Pubdate: Mon,  1 Jul 2002
Source: Wall Street Journal (US)
Copyright: 2002 Dow Jones & Company, Inc
Contact:  http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Author: William J. Bennett
Note: Mr. Bennett, co-director of Empower America, was secretary of 
education under President Reagan and drug czar under President George H. W. 
Bush.

Commentary

A VICTORY FOR 'ORDERED LIBERTY'

Last Thursday the Supreme Court issued two decisions that could 
fundamentally alter our nation's public education system. In the first 
decision, the court upheld an Oklahoma school district's policy of testing 
students who participate in extracurricular activities for drug use. In the 
second, the court upheld a Cleveland program that provided parents of 
children in failing school systems up to $2,250 per year to pay for tuition 
at other schools, including religious schools. On the surface, perhaps, the 
decisions look unrelated. But upon closer examination, they reveal a return 
to the federalism and self-government upon which our nation was founded and 
from which we have drifted in recent years.

The Cleveland program provides parents with children in failing schools a 
tuition voucher, the amount of which is determined by the family's 
financial need. That voucher may be spent at any school -- public or 
private, religious or secular -- that the parent chooses. It is, in short, 
the exemplar of a school choice program.

Many argued that this violates the First Amendment's prohibition on a state 
establishment of religion. They pointed out that more than 80% of the 
private schools that accepted students were religious, and 96% of the 
students who received vouchers chose to attend religious schools. But even 
if every child attended a religious school, the program would not violate 
the First Amendment. Cleveland's school choice program allows parents -- 
and not the government -- to choose what school their child attends. And 
parents, as far as I know, are not bound by the First Amendment.

The Court's decision, therefore, was a sober one, upholding the principle 
of religious neutrality. The majority opinion concludes that a government 
program may benefit religious institutions if that program "is neutral with 
respect to religion" and the aid is directed to those institutions "as a 
result of . . . genuine and independent private choice." The Cleveland 
program advances a valid public goal -- the education of children -- and is 
neutral among various religions and even between religion and irreligion. 
It is, in short, a perfectly constitutional policy and a perfectly sound 
educational policy.

It must be noted, of course, that the school choice program came about in 
response to a specific problem. Cleveland schools have, for more than a 
generation, been among the nation's worst; in 1995, a federal district 
court, declaring a "crisis of magnitude," placed them under state control. 
Only one in five ninth graders could pass a basic proficiency test; more 
than two-thirds of all high school students dropped or failed out before 
graduation.

The student drug testing case built on a 1995 Supreme Court case that 
upheld the random drug testing of student athletes. The dissenting justices 
in this term's case argued that the drug problem among students was 
insufficiently severe for such a "perverse" policy. The majority, however, 
correctly "decline to second-guess the finding" that the "School District 
has provided sufficient evidence to shore up the need for its drug testing 
program." Moreover, they pointed out that the court "cannot articulate a 
threshold level of drug use that would suffice to justify a drug testing 
program for schoolchildren." Such determinations ought to be left to the 
school.

Anyone who denies that high schools are prime locations for drug use has 
not been living in the real world. More than half of all high school 
seniors have used drugs at least once by graduation; more than one-quarter 
use them on a regular basis. Justice Stephen Breyer was right to state in 
his concurring opinion, "The drug problem in our nation's schools is 
serious in terms of size, the kinds of drugs being used, and the 
consequences of that use both for our children and the rest of us."

These decisions come on the heels of an astonishingly ridiculous opinion by 
the Ninth Circuit Court of Appeals, which announced that the words "under 
God" in the Pledge of Allegiance made that oath unconstitutional. This 
decision will have the lifespan of a firefly: a few weeks or months at 
best. The simple mention of God may cause some elites to howl, but most 
Americans find nothing wrong -- or unconstitutional -- with affirming a 
belief in God.

The two Supreme Court decisions, however, affirm something beyond the 
permissibility of religion in the public square, and they should stand for 
some time. They affirm that, especially in educational matters, local 
control is an essential element. This local control embraces state action, 
district action, and, perhaps most importantly, parental action. The 
judgments of principals and school boards are themselves subject to 
parental judgment.

For these reasons the court's decisions are worth celebrating. They have 
restored the sense that this nation is an "experiment in ordered liberty." 
The excessive invocation of individual rights, for once, was forced to 
yield to the reliable tests of good sense and community sentiment. 
Hopefully the court will continue on this path in the terms to come.
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MAP posted-by: Beth