Author

John E. Coons

John E. Coons is a professor of law, emeritus, University of California at Berkeley, and author with Stephen D. Sugarman of "Private Wealth and Public Education" and "Education by Choice."

Charter Schools Religious Education

Time for faith-based charter schools

John E. Coons July 23, 2019

John E. Coons

Like every traditional “private” school, charter schools are held to basic legislated standards of curriculum and safety with one major exception. For better or worse, the most serious governmental imposition on the charter school has been the exclusion of religion.

The teachers unions have discovered that charter schools are enemies of the good society.

Bernie Sanders is with them, warning us that these institutions are anti-democratic and must be brought to heel – that is, in reality, to the heel of the union, which insists that charter schools are essentially private and threatening to work evil among the poor in our cities.

And private they are in varying degrees depending to some extent upon the terms of their particular compact. The point of the original charter concept (1971) was to aid the liberation of the low-income parent and child from subordination to those unchosen strangers from government and union who control the self-styled “public” school located in their compulsory attendance zone.

Charter schools were to give the poor a taste of the personal and civic responsibility enjoyed by wealthier Americans who can and do freely cluster in chosen government schools in the suburbs or pay tuition in the private sector.

Like every traditional “private” school, the charter is held to basic legislated standards of curriculum and safety with one major exception. For better or worse, the most serious governmental imposition on the charter school has been the exclusion of religion.

Though the parental choice among charter schools is completely free, the schools themselves are unfree either to recognize or reject God. They must secure their students’ ears, eyes and thoughts from any suggestion of the divine, either positive or negative, with all the predictable effects of this upon the child’s mind.

In many states, this censorship is defended as a requirement of 19^th century “Blaine Amendments” to the state constitution forbidding public aid to religion. The non-Blaine charter states have accepted this intellectual taboo as the norm and as the diktat of the union.

Given relevant precedent and the seeming attitudes of a majority of the justices of the U.S. Supreme Court, there seems no barrier under the federal constitution to the extension of the state’s authority to subsidize its parents’ choice of religious charter schools. The larger question will be whether the states are forbidden by our national law to actually exclude aid to the subsidized choice of such schools by parents. Next term, the Court will consider Espinoza vs. Montana Dept. of Revenue, presenting this very issue.

If we have vouchers, must they be for the choice of all legitimate schools? Here the school and parent may one day have reason to thank the teachers union for its clear insight that the charter school is indeed private.

July 23, 2019 0 comment

‘Public’ schools?

John E. Coons June 26, 2019

John E. Coons

A recent article in the New York Times described, and in general, approved a particular system of education choice for parents of school children. Once again, however, the Times reports the frustration of lower-income families whose very able child doesn’t quite make it into one of the super-schools – called “public” – which are populated principally by the children of non-black parents.

The predominant racial group actually admitted is Asian; these children are the champs on the decisive eligibility exam. So superior are they on the determining test that their enrollment in the super-schools has been limited by quota – yes, by race – lest the whole scheme become an embarrassment. However, the system has not made corresponding concessions to black aspirants; the premier school, Stuyvesant High, will admit a total of seven students this year.

Is it wrong to suggest that large cities such as New York that operate such exclusive schools are merely the government’s way of championing parental choice for a small elite? The scheme is a curious mini-parallel to Milton Friedman’s free market vision: Let the parent plead, but let the school make the decision in all cases.

Are such schools truly “public”? And, as we reflect on the meaning of that adjective, must we not ask the same of government schools in our affluent residential areas? The financially able family, like my own, carefully chooses its residence so as to qualify for the government school it prefers – and pays for it, as it would pay tuition. Does America have a truly public school system? Or do the well-off choose and the rest get drafted?

Whatever we call this picture, is it truly so bad? After all, we hear that the poor parent – so often a single mother – is scarcely competent to decide among school options. Perhaps the child should be summoned by law to a government school that teaches good citizenship.

