Public Dollars, Private Discrimination: Protecting LGBT Students from School Voucher Discrimination

By Adam Mengler

More than a dozen states operate school voucher programs, which allow
parents to apply state tax dollars to their children’s private school tuition.
Many schools that participate in voucher programs are affiliated with
religions that disapprove of homosexuality. As such, voucher-accepting
schools across the country have admissions policies that discriminate
against LGBT students and students with LGBT parents. Little recourse
exists for students who suffer discrimination at the hands of voucheraccepting
schools.

This Note considers two ways to provide protection from such
discrimination for LGBT students and ultimately argues that the best route
is for an LGBT student to bring a lawsuit under the Equal Protection Clause.
Such a lawsuit would require a finding of “state action,” which U.S. Supreme
Court jurisprudence suggests would present a serious challenge for a
plaintiff. This Note suggests that plaintiffs should urge courts to take a more
relaxed approach to state action due to the unique nature of the
discrimination at issue.