The Books of Montgomery County, Part 2: School Choice Protecting Natural Rights

In Part 1, I described how the Montgomery County school district was preventing parents from shielding their young children from messages and values they thought violated their Constitutional rights regarding the free expression of their religion.

Here, in Part 2, I will describe some options for what should be done to prevent future Constitutional-rights violations.

I want to start by establishing two important premises.

The first premise is that government is a creation of people who establish said government through a social contract in order to protect their natural rights. This social contract theory is embedded in our Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”

This means that, despite what certain liberal justices might think, government has no “rights.” It certainly has “abilities” which have grown dramatically with the size of government, but abilities and rights are not the same thing. In fact, as Hadley Arkes argues, the Bill of Rights of the Constitution makes two fundamental errors. The first is a categorical error:

“…(A) contract implies two parties equally competent to contract. The metaphor of the contract would suggest then that the government and the people stood on the same plane, with two distinct interests of a comparable dignity. But that notion would be wholly out of keeping with the character of a republic or a popular government, in which authority emanated from the people, not from the government, and in which the government stood, in relation to the people, as an agent in relation to its sovereign….”

Arkes continues with the second error:

“If the Bill of Rights represented a certain reservation of natural rights to the people, the implication would quickly arise that the government may exercise all of those powers which had not been explicitly withheld. The paradoxical result was that this reservation of rights might actually enlarge the total powers of the government.”

The second premise is that parenting, specifically the right of parents to bring up their children as they see fit, is a natural right. That is, it precedes the creation of government, and government may only deny that right under the most extreme of circumstances (say, starvation or other forms of physical abuse) and then only with due process of law.

What the Montgomery County school board did, with its removal of the parental opt-out regarding LBGT+-themed classroom materials, was to violate the natural rights of parents, not only in the exercise of their religion, but in the overall raising of their children.

As I laid out in Part 1, the County specifically constructed its curriculum to make parental opt-out difficult if not impossible. The various LGBT-themed books were not established as a separate unit as had been done with sex-ed, but were woven into the larger English-Language-Arts (ELA) curriculum so that kindergartners would be just as likely to have a teacher during story time reading them a book about Uncle Bobby’s same-sex marriage as she would Curious George, or a 3rd-grade student would be as likely to read a fairy tale involving a prince developing the hots for another guy, resulting in their same sex wedding (Prince & Knight), as being assigned to read Goldilocks and the Three Bears.

A side note. We used to have in our family what was the called the “$5 Rule.” When one of the kids told me that they could not do or remember something that I had asked them, I would ask them in return if they would be able to do so if I gave them enough money. I have found the rule an excellent way to teach the difference between ability and incentive; apparently nobody ever offered Montgomery County five dollars to find a way of implementing an opt-out.

What options are available to parents whose natural rights as parents are violated by a determined government?

There are three possible options. In going through them, I hope to outline possible courses of action, not only for parents who face situations similar to those in Mahmoud, but also to other parents whose natural rights are being infringed by government.

The first option is the legal one and is demonstrated in Mahmoud, where the parents brought suit in court seeking relief. An observer might wonder why this should not be the preferred option, since it is both simple and (given that the parents will probably win) effective.

However, there are drawbacks to this approach. It is expensive and time consuming: the cost certainly ran into the hundreds of thousands of dollars and the suit has taken more than two years. Any legal action would at best be a long shot; in this case the parents lost in both federal district and circuit court, and the Supreme Court only takes about 2% of cases that are petitioned. Get stuck with the wrong judge, or circuit, or find yourself among the 98% of the cases the Supreme Court doesn’t accept, and. . . too bad, so sad. Litigation is a crap shoot.

Then there is the erratic nature of the Supreme Court itself. The outcome of Mahmoud will not only be decided based on definitions of positive law such as burden and expression, but by nine people with all too human frailties. The Roberts Court has shown that it reads the headlines, and that it can be bullied as evidenced by Roberts’s caving and voting to keep Obamacare. Certainly the ground is set by the Left that a decision in favor of the petitioners in Mahmoud would be cast as a decision in favor of bigotry. Even on a Court with a supposed conservative majority, there are crazy decisions such as Bostock.

Another problem is that SCOTUS doesn’t generally recognize natural law. As Arkes likes to point out, conservative judicial icons such as Antonin Scalia may be originalists, but they are positivists in that they rely on the text of the law and Constitution and avoid larger questions of natural rights. Arkes found that strange given that the Framers would think the universe of natural law that underpinned said documents was so obvious that it need not be mentioned.