Little Joe and Sally need to be rescued from the peculiar notions of the good American life so typical of the poor. The child should be spared the untutored parent’s preference for loosely regulated charter and private schools. Oh, and incidentally, the teachers union chiefs know best what is right for the child of the poor; their unselfish command and control of poor families must be preserved!

Since I first wrote about Chicago’s “public” schools for the federal government in 1962, these urban monoliths have remained basically unaltered in their operating mode. The one major difference is the doubling of per-pupil spending (in adjusted dollars) in harmony with the advancing control by the union. Good for that individual teacher who deserved it, though most dollars went for non-teaching staff and union officers.

Sadly, the growing rule by the union has improved little but the income of those others. By recently making union membership voluntary, the Supreme Court has taken the first step toward sanity and justice; but there remains a long road to that sane and workable system of unions that holds in private industry where overreach by the union can end its employers’ existence – and its jobs.

I have simply assumed here that the word “public” means open to all, rich or poor. On that premise, America has never had schools that qualify. If the well-off prefers the rich suburb, she buys her way in. If she struggles to serve her family, the state simply conscripts the child. Looking at New York City, we see that Stuyvesant High School is a form of parental choice reserved to the mothers and fathers of a certain sort of child.

I haven’t said that this is evil; I prefer parental choice in various forms. But is this “public”?

June 26, 2019 0 comment

Blog Guest Catholic Schools Faith-based Education Jack Coons Opinion Religious Education School Choice

The true unbeliever

John E. Coons May 22, 2019

John E. Coons

Belief has never, for me, been a matter of choice.

A natural universe entails a transcendent (if misty) creator. Even in these times of STEM, from nothing comes nothing. And yet, more than a few human minds, some quite celebrated, simply shun that first principle of the very rationality they strive to personify.

In recent years, I’ve subscribed to the atheist magazine Skeptical Inquirer hoping to better understand this intellectual boycott of the origin of all things “natural.” I even offered an essay of my own, hoping to stir conversation on the cognitive legitimacy of this taboo of theirs and thus play my own part as skeptic. The rejection was polite – maybe deserved. In any case, I grieve that the atheist intellectual finds it so threatening to let his mind glance back over the shoulder of his own natural self and run the risk of a surprise encounter.

The atheist’s denial of all but nature can seem a matter of intense emotion; the true unbeliever often appears as untamed by his conviction as is the believer by his. Recently, the New York Tines ran a full-page front-section Sunday ad celebrating non-belief and declaring that the scummy behavior of a number of Catholic clergy liberates all of us from belief in God. It would seem divinity itself is to be tested by the behavior of hypocrites who betray their own moral code. The bad priest is evil by his own professed standard and, therefore … God is dead: This is a sequitur?

The ad makes clear that the minds of its signatory atheists actually share many of these same moral precepts pretended by these phony clerics – while pursued in practice by the faithful. Unbelievers and believers alike applaud most of the same “goods” and those humans who strive to realize them. It is hard to credit the anti-God mind with full rationality in this reproach to belief. Right or wrong, there seems a good deal more than intelligence at work here.

But what have such appraisals of atheist thought to do with the availability of subsidized school choice for the poor? My own experience as a child makes me grieve that such families to this day remain the indentured clients of a curiously narrow-minded school curriculum.

Such intellectually muffled schools are, by law, forbidden to present a coherent picture of the “good life” or even of life itself. The teacher is forbidden to consider the question of the source of physical nature, and the mind of the child is invited to shrink. Darwin is properly welcomed to the student’s mind; evolution of the natural world is highly plausible. But if the student cannot be encouraged to consider how nature, including Darwin himself, came to be, the mind of the child has been cheated.

This is not an argument against government schools. It is simply the observation that the poor, as a matter of both reason and justice, should be given the same options that, in theory, the Constitution guarantees to all of us. If parents prefer the narrow picture of life available in PS 42, they should have their choice. But so also should those who prefer a curriculum that invites the mind to a less provincial view of realty.

May 22, 2019 0 comment

Jack Coons School Choice

Of school choice and human dignity

John E. Coons April 26, 2019

John E. Coons

God offers to every mind its choice between truth and repose.

