My column today at OnlySky.

There is probably no proposition more widely shared among secularists than opposing government support for private religious schools. But we have lost that fight almost everywhere. Maybe we need to take another look at what best supports the separation of church and state.

The name generally given to public funding of private school is school choice. This can take many forms, from tax breaks for tuition payments and charitable donations, to vouchers for parents for various educational options, to direct public payments to private schools, including religious schools.

Public funding for private schools

Strictly speaking, public support for private religious schools is a separate issue from public funding of non-religious private schools. Only the former raises the issue of church-state separation. In theory, one could support public funds for non-religious private schools and oppose public funds for private religious schools.

However, both kinds of public funding are related politically. The pressure to pass public funding of private schools comes predominantly from supporters of religious education—both supporters of religious schools and religious parents practicing homeschooling. New England prep schools are not the issue when it comes to public support of private schooling.

Many secularists fear that the goal of the school choice movement is not only the destruction of the wall of separation of church and state, but the destruction of the institution of public school altogether. They have good reason to feel this way. Many people in the school choice movement are hostile to public schools, which they refer to as “government schools” to emphasize their opposition to the imposition of government-sponsored values in public education.

There is also a partisan element in the school choice movement, which tends to be heavily oriented toward the Republican party. Teachers’ unions strongly support the Democratic party. Thus, weakening public schools aids Republicans.

Despite all these considerations, however, the importance of private school education and the value of public funding can be seen in the issue of parental choice within public schools. In the recent case of Mahmoud v. Taylor, the conservative majority on the Supreme Court ruled that parents have a right to opt out their children from public school subjects that offend their religious values.

In Mahmoud, Justice Samuel Alito’s majority opinion was suspicious of the Montgomery School Board’s decision to introduce LGBTQ+ inclusive books into the elementary school curriculum. Alito clearly thought that the school board was propagandizing elementary school students on behalf of gay and trans rights.

All education inculcates values

But what Alito failed to understand is that lower grades in school inevitably inculcate values. When a kindergarten teacher admonishes the students “we take our turn,” that represents the earliest form of objective moral standards presented to impressionable young minds. The kindergarten teacher never says, “in this culture, we take our turn.” A teacher never says, “some people believe it is better to take our turn.” No. The matter of taking turns is presented as a moral absolute supported by the whole natural universe.

With regard to acceptance of gay families in particular, there is no neutral position. If such families are described on the same level with other families, gay families are normalized, which was precisely what the plaintiff parents in Mahmoud objected to.

But if such families are not introduced at story time, notwithstanding that such families are present in the school community, then gay and trans families are stigmatized as abnormal. Alito doubtless regards heterosexual couples as natural and normal and gay families as unnatural and abnormal, but there simply is no such value-free standard. It is impossible to object to any elementary school curriculum on the ground that it is imposing values. That is what education at all levels is expected to do.

Under the Constitution, the government is never permitted to decide that certain religious beliefs are objectively false. The absence of objective judgments in religious matters is why the Court’s solution of parental opt-out in Mahmoud is a terrible idea. There will always be parents who object on religious grounds to aspects of a public school’s curriculum. In the past, there have been religious objections to biology classes on evolution and geology classes on plate tectonics as inconsistent with the creation account in Genesis. It is impractical to allow parental opt-outs in all such cases. While Alito probably would agree with that, he gives no indication of how to distinguish among parental religious objections. There is no obvious way to distinguish among sincerely held parental religious beliefs.

The better alternative to self-censorship

Even if parental opt-outs are somehow minimized so as not to disrupt the entire public school curriculum, the threat of such demands will undoubtedly lead many school districts to self-censor the curriculum so as to minimize conflict. In effect, this gives the dissenting parents a veto over materials that the majority of parents want their children to experience.

It makes much more sense to let the majority in a school district control the curriculum and promote the values that it believes are appropriate in early education. The values of dissenting parents can be protected through the parental choice of private educational alternatives.

This is why public support for private educational alternatives is beneficial for all. Alito specifically argued that private school is not a sufficient alternative to protect parental religious rights. That is certainly true legally. Parents and students do not surrender their constitutional rights upon entering public school. Nevertheless, private school alternatives allow the public schools to run without interference while at the same time allowing parental dissenters to have a place to express their educational preferences.

But because this is a benefit for the public school community as well as the dissenting parents—in that conflict in public schools is avoided—it is fair for the public to pick up at least part of the cost of such private alternatives. Diversity in education is good for everybody. Alito pointed out that private schooling is expensive. Public funding at least partially addresses that problem.

Public funding of private school education also lessens the objection that dissenting parents are already paying taxes to support public schools. Dissenting parents cannot be, and should not be, forced to enroll their children in private schools. But public funding of private education can encourage dissenting parents to voluntarily choose that alternative and thus reduce conflicts in public schools.

At least some secularists can probably appreciate this argument. Public support for private education in various forms has a long history in the United States. Where almost all secularists draw the line, however, is when the private school in question is religious. Public support in that context is considered an unconstitutional establishment of religion.

Promoting a diversity of values

Under current case law, no distinction can be made by the government between private religious schools and private non-religious schools. So, public support for private schools necessarily means that private religious schools will be included in whatever form public support takes.

Current case law aside, I don’t believe that public funding of religious schools along with non-religious schools should be viewed as unconstitutional. Like most secularists, I am not an originalist when it comes to constitutional interpretation. So I don’t understand why people on the left argue that the framers of the Constitution would have opposed public funding of religious schools along with non-religious schools. That argument might have impressed Justice Antonin Scalia, but it should not move us. Nor, by the way, is it clear to me that the argument is correct. I have no idea what the framers might have thought of public funding of private religious schools.

In trying to identify a coherent modern approach to the Establishment Clause, treating religious private schools the same as non-religious private schools seems to me to be the opposite of an establishment of religion. Only treating religious schools as inherently different seems to me to raise Establishment Clause concerns.

Nor does public funding of private religious education raise unique issues of violating the conscience of the taxpayer. I’m sure the vast majority of Americans would strongly object to public funding of private schools organized by the Democratic Socialists of America. But if such schools were organized, they would plainly be entitled to public funding along with any other private schools. Because the purpose of supporting private education is in part to promote diversity in values, taxpayers are always going to be supporting schools whose values they oppose.

I agree that elements of the school choice movement want to destroy public schools as we know them. And that is frustrating to me. Conservatives constantly invoke the importance of English language fluency by immigrants and assimilation to American values generally. But then they refuse to acknowledge that, historically, these goals have been accomplished in large part by public school education. Conservatives should love public schools.

Nevertheless, the agenda of the school choice movement should not determine whether secularists support public funding of private schools, religious and non-religious. A good case can be made that we should support such funding. We should not be dissuaded by the company we would be keeping if we adopted that position.