The Patriot Post® · In Brief: The Constitutional Quandary Only School Choice Can Resolve

The battle to win school choice is a long one with a lot of fronts. The Cato Institute’s Neal McCluskey argues the case from a constitutional standpoint, beginning with some examples of haggling over religious material in curricula. Being Libertarian, McCluskey approaches it from a pluralistic standpoint so that different groups can still achieve their goals.

We must … finally acknowledge what is right in front of our eyes: Public schooling, which should not be religious, is unconstitutional unless families can also use public funds to pay for religious alternatives.

For most of its existence, American public schooling was de facto Protestant, often including Protestant prayers, hymns, and readings from the King James Version of the Bible. This marginalized many people and one large group in particular, Roman Catholics, who, to get the education they believed was right, had to build their own education system privately while also paying taxes that funded public schools. By its peak in the mid 1960s, Catholic schooling enrolled roughly 12 percent of all school-aged children.

Overt religion in public schools also alienated another group that has grown increasingly large: atheists and agnostics. Over time, they pushed for schools to be less religious, and in the early 1960s the U.S. Supreme Court ruled in two cases — Engel v. Vitale (1962) and Abington School District v. Schempp (1963) — that official prayer and Bible-reading in public schools was unconstitutional.

This was not welcomed by many Americans who believed that religion was essential for educating children, a belief that reached as far back as the Northwest Ordinance of 1787, which said of federal territories, “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

Public schools should be secular: We cannot let government favor any particular religious group. But religious families must be able to apply to the religious institutions of their choosing the full amount of funding that would have been spent on their children. Constitutionally speaking, they must not have to sacrifice their enjoyment of a government benefit that they help fund, and that satisfies compulsory-education laws, to educate their children according to their religious convictions.

He concludes:

Religious diversity is not the only reason our education system should be grounded in choice. People who want to send their children to schools that embrace LGBTQ students, critical race theory, classical curricula, and so on, should all have choice. Moving to such a system should be the aim of all policy-makers.

Alas, we are not yet there politically, but the immediate, constitutional case is clear: Forcing religious families to pay for secular public schools through taxation and a second time, privately, for education consistent with their beliefs cannot stand.

National Review subscribers can read the whole thing here.