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Wednesday, November 07, 2012

The Libertarian Case for Positive Educational and Welfare Rights

OK, not exactly. I'm not sure whether he'd consider it a post about his libertarianism. And he doesn't argue for positive educational and welfare rights, constitutional or otherwise. Apart from that, though...

What spurred this post is Ilya Somin's argument on the VC yesterday that knowledgeable children ought to be allowed to vote. He addresses some standard objections in his post, but a number of his commenters wrote to argue that such a rule, if enforced by knowledge or literacy tests, would end up privileging some groups and disadvantaging others (as, indeed, previous tests have done in the United States). Indeed, given massive educational inequality in this country, it's hard not to see how this proposal wouldn't give much more electoral power to the wealthy, well-educated, mostly white elite. Unless....perhaps Ilya would welcome a trade-off: knowledgeable children get the vote, in exchange for guarantees of massive public/private efforts to assure meaningful educational and welfare rights to ensure that the opportunity to be a knowledgeable child voter is fairly and widely distributed among the entire population rather than limiting that vote to enclaves with better resources. I'm just going to go ahead and consider this Ilya's very subtle case for overruling San Antonio School District v. Rodriguez. 

Posted by Paul Horwitz on November 7, 2012 at 08:23 AM in Paul Horwitz | Permalink


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Paul, would you take a friendly amendment, and endorse a case for overruling Rodriguez *and*, at the same time, constitutionalizing a right-to-education rule that extends to even-handed public support for parents who choose (appropriately qualified) religious schools as the vehicle for making good on the right?

Posted by: Rick Garnett | Nov 7, 2012 2:26:23 PM

Rick, short answer, subject to un-worked-through potential caveats: You betcha.

Posted by: Paul Horwitz | Nov 7, 2012 2:32:33 PM

You guys are talking about a rule of constitutional law that would not just *permit* state funding of religious schools, but would affirmatively *require* it for those who want it? Am I reading this right?

Posted by: Sam | Nov 7, 2012 4:26:08 PM

Fair question. Sounds like Rick is, and I--as usual, I didn't read the comment as carefully as I should have. But I might be willing to make that bargain for the right tradeoff!

Posted by: Paul Horwitz | Nov 7, 2012 4:32:08 PM

The right to education is properly vested in the student, not the parents. Of course, if one considers children chattel as under the feudal notions of the common and civil law, I can see how assisting parental prerogatives to indoctrinate could be seen as somehow relevant to the concerns in Rodriquez.

Posted by: childrenasproperty | Nov 7, 2012 4:32:19 PM

I am not a constitutional visionary of the first order, but I don't see how Prof Garnett gets there under our constitution. Not just saying "I think that's wrong constitutional law," but saying "that's not in the ballpark of arguable constitutional law." Maybe I am taking it all too seriously and missing the playful spirit, as I think Somin did in responding to Paul's post.

Posted by: Sam | Nov 7, 2012 4:53:47 PM

I believe the argument for relevance, whether you agree with it or not, was that Rick is down with the view that all children deserve equal access to educational funding, but believes the quality and outcomes of that education would improve if the funding were capable of equal distribution toward public or private/parochial schooling. And as parents of young children, I assume both Rick and I would agree that children are not chattel. They feel more like fixtures.

Posted by: Paul Horwitz | Nov 7, 2012 4:56:25 PM

I don't know what argument Rick has in mind, or whether I agree with these arguments, but one argument for "how to get there under our constitution" is contained in Michael Stokes Paulsen, Lemon Is Dead, 43 Case W. Res. L. Rev. 795, 857-858 (1993) (footnotes omitted):

"[I]f (as increasingly appears the case) the nature of public schools' instructional program is such that maintenance of religious principles for many requires opting-out of the public school system entirely, the combination of compulsory attendance laws and the huge financial penalty placed on attendance at non-government-run schools places a strong coercive burden on religious exercise. An understanding of the coercion concept sufficiently broad to invalidate commencement prayer (because it makes attendance at a religious worship ceremony the price of attendance at one's own or one's child's graduation) also renders suspect the present system of public education (because it makes either 'mere exposure' to anti-religious indoctrination or the paying of private school tuition the price of a 'free' public education). The unconstitutional conditions doctrine requires the conclusion, in the one case as in the other, that governmental imposition of such a cost on religious liberty can be highly coercive in its effects, especially on those not in a position to pay."

Posted by: William Baude | Nov 7, 2012 5:02:22 PM

The silliness in Ilya's proposal is, of course, his proposal that the voting franchise be extended only to the "knowledgeable" kids, when any idiot adult can vote without passing any knowledge test.

Anybody who can pull the lever should be allowed to vote, though we should confine voting booths to the national parks and forests, where the only citizens you ever find there are White, mostly elderly.

Furthermore, those who pass a driving, piloting or sex test should be allowed to drive, fly and f..k regardless of age.

Posted by: Jimbino | Nov 7, 2012 5:04:29 PM

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