The State of Maryland maintains the Maryland Nonpublic Student Textbook Program and the Nonpublic Aging Schools Program, whereby nonpublic schools can receive free textbooks and/or funds to offset the costs of their aging buildings if they provide certain “assurances” to the state. Some religious schools in Maryland have participated in these programs in the past. Recently, however, two new strings were attached to schools that wish to participate in these programs: schools must provide assurances that they (1) will not discriminate against gay and lesbian students in their admissions policies and (2) will not discriminate on the basis of sexual orientation in their employment practices.
The requirement against employment discrimination should not become an issue for Christian schools involved in the program because a separate statutory section (Md. State Government Code section 20-604) permits religious institutions to discriminate in employment hiring for the performance of work connected with the religious organization.
However, the requirement not to discriminate against gay and lesbian students in admissions might be another issue entirely—especially Christian schools that do not currently admit homosexuals. What’s interesting, however, is that the statute adding these new requirements goes on to say that “nothing herein shall require any school or institution to adopt any rule, regulation or policy that conflicts with its religious or moral teachings.” Over the last week, several Christian schools and pastors in Maryland have contacted us about these new requirements and are understandably concerned about the potential impact on their schools.
The Maryland State Department of Education is recommending that religious nonpublic schools sign the assurance forms but also add a statement to the form reiterating the “nothing herein” statutory language mentioned above. This is what the DOE is recommending that school’s say: "By signing this assurance, we are not adopting a written rule, regulation or policy that conflicts with our religious or moral teachings but are signing as a condition of accepting funds for textbooks and materials under the Nonpublic Schools Textbook/Aging Schools Program."
The NCLL has reviewed this statement and the applicable statutes, and we do not believe the statement recommended by the DOE is specific enough to protect Christian schools from either a claim that they did not abide by the terms of the program’s requirements or from later being required to admit homosexuals into their schools. We suggest that religious schools applying for this program include the following statement instead:
"[School Name] desires to participate in the nonpublic school textbook/nonpublic aging schools program; however, given that the sexual orientation provision included in Assurance #4 [regarding sexual orientation] conflicts with the religious and moral teachings of our school, our signing of this assurance does not indicate acceptance or adoption of that provision."
It remains to be seen whether either of these provisions—what the state DOE suggested or what the NCLL is advising—will suffice in order to protect schools that are participating in these programs. The NCLL has always recommended that Christian schools be very careful about accepting government financial aid because strings are often attached to these programs. As has happened in this situation, sometimes these strings are not initially attached to these programs but are added later. The question always then becomes whether religious schools are granted a waiver for strings that would violate their religious beliefs or whether their religious beliefs would then disqualify them for the program. With regard to the free textbook and aging buildings programs, that question is not yet clear.
The NCLL is monitoring this situation in Maryland. If your school has previously participated in either of these programs or desires to do so, contact the NCLL office before making your application, and we can assist you in this process.