Andrew C. Spiropoulos | May 1, 2016

A Mosaic of Options

Andrew C. Spiropoulos


By Andrew C. Spiropoulos

We hear a lot of talk these days about popular anger at elites. This rage has surprised not a few of our leaders. They, including the members of the Oklahoma Supreme Court, were especially shocked by the popular revulsion at the Court’s Ten Commandments decision. We witnessed a genuine “pitchfork” moment, where ordinary people are outraged by policies imposed on them by elites and moved to loudly say so.

Many of us, though, were surprised that it took this long for people to be angry. Do people really not know what has been going on in our courts, both state and federal, for decades? One of the most stunning aspects of the Oklahoma Supreme Court’s decision was that the Court did not need to unearth the controversial and long dormant “Blaine Amendment” provision of our state constitution which, inspired by the anti-Catholic animus common in late 19th- and early 20th-century America, forbids government from appropriating money for the support of sectarian institutions. The Court could have simply relied on the U.S. Supreme Court’s longstanding interpretation of the federal Establishment Clause.

The Naked Public Square

For more than 50 years, the U.S. Supreme Court has held that government cannot endorse religion. Under this doctrine, courts have ordered the dismantling of war memorials and Christmas displays and even the censoring of city seals with religious symbols. Look at what these cases are about—no one is trying to establish a religion or make a state church. The question is whether government merely is allowed to say it prefers religion to non-religion. The courts tell us, contrary to our nation’s history and much of society’s cherished beliefs, that the community is forbidden from taking sides on the question of God. It must remain neutral, even if all that is involved is putting up a monument or commencing a ceremony with a prayer. The judges tell us that the Constitution mandates, as Richard John Neuhaus so famously put it, the “naked public square.”

Keep in mind that no other system of belief is treated this way. The President can order, after the Supreme Court ruled on same-sex marriage, that the gay rights movement’s rainbow colors adorn the White House, but heaven help a future President who decides to put up a cross on Easter or a nativity scene at Christmas.

As a glance at the leading Establishment Clause cases will tell you, the most important and contested public square is the public school—that’s where the point of the secularist spear is aimed. The goal of the strict separationists is the eradication of all signs or discussion of faith in the public school. Now, to be fair to the U.S. Supreme Court, the law is actually more reasonable than the practice in many schools. The Court, which is more sensitive to public opinion than most people believe, has made it clear that teachers, staff, and students can pray on their own and read their own Bibles, and schools can teach religion as an academic subject (in other words, you can study it, but you can’t say that it is true).

But as those of us who follow these disputes in the news or the law reports know, too many school administrators don’t understand or care about the law. The students in my class on “Religion and the Constitution” are shocked to find out that schools have banned students and teachers from reading the Bible at their desks, censored students who intended to mention Christian beliefs in their graduation speeches, and forbidden coaches and players from voluntarily praying at football games. The assumption is that all signs of religion must be eradicated, lest anyone conclude that the school (and, thus, the state) has endorsed religion.

The argument the strict separationists make is that the school isn’t being hostile toward religion—it is being neutral. We’re not taking sides—we just don’t want anyone to raise the subject of religion at school. We should stick, they argue, to teaching reading, writing, and arithmetic.

No Such Thing as Neutrality

But the naked (or neutral) public square is impossible to maintain. Something will fill the void. For one thing, schools teach a lot more subjects than reading, writing, and arithmetic. How do you handle the question of faith in biology or physics, for example? But even more importantly, how do you not talk about the importance of Christianity in American History or European History or any class (like Sociology or Government) that discusses contemporary society? The Court says you can discuss Christianity, but you have to be careful about how you talk about it. But many schools and teachers decide the safest bet, for both legal and social reasons, is to not talk about it all.

