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In Defense of the Sovereign Family

Mon, 01 Dec 2008 00:00:00 -0500

Government alone is where law can be found. At least, the American people generally think so. That the state holds a monopoly on the making and enforcement of law is a reasonable, if vague, inference from the message of lawyers, scholars, journalists, and activists, all of whom focus on the works of legislators, executives, and courts. That is the only kind of law that appears in the headlines or the fundraising letters of activist groups. Government alone is where law can be found.

Among theorists of law, this view that the state has cornered the market is usually called positivism . At its historical extreme, positivism produces what Henry Maine defined in the nineteenth century as law “stripped of every attribute except coercing force.” Few writers take so crabbed a view today, sensitive as they now are to fuzzy realities such as culture, economics, utility”indeed, to many things (so long as no one mentions God or Nature).

Every such concession to other sources of law obviously makes state monopoly less plausible. Nevertheless, let us take the monopolist seriously and ask the straightforward question: Does law in the United States consist of nothing but the doings of the federal and state systems, or are there regimes that create and enforce authentic law beyond their reach? Do some persons or institutions make and enforce commands that no state or federal government can preempt or forbid?

The answer is yes , even if law is understood entirely in the positivist way, as the sheer authority to command with force sufficient to secure habitual obedience. The parents of underage children form a good example, for they are themselves genuine lawmakers. Because too many people believe that only the government makes law, the lawmaking role of parents has been largely invisible, and this invisibility has practical and unfortunate consequences for American culture and jurisprudence.

The original form of the American Constitution may be read as reserving to the individual states the authority to occupy law’s entire province, minus the federal fraction. But language expressly limiting the range of governmental law entered the national text in 1791, as nervous founders added the Ninth and Tenth Amendments in the Bill of Rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The most obvious aim of these reservations was to create a hedge against tendencies to monopoly not by the states but by the new federal regime. But, in doing so, they also by implication limited the power of the states to occupy all of the remaining range of lawmaking. Given the references to “the people,” it is hard to read these texts as an invitation to a local monopoly by, say, Oregon or Wisconsin. The people hold ground of their own in both amendments. The word or in the Tenth Amendment even makes the individual state and its people competitors in the creation of law, suggesting that the two could exercise their powers contrarily within the uncharted zone.

Writers on the Constitution typically reduce this potential conflict to the practical point that the people can never actually exercise any powers except through the ponderous amendment process that is dominated by established institutions, themselves part of the formal government’s monopoly of law. That argument descends to the level of pure politics”and it is also wrong. There is a discrete and powerful motor here, if we are willing to recognize it: The Constitution contains a clear textual recognition that ideas”and even rules”about the common good can originate outside the state and be entitled to dignified reception (“not . . . disparaged”) when presented for recognition as law.

Indeed, on occasion, such notions have already appeared in the court and have been honored. Many thinkers and judges”especially conservatives”are wary of them, since the “right of privacy,” said by the Supreme Court to arise from the Constitution as an “emanation” from the “penumbras” of established rights, has expanded federal power far beyond the Constitutional limits. These tropes have been objects of satire, but in truth they are images invited by both the Ninth and Tenth Amendments.

Of course, though the Constitution rejects the idea of the state’s legal monopoly, the real world might still be monopolistic. And to disprove such a practical monopoly of the state, we would need to find some legal Oz (maybe in Kansas) where, say, Jones makes rules and successfully enforces them against Smith without warrant of legislature, executive, or judge.

The Catholic Church is sometimes suggested as an authentic lawmaker, and, indeed, it sometimes describes itself that way. Under our narrow positivist definition of law, however, the example must be rejected. One missing element is physical force. In America, the Church invokes the sword in accord with the rules of secular government. The bishop may call in the sheriff but only where Leviathan allows. The Church is a voluntary order in which its congregants freely subject themselves to canon law. They obey its rules by choice, which leaves the Church out of our particular conversation.

There are versions of liberalism”in Thoreau, Whitman, Ayn Rand”that offer another possible lawmaker: the will and intellect of sovereign human individuals, subjectively imposing laws on themselves. Again, however, a missing element is force. The idea of forcing oneself is pure metaphor; in any case, it is not the sort of law acknowledged by positivists but more nearly its opposite: Law requires two minds at work”authority and subject.

