For decades, certain groups, including religious institutions have joined forces under the rallying cry of “religious liberty” to stall any and all progress towards making access to reproductive healthcare easier for women. While the war over whether and how far one’s religious liberty rights should dominate over other individual rights wages on, women’s access to reproductive healthcare has quietly deteriorated to a dangerous and life-threatening level. On November 7th, 2018 the Trump Administration took another lethal swipe to an already vanishing right.

One day after the 2018 midterm elections in which the country voted soundly to protect access to healthcare and elected more women to Congress than ever before, the Department of Health and Human Services proposed a rule that would allow any employer or university to deny birth control coverage on the basis of a religious or moral objection. Under the Walker administration, Wisconsin had already refused to enforce the contraception coverage mandate under the Affordable Care Act (“ACA”) when an employer raised a religious exemption, despite the fact that the ACA required insurance companies to cover birth control without a co-pay.  With the new rule, this protection will expire two weeks after the new year begins.  With the arrival of a new Governor and Attorney General in January, it is unclear whether Wisconsin will join the host of other states that have challenged this type of law to make it clear that Wisconsin stands for protecting women’s reproductive choices or if it will resume enforcing the ACA coverage mandate within the little time it will remain in effect.  But until and unless Wisconsin moves to block the rule, Wisconsin women can expect to lose this much-needed protection under the ACA on January 15, 2019.

The predominance of religious liberty over other rights has played out in the public spotlight through battles over LGBTQ rights and the future of the right to an abortion under Roe v. Wade. However, for years the U.S. Commission for Catholic Bishops (“UCCB”) has quietly been using the religious liberty argument to deny women access to quality reproductive healthcare across the country.  A 2017 report released by Columbia Law School’s Public Rights/Private Conscience Project highlighted the devastating limits of Catholic Health Care for Women of Color.  The Report shows how Catholic hospitals, governed by strict guidelines set forth by the UCCB, regularly prohibit doctors from providing contraception, sterilization, treatments for pregnancy complications, among other reproductive services even against the express wishes of a patient, best medical practices, or a doctor’s judgment.  These regulations are typically not disclosed or otherwise made apparent to a patient attending a Catholic hospital. Perhaps more egregious, care providers in these hospitals are often unaware that they are prohibited from performing what could be life-saving procedures because of this expansive and overwhelming view of religious liberty. In Wisconsin, this has grossly affected women because our state has the highest percentage of births at Catholic hospitals in the nation.  It has required doctors to wait until a woman has hemorrhaged or shown at least two signs of infection from a pregnancy complication before taking action, all in the name of religious liberty.

One in six hospital beds in the country is a Catholic hospital and with the Administration’s new rules limiting access to birth control, women’s options for accessing reproductive healthcare are running out.  Groups that have succeeded in being able to use religious liberty to suppress a woman’s access to contraception found a strong ally in the Trump administration.  Religious liberty has long trumped many other fundamental rights, flying in the face of basic constitutional theory that no right should outweigh another. More importantly, though, this all-encompassing view of religious liberty allows the use of religion to discriminate.  Despite the constitutional need to balance equally our individual rights, in the battle between a woman’s right to access reproductive healthcare and the right to someone else’s religious freedom, there has only been one consistent winner.  The mask of religious liberty continues to expand its reach and pit women’s access to contraception against religious liberty and again, there has only been one consistent winner.     

The ACLU of Wisconsin is a non-profit, non-partisan, private organization whose 13,000 members support its efforts to defend the civil rights and liberties of all Wisconsin residents. For more on the ACLU of Wisconsin, visit our  About Us page of this website, like us on Facebook or follow us on Twitter and Instagram.

In Baraboo, members of the junior class were photographed – for their prom – giving a Nazi salute.[1] In Greendale, African-American students were subjected to racial slurs by their classmates.[2] In Kenosha, a former student sued the school district for failing to protect him from years of anti-gay bullying.[3] In Franklin, members of the high school basketball team used racial slurs against members of the opposing team.[4] And that’s all just in 2018. In Wisconsin. About student behavior that has garnered wide press attention.

In fact, a report issued in September – based on 2017 data from the U.S. CDC’s  2017 Youth Risk Behavior Surveillance System – found that Wisconsin ranked 4^th highest in the nation for the number of students bullied on school property.[5]

Yes, there is student speech that is protected by the First Amendment (as the Baraboo school district found to be the case for the Nazi salute). But allowing students to speak doesn’t mean that speech can or should go unchallenged, and schools cannot use the First Amendment as an excuse to ignore the real harm of such hateful actions. Our schools can do better. And they must do better. It’s the law.

In Wisconsin, all public schools, and many private schools receive federal funding. And with that funding comes an obligation: schools may not discriminate on the basis of race, color, national origin, disability, or sex (including sexual orientation). Title VI of the Civil Rights Act of 1964¹ (Title VI), which prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education Amendments of 1972² (Title IX), which prohibits discrimination on the basis of sex; and Section 504 of the Rehabilitation Act of 1973³ (Section 504), which prohibits discrimination on the basis of disability, all apply.

Those laws don’t limit non-discrimination to actions by faculty and staff (although they certainly also protect students from such harassment as the racial slurs reportedly used by some teachers in Madison).[6]  The U.S. Department of Education has long made clear that schools must protect students from harassment by other students.  For example, in 2010 the U.S. Department of Education Office for Civil Rights issued a “Dear Colleague” letter, making clear that schools must investigate harassment, take “prompt and effective” steps to end the harassment and ensure that there is no retaliation against the victim.[7] Some of the critical points include:

• The fact that “[h]arassing conduct may take many forms, including verbal acts and name‐calling; graphic and written statements, which may include the use of cell phones or the Internet; or other conduct that may be physically threatening, harmful, or humiliating.”
• The school’s obligation to “address[] harassment incidents about which it knows or reasonably should have known,” even if there hasn’t been a complaint filed about those incidents.
• The requirement that if “an investigation reveals that discriminatory harassment has occurred, a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring.
• Ensure that in seeking to end the harassment, the actions do “not penalize the student who was harassed.”
• Take “steps to stop further harassment and prevent any retaliation against the person who made the complaint (or was the subject of the harassment) or against those who provided information as witnesses.”
• Finally, resolving the individual situation may not be enough. Instead, “the school may need to provide training or other interventions not only for the perpetrators, but also for the larger school community, to ensure that all students, their families, and school staff can recognize harassment if it recurs and knows how to respond. A school also may be required to provide additional services to the student who was harassed in order to address the effects of the harassment. . . . An effective response also may need to include the issuance of new policies against harassment and new procedures by which students, parents, and employees may report allegations of harassment (or wide dissemination of existing policies and procedures)….” Id. pp. 2-3. 

These requirements apply to all schools, not just those where misconduct becomes public knowledge. The time for schools to act is now – before their students suffer more, before they become the target of public contempt before they end up financially liable[8]  for failing to protect students from discriminatory harassment. There are resources out there, like Teaching Tolerance (https://www.tolerance.org/ ). There are consultants districts can hire. There are students and families and teachers who care. Our students can’t wait any longer.

The ACLU of Wisconsin is a non-profit, non-partisan, private organization whose 13,000 members support its efforts to defend the civil rights and liberties of all Wisconsin residents. For more on the ACLU of Wisconsin, visit our  About Us page of this website, like us on Facebook or follow us on Twitter and Instagram.