Consider this excerpt from my article on school choice:
Although dicta in Carson makes clear that a state “may provide a strictly secular education in its
public schools” and no state is required to fund private education, the facts of this case
and the Court’s expansive free exercise reasoning hint at the argument that the Free Exercise
Clause can be read as requiring states to fund school choice for all K-12 students. Indeed, in his
dissent, Justice Breyer predicted that the arc of Carson may indeed require states to fund school
choice for all families:
"We have never previously held what the Court holds today, namely, that a State must (not may) use
state funds to pay for religious education as part of a tuition program designed to ensure the
provision of free statewide public school education. What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent
funds to parents who wish to send their children to religious schools? Does it mean that school
districts that give vouchers for use at charter schools must pay equivalent funds to parents who
wish to give their children a religious education?"
Although I don’t share Justice Breyer’s fear of religious equality for all K-12 students, I agree
with his reading of the spirit of free exercise emanating from Trinity Lutheran, Espinoza, and
Carson. That magnificent spirit of equality makes clear that religious families are entitled to
their fair share of the benefits of the Welfare State and should not be forced to choose between
their faith and the single largest benefit most families receive from state and local government.
Most certainly, such discrimination is odious to the First Amendment and should
not be allowed to stand.
In other words, if a state pays for a secular public education for students who attend public schools, the spirit of free exercise and equality of social benefits arguably requires the states to fund school choice.
Thoughts?
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