So what kind of education do our children receive? The schools aren’t neutral—they have to have some perspective, some viewpoint. If children can’t be taught from a religious point of view, they have to be taught the secular perspective (or what people used to call secular humanism). In biology, they’re taught only the most extreme form of evolutionary theory—it’s never mentioned that the Catholic Church, for example, accepts a form of evolution. They’re taught that the American Revolution was only about taxes (it also involved religious freedom) and that the Framers (the vast majority of whom were practicing Christians) were pure rationalists. The central role of religion in the abolitionist and the civil rights movements is airbrushed out. Today’s society is studied and understood only through, they would say, an empirical lens, but we know that it’s really a materialist one. Children are taught that people are motivated by their economic or physical desires, never by matters of the soul.

Now, some of you may be wondering why it has taken so long for people to perceive the problems of the naked public square. I think the full effects of the secularization of the public school were delayed because, for at least one generation after the Court’s 1962 school prayer decision in Engel v. Vitale, our schools were staffed by teachers and principals who were not raised in a world where any mention or practice of faith was ruthlessly hunted down and eliminated. But in the last three decades, the old generation of teachers has passed away and has been replaced by the products of the politicized, post-1970s universities. Our schools are now run by people who have never known a society in which public schools recognize and endorse community beliefs. They worship at the temple of the “neutral” school, where the only article of faith is that we can only know what we can measure. They’re not forced to accept the naked public square—they (even if they are people of personal faith) enthusiastically believe in it.

And then we wonder why surveys show a decline of religious belief in the millennial generation. It’s not that our children become atheists—it’s that they’re confused. Even if we try to teach them faith at home or at church, anything we tell them is swamped by what they learn every day at school or from the all-pervasive media. The digital culture, encompassing the Internet, television, film, and music, is what really influences their peer group, which frequently has more day-to-day influence over our children than we do. And then we wonder why, given the nature of that culture, we see an increase in both highly sexualized behavior (“sexting”) and out-of-wedlock birth rates.

Empower Parents to Choose

Many Oklahomans believe that the solution to this problem is to reform the law. With regard to the Ten Commandments case, for example, we can repeal the Blaine clause the Oklahoma Supreme Court relied upon. In addition, the U.S. Supreme Court can overrule the line of cases prohibiting the community from endorsing religion. Before the passing of Justice Antonin Scalia, it appeared that this shift was likely; with his departure, the future of the endorsement doctrine depends on the outcome of the presidential election. But even if the courts permit public schools to allow some forms of expression of the community’s beliefs, I think it is unlikely that the Court will ever allow religion to regain a meaningful presence in the main work of the public schools. We must accept that we can never go back to the days when the public school effectively transmitted the community’s beliefs to its children.

Over the last several decades, our nation has changed too much for the school to serve this function any longer. Where we once had a powerful social consensus on the core principles of morality, we are now deeply divided. Our political polarization did not produce itself—it is caused by the conflict between different systems of fundamental beliefs. The public school, even if it were legally permissible, will not, and probably cannot, choose between society’s diverse points of view. Instead, the public school will continue to empty the public square—which, we know, is not neutral or fair to religion. If we continue on our current path, we will see a further waning of both religious faith and the traditional morality it sustains.

So what can we do? We have to accept that our principles and traditions cannot be effectively transmitted by the public school, or, with some important exceptions (such as our dedicated homeschooling families), by teaching children at home or at Sunday school—the culture of modernity is too strong for that. Our best hope for passing on our most cherished beliefs is to educate our children at a school that will teach, and not ignore or undermine, what we believe. There is no substitute, particularly in a world in which they are unremittingly bombarded with unhealthy cultural messages, for sending our children to a school that will, at every turn, reinforce what we believe. At my children’s school, as at so many of the schools represented in the school choice movement, the public square is clothed with the values of Christianity and Western civilization. We have a dedicated Bible class and daily chapel, and spiritual values pervade both curricular and extracurricular activities. Parents don’t have to refute what their kids hear at school—the school is an ally, not an obstacle.

