Molon Labe! (62 page)

Tom Parks briefs Governor Preston on the success of the Ten Points.

"Violent crime, which was already low in 2014, is down by 82%. Property crime, including cold burglaries, are down 56%. Wyoming now enjoys the lowest crime rate in the nation."

The Governor laughs. "Then maybe they'll stop calling it the 'Preston Experiment.' If our Ten Points were ever an 'experiment' the results are conclusive by now. What else?"

"After the removal of daytime highway speed limits, fatalities increased slightly for several months and then dropped down to 2014 levels."

Preston nods grimly. "Sounds like a few irresponsible drivers weeded themselves out. Well, we expected that, though I'm sorry that they sometimes hurt or killed innocent people. Go on."

"Finally, there is extremely widespread approval of the amendments regarding jury trials, parental rights, and taxation. We knocked it out of the park with those, Governor."

Preston smiles. "I hear that people in other states are getting jealous. All this country needed was one bold example to remind them of the freedom they started out with in the early 18th century. Wyomingites will never go back to the way it was. The liberty genie is out of the bottle."

"Yes, sir. It's very exciting."

"OK, we've gotten past the base of our mountain. Now for the first real ascent. Abolishing public education." Turning to his Attorney General, Preston asks, "So, what have you got?"

"Governor, we've researched the legal history of public education in America all the way back to mid 19th century Massachusetts. We specifically scrutinized the redistributive court orders of the 1980s, particularly in Texas which mandated bilingual education. We have arrived at the proverbial good news and bad news. It makes sense to outline the bad news first."

Preston is listening intently, ready to make notes. "OK then. Let's hear the bad news."

"Yes, sir. First, your administration's goal is to, by some point and through some means, transform all Wyoming public education into privately-funded schools supported by free-market forces, isn't that correct."

"Perfectly correct. Free-market forces meaning the parents." "Understood, Governor. The parents, yes."

Preston smiles at his formality. The terminologies of attorneys and economists are necessarily rigid and precise, but they often obscure the fact that law and money are human institutions, affecting real people.

The AG continues. "Furthermore, to achieve privatization would seem to first require a parental discretionary funding of private schools, such as a voucher system, would it not?"

"It would seem so, yes."

"And once mar —, uh, parents begin to send their children to private schools without the previous double burden of supporting the public schools, an increasing emigration from the public schools would ensue. In effect, you propose that the free-market effectively close down government education in Wyoming."

"That was the idea, yes." Preston frowns, not seeing where this is going. "So what's the bad news?"

"The bad news is that, in our opinion, we cannot legally accomplish this. Not under current case law. The courts would almost certainly rule it unconstitutional on First Amendment grounds, as well as others."

Preston is quiet for several moments. Then, with great deliberation he asks, "How can this
be
? Didn't that 2002 Supreme Court case
Zelman v. Simmons-Harris
uphold voucher programs?"

The AG replies, "Only partially, and that was largely due to the financial disincentives created by the Ohio Pilot Project Scholarship Program. Private schools received only half the government assistance given to community schools and one-third given to the so-called 'magnet' schools. Families still had to copay a portion of private school tuition. In the name of 'neutrality to religion,' the Ohio program went out of its way to favor government schools, which is why the Court did not strike it down. Even still, it was only a 5-4 decision, with Breyer, Stevens, Ginsburg, and Souter dissenting. Breyer dissented on the dubious, if not ridiculous, grounds that the program would foment 'divisiveness' and 'religious strife.'"

"That's pretty overblown," Preston says.

"Yes, sir. The majority of the Court thought so, too."

"Sorry, go on, " Preston urges.

"What we have in mind for Wyoming goes far beyond a mere supplementation of public education. We propose to
supplant
public education when such will not have been seen by the Court as a failure in the first place. Because we propose to return 100% of school tax funds to parents in voucher form to be spent at their sole discretion, there are no financial
dis
incentives to private schools. In fact, it's quite the opposite. Even though the
Mueller
line of cases requires true private choice amongst a broad class of citizens, and even though religious schools directly benefit by their choice, the post-Rehnquist Court would bend over backwards to declare that our scheme is not neutral to religion."

"How so? The purpose is not to benefit religious schools, but only to provide full choice of education to the parents," says Preston.

"Because over 50% of Wyoming's private schools are religious. The dissenters in
Zelman
tried to use the statistical argument that since over 80% of Ohio's private schools were parochial, there was no true free choice — only a 'Hobson's choice.' Private spending of transferable vouchers would tend to favor religious schools, which they'll say offends the Establishment Clause. I think the modern Court would so rule even if the Wyoming percentage of religious schools was far
less
than 50% because the average amount of the voucher would at least equal the average parochial school tuition, which in their minds would be 'advancing religious education.' In fact, if only
one
sectarian school received voucher funds, the Court would probably ban the program. That's how strict they are about this."

Preston is astonished. "You're kidding!"

"No, sir. They will employ the
Nyquist
argument against our voucher program, claiming that the 'effect of the aid is unmistakenly to provide desired financial support for nonpublic, sectarian institutions,' even though such is not our goal. They could revive the strict construction posed by dissenters in the 1947
Everson
case who claimed that bus fare rebates for parochial students offended the Constitution. They could take that line of 'reasoning' so far as to exclude roads, sanitation services, and police and fire protection to churches. Even a policeman helping a child across the street to a religious school is conceivably unconstitutional. This Court would love to reverse
Mueller
and
Zelman
, especially since veterans' and welfare benefits may be spent by recipients at religious institutions and schools."