-Emerson, intellect

Picking the school that will teach one’s child is a bracing experience, one not always without issue between the only two persons whose opinions count in American law – or between them and their child.

Where parents vary in their preference of school, the decision requires each to assess his or her own values. These can differ regarding religion, art, science, racial integration, music, athletics or teaching style and atmosphere. And, even if father and mother agree upon curriculum and style, they can divide on which available institution (or home school) would best serve their common objective.

In short, they behave as responsible humans working their way to a decision – even in the end, by the flip of a coin; and, if experience proves them wrong, they can start the process over and maybe get it right.

The solo parent experiences the same re-examinations of values, then must alone decide what is among the truly serious questions of most adult lives: How do I best serve this child of mine as together we face and prepare for the years ahead?

Strangely, in our nation, most parents of modest means will be denied such challenging personal experience. The child will be decided for by an abstraction: The State. No human being who knows and loves and hopes for Susie will decide for her; her fate will be settled by the accident of her family address within some “attendance zone” drawn by strangers from some other social world.

This never-never land of education will be the child’s experience for 180 days a year for 13 years. She will spend her days willy-nilly with teachers, some of whom she will admire and others she won’t. She will, by chance, be now content and next in misery. It won’t matter; this is it for her. Sad tales at the dinner table will be just that, nothing more. Her parents can neither rescue her nor usefully learn from this experience and seek something better. The whole family is stuck and impotent.

The effect upon these choiceless parents? I suppose one could imagine a few of them grateful for the child’s abduction and their own liberation by The State. Who needs to decide such things? Mom is spared, she need only deliver the child to PS 99, there to receive a cheery introduction and farewell from Miss Somebody. She and Susie’s father can then go home or to work and enjoy their acquittal from responsibility and authority.

Is this an enriching experience for them, for Susie and for the rest of us who witness our country’s liquidation of civic and personal duty for this most vulnerable part of our community, with its inevitable effects upon society itself? Is that effect overall positive? I find this hard to believe.

What could be the justification – the excuse – for this prostration of the poor? If society sees that choice is good for the middle class, why is servility best for the not-so-well-off parent and child and, in turn, for society writ large? Why doesn’t the spectacle of poverty call for our encouraging their dignity and responsibility instead of imposing an educational serfdom implying their irrelevance?

Are test scores the measure of some need for this prostration of the poor? Much of the academy and media appear convinced that they are the best measure of a school’s success; scores are, of course, the only “objective” evidence and very available. Many scholars of statistics seem to support our historic disabling of the poor, yet concede that inner-city kids have been doing slightly better on tests when enrolled in charter or private schools – or also by choice in highly selective “public” schools serving young geniuses. (See New York Times 3/19/19 and 3/23/19.) But this apparent success of choice, they say, is merely an effect of such converted schools’ ability to maintain some control over who among the poor get admitted.

Assume that this is true (the question is open), and further assume that this authentic choice for the more gifted is subtly harmful to test scores of those kids unselected by these charters and elite “public” schools. Should it not then follow that we cannot shrink from choice but rather must broaden such programs, perhaps raising test scores for all those children?

So long as these statistical differences remain both disputed and marginal, the test score infatuation appears largely an effect of the special convenience of these numbers to the critic. They are easy to obtain and report. Meanwhile, however, there is a much bigger, if non-numerical, game afoot in the crusade for parental choice. And the very biggest among these are the minds and souls of the parents and children themselves. It is hard to imagine a more effective instrument to maintain the servility and civic irresponsibility of human beings than the message: Don’t worry; we’ll take care of your child’s mind.

By contrast middle-class parents are allowed, encouraged and expected to worry; it is their responsibility, indeed a prized aspect of their human dignity. It is also their constitutional power and right, one that, for the poor, is snatched away simply because their poverty – their vulnerability – allows this dirty trick.

