SB 98
Department of Legislative Services
Maryland General Assembly
2021 Session
FISCAL AND POLICY NOTE
First Reader
Senate Bill 98 (Senator McCray)
Judicial Proceedings
County Boards and Public and Nonpublic Prekindergarten Programs and
Schools - Discrimination - Prohibition
This bill prohibits a local board of education, public prekindergarten programs and primary
and secondary schools, and nonpublic prekindergarten programs and primary and
secondary schools that receive State funds, from refusing enrollment of, expelling,
withholding privileges from, or otherwise discriminating against any student or prospective
student because of the individual’s race, ethnicity, color, religion, sex, age, national origin,
marital status, sexual orientation, gender identity, or disability. Further, retaliatory actions
against a student or parent or guardian of a student who files a complaint alleging specified
discrimination is prohibited. The bill establishes a complaint, mediation, and appeal
process for violations. All or part of specified funding may be withheld from a board,
program, or school that violates the nondiscrimination requirements. The bill takes effect
July 1, 2021.
Fiscal Summary
State Effect: General fund expenditures increase for the Maryland State Department of
Education (MSDE) by $39,900 in FY 2022 and by $49,300 in FY 2026 to implement the
bill’s requirements as discussed below. The Comptroller can withhold funds as directed
using existing resources. The bill is not anticipated to materially affect the workload of the
Judiciary, the Maryland Commission on Civil Rights, or the Office of Administrative
Hearings (OAH). No effect on revenues.
(in dollars) FY 2022 FY 2023 FY 2024 FY 2025 FY 2026
Revenues $0 $0 $0 $0 $0
GF Expenditure 39,900 44,600 45,800 47,500 49,300
Net Effect ($39,900) ($44,600) ($45,800) ($47,500) ($49,300)
Note:() = decrease; GF = general funds; FF = federal funds; SF = special funds; - = indeterminate increase; (-) = indeterminate decrease
Local Effect: Local school systems can comply with the bill using existing resources. The
bill is not anticipated to materially affect the workload of the circuit courts.
Small Business Effect: Minimal/none. Most private schools participating in the State
programs are nonprofit.
Analysis
Bill Summary: The bill’s provisions do not apply to (1) with respect to discrimination on
the basis of sex, a nonpublic prekindergarten program or nonpublic school that limits, and
continually since the time of its establishment has limited, admission to students of only
one sex, (2) with respect to discrimination on the basis of religion, a nonpublic
prekindergarten program or nonpublic school that is affiliated with a religious institution
that declines to instruct students in the tenets of a religion that is different from the religion
with which the program or school is affiliated, and (3) with respect to discrimination on
the basis of disability, a nonpublic prekindergarten program or nonpublic school that
provides a student with a reasonable accommodation under federal law. The bill’s
provisions do not require a nonpublic prekindergarten program or nonpublic school to
enroll, retain, or extend privileges to a student or prospective student who does not meet
the usual and regular qualifications requirements, and standards of the program or school,
provided that the denial is not based on discrimination on the specified grounds.
Written Antidiscrimination Policy
Each local board of education must adopt and maintain a written antidiscrimination policy
for the local school system that prohibits specified discrimination. Each nonpublic
prekindergarten program that receives State funds and nonpublic primary or secondary
school that receives State funds must develop and maintain a written antidiscrimination
policy that prohibits specified discrimination.
Complaint Resolution Process
A person alleging specified discrimination may file a complaint with the
State Superintendent of Schools. A compliant must specify the relief or remedy requested.
A parent or guardian may submit a complaint on behalf of a minor.
On receipt of a complaint, the State Superintendent must provide notice of the complaint
to the program or school and the local school board in which the public prekindergarten
program or public primary or secondary school is located. The program or school and if
appropriate local board must submit a response to the State Superintendent as specified.
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The State Superintendent must attempt to mediate an agreement to remedy and eliminate
the discrimination as specified and issue a decision to both parties as specified. If the
State Superintendent finds that a local board, program, or school violated the
nondiscrimination requirements established by the bill, a decision may require the
Comptroller to withhold funding from the program or school in an amount determined by
the State Superintendent in accordance with law.
A complainant alleging that a local board, program, or school did not remedy or eliminate
the discrimination as agreed or required under the decision issued by the
State Superintendent may reopen a complaint without filing a new complaint or engaging
in mediation. If the State Superintendent finds that a local board, program, or school did
not remedy or eliminate the discrimination as agreed or required, the State Superintendent
must issue an updated written decision to both parties requiring the Comptroller to
withhold funding from the program or school in an amount determined by the
State Superintendent in accordance with law.
