Why School Choice Is Necessary for Religious Liberty and Freedom of Belief

Authors

Richard F. Duncan, University of Nebraska College of LawFollow

Date of this Version

2023

Citation

Case Western Reserve Law Review (2023) 73(4): 1,055-1,081

Comments

Copyright, the author, and Darby Publishing. Used by permission

Abstract

The government school monopoly for funding K–12 education creates a coercive system that commandeers a captive audience of impressionable children for inculcation in secular ideas, beliefs, and values concerning matters of truth, moral character, culture, and the good life. The brutal bargain imposed on parents by this monopoly requires them to choose between the single largest benefit most families receive from state and local governments and educating their children in a curriculum that is consistent with the preferred educative speech of the parents. To choose the latter is to sacrifice hundreds of thousands of dollars of tax-funded support for K–12 education.

This coercive, take-it-or-leave-it system of funding education is inconsistent with both the letter and the spirit of the Free Speech Clause and the Free Exercise Clause. As John Stuart Mill observed, it results in a despotism over the hearts and minds of our precious offspring and eradicates the right of parents to control the education of their children. It violates the spirit of freedom of speech by forcing parents to substitute the preferred viewpoints of government officials for their own concerning fundamentally important ideas about history, government, justice, sexuality, gender identity, and many other topics arising in the course of K–12 education. Moreover, because the government school curriculum is strictly secular, this funding monopoly inherently forces religious parents to choose between their faith and their ability to afford to educate their children. Such religious discrimination is odious to both the letter and spirit of the Free Exercise Clause.

However, the Supreme Court has made clear that the government may adopt a “strictly secular” curriculum in the public schools and has no obligation to fund private K–12 schools. So, at least for the foreseeable future, the Court’s First Amendment jurisprudence will not relieve parents of the brutal bargain imposed on them by the government school monopoly. Thus, in the short term, parents must look to federalism and foot voting to achieve at least some degree of school choice. Many states have begun to enact at least some financial assistance supporting educational choice. What is more, one state— Arizona—has enacted legislation funding educational choice for every family in the state.

As support for the school choice movement grows in many states, families who live in these states will have access to the support they need to help pay the cost of educating their children in schools of their choice. Importantly, many families may choose to vote with their feet by relocating from monopoly states to states that support educational choice. We live in a very mobile society, and people move from one state to another for many reasons. For many families, moving to states that support school choice may be the best reason of all to vote with their feet. At the very least, it should be one important factor when families decide which job offers to accept and which to reject. The hearts, souls, and minds of our children matter a great deal, and parents should always do what they believe is best to train up their children in the way they should go.

To end this Article where it began, the letter and spirit of the First Amendment deeply values freedom of religion, thought, and belief formation. If these values are to survive in our deeply divided, pluralistic Nation, parents must be free to choose an appropriate education for their children, without having to sacrifice the benefit of public funding of education. To put it succinctly, educational funds should be directed to children and their parents, not to strictly secular government schools. School choice is the civil rights and civil liberties issue of this present age, and one way or another—either in the courts or in the states—we need to get there.