Education Secretary Betsy DeVos wouldn’t say charter schools are barred from anti-LGBT discrimination. (Blade photo by Michael Key)

Weeks after facing criticism for refusing to speak out in congressional testimony against anti-LGBT discrimination in charter schools, Education Secretary Betsy DeVos still won’t say federal law prohibits them from discriminating against LGBT students.

DeVos on Tuesday referred generally to rules under federal law in a testy exchange on whether she’d speak out against anti-LGBT discrimination in charter schools with Sen. Jeff Merkley (D-Ore.), who said the statute in this area is “somewhat foggy.”

Although DeVos acknowledged charter schools aren’t eligible for U.S. government money if they violate federal laws against discrimination, she dodged when asked specifically if charter schools under her plan would be able to discriminate against LGBT students.

“I said it before and I’ll say it again that schools that receive federal funds must follow federal law,” said DeVos, who’s promoting a Trump administration plan that calls for a $250 million increase in school voucher funds.

When Merkley insisted federal law is foggy and pressed DeVos again on whether anti-LGBT discrimination would be allowed under her proposal, she said, “On areas where the law is unsettled, this department is not going to be issuing decrees. That is a matter for Congress and the courts.”

Merkley interrupted to seek clarification, but DeVos would only repeat her deference to Congress and the U.S. Supreme Court when the law is unclear.

Visibly frustrated, Merkley said he interprets DeVos’ response to mean “where it’s unsettled, such discrimination will continue to be allowed under your program,” adding if that interpretation is incorrect, she should make a correction in the record.

Asked the same question as it pertains to discrimination against students on the basis of religion, DeVos’ response was no different.

“Again, for schools that receive federal funds, federal law must be followed,” DeVos said.

When Merkley demanded DeVos answer the question as it pertains to religious discrimination against students, she said, “Schools that receive federal funds will follow federal law. Period.”

The Oregon Democrat rebuked DeVos for a response he said is too vague.

“You’re refusing to answer the question,” Merkley said. “I think that’s very important for the public to know that today the secretary of education before this committee refused to affirm that she would put forward a program that bans discrimination based on LGBTQ status of students or bans discrimination based on religion.”

DeVos protested Merkley’s characterization of her words, denying her response indicated any support for allowing discrimination in charter schools.

“Sir, that’s not what I said,” DeVos said. “That’s not what I said. Discrimination in any form is wrong. I don’t support discrimination in any form.”

Merkley asked for a yes-or-no answer on whether DeVos’ program bans discrimination, the education secretary replied, “What program are you talking about?” Merkley said it was her charter and private school grant proposals, prompting DeVos to repeat her previous response.

“As I said before, and let me say it again, schools that receive federal funds need to follow federal law. Period,” DeVos said.

Interrupting DeVos, Merkley concluded, “You said the same thing 10 times without answering the question at all.”

Although she wouldn’t say federal law bars discrimination against LGBT students, DeVos’ general repudiation of discrimination in any form is different from an earlier exchange with Rep. Katherine Clark (D-Mass.). At the time, DeVos wouldn’t denounce discrimination in any capacity when asked about anti-LGBT or racial discrimination in charter schools.

Denouncing DeVos for her response was Sarah Kate Ellis, CEO of GLAAD, who said in a statement the secretary’s words were leaving LGBT students out in the cold.

“By once again turning a blind eye to LGBTQ students who experience discrimination in school, Secretary DeVos continues to prove why she was the wrong choice to lead our nation’s education system,” Ellis said. “DeVos once claimed she was an LGBTQ ally, but has now supported back to back policies that would erase LGBTQ students from classrooms. If she wants to be known as more than an anti-LGBTQ activist the time is now to reverse course.”

Federal law doesn’t explicitly ban anti-LGBT discrimination, but it does bar sex discrimination. Courts are increasingly interpreting those laws to prohibit discrimination on the basis of sexual orientation and gender identity. That’s likely what Merkley meant when he said existing federal law on the issue is “somewhat foggy.”

Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin for any school accepting federal funds, and Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex for any school accepting federal funds. There is an exemption in Title IX for religious schools, but not for charter or secular private schools.

The Obama administration had issued guidance making clear Title IX precludes schools from barring transgender students from the restroom consistent with their gender identity, but DeVos along with U.S. Attorney General Jeff Sessions revoked it at the start of the Trump administration. Media reports indicated DeVos resisted that move and she later met with LGBT groups and transgender students at the Education Department.

Vanita Gupta, CEO of the Leadership Conference on Civil & Human Rights, said she’s “glad to hear” DeVos opposes discrimination, but called for action.

“Words alone are insufficient,” Gupta said. “She must use her authority as secretary to make that prohibition and those protections for students real. The department must also proactively support schools to prevent discrimination and intervene when the law is broken. This can’t just be about talk; students need and deserve action.”

Merkley is lead sponsor in the Senate of the Equality Act, comprehensive legislation that would make explicit a ban on anti-LGBT discrimination in every area of civil rights law, including education.