How to Resolve the Government School-created Conflict Between the “Establishment” and “Free Exercise” of Religion.

Kate Cohen, writing in The Washington post, argues that Taxpayers shouldn’t be paying for religious schools. On the face of it, she’s absolutely right. 

But, not so fast. Cohen writes:

The Oklahoma Statewide Virtual Charter School Board’s recent decision to allow a Catholic archdiocese to operate a public school is both illegal and unconstitutional.

I’m not exaggerating — I’m just reading.

A charter school “shall be nonsectarian in its programs, admission policies, employment practices, and all other operations,” Oklahoma law states.

Public schools “shall be open to all the children of the state and free from sectarian control,” the Oklahoma constitution declares.

On Charter schools, this is arguable  But Cohen expands upon her point by citing several other cases that involve parental choice and privately run, but publicly funded schools:

In education, that effort began at least 40 years ago, with Mueller v. Allen, which ruled that the deduction Minnesota gave taxpayers for private-school expenses had to apply to parochial-school expenses as well. In 2002, Zelman v. Simmons-Harris (Cleveland’s voucher program); in 2020, Espinoza v. Montana Department of Revenue (Montana’s tax credit program); and in 2022, Carson v. Makin (Maine’s tuition reimbursement program) found that states cannot exclude religious schools from programs that subsidize private education. [I covered this last case here.]

The hollowness of the Left’s Equity crusade is vividly on display here. If funding for parental school choice is generally available to the public at large, then how do you justify denying that benefit to a parent who chooses a religious school? Federal law bans government “discrimination on the basis of race, color, religion, sex or national origin.”

Granted, in any of these programs, taxpayer money is finding its way to religion. The First Amendment prohibits the government from enacting any “law respecting an establishment of religion.” I’m uncompromisingly supportive of that principle. But public funding of education creates a conflict with the second part of the First Amendment, which bans the government from “prohibiting the free exercise [of religion] thereof.” I’m uncompromisingly supportive of that principle, as well. In a fully free society, with a fully consistent First Amendment—one that encompasses a complete separation of education and state in the same way and for the same reasons as the separation of religion and state—there would be no such conflict.   

Unfortunately, we don’t live under a fully consistent First Amendment. So, how does one resolve this unnecessary conflict between Establishment and Free Exercise?

The only fair way to resolve it is to consider who is running the school, and who is choosing the school. Clearly, government-run schools should exclude religious teaching in any form. Also clearly, the state should not directly fund, of its own initiative, any religious school. But if the religious school is privately run, and if the school is privately chosen by parents spending tax money funded through a school choice program generally available as a public benefit, then it must not be considered in violation of the First Amendment. This would seem to include charter schools, as well.

Related Reading:

QUORA: 'What is one constitutional amendment that should be added to the U.S. Constitution that does not exist today? Why does it need to be added?'

Linda Stamato’s Confused Understanding of Church/State Separation