Is there any excuse for such a degrading tactic of our state governments? If society believes that freedom of choice for the middle class (and the very smart) is a good thing, why is servility to The State the best policy for the not-so-well-off parent and child, and for society? Why should the poor be barred from this experience so cherished by the bourgeoisie? The scheme does, of course, maintain the comfort of the teachers union, but can we find something more positive in its favor? I cannot.

If there be anything needed in American education, it is the recognition that no parent should be stripped of authority and responsibility because of her economic status; that no child should be required to witness parenthood as a feeble institution worthy only of pity and escape; and that no society should arrange its schools so as to convince its less monied parents that their authority and capacity are despised by the rest of us. It is a recipe for social disaster, one that may explain much of our current national angst. Let’s fix it.

April 26, 2019 0 comment

Jack Coons School Choice

A voice – and a song – for choice

John E. Coons April 4, 2019

John E. Coons

Jack Coons co-authored “Education by Choice” in 1978 with fellow Berkeley law professor Stephen Sugarman.

School choice is an idea that, without offense to its opponents, one could call “happy.”

Commentary: Of rights and powers: state and parent

John E. Coons March 21, 2019

John E. Coons

Jack Coons, pictured here, co-authored “Education by Choice” in 1978 with fellow Berkeley law professor Stephen Sugarman.

Law uses the term “right(s)” in various ways; in its most common version, the concept includes a sub-species called “power(s),” a word that I will deploy here: We say that a scoutmaster has the right and power to expel (or not) the miscreant young Henry from Troop 40; my drill sergeant had the power to make me do push-ups. In this brief essay I will suggest that, in dealing with children and families, it could be useful to understand the parents’ authority in this way as a subcategory of right, one quite distinct from what I will call a “pure” right.

That latter term will mean the freedom to engage (or not) in some action that does not diminish any right enjoyed by others. I may stand (or not) for the flag; I may read what I please, swim in the creek, choose my dinner, criticize the government, fly to Chicago. Others have their own right to criticize my choices but not to impede their exercise.

Powers are rights but more than this “pure” version; they do, indeed, diminish the rights of others. A contemporary legal dictionary defines power as follows: Dominance, control, or influence over another … the ability … to alter, by an act of will, the rights, duties, liabilities, or other legal relations … of another.

Could there be a clearer image of the parents’ relation to the child? The not-yet-18 boy or girl must obey a parent’s orders, whether they involve dessert, bedtime, prayers, football, driver’s license, or enrolling in the Joe Smith private school. The parent lays down the law.

Of course, parental power is not without limit. The child has pure rights that formal government is bound to protect; we say that the state has the legal duty to intervene under various circumstances such as physical abuse by, or sheer incapacity of, the parent. For such cases, the state, in the idiom of its own law, acts “in loco parentis”; it becomes mom and dad for basic protections until either things are put right at home or legal adoption of the child identifies a new mom and dad, thus relocating and reanimating the parental power.

Does this word play matter to an understanding of family law? I think it clarifies our discourse and helps the family defender portray to the politician and judge the unique role of parent as lawmaker, one quite distinct from, and in fact superior to, that of the state itself within the broad zone of parental sovereignty.

Further, it clarifies the reality that the source of this power, whatever it be, is not some written constitution, state or federal. Parents enjoy their unique status anterior to and quite apart from any “positive” law; formal government recognizes their status and concedes their authority, short of abuse. Not all American law gets enacted by formal government. Parents constitute 80 million true sovereignties over their minor children.

Has this reality any importance for the world of schooling? It should at least help to clarify our public discourse. To begin, all parents have, not merely the duty, but the legal right and power to choose a school for their child. Sadly, this country has arranged the enjoyment of this power-right for only some families, while deliberately frustrating it for others. It is quite fair to say that we have truly “public” schools for middle-class families like my own; we could afford to, and did, move within a block of the splendid John Muir Elementary in Berkeley, California.

A few blocks to the south, in less affluent neighborhoods, the parents’ power to choose was quite unnecessarily frustrated. According to my dictionary, their schools were anything but “a place to which the general public has a right to resort.” For enrollment in such inner-city schools, the appropriate term is not the “right to resort,” but rather, the “conscription” or “abduction” of the child. The parents’ power to choose has been deliberately and unnecessarily frustrated.

