“Public” does not = “state” or “government”

In its recent non-decision, St. Isidore of Seville Virtual Catholic School v. Drummond, the U.S. Supreme Court let stand an obtuse Oklahoma Supreme Court ruling that excluded St. Isidore’s from the state charter school program. Notre Dame Law Professor Richard Garnett, in a fine article at Law & Liberty, explains why the Oklahoma Supremes got it wrong:

The Supreme Court of Oklahoma had ruled that excluding St. Isidore did not violate the firm and established constitutional rule against anti-religious discrimination and that, in fact, this exclusion was constitutionally required. This ruling was incorrect and inconsistent with the relevant precedents of the [U.S.] Supreme Court. In a recent series of cases, the [SCOTUS] justices have repeatedly reminded governments that they may not discriminate against otherwise eligible beneficiaries or contracting parties merely because they are ‘religious.’ And it has been clear for decades that the First Amendment’s prohibition on religious ‘establishments’ does not preclude cooperation between secular governments, on the one hand, and religious institutions, on the other. Such cooperation, the Court has recognized, is deeply rooted in our history, is ubiquitous in public policy today, and serves well the common good of our communities.

SCOTUS’s 4-4 decision not to decide in St. Isidore does not sound the death knell of the school choice movement, which is arguably the most consequential civil rights movement in 21^st-century America. As Professor Garnett notes, “the do-nothing denouement in this particular round of litigation does not preclude other courts, in other cases, from vindicating the discrimination rule and permitting religious schools to participate in charter-school programs.”

And that is a good thing, because the present, sad—one might even say, corrupt—condition of many state-run American elementary and secondary schools is as big a threat to republican self-government as the wrecking-crew shenanigans of DOGE or the massive cover-up of presidential incapacity by the Biden Administration “Politburo” (detailed in the book Original Sin). A people who cannot read or compute—a people ignorant of, or misled about, their own history—cannot sustain a self-governing republic.

In those circumstances, “We, the People” fracture into a gaggle of mobs, hurling epithets at each other out of the depths of our ignorance.

(Sound familiar?)

The virtual monopoly on tax dollars enjoyed by state-run schools in the United States is supported by a corruption of language. Consider the ubiquitous term “public schools.” The far more accurate designator would be “state schools.” Inner-city Catholic schools, which serve many non-Catholic students and their families, are doing a public service that government-run, union-controlled state schools often fail to provide. Judging by the relevant educational attainment statistics, students in those urban Catholic schools routinely outperform their peers in state schools, most of which are far more lavishly funded.

Something is wrong here. And the failure to fix it, for the benefit of both students and society, has been caused in no small part by the false claim of the teachers’ unions and the state educational bureaucracies that they own the concept of a “public” school. If “public” means “serving the common good,” that claim is ludicrous. Charter schools and other non-governmental educators (like the national network of Cristo Rey Schools or Mother Mary Lange Catholic School in my native Baltimore) are not “private” schools. They are independent schools serving the public and the common good. They are living refutations of the claim that only state-run schools are “public schools.”

Or as Professor Garnett puts it, pithily, “There is nothing about public education, properly conceived, that limits it to the world of [state] employees in government-owned buildings.”

An educated citizenry is essential to a well-functioning democratic republic. That is why taxing “We, the People” to support education is a morally justifiable use of state power. Nothing in our constitutional order, however, demands that those tax dollars support only government-owned schools operated by government-employed teachers and staff.

Moreover, the virtual monopoly on the public purse that government-run schools enjoy, combined with the self-serving recalcitrance of teachers’ unions that long ago abandoned the idea of teaching as a vocation, have together rendered many of those schools dysfunctional, as their wretched performance during Plague Time in 2020-2021 demonstrated. Reformers of state-run education—and there are some—would also benefit from a break-up of the state-school monopoly on tax dollars, competition being one of the mothers of reform.

The U.S. Supremes kicked the can down the road in St. Isidore. But the cause of school choice continues. And it will ultimately prevail, because it’s the will of “We, the People.”