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Monday, January 07, 2013

Mandatory public education

At Mirror of Justice, frequent Prawfsblawgger Marc DiGirolami passes on a report from the AALS Annual Meeting.  Apparently, at the presentation jointly sponsored by the Constitutional Law and Education sections, Dean Erwin Chemerinsky stated (quoting the report) that "the only way to deal with educational disparities and the problem of (de facto) resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas."

In my view, this highly illiberal proposal is, to put it gently, morally unattractive (putting aside questions about whether it would achieve or advance the stated objectives).  Marc raises some important and interesting questions about it.  I'm certainly open to (dramatic) changes in the ways we fund education (e.g., un-linking education funding from local property values), but -- as I tried to flesh out in more detail, a few years ago, here -- the burden the proposal would impose on religious freedom is far more weighty than Chemerinsky seems willing to acknowledge.  (For example, the idea that after-school religious education, or even "release time"-type policies, are sufficient to allow all parents and children to exercise their religious-freedom rights is, in my view, mistaken.)  A better way, it seems to me, to alleviate some (we can never eliminate all) of the inequalities that Chemerinsky (rightly!) regrets is to expand (and support financially) choices and options, and to include (appropriately qualified) religious schools fully in the enterprise of public education, i.e., educating the public, at public expense.      

Posted by Rick Garnett on January 7, 2013 at 02:33 PM in Religion, Rick Garnett | Permalink


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I'm surprised teachers unions are not a target of Dean Chemerinsky's ire.

Making public school mandatory would have a devastating effect on students who test as profoundly gifted. Requiring students with IQs >150 to attend your average American public school, in lock step with everyone else's child, no grade skipping allowed, would be tantamount to child abuse.

Posted by: hush | Jan 8, 2013 1:42:07 PM

I have to admit I am tad shocked by the comments here that so many appear to see some merit in all this.

Question . Does this mean prety much Home Schooling is now well made an non option except for after official school hours too.

Home Schooling has not been mentioned but it would seem to have to be included. In fact many parents share home school duties with other parents so in reality in many cases its a school with a variety of teachers coaches etc but without the physical plant

Posted by: James H | Jan 8, 2013 1:09:04 PM

Humanist -- I'll admit that I don't think it should matter that much whether public support flows "indirectly", via a voucher mechanism or tax credit, or "directly" (based on a per-pupil formula) but, in any event, it matters in the doctrine, so let's say I'm talking about vouchers. As for your concerns about discrimination, I would want to distinguish between (a) a school that refuses to admit black children and (b) a typical parochial school (which admits non-Catholic kids but still incorporates religious themes and formation throughout the curriculum and activities). This essay, "Religious Freedom and the Nondiscrimination Norm," tries to flesh out the point a bit more: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2087599

As for abortion funding, I'm afraid (and regret that) public funds pay for abortion all the time. In any event, I see this as a question of politics (not the First Amendment): I'll try to convince legislatures to pay for education at parochial schools, because I think that such support is good policy, and you'll try to convince them otherwise.

Posted by: Rick Garnett | Jan 8, 2013 11:22:29 AM


Here I am in Rio. Fútebol here is something more important and totally different.

Anyway, I'm sure nobody here gives a rat's ass about "last night's football game" that you are referring to.

Posted by: Jimbino | Jan 8, 2013 11:00:16 AM

Jimbino -- fair enough. Given last night's football game, your interest in older whiskey is one that seems well worth embracing.

Posted by: Rick Garnett | Jan 8, 2013 10:51:03 AM

Rick Garnett,

I don't know if you're a socialist or merely and obedient Roman Catholic.

I have chosen faster horses, younger women, older whiskey and more money as the most important things of my lifestyle. You and others prefer to waste your money on trying to rear appreciative kids.

Fine. But problems start when you tax me for your breeding and the mis-education of your kids. To add insult to injury, you don't even consult me beforehand.

I'm quite serious: I will fight to keep the education of your kids miserable unless and until you stop taxing me for it. Or, in the alternative, unless and until you start subsidizing my interests to the tune of thousands of your tax dollars per year.

Where do you get off thinking your lifestyle choices carry more weight than mine?

Posted by: Jimbino | Jan 8, 2013 10:42:31 AM

Hi Brian -- I didn't mean to dive in to debates about classical v. social-welfare liberalism, or whether "liberalism" is political or comprehensive, etc. I'm thinking of the term in the way it might be used in a Jane Austen novel, i.e., suggesting broad-mindedness, tolerance, generosity, and an appropriate appreciation of one's own fallibility. A proposal like Chemerinsky's strikes me as overconfident, heavy-handed, insufficiently bothered by its own heavy-handedness, and so on. I guess it's illiberal in a political-theory sense, too, if we measure it against (what I understand is) the traditional meaning of "liberal", in that it is a call for massive and intrusive state regulation and direction of activities and choices that, at least presumptively, belong to free persons.

