Author Archive | John E. Coons

Vagaries of Vergara

If the long-range outcome of Vergara were merely the death of tenure and LIFO, the servile posture of the lower-income family would be unaltered.

If the long-range outcome of Vergara were merely the death of tenure and LIFO, the servile posture of the lower-income family would be unaltered.

The recent opinion in Vergara v. California deserves the attention it has attracted – and more. It has implications – some good – beyond the weakening of public sector unions. The plaintiff child has successfully attacked both the state’s system for tenuring and de-tenuring teachers and also the LIFO (last in, first out) statute that, in case of layoffs, protects teachers by time of service. If upheld on appeal, that would be a heap of change in the structure.

The court says the tenuring process is too short to allow good administrative judgment – effectively one year and a half. Thereafter, the de-tenuring process is torturous, very long, unpredictable – and expensive – to the district (the union covers teachers’ defense costs). Both practices are held to impair the quality of instruction and to do so in a manner uneven from child to child, thus violating their “fundamental right to equality of the educational experience.” These systemic wrongs are aggravated in districts serving low-income populations, intensifying the violation of equal protection. The seniority system (LIFO) has similar effects with the same conclusion. The case involves state law only. In striking down the tenure part of the system, Judge Rolf Treu emphasized these two sections of the state constitution:

Article I, Section 7(a): “A person may not be … denied equal protection of the law.”

Article IX, section (5): ‘The legislature shall provide for a system of common schools … supported in each district.”

He used both sources again in condemning LIFO. Favoring seniority, it is said, offends rationality and, like tenure, injures children without justification – especially the poor. Taken altogether, this is not equal protection.

I will address the two holdings in order, concentrating upon the tenure problem. As for the flaws in these statutes, Judge Treu relies on precedent construing the educational right of the child and the corresponding duties of the state. The (state) constitution “is the ultimate guarantee of a meaningful educational opportunity … to the student” who also enjoys a “fundamental right to basic equality in public education.” The court thus perceives the right, first, as one of peculiar weight and significance; hence, second, one that must be satisfied by education of basically similar and proper quality for children in similar circumstances.

The history of judicial response to this two-fold claim in the courts of California is instructive. Continue Reading →


Pre-K must come with school choice

Pre-school is hot – again. It has been so, off and on, since ancient Greece. Plato’s ideal state would have imposed full-time boarding school starting at day one for all newborns, keeping them permanent strangers to their parents – those natural enemies of his perfect Republic.

Does NYC Mayor de Blasio's vision of pre-K include parental school choice?

Does NYC Mayor de Blasio’s vision of pre-K include parental school choice?

The spirit of Plato has played a larger role in American public schooling than often we recognize. Still, contra Plato, our imperfect Republic still allows parents to keep their children home until age five or six, then lets those who can afford it to choose among all schools, public and private. But for the less fortunate family, it is difficult or impossible to avoid their child’s conscription for seven hours, five days a week. To that extent, Plato wins, they lose.

Many now propose extending public schooling to younger children. Would this new deal in education be undertaken in the platonic spirit? For whom, and at what age? Would lower-income families be subsidized in order to make their own choices among public, private, and religious providers? Or would pre-K school be designed as the government strong-arm long familiar to post-K families, especially those forced into public schools in the cities? Exactly what is the intention of government enthusiasts, such as the new mayor of New York City?

We just don’t know; if Mr. de Blasio wants to replicate for infants the income-based conscription of K-12, he has not yet told us. And one full-length recent article and three New York Times’ editorials on pre-K in one week never touch the issue. Does government aim to frustrate even further the exercise of responsibility by the low-income family; or to the contrary, will Mr. de Blasio respect, for these few early years, the authority of such families to exercise in practice the role that their middle-class fellow citizens take for granted? Continue Reading →


Fear of words unspoken



“Talk Scheduled at Catholic School in Bronx Promotes Fear of Anti-Gay Message.”

So read a headline in the New York Times back in November. The half-page article sounded an alarm that the scheduled speaker, a priest, just might give parents – and, through them, children – an understanding of good and evil that is plainly unacceptable to the Times and probably injurious to the child and society. The article was more an essay than reportage and, perhaps, a prototype of contemporary journalism on issues respecting personal behavior. The relevance of this professional bent for the promoters of school choice deserves a word.

Imagine the mind of the Times writers as they blow the cover on this looming mischief. What an exposé – Catholics are conspiring to discourage sodomy! Though this threatening message was to be delivered only to parents, the journalists know that some vulnerable gay child is sure to be injured emotionally in the fallout. Indeed, the particular priest scheduled to speak “has long been involved with the Courage organization, a spiritual support group to encourage men and women to remain celibate.” If there were concerns that this organization was pushing further, instead pursuing an unstated strategy of reprograming gay students, the writers provided no clues.