International law is a far better example, for even many lawyers affirm that nations are subject to some wider circle of authority and rules. Though treaties are specifically legalized by the Constitution (and are thus a species of law that the state makes in a particular way), treaties do not exhaust international law. For centuries, basic rules have bound nations even in the absence of treaty agreements. Positivists are compelled to describe all these international rules as springing from implied mutual choices of sovereign nations. Indeed, they must describe international law this way if they hope to preserve the state as the monopolist of law. The castle of positivism wobbles.

A final example may be the Native American tribes. For some purposes, America deals with these citizens only by treaty. The law of Indian relations may be inconsistent and incoherent. Nonetheless, neither state nor federal government exhausts its content. Here are real lawmakers who make and enforce rules about, for example, child custody that no outside court can review.

That mention of child custody suggests our focus here. We resist the idea, as we do when we think of slavery, of one person having legal authority over another, as though the first were the owner of the second. But imagine that Smith is not the owner but, rather, the parent of Jones, a person below the “age of emancipation.” Under our positivist definition of law, can the parent be an authentic lawmaker for the child? Are there insular systems of law behind domestic doors?

It would seem so, looking at our history and the scattered decisions of our courts. Parents do command and enforce, and, with certain restrictions, the state admits that parents are the sole and inviolable lawgivers within the family. This domestic jurisdiction extends even to the child’s mind and body; and parents choose freely from a broad universe of commands and permissions, all of which exceed the will of the state. (I speak of parents, not the cluster we call “the family,” since the family, as such, does not make law. Individual parents make law for the sons and daughters who are their subjects.)

Indeed, parents, as a source of law, are an embodied unity of the three powers that our state and federal constitutions keep separate. Parents are, to their children, a government more nearly complete than the state itself: legislator, executive, and judge. They make and administer rules, adjudicate infractions, and execute corrections. Parents constitute a uniquely integrated system of law, a parentarchy or parentocracy . They may divorce, or die, or put their children up for adoption, but still it will not be the state that rules the child.

By consistent judicial recognition the state needs either permission or an emergency to cross the line of domestic jurisdiction in the exercise of its police power. Recently the Supreme Court held that a surviving parent can narrowly limit visitation even by doting grandparents. Though their intimacy might benefit the child, the grandparents’ occasions to see their grandchildren are ruled by the parents, not the state.

None of this evidence engages the mind of the monopolist, who believes that no one can create authentic law beyond the reach of the state and insists that the state provides parents what legal authority they have. Though the state lacks the authority to define or impose any specific version of the good life on children, somehow governments delegate to parents, as agents, the authority to bring up citizens. Both the origin of this supposed delegation and its legal irrevocability are mystical. Yet the claim is often endorsed by state professionals. As they propose government regulation of parental choices, the experts on child welfare and education rest on the state’s authority to delegate its authority over the child to another”usually but not necessarily the parent.

One can admire this cheery confidence. What confounds is the fact that such statist actors, in their private role as parents, typically exercise almost exclusive dominion over the minds and bodies of their own children. It is unthinkable to them that the state could replace them in defining the good life. I applaud this private hegemony. I only wonder how, once back at the office, Doctor Suburbia resumes his conviction that his unmonied clients received their parental portfolios from, say, the state of Alabama.

Nothing in American history or law supports this class dichotomy. There is only the practical tendency of state professionals to exact deference from poor parents. No mystical claim of delegation can give the American state powers it has never enjoyed. Beyond the practical exception of the poor parent subjected to the rulings of Doctor Suburbia and his peers, the American parent remains the locus of command par excellence: a regime that creates and enforces authentic law beyond the reach of the state, an institution that makes and enforces commands the state cannot preempt or forbid.

When they act as lawmakers, the nation’s parents legislate a wide variety of visions of truth and the good life, and they impose their own regimes to encourage the child’s endorsement of the project. Every such private regime will offend somebody, and the critics prove as diverse as the parents they judge. The statist and the monopolist find this pied landscape of mini-monarchies unsettling. The endless variety of family regimes is an emergent product of many forces, but always these include the decisions of the parents, as they regulate their own children. They lay down their own law and produce an American crazy quilt.

