False choice: Wisconsin taxpayers support schools that can discriminate Dozens of voucher schools have policies that allow them to exclude LGBTQ+ students or those with disabilities. In many cases, it’s legal. By Phoebe Petrovic Wisconsin Watch This story was originally published by Wisconsin Watch. Editor's note: This story was updated Friday, May 5 to include additional response from School Choice Wisconsin. In 2022, the two Fox Valley Lutheran High School students were a few months from graduating when they got called into the dean’s office. The accomplished, well-respected students were facing expulsion — not for cheating or breaking the law, but because administrators suspected the young women of dating. The school’s handbook states that “any sexual misconduct,” such as “homosexual behavior… will be treated as a serious violation of God’s will and may be grounds for disciplinary action or expulsion.” State law prohibits public schools from discriminating against students on the basis of sex, sexual orientation or disability, but it does not extend the same protections to private schools — even those receiving public funds. Fox Valley Lutheran in Appleton is one of 373 of Wisconsin private schools that currently receive public funding through tuition vouchers. They serve more than 52,000 voucher students, or 6% of all students at Wisconsin publicly funded schools. About one-fifth of these schools have 90% or more of their students on vouchers, or what one scholar described as “private in name only.” Wisconsin spent about $443 million this year on the four choice programs. Some Republicans, including 2022 gubernatorial candidate Tim Michels, have pushed for “universal” school choice, which would allow any Wisconsin student, regardless of income, to attend a private school at taxpayer expense. One of the disciplined students, who spoke to Wisconsin Watch on the condition of anonymity to avoid harassment, said the dean told them they could still graduate, but they had to break up and speak with a pastor. And he outed them to their parents. Later, the two were banned from public-facing extracurriculars after students staged a quiet protest by wearing rainbow T-shirts. ‘Little can be done’ Unbeknownst to the students, a classmate had reached out to Gov. Tony Evers for help, writing: “This is discrimination, and I believe it should be addressed on a government level, as the school receives funding from school choice.” In an email to Wisconsin Watch, Fox Valley Lutheran’s president said the “details” of the complaint were “not accurate,” but he declined to say how. Records show Evers’ staff sought guidance from the state Department of Public Instruction on how to respond, but acknowledged that “likely little can be done as it is a private institution.” DPI said it lacked “apparent authority” to intervene on behalf of the students. The first governor to raise the LGBTQ+ flag over Wisconsin’s Capitol could not help the gay students. They pretended to break up and laid low until graduation. They’re still dating today. ‘Choice’ for some, not all Wisconsin is considered the birthplace of the “school choice” movement. The nation’s first publicly funded private voucher program began in Milwaukee in 1990. Initial restrictions, such as limiting vouchers to secular schools, have disappeared as the program has expanded. Legal discrimination against students who are LGBTQ+ or have disabilities results from a lack of state-level protections; a federal exemption that allows religious entities to discriminate against LGBTQ+ students and another that requires schools taking federal funds to make only minor adjustments for students with disabilities; and a state education agency constrained by punctilious rules and decades of litigation. “It’s unfortunate,” DPI communications director Abigail Swetz told Wisconsin Watch by email. “We want children to be included, welcomed, and safe in all schools, especially those that receive public funding.” The president of School Choice Wisconsin, Nicholas Kelly, said by email that his organization “support(s) and encourage(s) compliance with all rules and processes set in place to address issues of this nature.” He did not respond to specific questions. After publication, Kelly disputed that private schools discriminate. He provided a statement that read, in part, “Fundamentally, parental choice and educational freedom provide accountability. If parents or students are not satisfied with the education they receive they can choose another school.” Wisconsin Watch reviewed public materials for about one-third of the state’s voucher schools and found that nearly half had policies or statements that appeared to discriminate against students who are LGBTQ+ or have disabilities, often citing religious principles or lack of capacity to accommodate certain conditions. Some handbooks say administrators may decline to enroll students with disabilities whose needs they cannot meet. Others say they might refuse enrollment to students whose families support LGBTQ+ people. Some, like Fox Valley Lutheran, might expel students who engage in “homosexual behavior” off campus. One will even expel students if their parents’ conduct is “contrary to the Bible.” “Let’s just stop calling it a ‘choice program,’ ” said Jeffrey Spitzer-Resnick, a civil rights attorney and disability education advocate. “And let’s call it a private discriminatory education program funded with your tax dollars.” Every voucher school contacted ignored or declined an interview to clarify its positions, as did every association, church or accreditor representing them. Some provided brief, written statements. Two hung up on calls, and one blocked a reporter’s emails. In records obtained from DPI, a Wisconsin Evangelical Lutheran Synod pastor said LGBTQ+ “lifestyles” and “viewpoints” are sinful. “Within our circles, we would say that ‘this is not discrimination but rather love practiced in the same way a parent would raise a child and announce harm when it is near.’ ” Legal scholars and advocates for the LGBTQ+ and disability communities all objected to public dollars supporting institutions with such policies. “I think it’s a common sense approach — and that the general public would typically agree — that a school that receives taxpayer money shouldn’t be able to discriminate against certain historically marginalized students,” said Suzanne Eckes, an education law professor at University of Wisconsin-Madison. ‘Am I allowed to expel a student who comes out of the closet?’ State law requires voucher schools to comply with a federal code prohibiting discrimination based on race, color or national origin, but no other protected classes. And while they cannot discriminate against LGBTQ+ students or those with disabilities during admissions — limited by statutorily described eligibility criteria — they may do so once that student is enrolled. It is even legal for a private school to enroll a voucher student “one minute” and expel them “the next,” confirmed Swetz. Over the years, records show, faith leaders considering joining the voucher program have inquired about this distinction in blunt terms. The Rev. Brett Naumann, pastor of Trinity Lutheran Church in Kiel, asked if he could expel a student who came out as gay or transgender, “provided that it is clearly laid out in our handbook.” A DPI consultant responded: “Once a student has been offered a seat and the student accepts, school policies apply.” Naumann’s school is not currently a member of the voucher program. It is part of the Wisconsin Evangelical Lutheran Synod. Wisconsin Watch found 17 WELS schools participating in the voucher program with anti-LGBTQ+ policies. Enrollment required; expulsion OK DPI’s authority to protect students who are LGBTQ+ or have disabilities at voucher schools stops at enrollment. Fond du Lac Christian School, which sought to join the voucher program in 2017, submitted materials indicating it would deny enrollment to voucher students who were gay or transgender. A DPI consultant directed the school to change the policy and resubmit. The official complied, adding a disclaimer that exempted voucher students from this anti-LGBTQ+ admissions requirement. As permitted by law, Fond du Lac Christian School kept in its 2017-18 handbook an eight-point anti-LGBTQ+ policy against enrolled students, as well as parents, employees and members, which bans them from “practicing” their gay or transgender identities. Today, about 63% of Fond du Lac Christian School’s students are on vouchers. The current handbook is not publicly available. The school blocked Wisconsin Watch’s attempts to reach it for comment. A ‘cautious’ DPI DPI risks a lawsuit if its response to claims of discrimination appears to overstep its authority as explicitly described in statute. And a lawsuit, DPI’s Swetz said by email, could create “bad law (court precedent) that would further harm kids.” DPI also can’t establish rules granting itself additional authority without agreement from the Republican-controlled Legislature. In the 1990s, at the beginning of the state’s first voucher program, then-State Superintendent of Public Instruction Bert Grover crafted a rule requiring participating private schools to serve students with disabilities similarly to public schools. But it was short lived, with a judge deciding Grover lacked the authority to establish such a rule. And even after the U.S. Department of Justice ordered DPI in 2013 to end discrimination based on disability in its voucher school program, the agency said it lacked the specific statutory authority to act. “All (DPI) can do is apply these very specific procedural mandates that are written into the statute, and there’s no authority outside that,” said Elisabeth Lambert, attorney and founder of the Wisconsin Education Law and Policy Hub. Said Swetz: “We have to be cautious. When it comes to the private school choice programs, we so much as sneeze and we get sued, and then more kids get hurt.” ‘We operate under what is written in state statutes’ DPI declined to weigh in even when presented with possible violations of state law uncovered by Wisconsin Watch. Faith Christian School in Williams Bay, which has 17% of its student body on vouchers, requires all families to undergo the school’s admissions process, including providing a “Christian testimony” from one parent and agreement with the school’s anti-LGBTQ+ and anti-abortion statement of faith. It vows to leave the program if forced to enroll students based on their sexual identity or gender identification. But state law does not permit private schools to place these additional requirements on voucher students prior to enrollment. Peace Lutheran School in Hartford has a similar application process, requiring parents to “permit their child to be instructed in the doctrines of Holy Scripture,” including “biblical truths” about “homosexuality, same-sex marriage, evolution, pre-marital sex, drug abuse, and the like.” State law specifically requires voucher schools to honor a voucher family’s request to opt out of religious activities and instruction. But Swetz said her agency cannot weigh in on the legality of any policy “because we operate under what is written in state statutes.” A spokesperson for Association of Christian Schools International, which accredits Faith Christian School, said “it is not discrimination for Christian schools to teach and live out the truths of the historic Christian faith with respect to marriage and human sexuality.” The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.