with slacks, and an option with dresses or jumpers for girls, if they so choose.

According to the DOJ, beginning in 2019, the BOOST program has prohibited discrimination on the basis of "gender identity or expression," as well as in "student admissions, retention, or expulsion or otherwise." "The BOOST program's nondiscrimination requirement states, however, that it does not 'require any school or institution to adopt any rule, regulation, or policy that conflicts with its religious or moral teachings,'" the DOJ noted.  The DOJ said that the statement of the school's beliefs in a Christian view of marriage and sexuality in its handbook does not constitute discrimination, and that the program's banning of the school constitutes "unconstitutional viewpoint discrimination."

"Although the government may prohibit discriminatory conduct, even when the discriminatory conduct involves some ancillary speech, Defendants have introduced no evidence of discriminatory conduct. Further, Bethel has repeatedly affirmed that it does not, and will not, discriminate based on sexual orientation or gender identity, and has squarely represented to the Court that it 'discriminates against no one,'" the DOJ stated. "Supreme Court and lower court precedent make clear that penalizing Bethel for its beliefs goes beyond regulating conduct to regulating expression in violation of the Free Speech Clause, and coercing Bethel to renounce its religious character in violation of the Free Exercise Clause," the statement added.

Furthermore, the defendants are violating the school's right to free speech "by predicating government funds on the nature and expression of Bethel's beliefs," the DOJ noted. "For the foregoing reasons, the Court should hold that Bethel has demonstrated a likelihood of success on the merits of its free speech and free exercise claims for purposes of its motion for a preliminary injunction," the DOJ concluded.

The statement was submitted by Reed D. Rubinstein, Principal Deputy General Counsel  for the DOJ, Riddhi Dasgupta and Christine Pratt, attorney advisors for the U.S. Department of Education, Eric S. Dreiband, Assistant Attorney General, Elliott M. Davis, Acting Principal Deputy Assistant Attorney General, and Eric W. Treene, Special Counsel for the Civil Rights Division of the DOJ.