Public-School Moralizing is No Reason to Overturn Blaine Amendments
In November, the Supreme Court will hear argument in Espinoza v. Montana Department of Revenue, in which it will decide whether states with voucher-like schemes must allow those funds to be used at religious schools. Writing for SCOTUSBlog on September 17, Jim Kelly highlighted an underappreciated aspect of this debate: that private religious schools are not the only schools with moral education on the agenda. Rather, public schools across the country have been, since the 1990s, engaging in what is now called “social-emotional learning,” or SEL. The specific form of SEL varies widely by state, school district, and even by individual school, but often includes character education and curricular and disciplinary interventions aimed at building the “core competencies” of self-awareness, self-management, social awareness, relationship skills, and responsible decision-making.
Kelly argues that this “transformation of K-12 public education from a purely academic undertaking into a holistic religious naturalist model” “raises serious First Amendment and equal protection concerns.” In other words, if the state pays for moral education in the public schools, it should also subsidize the equivalent in religious private schools. He implies that this turn in K-12 schooling stems directly from the unapologetically Protestant nature of many public schools in the late nineteenth century, when many states passed “Blaine Amendments” prohibiting public support for “sectarian” (read: Catholic) schooling.
Kelly is half right and half wrong. SEL is moralizing and constitutionally problematic, but it doesn’t justify requiring states to fund religious schooling. It is not apposite to the issues the Court must decide in Espinoza.
As I argue in my Note, The Character of Law: A Normative Critique of Social-Emotional Learning Laws, 114 Nw. U. L. Rev. 193 (2019), the push for social-emotional learning in public schools should be questioned and resisted for many reasons. Despite the significant empirical evidence showing that the development of certain social and emotional skills can enhance students’ academic and long-term outcomes, mandating SEL in schools through the mechanism of legislation is often counterproductive. Further, it infringes upon longstanding constitutional protections of parental rights and familial autonomy in child-rearing. The contemporary SEL movement is rooted in a theory of social norms mismatch between the expectations of the school environment and those of low-income families and families of color; if students can be trained in the dominant social norms of the school environment, the theory goes, they will enjoy greater success in school and, later, in the workplace.* Left unsaid are the (race- and class-based) normative assumptions behind this model, assumptions which are used to justify greater state intervention into the lives of students and families whose social behaviors are thereby problematized.
Though it’s implemented through curricular standards that formally look the same as those for reading or math, SEL is qualitatively different: a child who meets all of her state’s or district’s SEL benchmarks will become a particular kind of person, a “creature of the state” in the way she carries herself through the world, rather than a person who knows particular kinds of things. For all these reasons, SEL runs afoul of the parental rights doctrine, which holds, in essence, that the government does not get to enforce its vision of ideal parenting, preserving parents’ rights to go against the grain of the state in child-rearing absent affirmative harm.
But SEL is not religion. Rather, it’s a questionable technocratic intervention into the relationships between teachers and students and between students and their families. SEL may be an overly formalized and rationalized view of the inevitable process of personal development that takes place in any educational context, but it is not equivalent to government establishment of religion. And, therefore, the fact that a governmental entity funds SEL does not require it to fund religious schooling or else risk running afoul of the Free Exercise and Equal Protection Clauses. Indeed, the best constitutional argument against SEL—the parental rights doctrine—firmly commits moral education to the sphere of the family, and not the state. Under that analysis, the divide between church and state is even more entrenched. If the merely normative SEL is improper in the public schools, then public funding certainly shouldn’t be directed toward religious schooling.
I agree with Kelly that SEL should be questioned both from policy and from constitutional perspectives. But it’s not implicated by Blaine Amendments, and it shouldn’t affect the Court’s decision in Espinoza.
*For more discussions on contemporary social-emotional learning, see Meredith R. Aska McBride, Note, The Character of Law: A Normative Critique of Social-Emotional Learning Laws, 114 Nw. U. L. Rev. 193, 203–07 (2019). See also James P. Comer, School Power: Implications of an Intervention Project (1980); James P. Comer, What I Learned in School: Reflections on Race, Child Development, And School Reform (2009); James P. Comer, Educating Poor Minority Children, 259 SCI. AM. 1, 42 (1988).