Religion, Discrimination, and the Future of Public Education

UC Irvine Law Review, Forthcoming

51 Pages Posted: 19 Dec 2022

See all articles by Derek W. Black

Derek W. Black

University of South Carolina - School of Law

Date Written: December 5, 2022


The Supreme Court’s recent decisions regarding the free exercise of religion threaten fundamental changes to public education. On their face, these decisions are relatively narrow. They prohibit states from explicitly excluding religious schools from participating in states’ tuition subsidy programs, otherwise known as private school vouchers. But school choice advocates and some scholars argue that the rationale in these cases also extends to religious organizations that want to operate public charter schools.

This Article demonstrates that religious schools’ right to participate in certain education programs is not a right to reset all the rules of those programs. First, states retain authority to control the curriculum that public dollars support in both charter and private schools. Second, states have an affirmative obligation under federal law to ensure that all parties participating in state education programs comply with secular and anti-discrimination standards. Thus, rather than using the Court’s recent Free Exercise cases as an excuse to retreat from antidiscrimination and secular standards, states must reinforce those norms in a way that is consistent with newly established — but limited — free exercise rights.

Keywords: free exercise of religion, establishment of religion, charter schools, vouchers, discrimination, school funding, state actors

Suggested Citation

Black, Derek W., Religion, Discrimination, and the Future of Public Education (December 5, 2022). UC Irvine Law Review, Forthcoming, Available at SSRN: or

Derek W. Black (Contact Author)

University of South Carolina - School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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