Critics of school choice have it wrong. It doesn’t violate the separation of church and state. It finally upholds it.

It's public education that's unconstitutional under the First Amendment.

The superintendent for the San Jacinto Christian Academy, Roxanne Cheek, speaks at a school choice rally at the Texas Capitol on March 21st, 2023 (Photo by The Houston Chronicle)

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Since October 9th, the Texas legislature has been in a special session focused on the question of creating a school choice program for the state. If they do, they’d be the latest in a growing list of states who are now giving tax dollars to parents, often in the form of vouchers, to use at whatever school they choose. Perhaps the most widely publicized state on that list, Arizona, expanded its program last year to cover 90% of every child’s educational expenses, even if they attend a religious school or are homeschooled by their parents.

Proponents — who are often politically conservative — talk about how every parent should have the right to decide what kind of education their child receives. Many complain bitterly that public schools have become incubators for left-wing “woke” ideology.

Critics — who are often politically liberal — point out that school choice programs mostly benefit wealthy parents already sending their children to private schools, and take money away from public schools already struggling to make ends meet.

And these are valid concerns. Wealthy parents will likely be the first to benefit (that is, until more low- and mid-income parents participate), and it’s hard to imagine it not being a challenge for public schools — it’s hard for any school to adapt to significant decreases or increases in the student body. But these concerns are temporal in nature, arising because of the difficulty of changing policy. The deeper, bedrock principle that school choice critics base their opposition on is the separation of church and state. They say that by giving public money to private schools — including religious schools — we’re tearing down the wall between church and state. On this point, though, they’re fundamentally wrong.

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Most of us have a basic feeling for the need to separate church and state. We don’t want the United States turned into a theocracy — we don’t want some religious group taking over the government and telling people what to think. We’re a free country and people can think what they want.

This just makes sense to us today, but it didn’t always. At the time of the country’s founding, it was the opposite: State-established religions were the norm. It simply made sense that God’s laws and the government’s laws should be one, which meant if you didn’t adhere to the official religion of the state, you could be made to suffer terribly, even unto death. The state, with all the force of its laws and courts, became a bloody cudgel the religious majority wielded in order to force their beliefs on others.

So separating church and state was a necessary truce to end the constant, bloody back-and-forth of religious persecution. Therefore the constitution’s First Amendment begins,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

Of course, different faiths still opposed each other, and still do today — they just no longer had the machinery of the state to back them up. And over time this became natural. The conviction grew that every citizen should be free to follow their own conscience, to have their own opinions and beliefs, without anyone else interfering. The need to think and speak freely became sacrosanct.

And it’s amazing, really, how strong this conviction has become, how obvious this principle is for so many of us today. It becomes especially heightened whenever we feel our own ideas and worldview are being infringed upon, when we’re in the minority and feel that our way of life is under attack. Then freedom of thought becomes a burning need.

But then, strangely, when we become the majority, everything changes. We lose sight of this burning need for freedom of thought. We experience an almost total amnesia. And it’s understandable: It’s hard to empathize with others, especially our enemies, and especially when we want so badly to shut them up, to censor their downright dangerous ideas. The Supreme Court Justice, Oliver Wendell Holmes, described this temptation to persecute our enemies in his first major defense of free speech, Abrams v. United States (1919):

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.

So the framers of the constitution created the First Amendment to guard against this temptation — to protect the minority from the tyranny of the majority. With it, they created a clear line between the individual and the state, a wall separating the private and the public. Everything having to do with an individual’s inner life is private. Not just our thoughts, but our expression of those thoughts. And not just when we’re in our own homes, but when we’re out in society, gathered with others. This is why freedom of religion is not the only freedom enumerated in the First Amendment, but freedom of speech, freedom of the press, freedom of assembly, and freedom to petition the government.

All of these freedoms emanate from a center — a core meaning, a core purpose at the heart of the First Amendment. That core purpose, as described by judges and legal experts over the last two centuries, is to safeguard the “welfare of the single human soul,”¹ to create an independent “sphere of intellect and spirit”² that ensures that one has “autonomous control over the development of one’s intellect and personality.”³ In short, it’s the right to be ourselves and to fully develop ourselves as we see fit, without the state interfering.

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At this point, I hope it’s starting to dawn on you, the reader, that public schools are quite clearly unconstitutional when we take the core meaning of the First Amendment seriously. How could it be otherwise? The whole point of education is to help people develop their ideas and beliefs — their inner lives. This is obviously the private sphere, the “sphere of intellect and spirit,” which the state is expressly forbidden to influence.

The government shouldn’t have a say in education because they shouldn’t have a say in what we think. In the same way they shouldn’t establish a state church, or prohibit the exercise of any form of religion, they shouldn’t establish a state school, or prohibit the exercise of any form of education. They shouldn’t tip the scales in favor of one worldview or another.

The government shouldn’t decide if children learn that the United States is a god-loving country, or a racist country. They shouldn’t decide if children learn there are two genders or seventy-four. They shouldn’t decide what’s taught in African American studies, or math, or gym class. And they shouldn’t decide which books kids can find in the library.

This is clearly the private sphere. Teachers must be free to teach their courses as they see fit. And parents must be free to choose the school and teachers they feel are able to nurture the emerging individuality of their child. They know their child best. If anyone can make that decision, it’s them.