This radical pluralism holds even though neither the Constitution nor the Declaration of Independence refers to parent, child, or family. Why were the Founders silent about so fundamental a legal reality as parental authority? So far as 1787 is concerned, the answer is clear: They saw no need to express the obvious. It was not the parent but the state whose jurisdiction needed to be justified by a specific social contract. The notion that the newly invented federal government”or their own states”could redesign the legal relation of parents to their children would never have occurred to them.

It would take, in fact, a good deal of nineteenth- and twentieth-century incubation before anyone needed to worry about the threat posed by parent autonomy. To be sure, the various cults of social efficiency were already abroad, and John Dewey would have his day. He might be having it yet but for enthusiasts in Oregon who, in 1920, took state monopoly of schooling so seriously as to depose the parent altogether. That was a miscalculation, and, in the 1925 Pierce decision that rejected Oregon’s law, an agitated Supreme Court reeled off half a dozen slogans that have been dear to champions of parental power ever since. American children may be on their way to personal autonomy, but, as long as they are underage, parents direct their destiny.

The Pierce decision is famously unclear in its foundations. The court was deep in its campaign to rescue the individual from state regulation, and the judicial weapon of preference was the due-process clause tucked into the Fourteenth Amendment. The free-market reading of the clause was soon to disappear, but the civil-libertarian reading continues today, as the Fourteenth Amendment incorporates ever more of the guarantees discoverable in the Bill of Rights. All this has occurred with never an unkind judicial word for Pierce and its broad view of parental authority.

To be sure, many a modern child-welfare case relies on public authority to correct particular parental acts or failures (all of them forbidden as well to the state). But these do not contradict the parents’ separate authority. On the child’s behalf, the state insists that the child be fed, housed, medicated, and educated, but the parent continues to decide where and how. The judicial rhetoric that describes the roles of parent and state in these cases is always contrapuntal. Every opinion references “the state’s assertion of authority” and its emergency role as parens patriae , offset with reminders of “the private realm of family life which the state cannot enter.”

The confounding new element is the discovery of welfare rights of children themselves. Still, even when the law declares that children have rights the state must enforce against the parents, the state’s role is only to rescue the individual child. The parent remains the general authority, and, with the exception of children’s rights, the parent is law.

These rights do not threaten the parentocracy, which, at least since ancient Rome, has never claimed to be absolute. The state has only duties, children have only rights, and parents have species of both. Parents hold”under our Constitution and in our practice”the primary and broad power to choose and enforce rules for the child. The state’s jurisdiction is ad hoc and transient, while the parents’ is established and ongoing, being limited only at the physical, intellectual, and moral extremes.

A clear judicial recognition that parents are an independent source of law for their children”making and enforcing commands that no state or federal government can preempt or forbid”would have profound practical consequences. In the years to come, conflicts between agencies of the state and parents are likely to increase, and courts will be asked, more and more, to reexamine the limits of the parentocracy. Wealth and improving technology will constantly present new options for parents. The educational versatility of the Internet is making homeschooling easier and more attractive, for instance, letting more parents remove their children from the direct influence of the public-school system; already advocates of conscriptive public schooling worry that these children will not be properly socialized and given correct information about sex, medicine, the environment, or what-ever these advocates feel they need.

The significance of all this, however, depends less on who wins particular cases than on which of two master images dominates the consciousness of the nation’s judges: the image of delegation to parents from the monopoly state, or the counterimage of a sovereign parentocracy.

A proposed state ban on spanking, for example, will raise all the Fourteenth Amendment issues of free expression, religious belief and practice, and privacy . The Supreme Court could hold that in banning spanking the state is merely withdrawing a previous license it had delegated to the parent. Judicial approval of that master premise would endorse the convention of a state monopoly of law, leaving parental authority the creature of the text set in our artificial constitutions.

On the other hand, whether it bans or approves some specific treatment of the child, the court could recognize the status of parental power itself as a thing separate from state or federal constitutions; it would glimpse a “separation of parent and state.” This need not entail a loss of textually supported rights by the child as an individual; it is merely the recognition that the parental authority is grounded outside the formal architecture of government.