This system for drafting the poor had its origin in the class and religious prejudice of the 19^th century. It has survived in large part as the device for protection of the managers of these condemned institutions and the bosses of their teachers unions. As Albert Shanker told me on several occasions, “I will start representing children when they start paying union dues” – which, by the way, each student truly does, providing jobs by his conscripted presence.

It is the lawyers’ duty to help clarify our public discourse about the moral and civic disaster maintained by our very deliberate economic hobbling of the low-income parent for the benefit of a union hierarchy. The power (and right) of every mother and father is a precious thing; and the purposeful confusion about the publicness of these “public” schools that frustrate parental choice needs clarification by the pens and voices of the media and the legal profession.

My wee contribution might be to suggest to the truly “public” lawyer a yet untried constitutional response to the civic tragedy of our schools. The Ninth Amendment in the Bill of Rights purports to protect “rights” that were not “enumerated” in the 1787 text of the Constitution. Some justices of the Supreme Court have taken the Ninth seriously for interests of a sort they felt to be especially deserving of federal protection; others on the court have regarded such “discoveries” as the fruit of an undefinable and dangerously open-ended concept.

Recall again that powers are themselves one form of legal “right.” Those of the parent just might escape these very plausible fears of the justices. The parental regime is, by a millennium or two, older than our constitutions, federal and state. It has since the 1920s been specifically recognized by the Supreme Court under the Due Process guarantee of the Fourteenth Amendment but has never quite escaped the shadow of its legal origin among long-discredited judicial protections of business interests under the same language. Still, the reality of the parental sovereignty is plain, both as right and as power. Poverty lawyers could be invoking the Ninth Amendment to challenge the state’s drafting of inner-city children by government strangers who benefit from their captive status.

March 21, 2019 0 comment

Education Politics Jack Coons Parental Choice School Choice Unionism

Teachers unions: Must they be preserved?

John E. Coons February 19, 2019

John E. Coons

Public teachers unions should swallow hard and concede the need for parental sovereignty, “even” for the poor.

There is nothing to prevent teachers unions starting their own charter schools. Indeed, here and there, a few have done so. Yet most union leaders constantly blast this option as “private” and “wasteful” and “un-American” and “segregationist” and . . . (fill in the blank).

At least one of these intended insults seems valid, but an unwitting compliment; most charters are essentially a private undertaking. The degree of their insularity from the “public” system varies depending on state law and the terms of their individual charters, but, after all, any separation of a school from the system in order to do it Joe Smith’s own way will make it more private than P.S. 666. That is the very point of the charter option.

Charters are competitive. Without student applications, there comes no money – and no school; with enough parent customers, it will flourish. Together, parent and school make private enterprise work as it is supposed to. The happy parent tells her neighbor, who tells her neighbor, and so on. Over time, a successful school may even become a collection of such schools strategically located; already, we witness this process in certain large cities.

Is this bad? If the families come to a school by free choice, I can’t think so. It is precisely what middle-class parents do by moving to the suburbs. In theory, we could worry about a private (instead of public) monopoly, but so far, the supply of charters, diverse in type, shows no end, and one good reason is plain. Education is not some unique rare metal. It is a product highly personal and diverse in style and designed (if allowed) to serve a range of parental tastes and their child’s specific needs. The school, of course, must meet some minimum and truly public standard. From there, the only question is whether it can satisfy enough parents to survive.

There are, thus, questions of design and practice. Should a school be free to refuse enrollment to the unpromising child who parents decide could most benefit from its style? And, on the other hand, must a school which is “successful” at academics arrange its own demise by becoming wholly unselective?

Since 1970, in books and essays, Stephen Sugarman and I have together addressed this issue of balance, proposing a variety of approaches to such regulation in very specific model statutes. Each has represented a different form of compromise by which the school could preserve its identity while accepting a number of students who, but for its charter form, would have been denied admission.

