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.

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.”

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Nelson D. Kloosterman serves as Ethics Consultant for Worldview Resources International (St. John, Indiana)