ACLU-WV delivered the following letter to members of the West Virginia House of Delegates today regarding House Bill 2013, which would funnel public funding to private schools that discriminate:


Today you will vote on House Bill 2013 (Relating to the Hope Scholarship Program).  I am writing to inform you that the American Civil Liberties Union of West Virginia (ACLU-WV) opposes this bill and we urge you to reject it. 

Article 12 of the West Virginia Constitution begins with a simple mandate: “The Legislature shall provide, by general law, for a thorough and efficient system of free schools.”  The constitutional duty of the Legislature is to ensure thorough and efficient free schools. 

Taken in combination with federal law, this duty extends to all students regardless of race, ethnicity, religion, disability, and sex.  Contrary to information you may have heard, courts and the US Department of Justice (DOJ), have interpreted the prohibition against sex discrimination to apply to discrimination on the basis of sexual orientation or gender identity as well.

House Bill 2013 would take state money, that can, and should be spent on this thorough and efficient system of education and would allow it to be funneled into institutions that are not obligated to extend their educational services equally. 

Section 18-31-11 of the proposed legislation sets out the conditions under which an education service provider will be eligible to receive payments from a Hope Scholarship account. Subsection (a)(4) provides that the education service provider must “[c]ertify that it will not discriminate on any basis prohibited by 42 U.S.C. §1981 (Section 1981).

Section 1981 originated in the Civil Rights Act of 1866 and was first enacted after the Civil War. It was enacted to proscribe the discrimination on the basis of race and ethnicity, and does not contain the protections provided in later civil rights legislation for religion, sex, or disability. While provisions of the Civil Rights of 1964 have been construed to provide some protections against discrimination on the basis of sexual orientation or gender identity, Section 1981 does not contemplate discrimination on these bases at all.  

The law is clear: Any limitation on discrimination premised only on Section 1981 would only prohibit discrimination on the basis of race and ethnicity. See e.g., Runyon v. McCrary, 427 U.S. 160 (1976) (noting that while provisions of Section 1981 confer on “all persons” certain rights as are enjoyed by “white citizens,” the protections do not extend to claims of discrimination on the basis of sex or religion);  Nnadozie v. Genesis Healthcare Corp,, 730 F. App'x 151, 157 (4th Cir. 2018) (stating that, “at the very least, a Section 1981 claim must allege race-based discrimination”); Evans v. Houston, 246 F.3d 344, 356 n.9 (5th Cir. 2001) (noting that an analysis of an age discrimination claim under Section 1981 was improper because Section 1981 “prohibits only racial discrimination”); Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (Section 1981 was intended to combat racial or ethnic discrimination, nothing more).

Although the question of whether or not Section 1981 is limited to claims based on race and ethnicity has been well-settled for some time in courts throughout the country, a federal district court in the Southern District of West Virginia ruled on this issue in May 2020.  In Wilson v. Twitter, the plaintiff sued Twitter under Section 1981, claiming that the social media platform banned him in violation of his rights because he used his social media account to express his “heterosexuality and Christian affiliation.” Noting the limited scope of Section 1981,” Judge Chambers dismissed Plaintiff’s claim.  Wilson v. Twitter, No. 3:20-cv-00054, 2020 U.S. Dist. LEXIS 110800, at *16-17 (S.D. W. Va. May 1, 2020) (“[Plaintiff] is clearly unable to state a plausible claim for relief under this section as he does not allege that Twitter discriminated against him due to his race.”).

Given that section 1981 does not extend further than race- and ethnicity-based discrimination claims, it follows that if the proposed legislation were to be enacted, schools that discriminate for any other host of reasons—including sex, gender identity, disability, and religion—would be eligible to receive funding through the state via the Hope Scholarship accounts.

Public money should not be used to fund institutions that discriminate.  The federal government demonstrates this principle by generally refusing to fund public or private educational institutions that do not comply with Title VI of the Civil Right Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act and other civil rights protections..  No such prohibition exists in House Bill 2013, allowing this principle to be subverted.

The Legislature’s obligation is towards the system of free schools.  A scheme that removes funding from this system and allows it to filter into private schools is problematic enough.  Allowing that public money to go to organizations that may discriminate against children is unconscionable.   

For these reasons, we urge you to reject House Bill 2013.