Breaking the Public School’s Monopoly

The National Education Association and other forces opposing a free market in education continue to attack school choice as though it were a mortal threat to the nation. A key argument they make is one that unfortunately is also embraced by some sincere and ardent conservatives. A good example is found in the article by Ronald L. Trowbridge in National Review of September 15, 1997, entitled “Devil’s Deal.”

Trowbridge states that under “voucher” plans private schools in which parents expend vouchers will be legally deemed to be “recipient institutions” of governmental funds. Therefore, the schools will be subjected to the full range of oppressive antidiscrimination laws, governmental requirements for multicultural diversity, and prohibitions against religious practices and discipline in religious schools. Those predictions should certainly be noted; happily, they need not be fulfilled.

Trowbridge points to the bad experience of Hillsdale College as the result of the Supreme Court’s 1984 decision in Grove City College v. Bell. There the Supreme Court held that the ultimate receipt by the college of grants to students under the Basic Educational Opportunity Grants (BEOG) program constituted federal financial assistance to the institution, thus bringing Grove City under Title IX of the Civil Rights Act barring sex discrimination. But his allusion to Hillsdale’s experience is completely off the mark insofar as sound state voucher programs are concerned. Well-drafted voucher proposals will be scrupulously devoid of any expression of legislative intent to treat voucher moneys as aids to institutions; instead they will carefully express the opposite intention. The school child, via the parents, will be designated as the grant recipient, and the grant moneys “shall not constitute financial assistance or appropriations to the educational institution attended by the grant recipient.” Such indeed are the provisions of House Bill 2 (vouchers) now before the Pennsylvania General Assembly.

Here we should bear in mind that the Supreme Court, in a series of decisions from 1947 down to its 1993 decision in Zobrest v. Catatina Foothills School District, has carefully distinguished governmental assistance programs in which individuals are the primary beneficiaries of the assistance from programs that primarily aim at institutional aid. The Court, in its decision in the Agostini case, June 13, 1997, referred twenty-four times to Zobrest. These decisions each turned on whether particular assistance programs violated the Establishment Clause, but that in turn depended on whether the aid was aid to religious institutions or aid to individuals.

Trowbridge states that even pro-school-choice advocate Gary Bauer admits that private schools are already under “some government control”; hence it would be easy “to impose more control on these schools.” True, private schools are subject to several kinds of regulation—for example, building and safety codes, zoning laws, laws on racial discrimination. Private schools (including religious schools) should find regulations unobjectionable where they are narrowly drawn, reasonable in content, and do not transgress constitutional rights. The success of the public-school establishment in some instances to impose broad, unreasonable, or constitutionally intrusive regulations on private schools has been largely due to a “get along by going along” attitude on the part of many private schools. But that success has not been due to vouchers. Indeed, sound voucher programs like that proposed in Pennsylvania expressly limit employing vouchers as a device for imposing regulations beyond those presently in force.

Trowbridge says that protections established in good voucher laws can later be adversely amended. I am afraid he has bought—lock, stock, and barrel—the public-school monopoly’s basic principle—namely, that it is inevitable that private schools be further and further marginalized in our society, that education taxes be directed solely to support the monopoly, and that there must be no economically meaningful parental choice in schools. Instead of quailing in the face of such an outrageous principle, we should face about and insist on two realities in the public debate on choice.

The first reality is that government is neither the sole educator (in an arrogated role as supreme standard-setter) nor indeed a superior educator. Public education is simply alternative education—one among diverse choices that should be open to parents.

A second reality is the constitutional right of parents to choose. Seventy years ago, in Meyer v. Nebraska, the Supreme Court warned against the tendency, now vividly seen in public education, to follow the view expressed in Plato’s Republic, to force all children into a common mold. In its landmark decision in Pierce v. Society of Sisters two years later, the Court denied any power in the state “to standardize its children by forcing them to accept instruction from public school teachers only.” The message for Americans today is that by conferring a tax monopoly on public education, we are conferring on it also an intellectual and philosophical monopoly. The only minority able to enjoy diversity in values will be the rich. The children of all others will be forced into the common mold. The Supreme Court has coupled its warnings against state standardization of children with emphasis on parental rights. In its 1972 decision involving Amish parents, the Court called parental rights in education “fundamental,” concluding: “This primary right of parents in the upbringing of their children is now established beyond debate as an enduring American institution.” But the dominant tendency of the public-education monopoly is toward the extinction of parental rights.

The “devil’s deal” is not to be found in education vouchers for parents. It is found instead in nursing fears of government as an alien force instead of something whose course we must lay hold of and help determine. We dare not treat statists as inevitable victors, but instead as people to be challenged, exposed, and defeated.


William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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