Racial Discrimination in a Post-Espinoza, Post-Fulton World

• In Event: Expanding Public Funds and Advocacy for Religious Schools via School Choice: Cultivating or Curtailing Equity?

Abstract

In Runyon v. McCrary (1976), the U.S. Supreme Court ruled that 42 U.S.C. § 1981, a reconstruction-era civil rights law, prohibited a secular private school from refusing to enroll a child on account of his race. The Court clearly stated, however, that it did not address the question of whether a parochial school could do so because of protections for religious practices under the Free Exercise Clause (Runyon v. McCrary, 1976, pp. 167-68). Seven years later, in Bob Jones University v. United States (1983), the Court appeared to create a sufficient deterrent to racial discrimination on religious grounds by upholding the Internal Revenue Service's refusal to grant tax-exempt status to such institutions (Minnow, 2007). Against this backdrop, this presentation will explain how the Court's recent decisions in Espinoza v. Montana Department of Revenue (2020) and Fulton v. City of Philadelphia, Pennsylvania (2021) suggest that it may soon find that Section 1981 does not forbid schools from refusing to enroll certain racial groups on religious grounds.

The presentation will accomplish this task through the use of legal methodology, which employs an analysis of legal decisions, statutes, and regulations (Dayton, 2020). This presentation will also explain how a future (likely) Republican administration could decline to enforce the Internal Revenue Service’s refusal to grant tax-exempt status to religious institutions that practice racial discrimination, thus further encouraging the practice.

This paper is significant because it addresses one aspect of the ongoing tension between the concepts of equality and religious diversity (Minnow, 2007). Minnow (2007) raised this question by asking,

[H]ow can a pluralistic society commit to equality and religious pluralism? Do we serve those commitments by ensuring extension and application of civil rights laws throughout society, or by ensuring regard and protection of the diverse practices and beliefs of religious communities? (p. 783)

With respect to school voucher laws, our society has answered this question in favor of religious pluralism. Indeed, Mead and Eckes (2018) note that voucher laws generally do not require participating schools to comply with civil rights provisions. In contrast, our society has refused to grant tax-exempt status to religious institutions that discriminate on the basis of race, thus ruling in favor of equality. This presentation will explain and thus illuminate how the U.S. federal government may soon remove this barrier in the name of religious diversity.

Authors

• Preston C. Green, University of Connecticut

• Bruce D. Baker, Rutgers University - New Brunswick