As Arkes states, the reason for this is that Scalia and other positivists were reluctant to open the door to deviations from specific Constitutional text, in order to prevent the Left from inserting what amounts to emanations and penumbras. It appears that positivists, even in the form of originalists such as Scalia, view natural rights as akin to metaphysics, and therefore deviate from the crisp nature of positive law. Much like a scientist, they narrow their mind in order to sharpen it. That’s just the nature of the legal beast

This is why you get the strange discourse in Mahmoud which deals with burdens and expressions as opposed to the very commonsensical question of why Montgomery County wants to undermine parents’ natural rights. The burden of proof as it were is shifted from the school district to the parents. It is also why there has been difficulty in dealing with states and districts which prohibit schools from notifying parents about changes in their children’s gender identity. Stripping our legal and political discourse of natural rights language implies, for government, that whatever is not prohibited by specific language is therefore allowed.

The second option open to parents is political.

As both Jackson and the respondents’ counsel stated, the Montgomery County school board is an elected one; the petitioners were always free to press their case through the electoral process. As Jackson sneered:

But, under Petitioners’ rule, as I understand it, parents who lose through the democratic process, who are not able to get the curriculum tailored in their local school boards the way that they would like, would have another option, and that option would be to go to federal court. And so, instead of having democratically elected representatives and experts in the field making the decision about which books should be taught to kids in the classroom, you have federal judges flipping through the picture books and deciding whether these are appropriate for five-year-olds. 

I will add that Jackson deliberately misstates the point in a way that only she can. The petitioners are not asking judges to determine the content of the educational material, but only to recognize the right of parents to do the same, and then to act on it in the interests of their children. What can be more American than that?

The odds of any of the petitioners winning a board seat, let alone a working majority, in Montgomery County are slim to none. The system is rigged through teacher unions, activists, and the construction of at-large districts to create a “blue fortress” that would take years of organization to overcome. During this time their children would continue to suffer harm.

There is another, more practical, fallacious belief in the ability of the parents to ever achieve their stated goals in the unlikely event they did win control over the Montgomery County school board. Public agencies, especially schools, are unwieldy bureaucracies which tend to absorb the energy of contrary doctrines and dissipate them into the ether. A parent-controlled board would be like an enemy army occupying a hostile countryside where its writ would extend only as far as the words of a board item agenda.

Parental-control in schools is further diluted by the myth of “professionalization,” through which the credentialism that has placed teachers and school librarians on the same professional level as medical professionals, and consequently in control over education, must not be challenged.

The third option is exit, that is, the parents could withdraw their children from Montgomery County schools altogether. As Jackson states, in the way that only she can:

Here I am, I’m a religious parent, I have to put my kid in this school. And when my kid goes there, it — he’s learning all sorts of things that I’m saying against my religious belief. I — I — I get that. But what do we do about the world that we’re actually in, which is where Pierce says that the parent can choose to put their kid elsewhere, that you don’t have to send your kid to public school?

In that situation, I guess I’m struggling to see how it burdens a parent’s religious exercise if the school teaches something that the parent disagrees with. You have a choice. You don’t have to send your kid to that school.

While the enjoyment of public K-12 education is not a natural right, it is a public benefit assumed open to all. From Jackson’s reasoning, Montgomery County’s actions are not coercive of the parents’ rights because the parents are allowed to deny themselves access to the public benefit (by withdrawing their kids from the school).

A close analogy would be a black person who is forced by law to sit in the back of the bus. He is not being coerced in the exercise of his rights — that is, is being free of discrimination from the government because of his race — since he is free to forego the public benefit of public transportation.

As a practical matter, if a petitioner did withdraw his child from Montgomery School, then what? Where would the child go? The parent could incur the significant costs of private school tuition or both the direct and indirect costs of home schooling — a form of double taxation, since the parents in question already pay taxes to support the public school. Maryland has only 48 charter schools, two-thirds of those are in Baltimore, and none are in Montgomery County,

Maryland does not allow for inter-district registration; a parent in Montgomery County could not register their children in neighboring Prince George’s County (though, to be honest, neighboring counties are little better than Montgomery).

A family seeking to move to another, less-hostile-to-religion district would need (based on how  Maryland organizes its schools) to move to Carroll County or a County on the Eastern Shore — adding hours to the parents’ weekly commutes.

