In June 2011, I enjoyed the privilege of lecturing at Acton University 2011 in Grand Rapids, Michigan, on the subject of school choice and private education. Having read my subsequent blog report, which invited people to become informed about school choice in order to join the civil rights movement of this generation, the editors of Comment invited me to expand on the claims implied in this invitation. That is what I hope to do in this brief essay.

Let me begin with some contextualizing comments designed to set up the discussion that follows.

First, and most importantly, I believe that the fundamental issue in this matter involves parental choice, even though the far more popular phrase is school choice. Parental choice underlies and undergirds school choice, and forms (or should form) the heart of the debate on accessibility to and support of education today. I am assuming the right of parents to raise and educate their children in ways consistent with their parental convictions.

Secondly, I am writing in terms of the political policy context of the United States. The following comments assume some familiarity with developments in educational options and in constitutional jurisprudence on the federal level that have occurred in the last twenty years or so. These options include charter schools, magnet schools, tuition vouchers, tuition tax credits, and tuition scholarships. A number of lawsuits have been filed and adjudicated in order to determine the (im)permissibility of these options, especially to the extent that they involve religion-based schools receiving public funds. Parental educational choice has been successfully defended against court challenges in Milwaukee, Cleveland, Arizona, Washington, D.C., Florida, and elsewhere. As of this writing, my home state of Indiana is preparing oral arguments before the state Supreme Court in defense of the nation’s most ambitious tuition scholarship program currently available to all resident parents who meet financial-need qualifications.

Thirdly, I do not assume the legitimacy of government involvement in education at its current level in the United States (for the history and analysis of which, see Jim Skillen’s book The School-Choice Controversy: What is Constitutional?, pages 67-85). But in what follows, rather than discuss that important issue of principle, I would like to suggest that achieving a national consensus regarding parental educational choice as a civil right can become a more effective basis for a fresh conversation about the nature and scope of the government’s task with respect to education.

My central claim in this essay is that, since the government mandates education and provides resources (benefits) for fulfilling that mandate, the fundamental human right of parental educational choice must be protected as a civil right, in two significant ways. First, parents have a civil right to fair access to effective (that is, successful) education. Second, consistent with the religious non-persecution principle of the First Amendment of the U.S. Constitution, parents have a civil right to support only that educational system they wish for religious reasons to use.

The first civil right guarantees fair access, for reasons judged adequate solely by parents, to the educational product or service that the government mandates. The second civil right guarantees freedom from bearing a double burden that arises when parents exercise their religious convictions in connection with education.

Distinctions

Human rights v. civil rights

Human rights tend to be understood as more basic, as internationally recognized, and as inherent in human personhood and in human relationships, whereas civil rights emerge in history as human rights applied within a more complex and interdependent society. One possesses a human right by virtue of being a member of the human race or being a participant in a human relationship (like the marriage relationship or the parent-child relationship). By contrast, one possesses a civil right by virtue of citizenship under a particular constitution. Human rights are intrinsic, whereas civil rights are conferred by law.

A civil right is a judicially enforceable right or privilege, like the freedoms of speech, of the press, of assembly, to vote, and to equal treatment. Discrimination constitutes a violation of a civil right, usually on the basis of a person’s membership in a group—that is, based on race, gender, religion, age, (dis)ability, or the like.

One important reason for clarifying these terms is the need to avoid excessive rhetoric about “rights.” For example, despite the judicial claim in countries like France and Estonia, Internet access is not a human right. Technology enables the exercise of civil rights, but technology itself is not a basic human right.

We must be clear that parental educational choice is more than a preference and a desire; it is first a human right, and therefore it must be protected in the context of judicially mandated activity. As a right inherent in the parent-child relationship, parental educational choice entails the right of parents to teach their children or have them taught in ways that are effective and that are consistent with their religious beliefs. (This latter was affirmed in the 1923 U.S. Supreme Court decision in Meyer v. State of Nebraska.) Since the government mandates education and provides resources for fulfilling that mandate, parents should by law be permitted to honour that mandate and use those resources in ways that are effective and consistent with their religious beliefs.