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We have a wall separating church and state, and for over a century and a half we’ve put schools on the wrong side of that wall. We’ve put them on the side of the state when they need to be on the side of the church. And not just the church: They need to be on the side of journalists (“freedom of the press” points to the same wall, but now between media and state), and they need to be on the side of artists, scientists, doctors… Really all cultural endeavors must be separate from the state in order to thrive. State-run medicine, state-run science, and state-run education are no better than state-run media or state-run churches.

All government control of cultural life obstructs the free unfolding of the individual human being. All of culture — the “sphere of intellect and spirit” — must be free in order to be healthy. Every person is unique; to force them into a mold is to violate their being. As the social and educational reformer, Rudolf Steiner, said:

Nobody can tell how much of an individual’s capacities and gifts are lost when they are prevented from unfolding freely. One who wishes to apply moderation in this sphere can never know which slumbering capacities they might be eradicating from the world by their clumsy measures… One who can read the development of humankind rightly can only support a social order that has at its aims the unrestricted, all-around development of individuals, and that abhors the domination of any one person by another.⁴

What would a society with educational freedom look like? It would become abundant with different types of schools: outdoor schools, art schools, vocational schools, religious schools, ethnic-cultural schools, homeschools, Montessori schools, Waldorf schools, and, and, and…. All would receive funding based on the simple fact that parents have chosen that school for their child. Such an educational landscape would never talk about standardization and assimilation. It would never try to inculcate “shared American values” into different minority groups — whether Latino, Muslim, or Irish Catholic. It wouldn’t create boarding schools to take Native children from their parents in order to “civilize” them (in the same way the Chinese are taking Tibetan children away from their families today). It would let individuals and cultural groups simply be themselves.

Critics claim that, without an educational system that unifies everyone around common values, different cultural and ethnic groups will self-segregate. And that’s a legitimate concern. But it’s also the price we have to pay if we want real cultural diversity, if we want real freedom. We have to let people perpetuate their own culture by teaching it to their children. And not just for a couple hours at the end of a long day’s work, but all the time. Because it’s up to the people themselves, not the government, to decide what values they’ll hold.

Critics also claim that school choice is just a ploy so racist whites don’t have to teach their children about slavery. And it’s true, school choice was popular in the 50s and 60s among racist whites in the South who wanted to keep schools segregated. But it’s also true that public education was popular among racist whites trying to “stamp” their values on the minds of immigrants. In the words of one early 20th century treatise on the topic:

Our American school is like a great paper mill, into which are cast rags of all kinds and colors, but which lose their special identity and come out white paper, having a common identity. So we want the children of the state, of whatever nationality, color or religion, to pass through this great moral, intellectual and patriotic mill, or transforming process.⁵

In the end, it’s not just racist whites who will try to use whatever educational system they can to maintain their own cultural identity and repress the cultural identity of others. Everyone will. As Oliver Wendell Holmes said, if you’re part of the majority and have the power to “express your wishes in law,” then persecuting your enemies is “perfectly logical.”

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In calling public schools — or more aptly, “government schools” — unconstitutional, I have not delved into the specific legal arguments necessary to overturn this institution. Others, who have greater knowledge of the legal system than I do, have made a basic start in that direction (see Resources and References below). But the law evolves as our collective feelings about right and wrong evolve, and for too long this particular institution has survived because we haven’t felt the injustice of it, we haven’t felt how it violates the core meaning of the First Amendment — the right of every individual to have their own mind, to believe what they will.

But this feeling will only continue to grow. We’re only going to become more and more individualized, more and more sensitive to all the hurts and violations we experience at the hands of others. So we need to give each other space. We need to call a truce in the educational realm like we once did in the realm of religion. We can’t keep trying to wield the power of the state against our cultural enemies, otherwise the culture wars will only rage hotter and hotter. Respecting cultural differences — and so separating all of culture from the state — is really the only option there is. Hopefully we can see this before too much more harm is done.

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Resources and References

• Arons, Stephen. “The Separation of School and State: Pierce Reconsidered.” Harvard Educational Review 46 (1976): 76-104

• Arons, Stephen. Compelling Belief: The Culture of American Schooling. Amherst: University of Massachusetts Press, 1986.

• Forman, James, Jr. “The Secret History of School Choice: How Progressives Got There First,” Yale Law School Open Scholarship Repository. 2004.

• Hamburger, Philip. “Is the Public School System Constitutional?” Wall Street Journal, October 22, 2021.

• Hamburger, Philip. “Education Is Speech: Parental Free Speech in Education.” Texas Law Review 101, Issue 2 (2022).

• Lewis, Anthony. Freedom for the Thought That We Hate: A Biography of the First Amendment. Perseus Books Group, 2007.

• Spring, Joel. Deculturalization and the Struggle for Equality. Sixth Edition. The McGraw-Hill Companies, Inc. 2010

1. Justice Douglas in his dissent in Gillette v. United States, 1971. (Quoted in “The Separation of School and State: Pierce Reconsidered” by Stephen Arons, p 96.)

2. Justice Jackson in West Virginia v. Barnette, 1943. (Quoted in “The Separation of School and State: Pierce Reconsidered” by Stephen Arons, p. 87)

3. Arons, Stephen. “The Separation of School and State: Pierce Reconsidered,” Harvard Educational Review 4 (1976). p 96.

4. Steiner, Rudolf. The essay “The Social Question” (1898) from the book Rudolf Steiner: Social Threefolding. Forest Row: Rudolf Steiner Press, 2018. p. 29

5. Bernard Fresenborg, “Thirty Years in Hell” or “From Darkness to Light” 211 (1904).