Preston considers this, frowning, and then asks, "You mentioned other grounds that the courts could overturn our program?"

"Yes, sir. Due process and Fourteenth Amendment concerns." "Explain."

"Case law on the subject has basically concluded that public education must be evenly provided. In San Antonio, Texas, for example, there is a very wide property value disparity between the wealthy white northern Alamo Heights hamlet and Hispanic neighborhoods. Hence, per student property taxes varied by over 10 to 1, causing an inequality in education. Alamo Heights was spending more on their sports departments than were entire schools in the Hispanic districts, which sued in federal court. Alamo Heights parents argued that they merely wanted to receive the quality of education that they paid for in taxes. A free-market notion, to be sure, but it did not prevail. The court ruled that children in Texas public schools had a constitutional right to a substantially equal education, regardless of where they lived or how much their parents paid in property taxes. The ruling enjoined an adjustment of property tax disbursements for education. The wealthier districts were made to kick in funds to the poorer districts. It caused quite a stir there."

"So what are you telling me?" Preston asks.

"Governor, our conclusion is this: the Supreme Court will not likely allow a student exodus into private schools at a funding loss to public education. Since the public education infrastructure already exists, it has a fixed cost to sustain. Every $1,000 in taxes which is lost to private schools does not
ipso facto
translate into a $1,000 of expenses which the public schools can cut from their budget. They'd first fire teachers, which would raise class sizes and thus lower quality.

"Sure, public schools would, over time, stair-step reduce their fixed costs due to fewer and fewer students, but between the steps would be much dislocation. Downsizing always happens in increments and quality would suffer as successive equilibria are reached. Organizations need time to adjust to changes in size, but meanwhile the downsizing of public education would naturally foment inequality, which would be successfully challenged in federal court on 14th Amendment grounds."

"Hmmm. Yes, I see your point."

"That is the bad news: public education must be substantially equal across the state. A voucher program would have different local effects on public schools, depending on how many parents opted for private education. The resulting quality disparity of public schools would be unconstitutional under current Supreme Court rulings."

Preston asks, "You mentioned something about
good
news?"

"Yes, sir, the good news is that the Supreme Court has never ruled that a state must even provide public education." The AG permits himself a thin smile in triumph.

"
What?
" Preston can't quite believe where this is leading.

"Think of it like a game of baseball. If you play, then you have to play by the rules — rules made by others. Arguing about school vouchers is like arguing that you'd like to run from first to third base and skip second. It's just not going to happen.
But
. . . nobody . . . can . . . force . . . us . . . to play the game in the first place!"

"You're joking!" Preston blurts.

"No, sir! Not at all. For all the damaging constitutional revisionism, this is still America, sir. There are actually very few internal duties commanded of the states by the Constitution and case law. Although a French province, for example, could not do this, one of the United States can. We don't yet quite have a true national government. The states still retain, amazingly enough, some powerful prerogatives. Where does it say that a state has to provide public education at all? It was the states which usurped education because they wanted to control their citizens. We can get
out
for the opposite reason, because we
don't
want to control our citizens."

Preston stands and begins to wander about his office, his mind reeling from the implications. "Unbelievable . . . unbelievable."

The AG continues, "Some things can be ended by gradual reduction, like quitting smoking by the wearing of a nicotine patch. In our opinion, public education is not one of them. It's a matter of going 'cold turkey.' We see no impassible barrier to quitting public education by September 2018."

Preston is still generally speechless.

"Sir, if England could sell off British TeleCom, then why can't a state sell off its government schools? Libertarians were all looking at some
gradual
way to return to private education, and nobody thought to consider the simplest solution: if you want separation of school and state, then
separate.
Wyoming can divest from the education business. Overnight."

Preston remains stunned. "My . . . God, you're right! All those gradual measures were predicated on expected political resistance. Nobody ever thought through the issue assuming a
cooperative
state government! For that matter, neither did I. We've all been so conditioned to accept certain boundaries and impossibilities because of government. That includes me and I'm the
governor!
Now we must all reshape our perspectives. This . . . this slices the Gordian knot right in half!"

The AG nods. "That's the good news, sir. No vouchers, no tax rebates, no gradual divestment no nicotine patch. We simply get out of the education industry by declaring it and issuing quit claim deeds of school property to private corporations owned by the locals. The buildings don't go away, the teachers aren't fired, the books don't vanish. All that happens is a change of ownership. The local parents simply pay tuition instead of property taxes. This transfer could take place over a summer vacation. All we need to do is draft the legal template."

Preston laughs merrily. "It's brilliant! We simply step off the playing field; we quit the game. For decades we've been haggling over the rules, when all this time we never had to play ball in the first place! The NEA and the AFT will absolutely
shit!
"

The AG deadpans, "Well, it's about time they shat, sir."

The room breaks up with hearty laughter.

During a lull, Preston asks, "If we pull this off, how many other states do you imagine would follow our lead?"

"Oh, I'd think at least a dozen, Governor," the AG chuckles.

"A
dozen
states!" Preston practically dances a jig. "That would be the deathknell of public education!
Millions
of families would relocate to those states. Much of California and the East Coast would be depopulated of its best people. It'd be tantamount to a revolution! No more federal control of education. No more socialist indoctrination. No more desecration of our American heroes and history. No more drug-sniffing dogs and random locker searches. No more UNESCO hovering over our schools. No more 'citizens of the world' bullshit. No more Ritalin and Prozac pumped into our children! No more residential property taxes! We wouldn't be producing a nation of drugged-out dummies! There really could be a future for America!"

"There's just one problem, Governor. Well, two, actually."