ACSI — Vol 17.3
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Thomas J. Cathey

As our demographics are changing around the country, I continually get asked about what is required of a Christian school as to nondiscrimination statements. It seems that states, cities, and even municipalities are asking schools to add to their nondiscrimination statements things that are not required by federal law.

First of all, under Title VII of the Civil Rights Act of 1964, section 702 gives a blanket exception for religious organizations on religious nondiscrimination. It states, “This subchapter shall not apply to … a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities” (42 U.S.C. §2000e - 1(a)).

This language protects the ability of a religious organization (Christian school) to hire employees who are members of its religious organization or who share its beliefs. This allows a church to hire a pastor from its denomination. It allows a Jewish day school to hire only Jewish applicants. Therefore, it allows a Christian school to hire just members of the sponsoring church or only those who agree with its statement of faith.

This allows a Christian school to hire those who are born-again followers of Jesus Christ. It allows a school to ask religious questions on applications or in interviews as long as they are job-related. It allows a school to have a lifestyle statement that articulates what type of life a person must lead to qualify for an employment position in a religious school ministry (24/7/365).

The other area we are seeing show up is the area of sexual orientation. Again, there currently is no federal law that says a school must include this in its nondiscrimination statement. We have seen school districts try to add this to applications for federal Title monies. The district cannot add such requirements against federal law. Some states have passed sexual orientation discrimination laws. However, to our knowledge, all have excluded religious ministries.

ACSI recommends the following nondiscrimination clause for hiring employees:

Employment at ABC Christian School is open to qualified individuals who are Christians of good character, without regard or reference to race, gender, national or ethnic origin, color, age, or disability. ABC Christian School is a religious educational ministry, permitted to discriminate on the basis of religion. All prospective and current employees must agree with ABC Christian School’s mission statement, and they must be willing to conduct their lives in conformity with the school’s statement of faith and the school’s declaration and agreement to ethical and moral integrity.

Schools have also asked about nondiscrimination statements for students. Do you need to include religion or disability? The answer is no. Again, there may be states or organizations that try to require this for funding, and so on. However, federal law does not require this of Christian schools.

IRS Revenue Procedure 75-50 states that “a school that does not have a racially nondiscriminatory policy as to students does not qualify as an organization exempt from federal income tax.” A Christian school must show affirmatively that (1) it has adopted a racially nondiscriminatory admissions policy that is made known to the general public, and (2) since the adoption of that policy, the school has operated in a bona fide manner in accordance to the policy.

Your school must include a statement of its nondiscrimination policy as to students in all its brochures and catalogs dealing with student admissions, programs, and scholarships. The following statement is acceptable to the IRS:

The _____ School admits students of any race, color, and national or ethnic origin.

A Christian school is also required to publish a statement of nondiscrimination annually in the local newspaper. The following sample conforms to the IRS guidelines:

Notice of Nondiscriminatory Policy as to Students
The _______ School admits students of any race, color, and national and ethnic origin to all the rights, privileges, programs, and activities generally accorded or made available to students at the school. It does not discriminate on the basis of race, color, or national and ethnic origin in administration of its educational policies, admissions policies, scholarship and loan programs, and athletic and other school-administered programs.

Lastly, Christian schools are exempt under the Americans with Disabilities Act where it applies to student admission if the school does not take direct federal funding.