Equal Treatment is Not Establishment

Abstract

Does the Constitution require discrimination against religious schools and against parents who choose them? This question is the heart of the Establishment Clause debate over school choice. May the government treat government-run schools, secular private schools, and religious schools equally, supporting children's education regardless of the religiosity of the school to which the children go? Or must the government exclude religious schools from this generally available benefit? Casting the matter in terms of discrimination frames the issue in a stark light, but such a characterization is accurate: Discrimination is indeed what it's all about. Fair-minded people may argue that the Constitution does require such discrimination; not all discrimination is bad. But there should be no denying that a constitutional rule excluding religious schools from generally available benefits rests on the theory that discrimination is constitutionally mandated.