To fix this, the Supreme Court needs to rule in a future case that government can draw no line between religious “status” and “use.” Religious “status” without “use” is dead, and discrimination is discrimination.
The second step the court needs to take to achieve true religious equality in education is to acknowledge what Justice Stephen Breyer, in his dissent, recognized, though he sees it as a bad thing: “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?”
Breyer’s logic is sound. As Corey DeAngelis and I wrote in 2018, it is indeed discriminatory to force religious people to fund secular public schools. Of course, we need public schools to be secular — government must not choose what religious beliefs are “right” or “true” — but that means public schooling must inherently treat religious people unequally to nonreligious.
How do we solve this conundrum? Simple: Enable religious families to take public education funding for their children to religious schools of their choosing.
Of course, choice should not just be available to religious families. There are myriad reasons people might want something other than their assigned public school — pursuit of higher test scores, arts‐based education, escaping bullying, etc. But only devotional religious instruction is outright prohibited, constitutionally, in government schools.
Espinoza is an important step toward full educational freedom and equality under the law. But we are still not where we need to be.