Wednesday, March 24, 2021

Justice Breyer's Dissent in Espinoza

Consider this passage from Justice Breyer's dissent in Espinoza:

And what are the limits of the Court’s holding? The majority asserts that States “need not subsidize private education.” Ante, at 20. But it does not explain why that is so. If making scholarships available to only secular nonpublic schools exerts “coercive” pressure on parents whose faith impels them to enroll their children in religious schools, then how is a State’s decision to fund only secular public schools any less coercive? Under the majority’s reasoning,the parents in both cases are put to a choice between their beliefs and a taxpayer-sponsored education.
I don't think there is any risk that the Court will strike down funding only for secular public schools as violating the Free Exercise Clause.

But does Breyer have a point? Does the public school monopoly over k-12 funding "exert 'coercive' pressure on parents whose faith impels them to enroll their children in religious schools" rather than strictly secular public schools? 

In order for a POF (a person of faith) with 5 children to receive an appropriate education for her children, she must forgo the single largest benefit most citizens receive from government, a k-12 scholarship for her children to receive a secular education in government schools. Over 13 years of k-12 education for 5 children, she might be denied nearly $1 million dollars in benefits paid for by her family's tax payments. This is incredible coercive pressure to set aside her religious choice and send her children to secular government schools.

Should the Free Speech and Free Exercise Clauses require school choice for all children?

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