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1991 U. Chi. Legal F. 43 (1991)
Public and Private Education: Is There a Constitutional Difference

handle is hein.journals/uchclf1991 and id is 47 raw text is: Public and Private Education: Is There a Constitutional Difference? Mark Tushnett Discussions of education frequently deal with the differences between policy in connection with public education and policy in connection with private education. Analysts believe that the poli- cies necessarily differ to some extent because the federal Constitu- tion places different constraints on each with respect to the regula- tion of public and private education.1 For example, as a matter of federal constitutional law, public schools cannot segregate students on the basis of race, whereas, again as a matter of constitutional law, private schools can.2 In this Article, I argue that with respect to most policy-relevant constitutional questions-that is, questions that arise in connection with policies that are close to the current public agenda-the federal Constitution does not impose different constraints on public and private schools. More precisely, my argu- ment is two-fold: First, if a government identifies a private school's policy that it believes would benefit public schools, the federal Constitution allows it to adopt that policy (with minor exceptions). Second, if a government faces a constitutional constraint on the policies it may pursue, the federal Constitution allows it to impose that same constraint on private schools (with even fewer exceptions). In making this argument, I rely mostly on rather straightfor- ward readings of the main cases bearing on these questions. In- genious lawyers could almost certainly devise alternative interpre- tations, or draw attention to additional cases, that would allow a judge who wanted to reject my conclusions to do so. My main point is that, when these straightforward interpretations of the principal cases are brought together, the most direct conclusion is t Professor of Law, Georgetown University Law Center. I would like to thank Nicole Tapay and Katya Lezin for their research assistance, and Peter Byrne for his comments on a draft of this article. IIn this Article I am concerned solely with the restraints placed on education policy by the federal Constitution. State constitutional constraints are surely different with respect to many of the issues I discuss. ' Compare Brown v Board of Educ., 347 US 483 (1984), with Norwood v Harrison, 413 US 455, 469 (1973) (private bias is not barred by the Constitution).

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