Hence, we were left to imagine this fear: A priest intended to “encourage” chastity. Such a threat; beware the Inquisition! Happily the reporters told us to take heart: “More than 200 people” signed a Facebook petition to cancel the meeting. Such a big number (and how many of them parents)? It is worth noting that the journalists failed to ask those parents they did interview just what it was they had expected when they freely chose a Catholic high school – nor, why they did not now simply transfer to P.S. 209 and save the tuition while getting the message they want.

Flagship journalism frequently feels this obligation either to diminish or dominate public (or, here, even private) discussion of certain moral issues that the editors and writers consider settled. Among these is consensual sex. What one does with his body by choice is, by definition, okay. All opinion to the contrary is irrelevant; hence the threatened expression by this would-be Bronx speaker should be treated like any public nuisance – as a threat to be exposed and denounced. He may have the legal right to speak, but to exercise First Amendment rights in this manner, seeking to discourage gay sex, is at best de trop and, at worst, dangerous to children. It should be hissed from the stage. Bless those 200 Facebookers.

The prevalence of this attitude among these bright minds is suggestive for the politics of parental choice. First, this bent is not likely to diminish soon, partly because it arises from well-intentioned ignorance and long-engrained habits. Continue Reading →


The cost of choice

school spendingForty-six years ago a plaintiff named John Serrano sued the State of California, asserting that the capacity of school districts to raise money was grossly unequal, hence unconstitutional. The quality of education in property-poor districts was said to be diminished by the resulting disparities in spending per pupil. Students had a right to a more rational and fair distribution of money.

As in most litigation the claimants had to prove some real injury. The disparities in spending were colossal, ranging, at the extremes, from a few hundred dollars per pupil in property-poor districts, to several thousand in freakishly wealthy industrial centers and top-rank suburbs. The injury seemed self-evident.

But it wasn’t. By whichever measure of outcome – graduation, test scores, reputation – there was no pattern linking spending to actual quality. In addition, surprisingly, there was little or no evidence that children from poor families were systematically getting less spent on their schools. The lawyers for Serrano et al. could not credibly assert that money was the key to quality education or indeed, that it affected the success of schools in any way – except one. It was obviously true that the richer districts could buy more stuff. They could hire more teachers, administrators and superintendents, at higher salaries, build fancier buildings and secure the most up-to-date supplies, books and equipment. The trial judge decided this was injury enough. His judgment for the plaintiffs was affirmed by the California Supreme Court. As yet, however, 40 years later, no one has succeeded in establishing a clear link between spending per-pupil and the benefit for the child.

Nevertheless, spending has skyrocketed in succeeding generations across the nation for reasons political – principally the monopoly power of public-service unions. But the apparent disconnect between spending and quality of education remains. This reality has conflicting implications for the school choice movement. It reduces the political significance of the consistent discrimination in spending against today’s charter schools; we are not at all clear that it really affects outcome. On the other hand, it is plain to anyone who knows the facts that, whatever it is that does make a school successful, it can be had without exploding the cost. In short, if school choice supporters are willing to accept and even exploit politically the cheaper regimes now in place, they have a more powerful case. Continue Reading →


Of civics and ‘sects’: debunking another school choice myth

The critic should not imagine this escapist attitude to be the specialty of the occasional occult and exclusivist faith-based school. Most of us can find it in the mirror.

The critic should not imagine this escapist attitude to be the specialty of the occasional occult and exclusivist faith-based school. Most of us can find it in the mirror.

The American Center for School Choice is committed to the empowerment of all families to choose among schools public and private, secular and religious. As in all programs of government subsidy – food stamps are an example – there will be limits on the product that can be chosen; the school preferred by the parent must meet academic standards and respect civic values. Taxpayers will not subsidize the choice of any curriculum encouraging hatred or violence.

Until the 1950’s public schools could, and did, broadly profess a religious foundation for the good society; and both history and serious contemporary research report the powerful contribution of religious private schools to civic unity. Nevertheless, skeptics of parental school choice for lower-income classes are inclined to worry: are faith-based schools perhaps separatist in their influence simply by teaching – in some transcendental sense – the superiority of believers? The critics’ principal target is an asserted practice of some religious schools to claim a favored access to eternal salvation for their own adherents.