A complainant or respondent may appeal a decision by the State Superintendent to OAH
as specified. An appeal hearing must be held in the county where the alleged discriminatory
act occurred. If, after reviewing all of the evidence, the administrative law judge finds that
the respondent has engaged in discrimination, the administrative law judge must (1) issue
a decision and order stating the judge’s findings of fact and conclusion of law and (2) issue
and cause to be served on the respondent an order requiring the respondent to cease and
desist from engaging in the discrimination and take affirmative action to effectuate the
purpose of the bill.
The State Board of Education, in consultation with the State Superintendent, must adopt
regulations to establish procedures for complaint processing, mediation, and enforcement
and otherwise implement the requirements of the bill.
Current Law: State regulations establish that all public school students, regardless of
race, ethnicity, region, religion, gender, sexual orientation, language, socioeconomic
status, age, or disability have the right to educational environments that are safe,
appropriate for academic achievement, and free from harassment. State law also requires
all individuals who are ages 5 or older and younger than age 21 to be admitted, free of
charge, to the public schools of the State.
Definition of Race
Discrimination based on race is prohibited under State laws, including those prohibiting
discrimination in employment, housing, and places of public accommodation. Chapter 473
of 2020 defines “race,” for the purposes of laws prohibiting discrimination, as including
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traits associated with race, including hair texture, afro hairstyles, and protective hairstyles;
“protective hairstyle” is defined as a hairstyle that includes braids, twists, and locks.
Federal Nondiscrimination Laws
Numerous provisions of federal law prohibit discrimination in education. The federal
Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, sex, religion,
or national origin by public elementary and secondary schools and public institutions of
higher learning. Private (nonpublic) schools receiving federal funds must comply with
federal law provisions regarding discrimination. Title IX of the Education Amendments of
1972 prohibits discrimination on the basis of sex by private schools receiving federal
funding. Federal law includes exceptions for the admissions practices of single-sex schools.
The Americans with Disabilities Act (ADA) also prohibits state and local governments
from discriminating on the basis of disability. Private schools not run or controlled by
religious organizations must abide by ADA.
State Aid to Nonpublic Schools – Nondiscrimination Requirements
No State law directly applies to private schools that receive State funds to prohibit them
from discrimination. However, pursuant to language in the annual operating budget bill, a
nonpublic school participating in the Aid to Nonpublic Schools Program or the Broadening
Options and Opportunities for Students Today (BOOST) program must certify compliance
with Title 20, Subtitle 6 of the State Government Article, which prohibits discrimination
in employment. A nonpublic school participating in the programs may not discriminate in
student admissions, retention, or expulsion or otherwise discriminate on the basis of race,
color, national origin, sexual orientation, or gender identity or expression. A nonpublic
school that does not comply with these requirements must return the BOOST scholarship
funds and may not charge the student tuition and fees instead. The only other legal remedy
for a violation of these provisions is ineligibility for participation in the programs, as
specified. The budget bill also specifies that nonpublic schools must comply with Title VI
of the Civil Rights Act, which prohibits discrimination on the basis of race, color, or
national origin.
State Aid to Nonpublic Schools – Eligibility and Funding
The State provides some aid to nonpublic schools using special funds from the
Cigarette Restitution Fund, which includes the State’s share of the national tobacco
settlement. All of the programs are administered by MSDE. The Aid to Nonpublic Schools
program is for textbooks, computer hardware, and computer software that are secular
(i.e., nonreligious) in character and acceptable for use in any public elementary or
secondary school in Maryland for use by students in eligible schools. The proposed
fiscal 2022 budget includes $6.0 million in such funding; the program has been funded at
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this level in recent years. MSDE assures that the purchases are made from a list of qualified
vendors and that the savings are used by the schools to reduce the cost of textbooks and
computer hardware and software for students. To be eligible to participate in the program,
a nonpublic school must hold a certificate of approval or be registered with the State Board
of Education; not charge more tuition than the statewide average per pupil expenditure by
local education agencies (LEAs), as calculated by the department, and meet the
nondiscrimination requirements as specified above.
The State also provides some scholarship aid for students who are eligible for free and
reduced-price meals to attend nonpublic schools through the BOOST program, subject to
several specified conditions in the budget bill. The amount of a scholarship may not exceed
the statewide average per pupil expenditure by LEAs or the tuition of the nonpublic school,
whichever is less. To be eligible to participate in the program, a nonpublic school must
participate in the Aid to Nonpublic Schools program and comply with the
nondiscrimination requirements described above. The Governor’s proposed fiscal 2022
budget includes $10.0 million for the program. The proposed fiscal 2022 budget also
includes $3.5 million for nonpublic school safety grants.
In addition, the State provides capital funding for the Nonpublic Aging Schools Program.
