School Choice: the new civil right?

While I consider myself a supporter of school choice, I am a bit leery of framing the argument for vouchers in terms of parental rights. Certainly parents do have the right to control the education of their children, as established by cases like Pierce and Yoder, but I've always understood this right as an example of negative liberty -- i.e., parents have the right to prevent the government, under most circumstances, from dictating the setting of their children's education. What Rick's admittedly powerful argument seeks to do (see his post and accompanying article, below), in my view, is turn this right into a positive liberty -- i.e., parents have the right to force the government to equip them with the means to educate their children in a setting of their choice. While, as a policy matter, I may look favorably on this outcome, I'm hesitant to endorse the means by which Rick seems to take us there.

My hesitation is difficult to articulate, but I think it has three aspects:

First, calling for the expansion of unenumerated constitutional rights is a path not to be lightly embarked upon, for obvious reasons.

Second, while parental prerogatives, especially freedom from government interference in the inculcation of religious values, are undoubtedly non-negotiable elements of subsidiarity and the Church's broader social teaching, I perceive a danger if we too readily adopt the individualist, autonomy-driven discourse of the surrounding legal culture, even though we may reflexively think that the individual autonomy of the parent is a good thing.

Third, as has been widely commented on elsewhere, rights-based discourse lends itself to a zero-sum contest of absolute power claims, and once certain claims are recognized, there is no going back. In this regard, parental rights, in their extreme form, could actually make pursuit of the common good more difficult by reducing our ability to balance competing, valid claims to scarce resources. Put more simply, there might be a good reason for a school district strapped for cash and struggling to maintain the vitality of its public schools to resist the blanket and/or immediate implementation of vouchers. But once we understand vouchers as a non-negotiable aspect of religious liberty, the school district's hands are tied, and the common good may effectively take a back seat to the parents' unfettered and constitutionally mandated autonomy.

I guess I'd prefer to let school choice be embraced or rejected by the people on the merits, not enshrined by the courts, tempting as the prospect might be.

Rob