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The American education system discriminates against religious people and its failure to pair public schooling with private school choice programs is unconstitutional.

How does our education system — in which all people are taxed to support public schools who are explicitly prohibited from teaching devotional religion — violate the Constitution? Religious Americans are required to pay taxes for schools that many cannot use due to their religious convictions.

This exclusion, it must be understood, is necessary: were public schools to advance religious beliefs, they would de facto establish those beliefs as “official.” That’s prohibited by the Constitution, and would be unjust in a society with diverse religious views. That’s why the public schools are supposed to be religiously neutral.

The problem is that neutrality is impossible. By having no religion, public schooling elevates non-belief over religion.

In order not to favor any particular religion, the system treats all religions unequally under the law.

Of course, the question is how can government avoid establishing religion while enabling people to obtain education that is consistent with their religious beliefs, even education suffused with religious dogma?

Government can provide education funding while leaving decisions about what to teach and how to teach it with private educators and schools, and then allowing parents to choose from among them. This could be done through education savings account or voucher programs — in which government education dollars are directed to parents instead of schools — as already exist in 19 states, or tax credits for people who pay for private schools or donate to scholarship funds, which exist in 18 states.

The U.S. Supreme Court has certainly been moving in the direction of such religious freedom. In 2002 it ruled that voucher funding going to religious schools does not violate the federal Constitution as long as the schools are voluntarily chosen by parents. Last year, it ruled that religious institutions cannot be denied access to government grants simply because they are religious. And in its current session, the Court ruled that disagreement with religious teachings cannot drive government decisions.

The Court, however, has never adjudicated, whether private school choice is constitutionally required when government has established taxpayer-funded public schools. But this conclusion has recently been advanced.

Making people pay for public schools that cannot teach religious principles and beliefs that they think are essential is unjust and violates basic constitutional promises of equality. It is time for that to be recognized, and choice instituted wherever payment for education is required.

Our public schools should not violate the separation of church and state. At the same time, the Constitution demands that religious Americans be treated equally to non-religious Americans under the law. Universal school choice, by letting all people choose schools that share their values, is the key to resolving this conundrum, and to ensuring equality and liberty for all.

Neal McCluskey is the director of the Cato Institute’s Center for Educational Freedom, where Corey DeAngelis is the policy analyst.

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