There is, from a practical standpoint, no place for religious students to go in Montgomery County that doesn’t place enormous burdens on the family.

We saw this level of government-sponsored cruelty in 2021 during the Loudoun County protests, when parents objecting to school policies that promoted racism and placed their children in danger of sexual assault were told that if they didn’t like it they could send their kids elsewhere.

To use the public transportation analogy, for people like Jackson and those in the Montgomery and Loudoun County schools the black bus rider being discriminated against is free of coercion because he could always stop riding the bus and buy a car.

There is a fourth option and one that addresses the reluctance of the conservative judiciary to engage in natural law, and places the power to choose a child’s education back into the hands of the people as both parents and citizens.

That is school choice.

If Montgomery County has shown any degree of determined action, it is in resisting parents’ ability to control their children’s education. One wishes it was as determined about raising student proficiency levels as it is in corrupting children.

One of the great things about federalism is that not only does it allow different states and jurisdictions to try different things, but it allows for the creation of alternative solutions that provide models for other states to follow.

Arizona, a state of comparable population to Maryland, has:

1) 580 charter schools to Maryland’s 48.

2) Allows for inter-district registration within a K-12 system where there are more districts (58) within a single county (Maricopa) than Maryland has in the entire state (24).

3) Has a voucher program which allows parents to withdraw their children from the public K-12 system and use the associated state aid to enjoy the public benefit of education by funding private, parochial, or home schooling options.

In short Arizona is an example of a state that has recreated the public benefit of K-12 education outside of the confines of the technology of the public K-12 school district. It’s done it in a way that offers parents the ability to place their children in whichever educational system best meets their needs and protects their rights.

As a practical matter, any school administration in Arizona understands that if it places its ideology and needs above those of the parent, that parent will pull their child and the associated dollars out of the school.

An Arizonan family doesn’t have to go through the time and expense of going to court or running for office to prevent their pre-schooler from being groomed, because they can simply take their child out of the offending school and move them to another one down the street.

So why doesn’t Maryland do the same? Why does it perpetuate a system that it has implicitly acknowledged exists to undermine parents’ natural rights?

You would think Montgomery County and the surrounding districts would want such a system if only to be free of those meddling parents, but in actuality the school districts would rather suppress the parents than allow easy exit for parents and their children from the system.

Enough is enough.

We could battle these types of issues in individual states or courts in a process of  whack-a-mole, with an opposing side that has proven determined to walk between the rain drops in order to push its ideology. To paraphrase the great Eric Stratton, we could use conventional policy and the judicial weapons at our disposal, but that could take years and result in the corruption of thousands of young lives.

On the other hand, we could instead capture the spirit of the age, by which I mean Trump’s concept of Fool Around, Find Out (FAFO). Corrupt an important part of society, and when there comes a reckoning, there won’t be some Vichy Republican-style nibbling at the edges.

As a basic concept, Montgomery County public schools is not a sovereign political entity like a state. Rather it is a political subdivision created by the State of Maryland, it has no inherent right to exist.

While K-12 education is a state-level function, the Bill of Rights is incorporated and applies to the states and may be enforced by the US Department of Justice.

If Supreme Court does not offer the petitioners in Mahmoud, not merely relief but also an opinion that supports the rights of all parents to withdraw their children from all offensive instruction, then I think it’s time for the Trump administration to intervene in not just Montgomery County, but Maryland as a whole, as part of a civil rights case. It should place the entire Montgomery County and Maryland educational system under close scrutiny, and through a consent degree require a true system of parental choice within the benefit of public education:

1) That provides for a voucher system;

2) Removes restrictions on the development of charter schools, requiring Maryland to double the number of charter schools within five years, and triple the overall number within 10;

3) Breaks up the system of massive, county-wide school districts into smaller systems which are closer to the communities they serve and less under the control of special interests (districts with, say, a maximum of 20,000 students).

Montgomery County, indeed Maryland and many other blue states, have proven hostile to parents’ natural rights.

Using the US Department of Justice to institute a school choice system proven effective in other states, as a way of protecting those rights is an effective means of restoring that balance.

To answer Jackson’s taunt, parents no longer need fight the school district for their rights, but can quickly and easily place their children in other schools or gain the means for homeschooling.

School choice protects natural rights.

Get the Department of Justice involved. And Congress: pass the “Ketanji Jackson School Choice Act.”