As broad images of this sort gradually become conventional, they also become consequential. A basic shift in perception might, for example, eventually extend parentocracy by empowering all families with a practical choice of school. In this epic project, the courts must be given confidence in their role as surveyor of the boundaries between parent and state.

Pierce was wrung out of a particular passage of our constitutional scripture and bears its historical baggage, and since 1925 the Supreme Court has found other constitutional guarantees of unique parental powers. Yet there is something odd in our dependence on all such texts. The parentocracy long predates them, and parents should not have to rely on the current courts’ interpretation of the Constitution for authority they have without it. The situation is complicated, for when parents act as litigants, they submit to the courts’ authority to delimit their dominion. They seem to stand both inside and outside the Constitution. Though their rule is prior to and separate from the state’s, it paradoxically depends on the courts to say so”and the courts themselves are part of the state.

The Ninth and Tenth Amendments assure that unyielded rights and powers of preexisting legal orders are unaffected by the adoption of the Constitution. Though protected by the text, they are distinct from the Constitution in both origin and continuation. The powers peculiar to parents are thus not delegated. In this view, the role of the Court can be explained as a form of consensual arbitration. By contract of sovereign parties, the courts are quite plausibly empowered to decide the scope of legal systems not dependent on the Constitution for their being and authority. The adjudication of the boundary proceeds by consent, practical wisdom, and long tradition. The Ninth and Tenth Amendments authorize courts to decide the state’s conflicts with tribes, nations, “the people,” and certainly parents, who authorize the courts to decide with finality. The Supreme Court does not act either as or for the state but as the arbiter of claims of legal sovereigns who need a way to live together by some rule more humane than naked power.

One day the courts might recognize the Ninth and Tenth Amendments as declarations of the deference owed by the state to nonconstitutional but real systems of law. It could respect the preconstitutional, indeed prehistoric, jurisprudential reality of the family. This judicial apprehension of a commonwealth of authorities, new and old, would suit the dignity of the legal supremacies that the Supreme Court must reconcile.

This opportunity will be lost to the justices if they remain stuck fast in the due-process clause and other confusions. What is at stake in recognizing the parent as a lawgiver whose law exists and operates separately from the state’s is not the granting of a right”it is the recognition of a power and the responsibility that goes with it. This has been the American practice since the beginning, and in diffuse ways the courts have said as much. Nonetheless, the notion of the state’s legal monopoly has become generally accepted and, with it, the destructive idea that parents receive their authority from the state has grown. In rediscovering parental dominion as something independent of, but recognized and protected by, the Constitution, the Supreme Court can restore the Constitutional order and help restore the family.

The denouement may come in an epic clash over the teaching of the good life. In the modern folktale of schooling, the state first makes education come to be and then gives access to all. Perhaps in the Great School Case of 2025”the centenary of Pierce ”a state will be called to defend itself against the demand of indigent parents for a subsidy sufficient to enable the exercise of their power to choose schools for their children.

The parents will argue that the state may not, without justification, make education compulsory while frustrating parents’ authority by assigning the child to a particular school. The state will respond that coercive assignment to a government school better ensures the diversity of the student body and a common curriculum of civic values.

In point of fact, the state’s arguments fail. The claim that the old system promotes social diversity is a historical canard that will not stand scrutiny. The other claim”for a common-values curriculum”is no better, though it awaits empirical test. American society is now locked in conflicts about gender roles, bioethics, stem-cell research, guns, abortion, sports, chastity, spanking, and much else. Many public teachers prudently strive to avoid issues of value altogether, creating an antinomian environment that is the antithesis of a civic ethic. There simply is no values curriculum that could represent the American Mind. The professional educator’s displacement of the parentocracy cannot be justified by a nonexistent civics.

And it is precisely here that preemption by the state will be most vulnerable. Where the act that is commanded cannot serve the objective of the commander, law fails. A minimal compatibility of ends and means is required”not the systemic disconnection between ends and means that we now have in state regimes of schooling.

Practically speaking, if it is really to recognize the reality of the parentocracy, the state must create some financial arrangement that will enable, and not frustrate, the parents’ authority to educate their children. Doctor Suburbia is on to something. Parental command encourages family integrity and personal responsibility, while the state’s conscription of the child encourages passivity and with it a general withdrawal from personal responsibility.