Posted by: Rick Garnett | Jan 8, 2013 10:26:04 AM

Jimbino - I'm not sure if you're kidding. In any event, just to be clear, I have no objection to helping to pay for the education of other people's children; it seems to me that (within reason) that's one of the things one does in a political community. Of course, I'd rather not *over*-pay, and I'd prefer to pay for other people's children to be well-educated, rather than badly educated, but that's another question.

Posted by: Rick Garnett | Jan 8, 2013 10:18:52 AM

Vladimir -- Thanks. I did understand that you were objecting to the standardized-testing emphasis; I thought I'd respond, in my earlier comment, to another aspect of yours. In any event, I'm afraid I need to stick with my characterization of Chemerinsky's proposal as (again, I'm putting it mildly) "morally unattractive." It reflects, in my view, a very off-putting confidence that the one doing the proposing will find his own views, priorities, emphases, values, etc., in the practices and curricula of the schools to which he will require everyone -- whatever *their* views, priorities, emphases, values, etc. -- to send their children. You refer to a "small sacrifice in liberty." I'm not a libertarian, and so I'm entirely open to the point that, in a political community, everyone should be prepared to accept some constraints, and to make some sacrifices and contributions, for the common good. This proposal, though, involves much more than a "small sacrifice."

Posted by: Rick Garnett | Jan 8, 2013 10:16:24 AM

I am curious, Rick, why you denominate Chemerinsky's proposal "illiberal." There are many things to be said about it, but it's not clear to me why it is "illiberal." Can you explain?

Posted by: Brian | Jan 8, 2013 9:10:37 AM

There is no "liberty" in public education.

Here I am in Brazil, a wealthy country where nobody seems to know how to maintain or sharpen a tool. Why not? Because the country was founded on heavy-duty slavery and no slave has an interest in maintaining any tool of the master. Indeed, he has every interest in breaking or losing it.

Likewise, having no rugrats of my own, graças a deus, my chief interest is in bankrupting the public school system of the USSA, and you can be sure I vote for the cheapest and worst education possible, since I can't vote for "none of the above." I will stop cheapening public education as soon as the gummint stops taking thousands of my tax dollars per year to pay for other people's mistakes and the mis-education of their mistakes. Furthermore, if I could choose where to spend my education tax dollar on Other People's Children, I might well prefer spending it in Mexico, Africa or Brazil, not in the rich suburbs of Amerika.

I feel the same way about our National Park and National Forest Systems. You will not see a Black or Brown face in any of them, from Glacier to the Grand Canyon. There is "equal opportunity for all," but only White Folk seem to visit those rich lands. They are virtual White Country Clubs, except for Yosemite, which serves as a hot vacation spot for Asians. We need to start busing inner-city Blacks to Yosemite, I suppose, or at least let our all our common patrimony run down and waste away, all in the interest of equality and fairness.

There are a lot of Black and Brown faces in Walmart, even in Disney World and Six Flags, all of whom treat the rich and poor, single and married, childfree and breeders alike. When I shop at Walmart, I know they are not gaining by their clients'paying with pre-tax dollars, nor are they stealing from me to subsidize the life-style choices of the breeders.

There is no "liberty" in our public school system. It is one of pure compulsion that serves the interests of teachers and those parents who can't afford baby sitters. That's why they have a PTA. The P and T stand for the only two classes in society that benefit from the compulsory public school system. [Clue: they don't stand for Pupil and Taxpayer]

You want liberty, justice, fairness, equality of opportunity? PRIVATIZE !!!

Posted by: Jimbino | Jan 8, 2013 8:51:02 AM

Rick, thanks very much for your response. I think, though, you missed my main point.

How many law prof types send their kids to public schools? From my informal surveying, I think not many. And as a result, how many know in detail what the current curricular situation is? Again, not many. Which is a shame. Because if they and other elites (esp. in light of their knowledge of the value of the liberal arts) had to send their kids to public schools, they would have to immerse themselves in the prevailing primary and secondary school pedagogy. And they would not be happy with what they found -- namely, the "data driven" test score obsession that now prevails. They would likely speak out against it and do something to change it.

To put it differently, our public schools now suffer from the fact that Sec. of Education Arne Duncan prescribes "drill and kill" for other people's children, yet sends his own children to the Chicago Lab School, which offers precisely the standardized-test free, rich curriculum lacking in public schools. If his kids had to attend public schools, he would have to eat his own cooking. And that might well cause him to improve the fare he prepares.

