Three judges of the Indian Supreme Court, a body not known for its intellectual rigor and philosophical consistency, issued a ruling earlier this week upholding the Right to Education Act that was not intellectually rigorous and philosophically consistent. As I wrote in this City Journal piece, the 2010 law had school choice advocate initially all excited because it included a voucher program for poor kids in order to deliver on its promise of a free and compulsory primary school education to every kid in India. One can quibble with that promise, but everyone thought that at least the country had picked the right mechanism for delivering it. That enthusiasm died quickly when it became clear that the program was accompanied with a bitter poison pill requiring private schools to set aside 25 percent of their seats for poor, voucher kids. Not just that, the schools would be required to meet all kinds of new regulations such as: creating minimum playground space, maintaining prescribed teacher-student ratios, hiring credentialed teachers, and paying salaries equivalent to those of unionized public school teachers. Private schools would also be barred from holding back low-performing middle-school students and would be required to use a government-prescribed curriculum and government-approved texts.

A consortium of private schools challenged the 25 percent reservation requirement on grounds that the vouchers would not cover their entire education costs, causing many of them to even shut down, thereby decreasing – not increasing – the options of poor kids. But the Supreme Court, in its infinite wisdom, did not buy this argument. That's bad enough. What's even worse is that though it upheld the set-aside for non-religious private schools that don't receive government aid or are "unaided," it exempted minority "unaided" private schools, thereby creating a double standard.

But such blatant inconsistences are not what's interesting about the ruling. What is interesting is that the dissenting judge actually quoted Murray Rothbard on the evils of government education in his opinion. By name. He said:

Mr. Murray N. Rothbard, an eminent educationist and professor in economics, in his book, "Education: Free and Compulsory," cautioned that progressive education may destroy the independent thought in the child and a child has little chance to develop his systematic reasoning powers in the study of definite courses. The book was written after evaluating the experiences of various countries, which have followed free and compulsory education for children for several years. Prohibition of holding back in a class may, according to the author, result that bright pupils are robbed of incentive or opportunity to study and the dull ones are encouraged to believe that success, in the form of grades, promotion etc., will come to them automatically. The author also questioned that since the State began to control education, its evident tendency has been more and more to act in such a manner so as to promote repression and hindrance of education, rather than the true development of the individual. Its tendency has been for compulsion, for enforced equality at the lowest level, for the watering down of the subject and even the abandonment of all formal teaching, for the inculcation of obedience to the State and to the "group," rather than the development of self-independence, for the deprecation of intellectual subjects. I am of the view that the opinions expressed by the academicians like Rothbard command respect and cannot be brushed aside as such because, much more than anything, the State has got a constitutional responsibility to see that our children are given quality education. Provisions of the statute shall not remain a dead letter, remember we are dealing with the lives of our children, a national asset, and the future of the entire country depends upon their upbringing. Our children in the future have to compete with their counter-parts elsewhere in the world at each and every level, both in curricular and extra-curricular fields. Quality education and overall development of the child is of prime importance upon which the entire future of our children and the country rests.

Regardless of what one thinks of Rothbard, can using him to warn of the dangers of a public education whose goal is to produce good, compliant, state-loving citizens rather than free-thinking individuals be all that bad? Can one ever imagine even Justice Clarence Thomas using Rothbard to attack public schools in this country?