Religious v. ecclesiastical

I view most human activities as “religious” in the sense that they proceed (consistently or not, articulately or not) from a basic personal orientation and value commitment. In this sense, all human beings are religious, since everyone possesses some fundamental life orientation. By contrast, the term “ecclesiastical” is reserved for churchly institutional expressions involving some set of doctrinal commitments, some shared rituals, and some authoritative organizational rules. Hence, the term “religious” is broader than the term “ecclesiastical.”

Recently, the Obama administration issued a mandate that would require employers to provide health insurance coverage for objectionable products, procedures, or services related to human fertility and conception. The subsequent public backlash not only rendered this a policy embarrassment, but also generated a response on the part of those who simply could not fathom why “religious objections” should extend to the workplace and to employers. “Religion” is popularly identified with “the church,” and “religious values” are often treated as “ecclesiastical prejudices.”

In the current debate about parental educational choice, critics of choice have been successful in defining “religion” and “religious” strictly institutionally. For them, the suggestion is inconceivable that life is religion (H. Evan Runner). For them, a Christian school is but another form of “organized religion,” just as much a part of institutionalized religion as any Christian church. Given their restricted definition of terms, they view using any public funds for educational alternatives that involve “religious” schools as violating the Establishment Clause of the First Amendment.

In contrast to this narrow interpretation of religion, a more clear and helpful understanding of the nature of religious entities and their relationship to the government is emerging in our post-modern era. This understanding supports recognizing the civil rights flowing from parental educational choice that I have identified—the right to fair access to successful education and the right to freedom from the burden of double costs—by addressing a common but mistaken objection against using public funds for religion-based educational services.

Paul Horwitz has written an illuminating essay on the role and constitutional status of religious entities, shedding light on a growing field of legal inquiry known as “First Amendment institutionalism.” The light he sheds comes from the torch lit by Abraham Kuyper, especially the latter’s doctrine of sphere sovereignty and its contribution to applying the First Amendment to issues of religious freedom in modern society. One explicit application of Kuyper’s doctrine of sphere sovereignty, both in its original formulation and in Horwitz’s modern employment of it, involves the limitation of the state’s intrusion into various spheres of human activity.

Treating religious entities in terms of sphere differentiation would permit them to coexist alongside the state as intermediate institutions whose unfettered role would be to advance personal fulfillment, foster community, and facilitate public discourse. Kuyper’s concern is ours: equitable access to and equitable funding for all educational providers whose programs serve the common good.

Interestingly, jurisprudence is shifting in this direction, especially since the U.S. Supreme Court has permitted public funding for parents choosing to enroll their children in “religious” schools as long as such funds are apportioned on the same basis as aid to other schools. In addition, the Court has protected the right of religious entities to engage in public speech in such venues as after-hours public school programs. Significantly, in Zelman v. Simmons-Harris (2002), the U.S. Supreme Court upheld voucher aid to parents who sent their children to religion-based schools, and in Mitchell v. Helms (2000), church-operated schools were permitted to receive secular educational equipment and materials under a neutral direct aid program.

The changing venue

With this federal easing of access to public funds for parental educational choice, the new venue for legal challenges is now the state supreme courts. The single most effective tool for challenging state-adopted parental choice programs is often the so-called Blaine amendments that were embedded in a number of state constitutions in the latter part of the nineteenth century. Named after U.S. representative James G. Blaine, who sought unsuccessfully to amend the U.S. Constitution in order to prevent public funds going to support “sectarian” schools (notably, Roman Catholic schools), these state constitutional provisions generally restrict access to public benefits by persons and organizations on religious grounds. Today these “State Blaines” are often seen as erecting religion-sensitive barriers to the flow of public benefits thought to violate the church-state separation demanded by the Establishment Clause.