To be sure, the kinds of liberty interests you mention are definitely implicated in all this. So it's a question of irreconcilable values. You think liberty comes first. But I think the equality values that Chemerinsky's proposal promotes are much stronger and more important, such that a small sacrifice in liberty is well worth the costs. I think we have, in short a complicated policy question. And so I don't think it's fair to say that one side or the other is "morally unattractive."

Posted by: Vladimir | Jan 8, 2013 1:03:04 AM

I have not read Chemerinsky's thoughts on this but my guess is that he is not for equal outcomes but equal opportunities. Again, I send my kids to a private secular school, and they are getting a much education than the public schools (mainly in its emphasis on writing and critical thinking skills) but I do think if all students have to go to public schools, and the schools were truly integrated, the public schools would get better.
Parents are the number one determining factor in my opinion. So if all the highly motivated parents sent their kids to the same public school, nothing would be solved. But if students whose parents cared were mixed with students of indifferent or even negligent parents, then I imagine the free rider problem would work to their advantage...


Posted by: humanist | Jan 7, 2013 8:07:27 PM

The radical pursuit of equality in the last century gave us Stalin, the Great Leap Forward and the Cultural Revolution and the Killing Fields, to name the more notorious examples. In another, but less murderous vein, Dean Chemerinsky would level the entire school system in this country to its lowest common denominator, to ensure that no student learned more than any other student or otherwise acquired any advantage from his education that every other student could not obtain. In a more just world, Dean Chemerinsky would just be laughed off the stage.

Posted by: Doug2 | Jan 7, 2013 7:49:25 PM

It sounded like what you were proposing was the government funding of ("qualified") religious schools, as opposed to vouchers or tax breaks, which is why I said "directly." If all you are proposing is more vouchers, which are constitutional, then my legal objection goes away. I still don't like the idea of vouchers to religious schools, however, and would not want them expanded from a normative point of view. Yes, tax money goes to lots of things I don't like, but I think there is something especially bothersome about public money going to education that discriminates against some children. What if the religious school discriminates against homosexuals, or black children, or female students ect? I understand people have the right to associate with bigots but does the government have to pay for it? The government should fund schools that are accessible to all. If people want to send their kids to religious schools -- or schools that discriminate on what we consider to be a protected category -- they can do it on their own dime.
Abortion is legal but not federally funded and many religious people argue that their tax money should not fund something they find morally repugnant. Well, I am making the same argument here for religious education.

Posted by: humanist | Jan 7, 2013 7:47:06 PM

Chemerinsky's proposal wouldn't help much, for a number of reasons. First, there is a genetic component to IQ and conscientiousness, so that even perfect social engineering (short of eugenics) won't close gaps in educational outcomes and achievements. Second, privileged children will have the benefit of educated and articulate parents who bestow advantages on their children before they attend school, unlike disadvantaged kids. Moreover, the social milieu in which advantaged kids find themselves automatically reinforces and strengthens in the child values and behaviors associated with high achievement. This is a "head start" that few if any schools could hope to close.

Combine this with the rise in assortive mating and nepotism (which even egalitarian parents use to help their children) and the future looks bleak for universal public education, if the goal is to "level the playing field" for disadvantaged youths. Along with almost certain failure, add to the somewhat offensive illiberality of the idea, plus the cost (we already spend way more than every country in the world on education in per capita terms*), and I think we can safely ignore Chemerinsky's idea.


Posted by: Doug | Jan 7, 2013 6:27:29 PM

JR - I am confident that I appropriately appreciate the extent to which, in some cases, private schools are chosen for race-related reasons. In my view, this is less of a factor than choice opponents contend.

Posted by: [email protected] | Jan 7, 2013 5:57:44 PM

Prof. Garnett, I'm not sure that you appreciate the degree to which "choices" and "options" are, in some social contexts in the U.S., basically code for "pick your school's racial mix."

That is, I accept that from your perspective it really is all about religious freedom. But for some people, the whole point of private religious academies is that they want to choose a different racial mix than the one their public school provides -- specifically, a mix that is more uniformly white. Religion is sometimes just a helpful excuse.

For instance take a look at the school system profiled here:

Is it your proposal that tax dollars should support this exercise in segregation? Let's assume that Indianola Academy meets your "appropriately qualified" test in terms of academic content. It is "educating the public" (the white public anyway). It's open in theory to black students. Should it get state funds?

