Aaron J. Saiger (Fordham University School of Law) and Abner S. Greene (Fordham University School of Law) have posted Religious Schools and the Secular State: A Dialogue (42 Journal of Law & Religion, forthcoming 2027) on SSRN. Here is the abstract:
Should we allow states to exclude religious schools from programs that fund secular private schools, through vouchers or tax credits? May states regulate what religious schools teach and how they teach it, above a very minimal floor? These questions tend to elicit two sets of answers. Those who believe that all children should have a “common” education tend to answer yes and yes. To incentivize parents to send their kids to public schools and push religious options to the margins, they would deny funding to religious schools and ensure that a state-determined curriculum is shared across both public and private schools. Those who want to energize religious education, and those who think efficient market mechanisms are the best route to improving education, tend to answer no and no. Their goals are advanced by helping parents choose to exit the public school system and by allowing a wide variety of curricular choices to those who do.
This Essay’s authors disagree with these answers—and disagree with each other. Both believe that the right answers depend on understanding K-12 religious schools as performing a unique role in American educational ecology, namely as an engine for the development of conceptions of the good life and the educated person that compete with dominant, and secular, ideas.
Professor Saiger answers no and yes. He understands religious schools to be an integral part of society’s educational system, partners with public and secular private schools in a joint enterprise of educating all the nation’s youth. As partners, religious schools should receive public funds and also be required to conform to many—though not all—public requirements that further the common educational good. To the extent that Free Exercise principles limit the ability of the state to regulate religious schools, the state should choose to respect the same limits when regulating private secular schools.
How to build a pluralist and effective approach to religious schooling is a perennial question that is newly salient, as states begin to consider whether and how to participate in the new national program that provides tax credits for donations to religious schools. The authors, even as they disagree with each other, hope that debate over these questions will transcend the yes/yes versus no/no binary that has long dominated legal, political, and pedagogical discussion.
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