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
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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