So what stops parents from choosing these kinds of schools? Money, pure and simple. We at OCPA, along with other organizations, have commissioned polls that show that, if given the option, parents will use state funds allocated to their child to choose a school that transmits their values. It’s important also to look at the flip side of what they are telling us—if they are forbidden from choosing how their funds should be spent, parents will be economically coerced to send their children to schools they know are not the best institutions to prepare their children for the future. There are thousands of Oklahomans, then, who do not need to be convinced that a private school can help preserve their way of life. They need help to send their children there.

And that, of course, is why education savings accounts (ESAs) are so important. They will empower parents to not only seek the best academic environment for their children, but the best moral environment as well. Our children need to learn the principles of good character just as much as the principles of science and mathematics. ESAs will provide parents with a gift that has, up until now, only been bestowed upon the wealthy—the capacity to send your children to the school you know is best for their souls as well as minds.

But they will do even more than that. By, for the first time, enabling society to satisfy the demand for education that honors and transmits our morals and traditions, ESAs will lead to the creation of many more of these schools. We will build a new, vital sector of education, where, to be sure, some schools will fail, but many others will succeed and become jewels of the community. If we create institutions to satisfy the demand for traditional education we know already exists, these institutions, as they become more numerous and well known, will attract other families who may not have recognized their hunger for an education rooted in moral principle. I can’t think of any other single policy that has a better chance of inspiring the next great awakening of moral and spiritual belief that is our only chance of stemming the cultural rot that is the true source of our social pathologies.

Let me also say a word for those of you who may view the world through a more practical and political lens. We are witnessing the first political cycle in which the conservative movement faces a severe danger of permanent rupture. I have never seen this much anger turned on other conservatives. We need policies that can unite libertarians and traditionalists, economic and social conservatives, Tea Party stalwarts and evangelicals.

ESAs fit that bill better than any other policy you can devise. Instead of angering libertarians by using public institutions to inculcate their values, ESAs empower religious and social conservatives to spread their beliefs through private institutions. ESAs, by allowing parents to spend their funds on a variety of educational services, satisfy the libertarian urge for maximizing choice. Because ESAs are funded with existing government funds, small-government conservatives can find little fault with them. Even those conservatives who are adamant about preserving public school funding should be satisfied that, because ESAs only take a portion of the funds allocated to each child, a significant percentage of the money remains in public coffers. Everyone wins.

Perhaps most importantly, ESAs provide political leaders with the best answer to the question lately on everyone’s minds: How can we, in a time of economic and fiscal strain, directly improve the lives of middle- and working-class Oklahomans? Tax cuts foster economic growth in the long run, but for those of modest incomes, they don’t provide an easily understood, immediate benefit. The benefit of ESAs, on the other hand, is easy to understand and appreciate—you now have thousands of dollars to spend on the education of your child that you did not have before. As conservatives, it is an article of our faith that parents will use that money to help their children make more than a good living—they will learn to make a good life. I can’t think of a better definition of what government is for.

Andrew Spiropoulos (M.A., J.D., University of Chicago) is the Robert S. Kerr, Sr. Professor of Constitutional Law at the Oklahoma City University School of Law. He also serves as the Milton Friedman Distinguished Fellow at OCPA. In 2005 and 2006 he served as senior counselor to the Speaker of the Oklahoma House of Representatives, where his duties included serving as chief policy advisor and negotiator. Spiropoulos previously clerked for Judge Danny Boggs of the United States Court of Appeals for the Sixth Circuit and practiced law with the Chicago firm of Gardner, Carton & Douglas. He has also been a Salvatori Fellow at the Heritage Foundation.

Andrew C. Spiropoulos

Andrew C. Spiropoulos (M.A., J.D., University of Chicago) is the Robert S. Kerr, Sr. Professor of Constitutional Law at the Oklahoma City University School of Law. He previously served as the Milton Friedman Distinguished Fellow at OCPA.

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