Equal Participation for Muslim Schools, Oh My!

The AP reports:

The Louisiana House gave final legislative passage Monday to a $3.4 billion elementary and secondary school spending plan ….

The Jindal administration urged passage of the spending plans. They will fund the governor’s newly created statewide voucher program that funnels tax dollars toward private and parochial school tuition for students who otherwise would attend low-performing public schools….

Rep. Kenneth Havard, R-Jackson, objected to including the Islamic School of Greater New Orleans in a list of schools approved by the education department to accept as many as 38 voucher students. Havard said he wouldn’t support any spending plan that “will fund Islamic teaching.”

“I won’t go back home and explain to my people that I supported this,” he said.

“It’ll be the Church of Scientology next year,” said Rep. Sam Jones, D-Franklin.

Carter, R-Baton Rouge, said the Islamic school withdrew its request to participate in the voucher program.

“They’re not interested. The system works,” he said….

I don’t know why the Islamic School withdrew its request to participate in the program, and of course it has no obligation to participate. But if the state chooses to provide a generally available scholarship program that includes religious schools, it has to include those schools without regard to religion; that’s a basic command of the First Amendment (see, e.g., Larson v. Valente (1982)).

Indeed, soldiers can take advantage of GI Bill funds at religious colleges and universities, which would include ones that teach Islam as well as ones that teach Christianity or Judaism. (I don’t know whether there are any such universities in the U.S. today, but GI Bill funds would be usable there if such universities existed.) The government provides property tax exemptions to various nonprofit institutions, which includes mosques as well as churches and synagogues (and secular nonprofits, such as private schools and charities). The government lets people deduct from their income taxes contributions to various nonprofits, which likewise includes mosques as well as churches, synagogues, and secular nonprofits. That is economically equivalent to a matching grant program, but it’s quite permissible, so long as the government doesn’t discriminate based on religion. Historically, the postal service offered reduced rates as a very important subsidy for newspapers, magazines, and books; I believe such a subsidy still exists (under the rubric of “media mail”), though my sense is that it’s less important. That subsidy was just as available for mailings of Korans as of Bibles or of secular literature.

Some people are troubled by the fact that under these programs taxpayers have to effectively subsidize views they disagree with. I’m not that troubled by that, especially since taxpayers have to routinely subsidize views that the government expresses, even when they disagree with those views. If we’re worried about the burden on dissenting taxpayers, I’d think that this burden is less problematic when taxpayer money subsidizes a diversity of views that is provided by a wide range of schools than when taxpayer money subsidizes just the government’s own chosen views as presented by the government-run schools. And indeed the Court has held that there is no constitutional problem when taxpayer money indirectly flows to support private views that the taxpayers may disagree with, even when religious institutions are included alongside other institutions in evenhanded private-choice funding programs, such as the GI Bill, school choice, or the charitable tax deduction.

But in any event, whether the government chooses to have such subsidies, or chooses to avoid such subsidies in order to protect potentially objecting taxpayers (a misguided decision, I think, but a permissible one), it can’t selectively try to exclude a particular religion. Some content-based mandates of speech (e.g., if you want this money, you must teach so much math and English) or content-based limits on speech (e.g., you may not use this money to teach sex education) are permissible. It’s conceivable even that some viewpoint-based limits on speech using the money are permissible, though the matter is complicated. But it’s clear that discrimination in such funding programs against some religions, regardless of what secular material the school teaches, and in favor of other religions is unconstitutional.

Thanks to commenter Zuch for the pointer.

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