School Choice Basics

Principles come to the forefront when we ask, 'To whom do children belong?'

The Blaine Amendment of 1875 sought to add the following language to the federal Constitution: “No money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.” The amendment failed to gain a two-thirds majority in the United States Senate. Nonetheless, Blaine’s proposal helped shape state laws that blocked any state aid to Catholic schools.

But even settled law has a way of shifting, however slowly. It was only in 2020 that the Supreme Court ruled in Espinoza v. Montana Department of Revenue that the Constitution forbids states from excluding families and schools from “educational choice programs” solely on the grounds of their religious status. Two years later the Court ruled in Carson v. Makin that states may not prohibit families that participate in educational choice programs from selecting schools that provide religious instruction.

What follows from these rulings? Most recently, Nebraska passed a bill that provides scholarships to eligible students to attend a non-public school of their choice. It does this by creating a “voucher” program. This voucher program provides $10 million in state funding that can be used by families in need of scholarships.

The Nebraska Catholic Conference labored long and hard for such legislation, and welcomes the fact that, by design, the program reflects a special concern for those who are most in need. Nonetheless, the Conference knows that its work isn’t over. Not surprisingly, the Teachers Union promises to challenge the new bill, and it may well do so via a ballot referendum.

What’s driving the debate over voucher programs and related tax credits? With my fellow panelists on The Open Door videocast, this week I interviewed Tom Venzor, the Executive Director of the Nebraska Catholic Conference. Venzor, an attorney, argues that the core of the debate is about what he calls “first principles.” The principles come to the forefront when we ask the decidedly blunt question “To whom do children belong?”

The Christian answers that the children bear a fundamental dignity that comes with their being fashioned in the Creator’s own image and likeness. As such, they ultimately belong to God. The secularist, of course, cannot give this answer and often can’t even make sense of it. So, for the secularist, the default answer becomes that children somehow belong to “society” or, in folksy terms, “the village.” But neither society nor the fanciful village are legal agents. Enter the State, with its powers and privileges.

Let’s remember that at one point the State of Oregon had it in mind to require all children to attend public schools. But the Supreme Court, in Pierce v. Society of Sisters (1925), denied Oregon’s educational “kidnapping.” Under Justice McReynolds, the Court ruled that “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

And who first nurtures the child and seeks his full and rich future? Not the school board or the teachers’ union. It is the family that does so; it is the family that has the primary duty to prepare the child for his or her obligations, both personal and social. Parents are the first educators of their children.

The child is no more a creature of the State than is, say, the artist or scientist. The State has legitimate purposes, of course. But so does civil society, and the family is the first unit of society. Or so argues the Nebraska Catholic Conference and the United States Conference of Catholic Bishops.

We know, of course, that the very nature of the family is, of late, fiercely debated—and not for the first time in history. And perhaps it could not be otherwise. As Pope Francis, following in the footsteps of the fisherman, so often reminds us, Satan, like a roaring lion, roams about seeking whom he can devour (1 Peter 5:8). The secularist, to be sure, can’t make sense of this injunction. It is, however, a lynchpin of Christian Realism.


Jim Hanink is an independent scholar, albeit more independent than scholarly!

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