Covenants to Discriminate: How the Anti-LGBT Policies of Participating Voucher Schools Might Violate the State Action Doctrine

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 and discusses 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.