BC Law Hosts Talk on Religious Liberty, School Choice

On April 4, Boston College Law School’s Federalist Society hosted Professor Richard Duncan from Nebraska Law. The subject of the talk was religious liberty, and specifically why Professor Duncan believed that school choice is necessary for preserving religious liberty in America.

Duncan argued that both the letter and spirit of the First Amendment compel school choice. He was referring to the free exercise clause, which guarantees every American’s right to free exercise of his religion.

He then applied this principle to K-12 education. He claimed that one of the fundamental rights of religion is the right to raise one’s children in that religion. Public K-12 education does not provide that opportunity, however.

Public education does not allow the subject of religion to enter into the picture. From this, Duncan argued that public education, although it does not necessarily produce atheists in every case, pushes religion to the periphery since it operates without any acknowledgement of a god.

If parents are forced to send their children to these schools, then they do not have real religious freedom. Duncan pointed out that K-12 education is primarily focused on speech, learning about “what is true, good, and beautiful.” The religious answer to that question is often different from the secular answer.

Duncan pointed to past precedent to support his argument. In 1925, the Supreme Court decided Pierce v. Society of Sisters, a case about compulsory public education. The court struck down the law that required children to attend public schools.

Duncan quoted from the decision that the “state cannot standardize children by forcing them to accept instruction by public school teachers only.” However, he pointed out that, given the cost of private school education, many children are forced to attend public schools anyways.

He used his home state of Nebraska as an example. Public schools there spend $13,000 a year per student, money which is sourced from tax dollars. Over 13 years, a family with one child would be given $169,000 in public education.

If parents decide to send their children to private schools, then not only are they not receiving their tax money back in the form of education, but they also must pay for private education. Duncan argued that this system makes it practically impossible for many parents to not send their children to public schools.

In response to this situation, Duncan argued for school choice in the form of vouchers. Instead of sending money directly to public schools, money would be sent to parents, who could then choose what school to send their children to, whether public or private.

Duncan pushed back against claims that this would force people to pay for children to get religious education. The current system is the opposite, where parents that send their children to private school must pay both for that education and must pay the taxes that pay for public schools. A system of school choice would mean that parents’ tax dollars go to their children’s education in all circumstances. Further, he brought up the Supreme Court case Espinoza v. Montana Department of Revenue, which called the practice of restricting vouchers and scholarships to religious students “odious to our constitution.”

Duncan finished by raising the possibility that school choice should be required by the First Amendment. In order to ensure that religious parents are allowed to educate their children in their faith, he claimed that school choice might be necessary. Especially given the ideological differences between Christian and secular perspectives on the world, Duncan believes that public schooling as it is might be incompatible with the Christian faith.