Originally published here.

This article analyzes the legal arguments that students might make to compel states that subsidize private education through voucher, tax credit scholarship, and ESA programs to offer these programs on an equal basis, regardless of the sexual orientation or gender identity of the student or members of the student’s family. The first section provides an overview of voucher programs. Among other things, we identify the differences among vouchers, tuition tax credit scholarships, and ESAs.

We also discuss the prevalence of participating schools with anti-LGBT admissions policies. The second section evaluates constitutional challenges that students could make to invalidate the anti-LGBT admissions policies of participating voucher schools under the state action doctrine. Specifically, we explain the possibilities and limitations of various approaches that may be used to challenge the anti-LGBT enrollment policies of participating private schools under the Equal Protection Clause of the Fourteenth Amendment.

As this discussion shows, the reason we have yet to see litigation on the exclusion of LGBT students from private schools participating in voucher programs likely stems from the obstacles to convincing a court that sufficient state action exists to incur the protections of the Fourteenth Amendment. In fact, those theories that would involve suing the schools directly–the public function test, the symbiotic relationship test, and the entwinement test–hold little promise of success. In each instance, it would be difficult, given existing precedent, to convince a court that the participation of the private school in a public program transformed school officials into state actors subject to the requirements of the Fourteenth Amendment.

However, two approaches may provide an avenue for success: the state compulsion test and the state enforcement test. In both instances, plaintiffs would challenge the state directly for its unequal implementation of the voucher program. In other words, like the plaintiffs in Dumont, challengers would “allege that their claims concern only the State’s provision of taxpayer-funded government services based on religious and discriminatory criteria and do not challenge any private [school’s] provision of [educational] services or use of non-public funds.” 236 Whether cast as state compulsion or state enforcement, courts might well agree that states cannot divorce their actions from those of the private schools when the result is a group of children with limited access to a state-created benefit.

The last five years have borne witness to incredible advances in the recognition of the rights of LGBT individuals. From the landmark ruling guaranteeing the right to marry to the recent recognition that federal non-discrimination law forbids discrimination on the basis of sexual orientation and gender identity, 244 the Supreme Court has mandated that states respect the rights of all individuals to be treated fairly. In so doing, the protections of federal law have been extended and the Court has explicitly noted that the rights of every LGBT person must be legally protected from state actions that result in the diminution of a person’s dignity. It would be a perversion of justice to place state-operated voucher programs outside the ambit of those protections. For as the Court observed just five short years ago, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” That liberty must extend to all children who seek to participate in state voucher programs.

You can read the complete article here.