Schools that retain total control of admissions would not become charters, but same sex schools would be welcome. Charter schools, as the union complains, are essentially private, and the law should keep them so. One day the Supreme Court may recognize this, making the charter a very plausible constitutional option for the churches of the inner city.

There would, of course, be problems of adaption for such faith-based schools and for the state. Our models have detailed various compromises, for example, recognizing the schools’ duty, at least to some extent, to disregard parental belief when regulating admissions as, for example, by determining a third or half of invitations by lottery among all applicants still unchosen.

The dissenter should, however, if the school prefers, take and pass courses in the creed along with the believer, so long as neither belief nor sectarian behavior is required of the child, and he or she is treated with full respect.

Public teachers unions should swallow hard and concede the need for parental sovereignty, “even” for the poor. As presently established, these organizations are underequipped to serve choiceless low-income families. Instead, they serve the system by a form of bondage.

February 19, 2019 1 comment

Courts Jack Coons School Choice

Coons: More than money

John E. Coons December 11, 2018

John E. Coons

Public school parents in Rhode Island are looking towards the justice system to curb what they say is a disturbing lack of civics instruction in the state’s high school classrooms.

Public school parents in Rhode Island have asked a federal court to declare that the state’s very spotty provision of instruction in civics and related humanities violates constitutional rights of its high school students. Their complaint has it that, especially in poor neighborhoods, children are taught shockingly little about our state and federal governments and the expected role of the citizen in jury service, voting, taxation and so forth. It seems that fewer than half our states even require the teaching of civics, and the Rhode Island suit would put that failure to the test of “equal protection” and other guarantees.

The New York Times suggests this complaint by parents and children will face unfriendly Supreme Court precedent, specifically, the Rodriguez decision of 1973 which held roughly that states had no federal constitutional duty to assure each school district equal power to spend per pupil above some minimum. The Times takes Rodriguez to be a serious impediment to the Rhode Island suit, though the writer suggests Chief Justice Roberts just might cross the line and give plaintiffs the deciding fifth vote.

I applaud the Rhode Island plaintiffs and am a bit cheerier about their prospects. The Rodriguez decision had nothing to do with any right to specific intellectual content; it concerned only the inequality among the school districts in their capacity, via locally chosen property tax rates, to raise dollars per pupil. The Court decided 5-4 that the disadvantage of property-poor districts was no violation of a child’s right to equal protection.

The Rhode Island complaint is focused, rather, on spending for specific educational purposes; it is about ideas. A part of the child’s basic ideological diet – civic affairs and citizen responsibilities – is being neglected. This is not a money case. It is, rather, the claim that the state cannot conscript children from poor families for an education that is limited to the purely instrumental – to learning skills, not serious civics or personal morality.

The founders of our government school systems saw and emphasized exactly what these plaintiffs seek; it was for those pioneers the primary justification for compelling formal education. Governmental failure here today, if proved, might well implicate a child and parent’s right to an introduction of our young draftees to the endless conversation about civic morality. After all, there is that strong judicial concern about access to ideas, a basic caution lodged in our First Amendment.

I have not seen the complaint. I doubt the lawyers overlooked this source of strength for their clients’ cause, and I wish them luck. Their victory would avail nothing, however, toward correcting the sad reality that low-income parents still would lack the authority of the more financially able to choose their children’s school, either by residential location or paying tuition. The poor will still get whatever the local system decides, or is directed by the courts, to offer in the way of intellectual support for a democratic society.

And still another idea denied the mind of the child will be that the making of a full person may entail the quest for a good that one does not invent – that entails more than “finding yourself.” Every 6-year-old senses a responsibility that no government has decreed but which all states should respect and nurture in their schools. Once that native hunch in the child’s mind has been starved and shrunken, what sort of civic responsibility are we entitled to expect?

I hope these plaintiffs succeed, but let’s be realistic. Such a victory will do little to liberate the lower-income family from the “civics” curriculum to be selected and imposed upon them by unchosen strangers.

December 11, 2018 0 comment