School choice doesn't mean choosing one religion over another

September 1, 2011 

CASTLE ROCK, Colo. -- The red stone outcropping that gives this community its name is just a facet of the histrionic geology of Douglas County that sprawls prettily along the front range of the Rockies south of Denver. The county is named, Lord knows why, for Stephen Douglas, who defeated Abraham Lincoln in Illinois' 1858 U.S. Senate election. Lincoln opposed Douglas' repugnant "popular sovereignty" plan for allowing territories to vote for or against accepting slavery. Today, Douglas County has an admirable plan for popular sovereignty in education -- school choice.

But the plan has been disrupted by a judge who says, among other things, that providing parents with scholarship money that can be spent at religious or secular schools violates Colorado's constitution. That document says "no person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent."

Such "compelled support" clauses in state constitutions were written to prevent establishment of official state religions.

But Douglas County's scholarship program is religiously neutral, enabling families to choose whatever school best suits their children.

Prudently, opponents of the program do not claim that it violates the U.S. Constitution's proscription of "establishment" of religion. In 2002, the Supreme Court, considering an Ohio program legally indistinguishable from Douglas County's, said the Constitution is not violated by a scholarship plan that is "neutral with respect to religion" and involves parents directing government aid to schools by their "own genuine and independent private choice." The Wisconsin Supreme Court, ruling on a similar school choice program in Milwaukee, cited the U.S. Supreme Court: "The crucial question is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion."

The judge ruled against Douglas County at the behest of the American Civil Liberties Union, which is indiscriminately opposed to any public money reaching any religious institution in any way, and by others eager to protect public schools from competition. School choice usually is sought by poor parents victimized by failing schools in inner cities.

Douglas County's embrace of choice is notable because the median household income here is $99,522 and only 1.9 percent of families are below the poverty line. The county opted for choice because a few years ago conservatives were elected to the school board, and conservatives are pro-choice about most things -- owning guns, driving SUVs, using incandescent light bulbs, etc. -- other than killing pre-born babies. Liberals are pro-choice mostly about the latter.

In 1925, the U.S. Supreme Court affirmed the constitutional right of parents "to direct the ... education of children under their control." This might seem to be a facet of the privacy right so dear to liberals (see above: abortion). Be that as it may, Douglas County's 500 scholarships empower parents to exercise the right the U.S. Supreme Court has affirmed. And the right Colorado's Supreme Court affirmed two years later: In 1927, it upheld the "right of parents to have their children taught where, when, how, what and by whom they may judge best."

This is not an abstract legal question for Diana and Mark Oakley, whose son Nate, 13, has socialization problems associated with Asperger's syndrome. Desperately unhappy at a large public school, he is, thanks to his scholarship, flourishing at a small private school.

The Oakleys have taken a line of credit to cover the $11,325 of tuition not covered by the $4,575 scholarship and other aid they have received. Such scholarships cost the county less than the more than $8,000 it spends per public school pupil, so the program frees up money for public schools.

Mark and Jeanette Anderson wanted their son Max, 8, to have the math instruction offered by a small private school where he described his initial visit as "the best seven hours of my life." This school, with just 31 students, is in peril because it hired two teachers in anticipation of the 12 scholarship students whose aid is now in jeopardy. Derrick and Florence Doyle want the religious dimension of the Catholic school they have chosen. These parents are represented by the Virginia-based Institute for Justice, which has helped make the case law that will, eventually, vindicate the county.

The judge did not enjoin the scholarship program until Aug. 12, when many scholarship recipients were already enrolled in their schools. Happily, many of these schools are trying to keep their scholarship students, pending the predictable decision by a higher court that the disrupting judge has ignored settled law.

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