Back to School: The Updated Illinois Textbook Grant Program

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On August 9, 2019, Illinois Governor J.B. Pritzker signed into law a bill amending the State's School Code, including the provisions related to the Textbook Block Grant Program, which governs State Board of Education-funded grants to public school districts and "State-recognized, non-public schools" for the purchase of selected textbooks. This amendment contains significant implications for parents, school administrators, and others operating within private and public school contexts, both in terms of the required instructional content and broader policy implications of government grant programs. Indeed, it raises the question of what risks come with accepting government grants and other government involvement in school education - now or later.

1. Background: Public Funding and Curriculum Requirements for State Funded Schools

The School Code provisions establishing the Textbook Block Grant Program have been in effect since 2011 and provide for per-pupil grants to public and private schools to purchase textbooks. Under these provisions, any such textbooks purchased under the program must be preapproved by the State Board of Education and be "secular, non-religious, and non-sectarian." (105 ILCS 5/2-3.155). In addition, the School Code also contains important mandates concerning the content of history-oriented curricula taught "in all public schools and in all other educational institutions in this State supported or maintained, in whole or in part, by public funds." The recent legislative amendments affect both of these important sections of the Illinois School Code.

2. The Amendments

First, the amendments expand the language of the Textbook Block Grant Program, and now require any such textbooks to be "non-discriminatory as to any of the characteristics under the Illinois Human Rights Act . . . [and] include the roles and contributions of all people protected under the Illinois Human Rights Act." A "protected" class under the Act includes sexual orientation and gender identity.

Second, the new law affirmatively requires Illinois public schools to include the study of the role and contributions of a variety of ethnic and other groups, including "a study of the roles and contributions of lesbian, gay, bisexual, and transgender people in the history of this country and this State.”

Under the School Code, the State Board of Education may also adopt regulations to further guarantee the religious neutrality of the grant program. No such rules have been issued, but a mechanism currently exists for the State Superintendent of Education to verify that such funds are used to purchase only preapproved textbooks. (23 Ill. Admin. Code § 425.90)

3. Implications for Faith-Based and Other Illinois Educational Institutions

In some faith-based, and perhaps broader educational contexts, the new textbook grant requirements may give teachers, administrators, and parents pause in light of their sincerely held religious beliefs regarding sexuality, such as prescribed in various faith traditions and sacred writings. In some instances, the new law may put educational institutions on the horns of a dilemma: the institution may either accept government-prescribed instructional materials, or forego financial support in order to clearly adhere to its deeply held religious convictions as reflected in its own chosen materials.

Historically, private schools may not have opposed such textbook grant programs, particularly since the "strings" (i.e., conditions for the grant) have been fairly minimal thus far. Indeed, such funding may have been quite welcome, especially as many private schools operate on modest budgets and depend on significant charitable support. In the face of the recent amendments, however, some teachers, administrators, and parents may rethink their reliance on government grants. In such evaluation, we recommend interested individuals consider the following four key questions and responses.

1. Does the law require private schools to purchase these textbooks?

No. Nothing in the law requires private schools to accept funds through this program or use the textbooks approved under the program.

2. What requirements come with these textbook grants, should private schools choose to accept them?

As noted above, no accompanying rules have been promulgated. However, the underlying statute provides that the State Board of Education may later adopt such rules to "provide for the monitoring of all textbooks . . . purchased directly by State-recognized, nonpublic schools.”

3. Does the law specify how textbooks purchased through these grants shall be used?

No. The law does not specify how private schools must use the textbooks in the event they choose to receive them. Nor does the law require that private schools teach everything in the textbooks. In other words, there is nothing prohibiting private schools from using the textbooks selectively, as they see fit. The absence of such prohibition may not necessarily bring comfort to some concerned parents and school administrators, however, such as if later regulations require comprehensive usage or if certain students or teachers object to the omission of certain textbook sections from classroom instruction.

4. Is this an attempt by the State to influence what is taught in private schools?

It is difficult to discern the motivation of a group of legislators, each of whom votes individually and according to their own judgment and rationale. That said, the amendments clearly clarify: (1) that the Illinois Legislature's interpretation that "non-discriminatory," state-sponsored textbooks are so defined as the Illinois Human Rights Act defines that term, and (2) that, for public schools only, the content of history-oriented curriculum must include teaching about the roles and contributions of lesbian, gay, bisexual, and transgender people in public schools.

Perhaps the limitation of the historical curriculum requirement to only public schools reflects proper legislative deference to private schools' constitutional religious rights, so that they can teach students history according to their own traditions and deeply-held religious beliefs. Or perhaps it is an acknowledgment that at least for today, imposing such a condition would be too much to impose on private schools - and perhaps even be unconstitutional under the First Amendment.