It’s so weird how government-funded schools become so political, to modify a line I often use about government-run schools.
Because of a voter-approved measure to raise nicotine taxes and subsequent legislative action, we now have widespread tax-financed preschool in Colorado. Rather than expand schools directly run by government, like most K–12 schools, the program subsidizes private preschools. But the private schools have to meet certain requirements that some religious schools do not wish to meet, so several such schools sued.
What’s the problem? As the Becket Fund, the organization suing on behalf of two Catholic preschools, states, “Faith-based preschools like St. Mary’s and St. Bernadette’s cannot participate in the program because they prioritize the admission of Catholic families and have religious expectations for the teachers who operate their ministries.” See also a statement from the Alliance Defending Freedom, suing on behalf of Darren Patterson Christian Academy in Buena Vista.
Becket’s lawsuit is more specific about the teacher side: “St. Mary’s and St. Bernadette’s each require their preschool staff to sign Archdiocese-approved employment contracts on an annual basis affirming their willingness to abide by and uphold Catholic teachings on (among other issues): life, marriage, and human sexuality.” In other words, gay or transgender teachers need not apply. According to the language in the lawsuit, you can’t even favor legal abortion and work at these schools, even if you’re a straight Catholic.
Becket claims that the state’s non-discrimination policies violate the schools’ First and Fourteenth Amendment rights. I don’t know how the courts will rule. Here I want to explore the philosophical implications for people’s rights.
Let’s start with the fact that no one is trying to shut down the religious schools or even change how they operate. If that were happening, that would be a clear violation of the schools’ liberties.
Instead, the alleged slight stems from a conditional: If the schools want government money, then they need to follow certain non-discrimination requirements. If they don’t want to follow those policies, fine; but then they don’t get the money.
To determine if anyone’s rights are violated by the requirements, we have to look not only at the school, but at the people providing the money.
People involved with a school have a right to contact people around the community and request funding. But what would we think if people involved with a school told neighbors, “We need you to provide us with funding, and, if you don’t do that, we’re going to seize some of your money by force or lock you in a cage as punishment”? We would think that the school is a criminal operation, right?
Under those conditions, if someone declined to help finance the school, we would not consider the refusal a violation of the First or Fourteenth Amendment rights of the school. On the contrary: We would consider the school’s use of force a violation of the rights of the people under threat.
The situation described is remarkably like that behind the lawsuits, except government is the organization threatening to seize people’s wealth or lock them in a cage if they do not contribute to the schools. At that level, it’s hard to see how the schools are the proper parties to complain about their rights being violated.
Forced to fund schools
But that is not the end of the story. Because, you see, some of the people forced to help finance preschools are the very people who send their children to the religious preschools, or who wish to do so, or who wish to help finance those schools. Is it right for government to tax those families in order to subsidize preschool for other families? That hardly seems fair.
What about people forced to finance preschools who do not have children and do not wish to help finance any school? If the person is secular and does not wish to finance religious schools, then forcing the person to do so violates that person’s First Amendment rights to refrain from supporting speech of which the person disapproves. At the same time, if the person is religious and does not wish to finance secular schools, then forcing the person to do so also violates that person’s rights.
What I conclude from all this is that using the force of government to make people finance schools inherently violates people’s rights. There is no way around this conflict. The best we can do, given the use of such force, is try to figure out whose rights shall be violated, and in what ways, and to what extent.
The obvious way to avoid rights violations here is to rely on voluntary rather than government (tax) financing of schools. But hardly anyone wants to do that.
I will also point out here that subsidizing families directly, rather than subsidizing schools, would avoid much of the conflict specifically pertaining to freedom of speech and of religion. If government gave cash directly to parents, fewer people would care if the parents then used that money to enroll their children in religious or secular schools. We could still talk about whether such use of force otherwise violated the rights of the people compelled to contribute.
Given the tax financing of preschools, it is wrong to subsidize religious schools, and it is also wrong not to. The use of force tends to generate rationally irresolvable conflicts. That’s one reason why some of us think we as a society should tightly restrict the use of force and rely to the greatest extent possible on mutual consent.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.
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