44 Pages Posted: 20 Apr 2010 Last revised: 22 Sep 2010

Date Written: 2010

Abstract

Since the Supreme Court upheld the inclusion of religious schools in publicly funded school choice programs, the question of the extent to which states may regulate the schools that participate in such programs remains unsettled. The question is important because state regulation may implicate issues of religious belief and practice that have traditionally been outside state control. Indeed, many legal scholars have endorsed such regulation in order to bring religious institutions into line with majoritarian norms. This Article argues that those activists and legal scholars who advocate public regulation of religious schools through school choice programs ignore the serious constitutional obstacles to such regulation. Even the modest regulations that already apply to religious schools in the nation’s two choice programs that include such schools lack a compelling justification that outweighs the infringement of First Amendment rights. The First Amendment establishes a right of religious institutions to remain free of government oversight and prohibits the government from involving itself in ecclesiastical questions reserved to religious institutions. Even if a religious institution consents to government oversight, an “excessive entanglement” will nevertheless render such oversight unconstitutional. Moreover, if a regulation, had it been imposed directly, would violate the school’s rights under the First Amendment, it would represent an unconstitutional condition when pressed indirectly. Because a school choice program that aims to promote educational pluralism resembles a limited public forum, the state may not discriminate on the basis of viewpoint by imposing regulations that exclude certain types of religious belief and practice. Ultimately, while the government need not empower parents to choose educational alternatives with vouchers, if a state does establish such a program it may not police those alternatives in ways that implicate religious expression.