Trent England | March 23, 2022
The Oklahoma Constitution supports school choice
In the last century, “public education” usually meant a system of government-run schools. Yet increasing concerns about uneven quality and unmet student needs have given rise to a new idea: What if “public education” was not just a system, but a mission? And what if, in pursuit of that mission, we put parents in charge?
The status quo, of course, has plenty of defenders. One of their arguments is that because the Oklahoma Constitution requires a system, it forbids anything more. There are several reasons why this claim is false.
Opponents of educational choice cite part of Article I, section 5 of the state Constitution.
Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and free from sectarian control; and said schools shall always be conducted in English: Provided, that nothing herein shall preclude the teaching of other languages in said public schools.
The Legislature shall establish and maintain a system of free public schools wherein all the children of the State may be educated.
The Legislature shall provide for the compulsory attendance at some public or other school, unless other means of education are provided, of all the children in the State who are sound in mind and body, between the ages of eight and sixteen years, for at least three months in each year.
The Constitution requires “a system of public schools” and imposes three stipulations on those schools. They must accept all students, teach in English, and not be “sectarian” (at the time it was written, this was understood to prohibit only non-Protestant religious education). All other details are left to the people’s elected legislators. Nothing here prohibits support for additional schools or educational programs.
In the law, such a provision is often referred to as creating a floor. That is, it establishes a basic requirement—“do at least this.” It does not, however, create a ceiling—“do this and no more.” Constitutions almost always create floors. For example, the Bill of Rights protects basic freedoms but does not prohibit Congress or a legislature from providing even greater protections.
A requirement to establish public schools does not prohibit support for additional educational programs. In fact, the importance the Constitution places on education suggests that the legislature ought to do more than the bare minimum. School choice policies are a way to augment and support the “system of public schools.”
Another legal principle is inclusio unis, exclusio alterius. This means that the inclusion of one thing (such as a prohibition on teaching in foreign languages) implies the exclusion of other things (any other prohibitions). The drafters and ratifiers of the Oklahoma Constitution could have prohibited the legislature from supporting additional educational programs, but they did not, thus it remains permissible.
The Oklahoma Constitution also explicitly includes private schools and “other means of education” in its compulsory attendance requirement in Article 13, section 4. This makes absolutely clear that the “system of free public schools” was never meant to be exclusive and need not be the only means of education that the state supports. In fact, by including those schools in its compulsory attendance provision, the Oklahoma Constitution actually extends support to private and home schooling.
Claims that the Oklahoma Constitution prohibits or even disfavors school choice are simply incorrect. The Constitution anticipates that there will be many forms of education and supports them by including them in the attendance requirement. While the Legislature must provide for free public schools, that is just the beginning. Lawmakers are free to go beyond that system in pursuit of the mission of creating an educated public.
David and Ann Brown Distinguished Fellow
Trent England is the David and Ann Brown Distinguished Fellow at the Oklahoma Council of Public Affairs, where he previously served as executive vice president. He is also the founder and executive director of Save Our States, which educates Americans about the importance of the Electoral College. England is a producer of the feature-length documentary “Safeguard: An Electoral College Story.” He has appeared three times on Fox & Friends and is a frequent guest on media programs from coast to coast. He is the author of Why We Must Defend the Electoral College and a contributor to The Heritage Guide to the Constitution and One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. His writing has also appeared in the Wall Street Journal, USA Today, Washington Times, Hillsdale College's Imprimis speech digest, and other publications. Trent formerly hosted morning drive-time radio in Oklahoma City and has filled for various radio hosts including Ben Shapiro. A former legal policy analyst at The Heritage Foundation, he holds a law degree from The George Mason University School of Law and a bachelor of arts in government from Claremont McKenna College.