Do Private Schools Get a Pass to Discriminate Against Students?

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Private schools must be mindful when they accept federal funds, as money from Uncle Sam comes with strings attached.


Sending your children to private school can be a very beneficial decision, as many private schools offer a higher quality education over their public counterparts. However, some parents may also express concern that in instances of discrimination in the private school setting, neither they, nor their child enjoy the same anti-discrimination laws that apply in public schools. Examples would be a private school turning down applicants, or treating students differently based on their gender, ethnicity, sexual orientation, religion, or disability. Though the answer is not cut and dry, the outcome on whether a school has the right to act in such a manner depends on whether or not it receives any type of public funding, the type of discrimination involved, as well as whether or not the school is run by a religious organization. A school run by a religious organization is known as a sectarian, or church school, while a private school run by an individual, a group, or a business not connected with a religious group is known as nonsectarian.


Though many private school attempt to separate themselves from the public school sector, and charge a tuition for their provision of education, many still receive some kind of funding from the federal government. In regard to elementary and secondary schools, common examples of federal financial assistance include:


  • School breakfast and lunch programs
  • Assistance to schools with students of low-income families
  • Grants to upgrade technology.


Once a school decides to accept funds from the government, they must adhere to the stipulations that come them, as federal funds come with strings attached. Once a school takes this money, they must now adhere to important anti-discrimination laws that apply to programs, activities, and entities that receive federal financial assistance. These laws include:


  • Section 504 of the Rehabilitation Act* (29 U.S.C § 794) — which prohibits discrimination based on disability. Under this law, schools must ensure that students with disabilities receive an appropriate education, including related services to help with special needs. Private schools who receive federal funds may no longer exclude qualified students with disabilities, nor charge them more tuition for their education, so long as only “minor” adjustments are needed to provide an appropriate education.


*It is important to note that Section 504 is separate from the Individuals with Disabilities Education Act, which applies only to public schools.


  • Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin.


  • Title IX of the Education Amendments of 1972 (20 U.S.C §§ 1681-1688) prohibits discrimination based on sex in educational programs or activities. However, this law does make exceptions for religious schools, and for admissions policies in K-12 schools, as well as some colleges. This means that all-boy or all-girl schools may still restrict enrollment to one gender.


One form of illegal discrimination is harassment based on sex, race, or national origin. This means that private schools who receive federal funds must take swift action to put an end to this kind of harassment, regardless if it stems from a student or a school employee.


Title IX doesn’t, however, mention discrimination based on sexual orientation, so it does not prevent private schools from denying admission to students because either they or their parents are gay or lesbian. However, the U.S Department of Education’s Office of Civil Rights (OCR), the law prohibits harassment based on gender, each includes a student’s perceived sex, gender identity, or gender expression.


Regardless of whether a school receives federal funding, the U.S Supreme Court has upheld another civil rights law known as Section 1981, which prohibits racial discrimination in making and enforcing contracts. This prohibits all private, non-sectarian from denying admission to students based on their race on the grounds that such a restriction interferes with a parent’s ability to contract for educational services (Runyon v. McCrary, 427 U.S 160 (1976)). Even in an instance where a private school enacted a race-based admissions policy with intents to remedy racial imbalance by giving preference to native Hawaiians, a federal appellate court found that section 1981 barred the policy (Doe. v. Hamehameha Schools, 416 F.3d 1-25 (9th Cir. 2005)).


Additionally, private schools, including religious schools, cannot qualify as tax-exempt organizations if they have racially discriminatory admissions standards (Bob Jones University v. United States, 461 U.S 574 (1983)).


There have been instances where the law has made allowances for practices by religious schools for actions that some may consider discrimination.


  • In Runyon, the Supreme Court found that its decision didn't apply to sectarian schools that exclude students of certain races based on religious grounds.


  • Title VI doesn't include religious discrimination, despite another section of the Civil Rights Act which bars employment discrimination based on religion. Therefore, private schools, including churches are permitted to restrict enrollment or charge higher fees based on the student’s religion, regardless of whether or not the school receives federal funds. However, it’s important to note that this does not give a pass for harassment. The law still protects students who are being harassed because they come from a place where another religion is perhaps dominant.


  • Title IX provides an exception for any school controlled by a religious organization of the law’s prohibition on sex discrimination would violate the organizations “religious tenets.”


If you find that a private school is discriminating against your child based on his or her disability, or ethnicity, consider consulting with Managing Attorney Angel Castro. As an experienced lawyer who is well versed in private school education law and civil rights law, Mr. Castro can look into the specifics of your case, and determine whether or not this school was operating outside the parameters of their legal boundaries. Dependent on the specifics of your case, Mr. Castro can walk you through the process of filing a discrimination complaint with OCR or filing a lawsuit against the school. For any and all of your questions, do not hesitate to contact Angel Castro and his vigilant team. 



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Angel A. Castro, III, Esq.

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Serving in the Federal District Courts, Second Circuit Court of Appeals, New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Nassau, Westchester, Broome and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.


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