If this allegation is an issue, it is not one for the lawyer; so long as a school teaches children to respect the civil law and their fellow citizens here on earth there could be no concern of the state. It is unimaginable under either the free exercise or establishment clauses of the 1st Amendment (plus the 14th) that government – federal or state – could undertake to censor the content of teaching simply because it includes the idea that the means of eternal salvation are accessible only to some. The State’s domain is this life only, and our governments have so far properly refrained even from asking such an inappropriate question of any school.

The content of religious teaching could become relevant to government concern – and subject to regulation – only insofar as it bore upon matters temporal. Racial distinctions by employers suggest a rough parallel; the school cannot discredit the aptitude of non-believers for strictly earthly vocations or civic participation. It may not teach that Catholics tend to make unsatisfactory mathematicians, or that Jews can’t cook. It may not warn its children to avoid personal relationships with children of non-believers. But note that such a limitation upon temporal stigma is not a restraint unique to religious schools; it is a standard curb on the teaching of the purely secular institution, whether this be Andover or P.S. 97. There is really nothing peculiar here to the faith-based school.

Thus, though the opponent of school choice is correct to worry about schools teaching the temporal inferiority of any group, he is bound in sheer logic to broaden his concern to include educators public as well as private. Just which category of school, by design or choice, most plainly radiates the earthly inferiority of particular groups would be a delicate political issue for the secular critic himself. The obvious candidate for this odious role would be the white suburban public school. Continue Reading →


School choice will revive parental responsibility

parental responsibilityTeacher union sentinels warn us that school choice will rescue only the more promising students from a rejected public school, damaging that school further by their absence. The parents most likely to exercise their new authority – say the critics – will be those more concerned and sophisticated. In any case, the private schools chosen will then cull and reject the less attractive applicants; this predicted behavior is labeled “creaming,” “cherry-picking” and the like. Empirical study of private school admission practices puts this latter rap in serious question. Further, the design of state systems of choice in years ahead seem increasingly likely to assure fair inclusion of the poor without threatening the school’s identity.

But private school behavior will not be my subject. My focus, rather, will be the likelihood of change over time in the behavior of those parents who do not participate in the first round of choice and who seem out of the game. Will these fathers and mothers in due course become aware? And, once they grasp that they have authority, will they use it? What will be the effect on child and society?

One begins by asking: How do residents of lower-income neighborhoods today learn about change in the life styles of their neighbors? The urban sociologists whom I know seem to this day to recognize the efficacy of the grapevine. Its enhancement by the Internet is hard to estimate, but surely the overall effect of the modern organs of scuttlebutt will be to increase connectivity. Together, these social twines should be sufficient to spread the word in the neighborhood that Alice’s kid has left P.S. 99 for St. Mary’s.

But the most effective messengers of this sad news will be children themselves. The departing student’s stay-behind friend will be disappointed; his or her mother will get the message at dinner. Indeed, once defection has begun, there will be no hiding the new game, even from the duller parent. In addition one must remember: once choice has at last created competition for less well-off students, it will behoove every school to advertise its special charms in the most inventive ways to all families.

It is highly improbable that the slower-motion parent, once she really knows, will forever sit on her hands. She will, instead, begin to fumble and stumble toward participation. She will make mistakes, and there will be no want of charlatans and incompetents who, on occasion, will get the advantage of her. There will, in short, be a burst of variety, good and bad; and if – in the long run – one brand proves ideal for all of us, we will be happily surprised. However, there could well be one best educational recipe for that very specific person, little George. Experimentation by his parent may work its discovery for him; and that would now be possible for every child.

But is this a good idea? Society has for very long trusted only the haves among us with their own child; yet should that trust be extended to the have-nots? Apart from test scores, what will be the social and civic consequences?

As the nation gradually faces this issue, what is often overlooked is the positive effect of empowerment upon the parent herself. She becomes the groping, striving hopeful creature that is the rest of us. She can at last seek her own child’s way like the luckier among us. And, if she is not presently their equivalent in savvy, here is her opportunity – if only gradually – to become so by steady application of the three qualities that are unique to parents: love, insight and personal responsibility. Continue Reading →


Faith, school choice & moral foundations

engelhardt book coverIf one wishes a profound historical-dialectical account of the fate of religion in our governmental schools – all in 200 pages – make Craig S. Engelhardt’s new book, “Education Reform: Confronting the Secular Ideal,” your primer.

Engelhardt’s guiding principle is constant and plain: If society wants schools that nourish moral responsibility, it needs a shared premise concerning the source and ground of that responsibility; and this source must stand outside of, and sovereign to, the individual. Duty is not a personal preference; if it is real, that is because it has been instantiated by an authority external to the person. In contemporary theory, the source of such an authentic personal responsibility is often identified in ways comfortable to the secular mind. There is Kant; there is Rawls.

