Could public money finance private-school discrimination, religion and fake history?

With bills pending in more than 20 state legislatures to expand private school voucher programs, this spring could usher in the biggest transfer in funds from public schools to private schools in our nation’s history. But something more is at stake with this new round of voucher legislation: When the public pays for private schooling, will the public get to decide how taxpayer dollars are used in private settings, or will the public be forced to abandon norms as simple and fundamental as nondiscrimination?

The problem started last year when the Supreme Court held in Espinoza v. Montana that states cannot adopt blanket policies to exclude religious schools from voucher programs. The court left open the possibility that states could still place limits on what private schools do with the money. States might still prohibit them from using public money to teach religion or discriminate based on religion, race, sex, gender, sexual orientation and other protected classes.

But choice advocates argue these minimal requirements are unconstitutional, too. 

Satisfied slaves, divine intervention

This distinction is lost on a lot of states, which make no attempt to stop private schools from using public dollars to teach religion, discriminate or deliver curriculum that flies in the face of historical and scientific facts. Students in North Carolina, Florida and Indiana have tried to use their vouchers at religious schools only to be turned away because they didn’t fit the school’s desired demographic.

Far too many of these schools also use textbooks that routinely espouse anti-science and white-centric ideology. For instance, as the Orlando Sentinel reported, some Florida voucher schools teach students that dinosaurs and humans lived together, that God’s intervention prevented Catholics from dominating North America, that slaves who knew Jesus Christ were better off than free men who did not, and that most Black and white Southerners lived in harmony until power-hungry agitators stirred up conflict. 

On March 30, 2021, in Oakland, California. (Photo: Jessica Christian/AP)

Voucher advocates now argue not only that they have a right to participate in these voucher programs, but also that states cannot regulate what they teach with the money. If this idea prevails in the courts, states may lose all control over their programs. For example, in Vermont, some rural communities paid tuition for “public academies” for generations. Thirty years ago, the legislature converted those schools to private-nonprofit “independent schools,” effectively changing an old tradition into a typical private school voucher scheme — one now subject to Espinoza. 

National right-wing legal advocacy groups noticed and filed several suits on behalf of religious school students in Vermont. In January, one federal appellate court ordered three Vermont public school districts to pay tuition vouchers to a Catholic school whose website states that faith “is weaved into every aspect of life” at the school, and that it aims to “form its students in the Gospel of Jesus Christ.” Other decisions are still pending. 

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The newest and most radical claim, however, is that Espinoza’s rationale applies to charter schools, which are operated by independent groups using public funds and in theory are public schools. Some choice advocates, including in a recent Manhattan Institute report, argue states must allow private religious schools to operate as public charter schools. These religious schools need not even change their curriculum. They just need to send the bill to state government, instead of to parishioners and parents who had already opted out of public education and a public mission. 

First amendment roadblock

Proponents of taxpayer funding of religious institutions ignore the fact that a “public religious charter school” is an oxymoron. The First Amendment prohibits states from establishing religion. And “public education” is by definition inclusive. Public schools don’t get to exclude people because they practice a different religion or don’t practice one at all. Nor do they get to propagate religion as science. You don’t need a law degree to understand that the Constitution prohibits state-funded, licensed and regulated schools from doing these things.

Religious charter schools, however, would threaten more than just basic democratic principles. They would take a wrecking ball to public school funding. States would suddenly become financially responsible for millions of students who previously chose to forgo public education. In places already struggling to maintain public infrastructure, public budgets would now be on the hook for religious infrastructure.

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This choice movement may wrap itself in the rhetoric of meeting individual students’ needs and giving them the same opportunities as wealthy students, but unregulated vouchers and public religious charter schools would subvert the overall public will to the whims of an ideological minority.

The saving grace is that an overwhelming majority of families and taxpayers have no interest in this bizarre education world. And if courts and advocates push them there, only one rational choice remains: End charter schools and publicly financed private school tuition altogether. That is a policy choice courts cannot second-guess on specious grounds. So the school choice lobby should be careful for what it wishes.

Derek W. Black (@DerekWBlack) is the Ernest F. Hollings Chair in Constitutional Law at the University of South Carolina and author of “Schoolhouse Burning: Public Education and the Assault on American Democracy.” Rebecca Holcombe (@RHolcombeVT) is the former Vermont secretary of Education. 

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