Panel 2: Free Exercise, Establishment, and School Choice

A key consequence of Pierce was to constitutionally protect the option of private schooling. As scholars from across the ideological spectrum have pointed out, this result has produced a host of inequities, from economically privileging families with means to access private or parochial schools (leading to calls for school choice, or the ability of families to use state funds for their preferred school) to de facto school segregation when families avoided racial desegregation after Brown by opting for private schools. This panel will explore the legacy and contemporary questions that Pierce raised about how to best achieve First Amendment principles animating the Free Exercise and Establishment Clauses while addressing the interests of pluralism and diversity, as well as what is required to achieve the Equal Protection Clause’s requirements. Put differently, what approaches to state involvement in education are most in line with the principles and guarantees of the First and Fourteenth Amendments?

Moderator: Eugene Volokh, Hoover Institution