# The Constitutional Quandary Only School Choice Can Resolve 

Forcing religious families to pay taxes for secular public schools *and* for education consistent with their beliefs cannot stand.

September 12, 2024 • Commentary 

By [Neal McCluskey](https://www.cato.org/people/neal-mccluskey) 

This article appeared in *[National Review (Online)](https://www.nationalreview.com/)* on September 12, 2024.

In Oklahoma, the state superintendent is [requiring](https://www.documentcloud.org/documents/24780673-immediate-implementation-of-foundational-texts-in-curriculum) that public schools incorporate the Bible in numerous classes. In Texas, the [proposed](https://www.texastribune.org/2024/05/30/texas-public-schools-religion-curriculum/) reading and language-arts curriculum is infused with biblical lessons. And Louisiana passed a law in June [requiring](https://www.cnn.com/2024/06/19/politics/louisiana-classrooms-ten-commandments/index.html) that every public classroom display the Ten Commandments.

These actions — and the [immediate](https://www.au.org/wp-content/uploads/2024/06/Roake-v.-Brumley-complaint-6.24.24.pdf) [reactions](https://www.kjrh.com/news/local-news/locust-grove-man-sues-walters-over-bible-policy-claims-constitutionality) that consider them to be violations of the separation of church and state and seek to block them — are stark reminders that public schools cannot treat all people equally. No school can be simultaneously Christian, Hindu, secular, and so on. If public schools include devotional religion, they violate the Constitution’s establishment clause and render nonadherents second-class citizens. If they are not religious, they establish secularism, rendering religious families second-class and violating equality under the law.

We must therefore 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](https://www.educationnext.org/can-catholic-schools-be-saved/#:~:text=When%20Catholic%20schools%20educated%2012,students%20(see%20Figure%203).) of all school-aged children.

Forcing religious families to pay taxes for secular public schools *and* for education consistent with their beliefs cannot stand.

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*](https://www.oyez.org/cases/1961/468) (1962) and [*Abington School District v. Schempp*](https://www.oyez.org/cases/1962/142) (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](https://www.archives.gov/milestone-documents/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.

Choice isn’t new or radical. The idea of grounding public education in pluralism goes back at least to [Thomas Paine](https://www.ushistory.org/paine/rights/c2-054.htm) in 1791, and it was embraced by such religious leaders as [Pope Pius XI](https://www.vatican.va/content/pius-xi/en/encyclicals/documents/hf_p-xi_enc_31121929_divini-illius-magistri.html) in 1929 and Episcopal priest [Bernard Iddings Bell](https://archive.org/details/crisisineducatio00bell/page/n3/mode/2up) in 1949. Bell asserted that public schools had become “atheistic-by-negation” and wrote, “If the public schools must ‘leave religion out,’ then the only decent thing is to permit religious groups to run their own schools, as we now do, and to give them tax money to run them with, which we do not.”

Supreme Court precedent has been evolving toward that end. The process arguably started in 2002, when the Court determined in [*Zelman v. Simmons-Harris*](https://www.oyez.org/cases/2001/00-1751) that an Ohio voucher program allowing families to choose religious schools did not violate the First Amendment. Fast-forward to 2020, when the Court ruled in [*Espinoza v. Montana*](https://www.oyez.org/cases/2019/18-1195) that if a state has a choice program, it cannot exclude religious schools; and in [*Carson v. Makin*](https://www.oyez.org/cases/2021/20-1088) (2022), the Court clarified that religious schools must be allowed not only to participate but also to practice religious teaching.

In his *Espinoza v. Montana* dissent, Justice Stephen Breyer nailed the logic for a constitutional school-choice requirement, though he did not support one: “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?”

It is not.

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.

##### About the Author 

[![Neal McCluskey Cropped](/sites/cato.org/files/styles/author_picture/public/2023-11/mccluskey-cropped.jpg?itok=I-QI0yJD)](/people/neal-mccluskey) 

##### [Neal McCluskey](/people/neal-mccluskey)

Former Director, Center for Educational Freedom, Cato Institute