The First Amendment and the Socialization of Children: Compulsory Public Education and Vouchers

The debate about public and private education raises important questions about the role of the state in promoting a certain kind of person and citizen, which has implications for liberal and democratic theory, the respective rights of children and parents, and the nature of religious freedom in a democratic society. In addressing these issues, Professor Shiffrin argues that the debate about compulsory public education has been oversimplified. Too often the argument has been that compulsory public education is always unconstitutional or, less frequently, that it is always constitutional. Similarly, much of the debate about vouchers contends that they are always good or always bad or that vouchers to religious schools either always do or always do not violate the Establishment Clause. Shiffrin maintains that the interests of children and the state in public education have been underestimated and that government should in many circumstances be able to compel adolescents of high school age, but not pre-adolescents, to attend public schools. No U.S. government is likely to engage in such compulsion, and there are good political reasons not to do so, but analysis of the case for compulsory public education leads to support of a strong presumption against vouchers, at least at the high school level. This presumption, however, is more difficult to defend when public schools are relatively homogeneous or are providing inadequate education to poor children. Even if vouchers could generally be supported, vouchers to religious schools raise serious concerns about the appropriate principles of church-state relations in the American constitutional order. But these concerns might be overcome in certain circumstances. In short, compulsory public education should sometimes be regarded as constitutional and sometimes not; vouchers are generally to be resisted, but sometimes not; and vouchers to religious schools should ordinarily be considered unconstitutional, but sometimes not.