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.