Benjamin Justice (Rutgers University) has posted The Originalist Case Against Vouchers: The First Amendment, Religion, and American Public Education on SSRN. Here is the abstract:
During the last three decades, proponents of public school voucher programs on and off the bench have turned to original meanings discourse to argue that spending public dollars for religious education is consistent with the original meaning of the first amendment, as incorporated by the fourteenth. The following account argues that these arguments are wrong. Whether one weighs the narrow historical claims of formalist interpretations on their own terms, or whether one looks beyond them to a more historically comprehensive view of past meanings and intentions, or both, the originalist case is against vouchers.
This essay lays out its case in five parts. Part One examines Thomas Jefferson and James Madison’s views on religious establishment in mass, public education through their legislative proposals in Virginia and their public and private writings. Part Two seeks to understand the broader intellectual context in which Jefferson and Madison wrote (asking how mainstream their ideas were) by examining the most comprehensive public school plans written just before or concurrently to the ratification of the First Amendment. Part Three examines a singular public act in the 1790s: an essay contest sponsored by the American Philosophical Society (APS) asking contestants to design a system of public education suited to the “genius” of the new national government. Part Four examines education-related law developed during the early republic. These sources include the Northwest Ordinances of 1785 and 1787, State Constitutions, and state statutory law. Part Five of this essay carries the ideas and laws of the early republican period forward into the 19th century, briefly sketching out the implications of a robust originalist account of religious establishment and public education for understanding the slow evolution of state support for public education that culminated in the consolidation of a federated national system after the Civil War. The essay concludes by exploring the implications of a more historically robust originalist doctrine for contemporary debates about the relationship between religion and public education, with special attention to school choice programs.
The purpose of this essay is not to draw upon contemporary theory or research for or against school choice, but to stick to a purely originalist perspective. Ceteris paribus, the best way forward for proponents of school choice would be to repudiate their flawed originalist interpretations and instead embrace the revolutionary aspects of their consumerist doctrine: that “true private choice” makes good sense today, even if it did not in the late 18th or 19th centuries. Likewise, those opposed to privatizing mass education need look no further than the original intentions of the founding fathers of the republic and the meaning of the laws they enacted to preserve a republican form of government.