A growing body of opinion is suggesting, however, that if the State Blaines are being used to separate the “religious” from the secular in terms of funding, then that use violates the religious freedom guarantees of the First Amendment. As Kyle Duncan explains, “Laws may not attach a civil disability to lawful behaviour, status, or association because, and only because, they are motivated by religious impulses or connected to religious belief or observance.” The First Amendment forbids government from selectively demoting those who act on religious conviction to second-class citizenship in the distribution of public benefits.

Interestingly, a study of jurisprudence that brings together the results of federal decisions relating to free exercise, establishment, and free speech serves to highlight an overarching principle identified by the U.S. Supreme Court as the “fundamental non-persecution principle of the First Amendment.” Simply stated, the non-persecution principle forbids both state and federal governments from restricting access to generally available public benefits only because of a person’s or organization’s religious status, purpose, affiliation, or identity. This non-persecution principle forbids isolating “religion” for disfavoured treatment and, in the context of the State Blaines, disfavoured treatment that excludes persons and organizations from participation in public benefits only because they are somehow religious (see Duncan).

Since the government mandates education for children and provides resources for fulfilling that mandate, no organizations seeking to fulfill the government’s education mandate should be denied access to such resources simply because they provide education from an explicitly religious perspective. Nor should parents whose religious convictions direct them to choose religion-based schools be compelled through taxation to support other school systems that they do not use. Such a “double burden” constitutes nothing less than disfavoured treatment in violation of the free exercise clause of the First Amendment.

A new day for the Christian educational community

Earlier I stated that parents have a civil right to fair access to effective (that is, successful) education. I have also noted that, consistent with the religious non-persecution principle of the First Amendment of the U.S. Constitution, parents have a civil right to support only that educational system they wish for religious reasons to use.

These two civil rights—fair access to successful educational resources and freedom from disfavoured treatment on the basis only of one’s exercise of religion—combine to afford the Christian educational community a unique opportunity at this time.

That opportunity entails the chance to demonstrate its commitment to social justice as an essential component of Christian educational identity and practice. The Christian educational community should be at the forefront of those advocating equitable access for the poor and for other disadvantaged members of society. As an extension of this commitment, pursuing fair access to successful education as a civil right of every citizen affords an opportunity to embody a missional understanding of Christian education that seeks to be altogether faithful to the gospel, to be vigorously consistent with formally confessed faith, and to be publicly serviceable to the common good. In addition, pursuing freedom from disfavoured treatment on the basis only of one’s exercise of religion is not simply about “our” schools. Rather, this pursuit belongs to “seeking the welfare of the city” (see Jeremiah 29:4-7), insofar as it seeks to promote and protect for all people the free and fulsome exercise of genuine religion in every area of life, including education. In other words, as the Christian educational community joins this modern civil rights movement, it is uniquely positioned to demonstrate that covenantal Christian education genuinely serves the public good.

I am indebted to educator Dan Veldman, and to attorneys Mark Van Der Molen and Steven Vander Woude, for their helpful comments on an earlier draft of this essay.

Further Reading

Brady, Kathleen. “Religious Organizations and Free Exercise: The Surprising Lessons of Smith.” Brigham Young University Law Review. 2004: 1633-1714.

Duncan, Kyle. “Secularism’s Laws: State Blaine Amendments and Religious Persecution.” Fordham Law Review. 72.3 (2003): 493-593. Available at: http://ir.lawnet.fordham.edu/flr/vol72/iss3/2

Horwitz, Paul. “Churches as First Amendment Institutions: Of Sovereignty and Spheres” (October 15, 2008). Harvard Civil Rights-Civil Liberties Law Review (CR-CL). Forthcoming. Available at SSRN: http://ssrn.com/abstract=1285328

Skillen, James W., ed. The School-Choice Controversy: What is Constitutional? Grand Rapids: Baker Book House, 1993.