34 Pages Posted: 7 May 2006
A certain degree of deference to the individual consciences of both students and teachers makes sense under our traditional common school framework. Where students and their families are presented with a single option of publicly financed schooling, and where public school teachers' employment opportunities are fungible in terms of the moral content of the curriculum and pedagogical mission, the school is functionally equivalent to the state. As such, invoking the sanctity of conscience can bolster the individual's authority in what otherwise would be a pronounced power disparity in the state's favor.
But the rise of school choice in many places gives students and teachers an important tool that may change the power dynamic in their relationship with any particular school: an exit option. Even in school districts that have not embraced private school vouchers, an array of charter, magnet, and other schooling options have created paths by which like-minded teachers and students can affirmatively choose to invest themselves in one school instead of another based on distinct normative claims embodied in the schools' respective missions. As school choice bolsters the ability of a school to create its own identity, the ability to maintain and defend that identity presupposes a reduced authority for the individual consciences of the school's prospective constituents.
Under these circumstances, schools no longer function as fungible components of an educational monopoly backed by coercive state power. Schools instead begin to serve a mediating function, linking students and teachers together in common support of a mission that is not shared by every school. The viability of this mediating function has two implications for individual conscience: first, to the extent that a teacher's conduct is inconsistent with the school's deliberately chosen mission, the school has a stronger claim to control it; and second, to the extent that the implementation of a school's mission creates tension with a dissenting student's conscience, the student's exit option gives the school a stronger claim to maintain its mission. Conscience is by no means erased from the religious liberty analysis in an era of school choice, but its relevance and authority must be viewed from a different perspective. This article aims to begin tracing the contours of that perspective.
Keywords: conscience, school choice, religious liberty, public schools
Suggested Citation: Suggested Citation
Vischer, Robert K., The Sanctity of Conscience in an Age of School Choice: Grounds for Skepticism. U of St. Thomas Legal Studies Research Paper No. 06-21. Available at SSRN: https://ssrn.com/abstract=899381 or http://dx.doi.org/10.2139/ssrn.899381