Can anyone argue that the purpose of schooling is being served by that? Can this be law, when one lawgiver deposes another?

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A Grammar of the Self

Wed, 01 Jan 2003 00:00:00 -0500

You cannot call up any wilder vision than a city in which men ask themselves whether they have any selves.

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Populism and Parental Choice

Wed, 01 Nov 2000 00:00:00 -0500

Civility is breaking out in a hotly contested sector of the culture war. For thirty years armies of authors have savaged one another over whether society should assure have“not families free access to all schools. The claims made for and against subsidized school choice have been extravagant, which is good reason to welcome the publication of serious and balanced works”four of which I will consider in the course of my argument”from mainstream intellectuals. These voices, though tentative and discordant, all respond to the insight emergent among the urban poor and working class”that parental choice is an issue of civil rights and basic justice.

To appreciate the four books under discussion (there are others deserving attention) requires first an orienting bit of ideological history, telling how we got here, and then some idea of where the discussion seems headed. This debate remains hobbled, as we shall see, by the widespread but false assumption that our state schools currently provide a truly “public” education. Nonetheless, these new developments are promising”the populist impulse behind school choice may yet receive its fair hearing.

For practical purposes the debate on parental choice began in 1960 with Milton Friedman’s Capitalism and Freedom . The book was a libertarian manifesto, an apotheosis of the market; in education as elsewhere Friedman portrayed consumer freedom as virtually a good in itself. Almost immediately, however, welfare politics reduced Friedman’s ideas to instrumental status, as liberal Democrats seized upon vouchers as a weapon to be wielded in the War on Poverty. As a result, the literature on school choice was for a decade suffused with a practical and fabian tone. The primary issue for welfare warriors Stephen Sugarman, Christopher Jencks, and Stephen Arons was to specify institutional designs whereby choice in both private and public sectors could help non“rich families rescue their children from conscription into failed schools. At one memorable moment, Daniel P. Moynihan suggested that Congress convert federal educational subventions into vouchers for the poor.

The Democratic flirtation with the idea eventually fizzled, leaving it to economists to raise the banner of school choice. It happened this way: in the 1970s, as economic theory became the darling of policy makers, the understanding of the market as just one practical tool among others lost center stage. The freedom to choose was elevated from a means to an end, subsuming arguments specific to school choice under the same justifications offered for the deregulation of banks and airlines. Along with travel and finance, schools were another consumer service in which competition and creative destruction were to reduce friction. Milton Friedman seemed to have enjoyed his libertarian revenge.

Government educators and their unions shrewdly perceived this as a political opportunity; they simply confirmed and then exaggerated this truncated image of a market for schools. The National Education Association and the American Federation of Teachers would concede that the invisible hand, in its Darwinian fashion, might achieve more efficient delivery. What it could not do, they said, is tell society what it would be good to deliver. Their favorite comparison was between franchised schools and franchised hamburgers. Education is not like fast food or airlines, they rightly pointed out; it has values apart from personal preference, and professionals not subject to market pressures know what these are.

The debate between the marketeers and the school monopoly sputtered on in this polarized and vacuous form through the late 1980s. The economists wrote books about efficiency, and the schoolmasters responded with books about democracy, as if the two were oil and water. The marketeers compounded their own isolation by rejecting overtures from liberal Democrats who believed that school choice could be presented as a hope for the underclass. In four states and the District of Columbia, libertarians sent initiatives to the ballot after stripping them of all regulation that would protect low“income families”a condition for the support of moderates, who now stood aside. Albert Shanker once expressed to me his delight at this self“marginalization of advocates for choice; he accurately forecast that only 30 percent of voters would support the libertarian petards.

The phony polarity of this debate has now disappeared in light of the extremely promising Milwaukee voucher program and its sequels outside Wisconsin. With some real experiences to study, we are once again able to ask whether school choice, properly designed, can serve a range of democratic and human values”including efficiency”in a manner superior to the traditional school monopoly. Our four authors approach this question directly and indirectly, in ways that conflict but also illuminate. The first two come upon the stage expressly as “liberal” philosophers; for them this word has ultimate moral significance. Once you understand what is truly liberal, you know what to do with the schools.

