Language and Culture Restrictions in K-12 Nonpublic Schools: Exploring the Reach of Federal Nondiscrimination Law

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Education Law Reporter


first amendment, private schools, language restrictions, cultural background restrictions, ministerial exemption


In certain exceptional situations, the Free Exercise Clause of the First Amendment permits a complete ministerial exemption from school liability for alleged liability under federal nondiscrimination statutes. However, such an exclusion is very limited. This paper addresses the liability of private K–12 educational institutions where their language or cultural admissions restrictions are alleged to constitute discrimination. In particular, this paper considers the extent to which a private school's enforcing its English–only policy against students during the school day and a private school's limiting student admission only to those students with a particular cultural background violates Title VI and § 1981. The challenge, in part, is that neither language restrictions nor cultural requirements are expressly addressed in Title VI or § 1981. The focus of this article is two recent federal court decisions involving private schools, Silva v. St. Anne Catholic School where a private school created an English–only language policy for its students and Doe v. Kamehameha Schools where admission to the private school is limited only to those students who are related by blood as Native Hawaiians. This article is divided into three parts: (1) presenting the facts and court opinion for Silva; (2) presenting the facts and court opinions for Doe; and, (3) analyzing the cases and their implications for private schools under the following headings: culture and school policies in Silva and Doe; Runyon v. McCrary and § 1981; the reception of federal aid and Title VI; equal protection and burden shifting standards; free expression issues and culture, and, judicial deference to school decisions.


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