To be eligible to participate in the program, like BOOST, a nonpublic school must
participate in the Aid to Nonpublic Schools program and comply with the
nondiscrimination requirements. Other eligibility requirements are specified in Chapter 9
of 2018 (fiscal 2019 capital budget bill). The proposed fiscal 2022 capital budget includes
$3.5 million for the program, the same funding level as recent years.
In fiscal 2018, funding awards were rescinded from a Harford County Lutheran school
after the BOOST Advisory Board was alerted that language in the school’s handbook
reserved the right to deny admission to gay and transgender students.
Publicly Funded Prekindergarten
In all jurisdictions, local school systems are required to provide publicly funded half-day
prekindergarten to four-year-old children from families with incomes at or below 185% of
the federal poverty level (FPL). Jurisdictions also provide prekindergarten services for
three- and five-year-old students.
Chapter 2 of 2015 established the Prekindergarten Expansion Grant program, which offers
competitive grants to qualified public and private prekindergarten providers to serve
four-year-olds from families with incomes at or below 300% FPL. The grants also allow
programs to improve existing slots by converting half-day slots to full-day slots, limiting
class sizes, and providing professional development among other efforts. Beginning in
2015, enrollment includes publicly funded slots in private programs. In 2020, 927 children
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were served in publicly funded slots in private programs, compared to 421 in 2015.
Chapters 6 and 607 of 2017 further increased State funding for prekindergarten by
providing supplemental grants to local school systems in which all prekindergarten
students were provided full-day prekindergarten (Baltimore City and Garrett, Kent, and
Somerset counties received these grants) for fiscal 2018 through 2020. The Governor’s
proposed fiscal 2022 budget includes $29.6 million in special and federal funds for the
Prekindergarten Expansion Program Financing Fund.
State Superintendent Enforcement
The State Superintendent of Schools must enforce the provisions of the Education Article
that are within his or her jurisdiction and the bylaws rules, and regulations of the
State Board of Education. If an educational institution or local board of education violates
any of these provisions, the State Superintendent, by written notice, may require the
State Comptroller to withhold from that institution or board (1) all or any part of an
appropriation made by the General Assembly and (2) all or any part of any other payment
from funds budgeted by the State.
State Expenditures: MSDE advises that the agency requires three full-time staff members
in order to process discrimination complaints and appeals, conduct mediations, and direct
the Comptroller to administer fiscal penalties as required by the legislation. The
Department of Legislative Services (DLS) notes that the bill primarily codifies annual
budget language regarding nondiscrimination requirements. Although processing
complaints and conducting mediation are new responsibilities mandated by the bill, the
scale at which MSDE will have to process these complaints is likely to be small.
Additionally, the largest costs are likely to be legal costs for those complaints that are
appealed and, therefore, primarily borne by OAH, which has advised existing resources
can meet the requirements of the bill. Therefore, DLS estimates that MSDE requires only
one half-time regular staff position to fulfill the bill’s requirements. However, if the volume
of complaints is large, additional staff may be needed.
General fund expenditures increase for MSDE by $39,859 in fiscal 2022. The estimate
reflects the cost of a half-time management associate to manage complaints, with a 90-day
start-up delay. The estimate includes salaries, fringe benefits, one-time start-up costs, and
ongoing operating expenses. Out-year estimates reflect annualization and ongoing
expenses.
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 Regular Position 0.5
Salary and Fringe Benefits $34,523
One-time Start-up Costs 5,090
Ongoing Operating Expenses 246
Total FY 2022 State Expenditures $39,859
Additional Information
Prior Introductions: SB 993 of 2020 had a hearing in Judicial Proceedings, but no further
action was taken. Its cross file, HB 1204, passed the House with amendments and was
referred to Judicial Proceedings, but no further action was taken.
Designated Cross File: HB 155 (Delegate Wilkins) - Ways and Means.
Information Source(s): Maryland Commission on Civil Rights; Comptroller’s Office;
Maryland State Department of Education; Office of Administrative Hearings; Baltimore
City Public Schools; Montgomery County Public Schools; St. Mary’s County Public
Schools; Wicomico County Public Schools; Department of Legislative Services
Fiscal Note History: First Reader - January 27, 2021
rh/rhh
Analysis by: Michael E. Sousane Direct Inquiries to:
(410) 946-5510
(301) 970-5510
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Statutes affected:
Text - First - County Boards and Public and Nonpublic Prekindergarten Programs and Schools - Discrimination - Prohibition: 2-303 Education, 4-108 Education, 26-701 Education, 26-702 Education, 26-703 Education, 26-704 Education, 2-303 Education, 26-705 Education