Indeed, Meira Levinson aggressively entitles her book The Demands of Liberal Education (Oxford University Press, 250 pp., $35). To understand how liberalism gets so demanding the reader must join the author inside the unisphere of modern liberal thought. “I have not tried to convince individuals of the desirability of liberalism itself,” she writes. “I took liberalism as a given.” Nevertheless, she is keen to distinguish herself from shipmates less correct, especially Rawlsian “political liberals” who tend to be soft on the sorts of ideological crime that swarm out there in a pluralist society. She seems more comfortable around “comprehensive liberals,” who might hope to extend their influence beyond the public square. It would take a more perceptive reviewer to tell the differences among the sects. Here I focus only upon her institutional ideal for delivering education in the liberal mode. Its real“life chances are zero, but the view is instructive.

Levinson tells the reader that the core purpose of liberal education is the flourishing of personal autonomy; all else is subordinate. Happily, other benign civic ideals such as tolerance are also best served by the liberal program of schooling as it goes about the nourishing of autonomy. The embodiment of that program in a working system becomes quite complex in a pluralist social order, because there are versions of the good life and the civic ideal that compete with the liberal vision. That is, they rest upon philosophical or religious premises that reject the right of the individual to choose his or her own concept of the good. Much of the book is given over to lamenting irreconcilable conflicts between certain Christians (especially “fundamentalists”) and the author’s own liberal “demands.” These practical threats from the Christians are largely unspecified but, for her purpose, may remain so. It is enough that these religious folk would hold the free individual child responsible to an external moral authority; parental hopes of this sort could never satisfy the ideal of autonomy, hence are properly (could one say “morally”?) excluded from the liberal curriculum.

But Levinson sees that childhood complicates the liberal ideal. Children stand in special need of liberal protection; yet their very autonomy requires resources that are hard to duplicate outside the family. These include not only the means of survival and safety, but the “cultural coherence” and “identity” that make us real persons. This seems a dilemma, for when parents are allowed to create the coherence that comes simply from being themselves, they notoriously thwart autonomy and frustrate little liberal identities.

The best a liberal can do is to limit these opportunities for parents to act as bearers of specifically illiberal ideas, while educating the society toward the emergence of a new social consciousness (even among parents) that will support the assignment of every child to a “common school,” meaning one that presents every reasonable idea”but no other. These schools, when they arrive, will interdict all “fundamental conceptions of the good,” for autonomy requires the “sense of detachment,” even”or especially”from one’s own beliefs; the autonomous child is one who holds his own convictions in constant and liberating suspension, “detached from local and parental control.”

This regime need not entail complete neglect of the child’s need for “cultural coherence”; again, the family must be respected in some dimension if the child’s identity is to be confirmed. This is not impossible even in a pluralist society, so long as the liberal school confirms only that part of the family repertoire which is neither philosophically nor religiously fundamental. This means that some families will have few or none of their values confirmed inside the school; but many children from these morally oppressive home environments may discover a coherence and identity”a substitute family”right there in the school.

The liberal educator anticipates that families who are diverse in belief will value choice in education. To a degree, this impulse can be good, since individual children respond differently to different teaching methods in the pursuit of autonomy. There is reason, then, to allow pedagogical options”even through vouchers”so long as all schools embrace the liberal curriculum of sound ideas. Of course, as Levinson laconically observes, there would be “little if anything to distinguish private” from state schools. And, by the way, with or without vouchers, she would impose regulation upon all private schools so as to secure the liberal objective, and would “embed children’s rights to an autonomy“promoting education in the Constitution.” Meanwhile, Supreme Court decisions enunciating parental rights, such as Pierce v. the Society of Sisters (1925), must be “interpreted.” In the end, she is happy, if necessary, to impose the liberal ideal by force, but for this we first “must change . . . beliefs and values.” Levinson is certainly correct about the chasm between this vision and the hopes of those outside her liberal cloister. The book is heuristic and provocative. One wishes that Orwell could have read it.

