The hypocrisy of the Soviet Union’s pretense of egalitarianism was well known enough to be the subject of mockery and parody. Ronald Reagan never tired of the jokes. Soviet communism espoused equality, but the reality is that party apparatchiks and government officials enjoyed special perks that no one else had access to. This special class wasn’t officially paid much more than the average skilled worker, but enjoyed privileges like dachas on the coast or countryside, special stores with imported goods and without the endless lines that were commonplace everywhere else, and more advanced medical treatment. For all their talk about eliminating class distinctions, the Soviet nomenklatura—those “doing the people’s work”—could feather their nest with the best of ‘em.

Apparently, a similar attitude reigns in our government schools. Our friends at OCPA report that Oklahoma City Public Schools (OKCPS) will not offer in-person instruction to students for the first nine weeks of school this year, but “plans to allow staff members to keep their children gathered in groups on site with the district providing supervision of those pupils’ on-site ‘distance’ learning, even as other parents throughout the district must either forgo income to stay at home with children or pay other individuals to watch them during the day.”

So, OKCPS is closing the public schools to the bulk of working parents (who pay OKCPS’s bills), but is providing free child care to the apparatchiks, at taxpayer expense. OKCPS administrators and school board members should familiarize themselves with a few provisions of the Oklahoma Constitution.

First, the Oklahoma Constitution in not one, but two places requires the state government to maintain a system of free public schools open to all children in the state. The Oklahoma Supreme Court recognized shortly after statehood that these provisions require “some degree of uniformity and equality of opportunity” among students, and are intended to extend “equal rights and privileges to all [the state’s] youth to obtain such mental and moral training as will make them useful citizens of our great commonwealth.” About 20 years later, the Court held the constitution assures “a minimum educational program for all children of the state” and was designed “to insure uniformity of opportunity to all children of the state to receive at least the degree of instruction embraced by the minimum program.”

Almost from the jump, therefore, it was understood that the free public schools provisions of the state constitution required some uniformity with respect to the educational opportunities for all children. These provisions are to ensure government is not creating privileged classes, especially when the favored group consists of those who control the levers of government. Who would’ve guessed we’d end racial segregation after years of struggle only to deal with a new class system of government-conferred hereditary privilege?

That’s what this is. It’s an ugly, but simple to understand setup in Oklahoma City in 2020. If you are a teacher in OKCPS, you and your kid will be accommodated at taxpayer expense. Your kid will attend school and you won’t have to pay for childcare like all the chumps who also have to work, even though their kids are forced to do virtual school. If you are one of the chumps paying for all of this, good luck figuring it out. And don’t complain or you will be accused of selfishly endangering public health and the very teachers who make up the privileged class.

Second, the Oklahoma Constitution contains an anti-gift clause (actually, two), which prohibits the government from gifting public funds to private entities and individuals. This provision is supposed to prevent cronyism, best understood as government-granted privilege. It’s been interpreted to ban even altruistic-seeming expenditures of public funds, such as support for worthy charities like Meals on Wheels and the VFW.

How is free childcare for teachers not a taxpayer-funded gift? Teachers are not providing any additional service on top of what they are already contracted to do—teach. They are already compensated for this service, and childcare is not part of the compensation, last I checked. From this former government lawyer’s vantage, OKCPS-provided childcare looks like an unconstitutional, gratuitous perk for teachers.

I don’t know if either of these constitutional provisions (or others, like the special laws provisions) provide a legally cognizable claim against OKCPS. There are no Oklahoma cases directly on point (why would there be? Pre-pandemic, can you imagine anyone proposing such a scheme?). In the case of the free public schools provision, it’s not clear individuals are given a remedy for its violation (that is, they may not have standing to sue). I’m sure there are crafty technical arguments for OKCPS lawyers’ to deploy in litigation to wiggle the district out of any real accountability. Given the well-documented, sorry state of the Oklahoma courts, those arguments would likely find a favorable audience.

Nonetheless, there is no doubt that OKCPS is trampling all over the spirit of the law, if not the letter. Perhaps parents will get fed up enough with this type of offensive, privileged behavior to retain the services of some enterprising attorney and they’ll make a go of it. I’d be happy to file an amicus brief giving my two cents on the matter.

Besides, we don’t need a cognizable violation of the law to know right from wrong. This is wrong.

Perhaps something positive will come out of this pandemic freakout after all. Maybe more parents will wake up to the unfair realities of the public school system we have constructed in this country, and we’ll demand our elected leaders do something about it. As far as I’m concerned, now would be a good time for Education Savings Accounts, which would empower parents to take some of the funding intended for their child’s education and use it for that purpose, rather than it being misappropriated to modern-day versions of the Soviet dachas.

Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at [email protected].

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.