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Faculty\VOLOKH\schools
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"Equal Treatment Is Not Establishment
Prof. Eugene Volokh, UCLA Law School *
(13 Notre Dame Journal of Law, Ethics, and Public Policy 341 (1999))
Does the Constitution require discrimination against religious schools and against parents who choose them?
This question is the heart of the Establishment Clause debate over school choice. May the government treat government-run schools, secular private schools, and religious schools equally, supporting children's education regardless of the religiosity of the school to which the children go? Or must the government exclude religious schools from this generally available benefit?
Casting the matter in terms of discrimination frames the issue in a stark light, but such a characterization is accurate: Discrimination is indeed what it's all about. Fair-minded people may argue that the Constitution does require such discrimination; not all discrimination is bad. But there should be no denying that a constitutional rule excluding religious schools from generally available benefits rests on the theory that discrimination is constitutionally mandated.
A. "No Money Flow" versus Equal Treatment
1. No Money Flow
The chief argument for a constitutional rule of mandatory discrimination against religious schools has been the "no money flow" theory. The Constitution, the argument goes, does require that religious schools and institutions be excluded from evenhanded, generally available funding programs, because it's wrong for taxpayer money to indirectly flow to religious teaching.
In the words of Kathleen Sullivan, "the establishment clause necessarily requires that government 'disfavor' religion in relation to secular programs," because "government [may not] make us pay taxes to"
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