Supreme Court shouldn't kill school choice
2/22/2002 12:00:00 AM - Jonah Goldberg
Parents only serve a "ritualistic" function when it comes to deciding what to do with their kids. That was the position of Robert H. Chanin, the lawyer who tried to convince the Supreme Court Wednesday to kill Cleveland's school choice program.
Ritualistic was a funny word for Chanin to use considering how it brims with religious or spiritual connotations. The whole point of his case is to get religion out of public education.
But I'm getting ahead of myself. Here's the situation: As Bart Simpson said of Old Faithful, Cleveland's public education system both sucks and blows. It is plagued by drugs, crime, overwhelmed good teachers and lots of underwhelming bad teachers.
William McGurn of The Wall Street Journal reports that the city's Euclid Park elementary school suspended 37 kids last year. "And yet the pass rates read like a Soviet election, with 91.3 percent of students promoted," writes McGurn.
In fact, McGurn reports, even parents who ask for their children to be held back can be denied that choice. He interviewed one mother who, when she discovered that her daughter still couldn't read in the sixth grade, begged the teacher to hold her child back for another year. Can't do it, the teacher explained, your daughter gets B's and C's and there's a strict quota on how many students can be held back.
Imagine what this does for the kids who think they are excelling but are really falling behind. Imagine how bad the students are who actually get F's and make the quota!
Since the better public schools in Cleveland's suburbs won't take kids from the inner city, the only viable alternatives for parents interested in breaking with the public school monopoly are parochial schools.
But a Cleveland program designed to help some parents pay the modest tuition of these schools and thereby give their kids a chance (and give the public schools some much-needed competition) was struck down by the 6th U.S. Circuit Court of Appeals last year on the grounds that it "advanced religion."
The fact that the state gave the money to parents and not to the parochial schools directly didn't matter, the appeals court judge decided. And that's what the teachers unions want the Supreme Court to rule as well. That's why Chanin wants the justices to believe that parents only have a "ritualistic" role in deciding where their kids should go to school.
Of course, he means something different. Since giving money straight to religious schools is seen as violating the constitutional barriers between church and state, school choice advocates adopted the strategy of sending the money straight to the parents as a subsidy or scholarship - whatever you want to call it.
The opponents, therefore, would have the court believe that parents are mere money launderers for taxpayer funds going to support a religious entity. That's what they mean by "ritualistic," as in the parents are just conduits for cash, lacking free will of any kind.
Well, wouldn't you think that a parent who had no choice at all would have even less free will to determine where to send his or her kids? If the public schools have a total monopoly in the inner city, then don't parents have no role whatsoever in deciding what to do with their kids?
They're not even conduits, according to this scheme; they're out of the loop entirely. This, too, calls to mind Soviet elections, when "voters" were allowed to "choose" between "candidates" already selected by the state.
But, let's get back to the "advancing religion" complaint. This argument is perfect, except on moral, historical and legal grounds. The First Amendment simply does not mean what the People for the American Way and Americans United for the Separation of Church and State think it means. There were state churches all over the country for a generation after the Constitution was ratified (the established Church of Massachusetts wasn't dissolved until 1833). It wasn't until 1877 that New Hampshire rescinded its requirement that you be a Protestant to serve in its Legislature.
I don't like the idea of states having such religious requirements, but this certainly goes to show that religion and state governments got along fine under the old interpretations and original intent of the Constitution. The establishment clause of the U.S. Constitution was intended to protect minority denominations from a huge "federalized" church. It was not intended to cleanse the public square of all things religious.
Unfortunately, the Supreme Court disagreed in 1962, when it ruled that school prayer was unconstitutional. The good news is that when Chanin tried this "ritualistic" argument on the Supreme Court the other day, Chief Justice William Rehnquist replied, "A number of members of the court are really not satisfied with that explanation." Let's hope that dissatisfaction is reflected when the court announces its verdict.