But in the end, the categorical imperative and the notion of an original human bargain are vaporous. We go on inventing these foundations, but, in moments of moral crisis, such devices do not provide that essential, challenging, universal insight that tells each of us he ought to put justice ahead of his own project. Only a recognition of God’s authority and beneficence can, in the end, ground our grasp of moral responsibility.

This message is repeated at every turn to support the author’s practical and political conviction – that the child cannot mature morally in a pedagogical framework that deliberately evades its own justification. Engelhardt shows in a convincing way that the religious premise was originally at the heart of the public school movement. Americans embraced the government school for a century precisely on the condition that it gave expression to a religious foundation of the good life. When modernism and the Supreme Court gave religion the quietus in public schools, the system serially invented substitutes including “character education,” “progressivism” and “values clarification” – each of which in its way assumed but never identified a grounding source. The result: a drifting and intellectual do-it-yourself moral atmosphere – an invitation to the student to invent his own good. And all too many have accepted.

Engelhardt gives fair treatment to all players in the public school morality game. From the start he provides a generous hearing to the century-and-a-half of well-intending and intelligent minds who paradoxically frustrated their own mission of a religious democracy, first by shortchanging the unpromising Catholic immigrant, then – step by step – pulling the rug from under that transcendental dimension of education which alone could serve their wholesome purpose of training democrats. In this book, every historical player gets to give an accounting of the good he or she intended and the arguments thought to support it; of course, the rebuttals by Engelhardt are potent and even fun to read.

My first and less basic criticism of the book is its slapdash attention to the legal paraphernalia that will be necessary to school choice, if it is to serve the families who now enjoy it the least. Continue Reading →


MLK and God’s schools



Editor’s note: This is the first in a series of posts we’re running this week to commemorate the 50th anniversary of Dr. King’s “I Have a Dream” speech.

I grew up in a Minnesota city of 100,000 with – in my time – one black family. My introduction to the reality of public school segregation came in 1962 as – now at Northwestern in Chicago – I agreed to probe the public schools of the district on behalf of the U.S. Commissioner of Education. The racial separation was there as expected, but there was one big surprise; I was astonished to find enormous disparities, not only in taxable local wealth – hence spending – among the hundreds of Illinois districts, but even in individual school-by-school spending within the Chicago district itself. I wrote about both problems, sprinkling research with “action” including marches and demonstration both in Chicago and in Selma (prior to the main event there).MLK snipped

My interest in deseg politics had already provoked a law review article on the risks of anti-trust liability for King et al. who were planning boycotts of private discriminators. On the strength of that essay, Jack Greenberg, then director of the NAACP Inc. Fund, invited me to meet with King and his lieutenants at dinner in Chicago to discuss the question. We spoke at length – mostly about boycotts but also about schools. By that time I was already into the prospects for increasing desegregation in Chicago, partly through well-designed school choice.

I won’t pretend that I recall the details of that evening. What I can say is King’s mind was at very least open to and interested in subsidies for the exercise of parental authority – which clearly he valued as a primary religious instrument. I took my older boys next evening to hear him at a South Side church and, possibly, to follow up on our conversation, but he had to cancel. We heard sermons from his colleagues, some to become and remain famous. I did not meet King again.

King’s “Dream” speech does not engage specific public policy issues – on schools or anything else. Essentially a sermon, it is a condemnation of the sins of segregation and an appeal to the believer to hear scripture, with its call for indiscriminate love of neighbor, as the life-task of all who recognize the reality of divine love for us – his image and likeness. It is purely and simply a religious appeal that declares the good society to be one that rests upon benign principles that we humans did not invent but which bind us. I don’t know King’s specific understanding of or attitude toward non-believers, but this document clearly rests the realization of the good society upon its recognition of our divine source and its implication of the full equality of all persons.

Given that premise and the Supreme Court’s insistence upon the “wall of segregation” in the public schools, plus – on the other hand – the right of parents to choose a private religious education, the logic is rather plain.

Private schools live on tuition, and many American families couldn’t afford to enroll then or now. If low-income families were to exercise this basic human right and parental responsibility enjoyed by the rest of us, government would have to restructure schooling to insure access to an education grounded upon, and suffused with, an authority higher than the state. Given the economic plight of so many black parents, the only question would be how to design the system to secure parental choice without racial segregation by private educators.

And that possibility was to be the principal crutch of “civil rights” organizations in hesitating about subsidized choice. Continue Reading →