The “fix” to the Religion Freedom Restoration Act, intended to alleviate concerns the law could be used to discriminate against gays and lesbians, excludes churches and affiliated schools.

Now, a public school advocacy group suggests the exemption could be giving religious-affiliated schools that receive vouchers a license to discriminate.

Vic Smith, of the Indiana Coalition for Public Education (ICPE), believes funding for taxpayer-funded vouchers benefiting religious schools should not be expanded this year “unless they fall under the nondiscrimination amendment as it relates to sexual orientation and gender identity.” 

The organization advocates on behalf of Indiana’s public schools and opposes private school vouchers.

“Expanding private school vouchers at any time is an unwise use of tax dollars and hurts public schools, but it would be particularly harmful to expand private school vouchers this year without a clear amendment specifying that religious schools that accept vouchers do not have a license to discriminate,” Smith wrote in an e-letter called “Vic’s Statehouse Notes.”

The amendment passed by the Legislature clarified that Indiana’s RFRA law does not give businesses, groups or individuals a legal defense for refusing to serve customers based on factors that include sexual orientation and gender identity. 

The amendment does not include a church or other nonprofit religious organization or society, including an affiliated school.

Danny Tanoos, Vigo County school superintendent, said the word “stunned” came to mind when he learned about an exemption “that would allow certain schools the right to discriminate against students.”

Public schools “take every kid, every day, no matter who they are, what they look like or what situation they may be coming from,” he said. “That’s what public education is about.”

While he doesn’t believe local religious schools would discriminate, it appears the exemption would give them “the right to pick and choose.” Tanoos opposes any expansion of voucher funding for religious schools unless they are covered by the RFRA amendment.

Amy McClain, principal at St. Patrick’s School in Terre Haute, said the school does not discriminate on the basis of sexual orientation or gender identity and would not deny enrollment on that basis. At the same time, it is a Catholic school. “What parents and students have to understand is that we are who we are. We will teach religion classes and go to Mass, and we won’t change any of that because someone’s beliefs are different than ours,” she said.

The school might not be able to meet the needs of some students because of lack of specialized services or limitations presented by the school facility. She gave the example of a child with limited mobility; the school doesn’t have elevators and it is not ADA compliant. In those cases, St. Patrick’s might not be the “right fit” for the student, she said.

John Elcesser, executive director of the Indiana Non-Public Education Association, said the voucher law includes an anti-discrimination clause, but sexual orientation is not one of the protected categories.

He works with about 400 non-public schools in Indiana, including religious schools. “I don’t know all of the policies and practices [of each school], but I don’t believe any religious-based, non-public school openly discriminates or would choose to discriminate,” he said.

Because they are religion-based, he believes they would be opposed to discrimination and instead be loving and accepting of others, he said.

But religious-based schools “have a particular belief system that undergirds their program and operation,” and that is information they would make known to potential students, families and employees, Elcesser said. The school doesn’t change what it is or its mission based on someone’s participation in the program, he said.

He doesn’t believe what Gov. Mike Pence has proposed is a major expansion of the voucher program this year. Pence has asked for additional public money to go to private voucher schools by removing the $4,800 cap on elementary school vouchers for students in grades 1-8; the governor’s office has estimated the cost at about $4 million a year.

State Sen. Jon Ford, R-Terre Haute, said he wasn’t familiar with the exemption for religious schools, but he does believe that religious schools benefiting from public money “should not be allowed to discriminate.”

State Rep. Bruce Borders, R-Jasonville, voted against the RFRA amendment. “I’m very uncomfortable when we start to separate people by preferred sexual activity,” he said.

RFRA was intended to be a “shield, not a sword,” he said. “My worry now is that with the amended language, it could possibly be used as sword against people of faith — all faiths.” RFRA lays out a template for courts to deal with matters of religious freedom, he said.

He supports school choice, private school vouchers and public schools, he said. If a school has a faith-based affiliation, “I don’t feel they should be forced to violate their faith,” he said.

Vouchers have been upheld by the Indiana Supreme Court and they are not destroying public education, Borders said. Instead, they are giving parents “the right to choose,” he said.

In Smith’s mind, “This is truly a confusing and intolerable situation about private voucher schools which must be clarified by the General Assembly and by Gov. Pence. ... Do religious voucher schools have a license to discriminate? We need to know either way. The General Assembly needs to fix the fix.” 

Christy Denault, the governor’s communications director, said in an email on Wednesday that “Gov. Pence believes that parents and students – particularly our neediest students and those in our lowest-performing schools – should have choices for quality education. In Indiana, the dollars follow the child, and we are committed to continuing to offer more parents of all income levels the opportunity to send their children to the school that they believe will serve them best.”

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