Posted by: JR | Jan 7, 2013 5:49:11 PM

Vladimir -- it is not clear to me, as a general matter, that "public schools are underfunded." What's the "metric" you are using? Certainly, per-pupil spending is up and up and up, and often is highest in the less-well-performing districts. With respect to your second paragraph . . . I suppose that's one possibility. Another is, as a result of massive resentment and resistance, funding for public schools is cut dramatically, and the elite turn to after-school enrichment, travel teams, private theater companies and the like. In any event, I do not think hostage-taking (which is, in essence, what Dean Chemerinsky is proposing) is the right strategy for helping the disadvantaged.

With respect to your last paragraph, I do not see why it would be "better", as a rule, for your kids to get their good programming in state schools as opposed to non-state schools. In my view, it would be "far better" if my kids at their (worn down, downtown) parochial school had the theater, arts, and athletic opportunities that the "magnet" public schools have at their Catholic school.

Posted by: Rick Garnett | Jan 7, 2013 5:43:33 PM

Stoneageparents -- More reliable, in my experience, is the trotting out of crudely majoritarian, creepily totalitarian, or just tediously busybody-ish calls by those who imagine they know best to be given authority to raise other people's children in accord with their own "cosmologies". All "for the children", of course.

Posted by: Rick Garnett | Jan 7, 2013 5:38:08 PM

Humanist -- I'm not sure what work the word "directly" is doing. I'm thinking of vouchers and tax-credits as the mechanism. In any event, there's all kinds of things I'd rather my tax dollars not fund -- sometimes I win (politically), and sometimes not. There is, in my view, no constitutional or moral reason why public funds should be used to pay for education delivered by government-run schools and not for education delivered by (say) parochial schools. As long as the public is getting the "product" for which it is paying -- i.e., education -- it should not matter that it is being provided by a church.

Posted by: Rick Garnett | Jan 7, 2013 5:36:16 PM

I think there is another angle to this, Rick. One of the tragic flaws of public schools today is the excessive, suffocating emphasis on standardized testing, which has narrowed the curriculum drastically. (See Diane Ravitch, The Death and Life of the Great American School System.) Even at my children's supposedly excellent (i.e., high test score) suburban public school, the arts have been reduced to next to nothing; analysis and creativity are discouraged, because they can't be tested via multiple choice; history and science are barely taught, because reading and math are the only elementary school subjects tested; and writing just isn't done. Moreover, public schools are badly underfunded. Meanwhile, those with means can send their children to private schools to get a great liberal arts education.

Now if Pierce were overruled and private schools were banned, as Erwin apparently proposes, the elite would have to send their kids to public schools, and integrated ones at that. Don't you think there would be tax hikes to better fund these schools? Wouldn't it be likely that the arts would be restored? Wouldn't all public schools be more likely to have the rich curricula now offered at the best private schools? Wouldn't the obsession with test scores fade and No Child Left Behind disappear? Only if we all have to be in the soup together can all children get what only the most well off now get. It's a Rawlsian proposal, not just a formula for integration. To advance the interests of their own children, the elite would have to advance that of all other children, including those at the bottom.

We pulled our children from public school because of our distress over how narrow the curriculum was. Private school is great for them, but it would be better, far better, if they could get what they are now getting in public school. Short of Erwin's proposal, I don't see how that can happen.

Posted by: Vladimir | Jan 7, 2013 4:22:34 PM

At least every couple of months we can rely on the regular children-as-property arguments covered with the veil of parental liberty. This is a decidedly liberal policy if one has any view of the future liberty of the children, whose personhood is not totally enveloped by their parents' cosmology. Of course, sociologically the hypothetical moral duty of parents to completely dominate and control their children's exposure to ideologies besides their own should trump the massively systemic improvements this would have for the vast majority of children's future life outcomes.

Posted by: stoneageparents | Jan 7, 2013 4:10:39 PM

As someone who sends my kids to a private secular school, I have to admit I am intrigued by Chemerinsky's ideas (although I would need to see them fleshed out more), even though it would be against my personal self-interest as my kids are currently getting a superb education in a private school. But I would be vehemently opposed to the government directly funding any religious education. I personally feel that teaching children to believe in a supernatural deity that is completely inaccessible and can be anything to anyone is damaging to society, and I don't want my tax payer money going to that. I have to live with the Supreme Court ruling that vouchers to private schools (which are predominantly religious) is constitutional since the money is going to parents, who then make an independent choice to attend religious schools. But to the extent you are suggesting that government money go directly to religious schools (and somehow got around the establishment clause concerns), I would be opposed to that normatively. Is that what you are suggesting?

Posted by: humanist | Jan 7, 2013 3:55:46 PM

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