Although the recent election and the growing COVID-19 pandemic are now uppermost in people’s minds, we should not lose sight of a couple of U.S. Supreme Court decisions last summer that together combine increasing amounts of public funds directed toward private schools with less accountability for their use.
In Espinoza v. Montana Department of Revenue, the Supreme Court upheld a Montana program of tax credits for donations to organizations awarding scholarships for private school tuition for both religious and nonreligious schools. The Montana Supreme Court had struck down the program as conflicting with the state constitution’s prohibition against public funding for religious purposes. SCOTUS ruled, however, that withholding aid on the basis of schools’ religious status constituted unequal treatment and therefore violated the First Amendment’s free exercise clause. Although SCOTUS had previously allowed public money to be spent on recycled tires to resurface a religious school’s playground (2017), this benefit did not finance the direct provision of religious instruction. As Justice Sotomayor noted in dissent, the right to free exercise of religion does not mean “a right to have the State pay for that religious practice.”
In Our Lady of Guadalupe v. Morrissey-Berru a week later, SCOTUS ruled that teachers in religious schools may be dismissed in ways that contravene employment discrimination laws. It focused upon the extent to which teachers in religious schools may be considered ministers of religion, broadening their protection under the “ministerial exception” as established in a 2012 SCOTUS decision. Private schools may set their own policies. It is reported, for example, that some religious schools have refused admission to LGBTQ students or to those with nontraditional families. These two decisions combine a more generous provision of public funds with less regulation of what policies these funds may support.
Many argue that the idea that public schools are neutral and nonsectarian is a foundational myth of public education. Some would completely replace traditional public schools with vouchers or scholarships. SCOTUS has been moving toward allowing direct aid to religious entities, justified as equal access for both religious and nonreligious entities. In a pluralistic society, people hold a diversity of irreconcilable views about religion, and the government does not prefer any religious or nonreligious worldview to any other. Similarly, they argue, it should not espouse any particular educational philosophy. Why should majority preferences determine educational aims any more than religious ones?
I agree that public schools cannot be purely neutral. I also think that private schools, both religious and nonreligious, can inculcate democratic values and teach students to think for themselves. My disagreement is with the use of public funds in private schools. We do not accredit houses of worship, and they are not supported with public funds. Complete educational choice supported by public funds is not neutral. Rather, it is simply a different kind of nonneutrality.
Most people agree that some minimal standards of accreditation should apply to all schools, public or not, despite wide disagreement on what these should be. In theory, we could eliminate distinctions between public and private schools, but lay down terms for both that they would be understood to agree to by accepting public funding. Choice does not automatically preclude regulation. Schools, like political parties, perform public functions as well as private ones. If schools receive public funding, either direct or indirect, they should be accountable to the public for the use of those funds. Private schools, both religious and nonreligious, should then become less autonomous than currently in setting their own policies and having them upheld. Would this result be worth the price to them? Education can never be neutral. But if publicly funded, if should be accountable to voters and their representatives.
Emily Gill is Caterpillar Professor of Political Science Emerita, Bradley University