Constitutional Law

School Choice Proponents Are All About Individual Preference, Except When They’re Not

When the government forces you to subsidize an organization or the beliefs of others you personally disagree with, that is the very opposite of granting you a 'choice.' 

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Here at Above the Law, I often fancy myself as the wacky, legalize all drugs and gun control is generally bad libertarian. At the same time, although I have to admit that most of my policy preferences do not have general acceptance among my fellow citizens, right or wrong, I truly don’t believe that my political or legal philosophy can be fairly described as radical. Like John Stuart Mill, I simply feel that an important distinction exists between “self-regarding acts” and all “other-regarding acts.” To explain the distinction, the former involves doing things to yourself that do not harm others although they may be self-destructive, while the latter involves all other acts that can harm others. In practical application to things like drugs and guns it means distinguishing between laws that criminalize driving under the influence, or unjustified gun violence against the innocent, with laws that criminalize simple possession or use, absent a risk or harm to others.

When you apply my live-and-let-be libertarianism to education policy, you might expect to find me on the school choice train. Except, the more I have looked into how proponents of school “choice” (including libertarians), want these systems to operate, the more I began to view the use of the word of “choice” as a misnomer. Indeed, I submit school choice systems as they currently operate violate every tenet of free conscience liberty.

First, let’s get into how school choice is portrayed by its proponents. According to the Institute for Justice, a libertarian-minded, public interest law firm, school choice is about providing “all parents, regardless of means … the freedom to choose where and how their children are educated.” This might sound perfectly reasonable to many, including myself. But the more you dig into the actual policy that is being defended and promoted, the more misleading this description becomes. Before I get into criticizing the Institute’s position on school “choice,” however, let me be perfectly clear: The Institute for Justice does a lot of amazing work, particularly on the issue of criminal justice reform, including fighting against the horrific and discriminatory government practice of civil asset forfeiture. And in full disclosure, before I moved back to my home state of Alaska, I even applied for a job at the Institute.

The said, what makes the stated position of the Institute on “school choice” a misnomer is that it leaves out just how this “freedom to choose” is provided for. For example, if parents are only given the “freedom to choose” because the federal government has forced unwilling states and taxpayers to pay for it, I submit it cannot be honestly said that such a system reflects a commitment to freedom of choice or a self-regarding act.

Lest you think this is all hypothetical, take Espinoza v. Montana. A case the Institute for Justice still touts as a victory for school “choice.” In Espinoza, the question presented was whether Montana’s constitutional “no-aid” provision to religion could prevent religious schools from obtaining government funds provided through the state’s scholarship program. Ultimately, the Supreme Court held that excluding religious schools violated the free exercise of religion. The result was that taxpayers and states are now mandated to include religious schools within government subsidy programs for private education.

The problem here is that a rather obvious component of religious freedom is, as James Madison put it, “that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.” Yet, the Supreme Court has repeatedly held, as it did in Espinoza, that unless states force citizens to subsidize churches and religions they do not want to support or even believe in, religious “freedom” is somehow being violated. Put simply, the only “freedom” being promoted here is the freedom to force otherwise unwilling citizens to financially support religious beliefs or churches. But when educational systems operate in this way, where the effect is that nonbelievers or LGBT citizens are forced to subsidize the instruction of religious beliefs — beliefs mind you that teach things like all nonbelievers deserve to rot in a hell for all eternity or that foster kids in a government program should be denied access to loving, qualified homes inhabited by same-sex couples — describing such a system as a promotion of free choice is quite obviously absurd. If not deliberately misleading. Because what’s actually going on is a gross violation of free conscience liberty.

Of course, if a system of school choice merely allowed individual citizens to direct the money they personally pay in taxes for education to the school of their choice, that would better reflect freedom of choice and a self-regarding act. Even if such a nonpreferential, individually autonomous system nevertheless violated the original understanding of religious liberty. But as shown above in cases like Espinoza, that is not the system we have. What we have is a system of school “choice” that regularly violates free conscience by forcing citizens to subsidize the instruction of religious beliefs they adamantly disagree with. Let’s instead start calling these systems what they are for all too many Americans: Tyrannical.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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