Many of those supporting government funding for private schools, either through vouchers or voucher-like schemes such as Education Savings Accounts (ESAs), at the same time lament the intrusion of government into the lives of private citizens.
Part of this unwarranted intrusion occurs, they say, when the state infringes on their First Amendment right of free speech. Nowhere is this more evident than in limitations on free speech imposed by colleges and universities that are supported by taxpayer dollars.
Noted Libertarian attorney, Jonathan Turley addresses the issue in his book, “The Indispensable Right: Free Speech in an Age of Rage”. Turley says, “In the last decade, we have watched a new orthodoxy emerge on our campuses and, with it, an intolerance for opposing views or values. The justification for silencing others is a perverse harm principle where opposing views are treated as threatening or inherently violent.” Turley goes on to make the case that this “pall of orthodoxy” runs counter to a tradition of academic freedom and inquiry by citing numerous examples of actions by students, professors, administrators, and judges to suppress the free speech of those with divergent views on campuses across the nation (e.g. shouting down or canceling scheduled speakers or destroying pro-life displays).
Turley says that the government can help protect free speech on campuses by “passing a law barring the receipt of government grants or funding at any university that denies protections for free speech.” “Even without considering the billions in federal loan guarantees,” Turley says, “the federal government spends billions on grants, projects, consultancies, and other support for academics and their institutions.”
While Turley’s treatment of this issue is focused on colleges and universities, it raises the issue of the implications of such a policy for religious schools receiving government funding for student tuition or students receiving government funds for use in private religious schools (e.g. ESAs).
In Carson v. Makin (2023) the US Supreme Court decided that state-run voucher programs in Maine could not exclude religious schools from receiving taxpayer dollars. As a corollary to the case, a district court has decided twice since then that any school participating in the program must comply with all federal and state regulations, including any and all anti-discrimination laws surrounding race, ethnicity or sexual orientation. It doesn’t take much imagination to surmise what could happen to a private religious school under such a voucher program that refused to seat a gay faculty member or deny students the right to express themselves through a pro LGBTQ or pro choice display.
If the district court’s ruling was upheld and Turley’s postulated law was enforced, such a school would be required to allow free speech expressions that run counter to their religious doctrine in order to continue to receive the state subsidy for tuition under a voucher or ESA program.
As prominent education attorney Jim Walsh notes, there could be other discrimination issues for private schools as well. Walsh says, “The Supreme Court has cleared the way for laws that provide public funding to religious schools as far as constitutional issues are concerned. But there are other issues. Many private schools, for example, do not accept students with disabilities at all. Some accept those with mild disabilities, but not the students who have greater needs. There is a word for that kind of selective admissions process: discrimination. Will that be allowed to continue?”
During a visit to a Texas Senator’s office in 2023, I mentioned my concerns that ESAs, which were being proposed in the Texas legislature at the time, could possibly come with governmental strings attached for private religious schools. The Senator assured me that Texas lawmakers would never impose such requirements on religious schools. While I believe the Senator was sincere, he can’t control what future legislatures might do and any state law absolving schools from anti-discrimination requirements would likely be subjected to judicial review and possibly litigated out of existence.
“School choice” proponents that desire government support to escape “government schools” that teach principles with which they disagree may be ”painting themselves into a corner” by forcing their private religious schools to accept the very practices they abhor in public schools in order to receive the governmental funding they currently covet.
Finally, a case can be made that governmental intrusion in private education could lead to an eventual watering down and the ultimate deadening of religious education in the U.S., much as some contend has happened in Europe and other places where the church and the state have become more heavily infused. As more than one religious leader has noted, “when the Church of God lies down with the dog of government, it’s the church that gets up with fleas.” Jesus put it differently when he encouraged his followers to “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.”