The American Spectator

The Nation's Pulse

Wonderful news for conservatives! The Supreme Court last week instituted a school voucher system. Anyone who wants to go to private school can have it paid for by the state.

Moreover -- surprise of surprises -- it was the liberal faction -- Stephen Breyer, Ruth Ginsburg, David Souter and John Paul Stevens -- who instituted it. The conservative half -- Clarence Thomas, Anthony Scalia, Samuel Alioto and Chief Justice John Roberts -- was opposed.

Well, perhaps a little explanation is in order. The case involved a wealthy New York City couple who have a learning-disabled son. The child attended public school until he was eight years old and his parents discovered he had handicap. New York City offered him a place in the Lower Lab School for Gifted Education but the parents wanted to put him in a private school. Moreover, they demanded that New York City pay for it.

City officials refused on the grounds that the parents -- whose net worth is estimated at $85 million -- had not been willing to try the public-school alternative. The case ended up in federal court. The Second Circuit backed the parents and the city government appealed to the Supreme Court, which accepted the case. As often happens, the Supremes split down the middle, with liberals supporting the parents and conservatives supporting the city government. Unfortunately, Justice Anthony Kennedy, the current swingman, recused himself days before the decision was announced and the case ended in a tie.

Because the Supremes did not overturn the ruling, the lower court's decision stands. However, it applies only to the Second Circuit, which includes New York, Connecticut, and Vermont. Other circuits may decide differently and the issue will probably be argued again before the Supreme Court. It may be a little premature to be talking of a national voucher system, but if you live in New York, Connecticut or Vermont you can now demand that the local school district pay for your child's private tuition.

NOW WAIT A MINUTE, you may say. This only applies to handicapped children. This child had a learning disability. He was a special case. Only a very small number of children will ever qualify for this state-sponsored benefit.

If you think that, then you probably haven't heard what's going on lately with the SAT exams.

The College Board used to allow students with serious handicaps to take extra time -- up to double the normal amount -- to complete its college admissions aptitude test. Then it would send the scores to colleges marked with an asterisk. Several years ago, however, a student with no hands sued the College Board to remove the asterisk and won in court. No more asterisks.

Since then the number of students petitioning for extended time has mushroomed. A recent article in the New York Sun chronicled how the learning disabilities have become particularly fashionable in elite Manhattan prep schools, where nearly half the class now claims to be disabled -- even though many of them end up in Ivy League colleges. A host of accommodating testing services has emerged where parents pay up to $10,000 to have learning disabilities discovered in their children.

Meanwhile the majority of unhandicapped students and their families are becoming restive over this blatant advantage. After all, it is admission to Harvard that's at stake. Once this trend catches on in the public schools, it will probably bring the whole SAT exam crashing down -- which, coincidentally, is what liberals and academics have been trying to do for decades. (I recall speaking before a Naderite organization at a law school in the 1980s and discovering to my astonishment that their main goal in life was to abolish law boards.)

SO WHY IS IT THAT the Supreme Court's liberal faction is now supporting a system that could easily morph into a nearly universal school voucher system while the conservative wing is opposed?

The conventional explanation, of course, is that liberals are sensitive, caring people willing to sympathize with individual heartbreak. "What are the parents to do in this situation?" they will ask. "What's wrong with the state helping them out?"

Conservatives, on the other hand, are curmudgeonly bean counters concerned only with the bottom line. "Who's going to pay for all this?" they want to know. "How can we afford it?" The same melodrama is being played out in the S-CHIP issue, where liberals want to provide healthcare to "needy children," even though the child may be a middle-class 28-year-old, while conservatives say it's a back door to socialized medicine.

This explanation fails to explain one salient fact. Why is it conservatives have spent the last 25 years pushing for a voucher system -- which is the obvious end point of the Supreme Court's logic? And why -- putting aside the opposition of the teachers' unions -- have liberals so strenuously opposed vouchers? The same question arises on other issues. Conservatives have long supported broadening healthcare coverage through medical savings accounts, which are a form of voucher that would be available to everyone. Liberals, for some reason, are vehemently opposed.

What actually differentiates liberals and conservatives is not the end goals but how you arrive at them. Conservatives like to establish rules that apply equally to everyone. Liberals, on the other hand, like to establish a special case -- learning disabled students, uninsured children, victims of discrimination, victims of "hate crimes" -- and work from there. If there must be general rules that apply to most of society, then they are always going to be looking to create an exception.

Interestingly, this is the way boys and girls play. Recent studies have showed that when boys play together they like to establish rules and then make sure everybody abides by them. (When Eric Erikson studied children in the 1950s by letting them create their own worlds from an enormous array of toy figures, he found the boys' favorite was always the traffic cop.) Girls on the other hand, like to make up rules and then find endless exceptions to them. Their concern is always the special case, not the general order. (These sexual characteristics work, of course, only as a general rule. There are always exceptions.)

AS IN SO MANY OTHER THINGS, then, the Republicans seem to make a living by representing the male perspective in public policy while the Democrats represent the female point of view. This is not a bad thing. Like the yin and yang of Buddhist theology, they can work together to create a living whole.

The problem arises when exceptions are multiplied so many times that they become the rule -- or, inversely, when we try to create a general rule for everyone by aggregating a gaggle of exceptions. Then the system is likely to dissolve into mayhem.

Call me a male if you like, but I prefer trying to assess the entire situation and making a rule that generally applies the same standard to everyone, while trying to keep exceptions to a minimum. Of course the system must always have some flexibility. That's why we give juries the power to determine guilt or innocence and then let judges impose the sentence for the crime.

Living by the exception, however, only undermines the general order. If we're going to have school vouchers, let's offer it universally instead of starting with some rich guy in Manhattan and letting it trickle down to everyone else. If we're going to legalize gambling, let's open the doors to everyone instead of creating an exception for Indian tribes and then letting them set up casinos all across the country.

Equality before the law is supposed to be one of the great triumphs of modern democracy. If society is built on rules, then they should apply to everybody. Living by the exception only encourages everyone to develop their own exit strategy. The people who are harmed will be the ones who agree to play by the rules.

topics:
Education, Law, Supreme Court, Unions