Stephen Macedo holds the chair of Politics and Values at Princeton and returns to a favorite theme in his Diversity and Dissent: Civic Education in a Multicultural Society (Harvard University Press, 384 pp., $45) . Like Ms. Levinson he resides under the dome of liberal thought and fears the influence of kerygmatic religion out there in the public square. Inside the fraternity he is distinguishable as a “civic liberal” whose stewardship of schools would be a hair more trusting of the poor and dissident than Levinson’s. He hopes he is consistent with John Rawls’ “political liberalism,” but he “goes beyond” Rawls by specifying “an account of the political and social structures that help promote a publicly reasonable liberal community.” Macedo’s ambitions are cosmic: “We work to transform the whole of the moral world in the image of our most basic political values.” One braces for a Big Bang, but the pace is measured.

The book commences with specifics about the threat to education from religion, at least in its historical forms. His flagship example is the rejection during the 1840s by New York’s Catholic Archbishop John Hughes of a proposal for religious neutrality within the state schools. Hughes deemed neutrality unfair to believers and, in any case, impossible to achieve; the just and equitable solution, he said, would be the support of all ideas without discrimination. This was not to be, and, given mid“century fears of an impending “Romanist” majority in America, Macedo allows that the states’ decision to monopolize tax“supported education could even be glossed as a hedge for freedom (i.e., from a foreign power). Macedo, however, does not bless the ensuing century of Protestant state curriculum, and carefully applauds the Catholic social outlook of our own time as it recrystalized in Vatican II. For this transformation of the Church he credits America herself, though just how a state school monopoly segregated by race and class helped Rome to see the light is unexplained.

For Macedo this nineteenth“century history stands principally as a cautionary tale for moderns, one in which Jerry Falwell is made to play Pius IX. Whatever the reality of the old Roman menace, Macedo’s demonization of today’s Christian enthusiasts seems far“fetched, and he cites little evidence to support his argument. Both Levinson and Macedo make too much of a few publicized courtroom skirmishes, notably the federal litigation entitled Mozert v. Hawkins County Board of Education . In that case, fundamentalist parents in Tennessee discovered what they considered antireligious themes in the local public school curriculum. Like the Amish, Jehovah’s Witnesses, and others before them, these plaintiffs were content to have the rest of the students learn the material, merely seeking an exemption for themselves. (They lost.) To conjure a threat to liberal values from a few such cases seems out of proportion.

In any case, religious dissenters make an odd primary target. How much, if at all, do these outliers and their beliefs contribute to our present culture of incivility? Most of America’s anxieties in this area concern not bad beliefs but bad conduct , posing three very earthly”and earthy”questions for the educational mission: 1) What behavior is correct? 2) What source , if any, obliges humans to pursue it? 3) In cases of doubt, how does one reason toward it?

Unfortunately, these questions are alien to the liberal, at least in public space; these good deeds are not something to be identified in some pre“institutional order of real moral relations. Indeed, for many liberals the good is not a discovery at all, but rather the imaginative conception of some possible state that the individual may or may not choose to seek. The creative process begins for Macedo “by defining an objective human good.” In this view, “the law is the only public morality we have.”

This effort to detach the good from natural (much less religious) sources and from specific moral content is, of course, familiar. Liberals would have us invent the terms of public life without regard to conceptions of the good that are inaccessible to unaided reason. This does not mean that they are personally allergic to real morality. Indeed, in their families and private lives many treat proper conduct as if it were something nonnegotiable; it may be this experience of the authentic good that often makes the institutions that liberals propose more sensible than the arguments they offer for them. In any case, they need broad consent for their inventions; hence they often respect in practice the plebeian premise they reject in theory”that human freedom is a thing given and yet bounded.

Our authors nonetheless see parents in general as a threat to the primary liberal objective of autonomy. It follows that family dominion must be limited to a parental “privilege” coupled with the duty (not the right) to direct the quotidian details of childrearing. Meanwhile, in the school the state must stand vigilant to rescue the child’s mind from commitment to every fundamental moral or religious conception, for these tend to become permanent premises that only frustrate the march toward autonomy. Neither author attaches particular value to a diversity of ideas, cultures, or ways of life; when the liberal school has its day, it will honor only those versions that meet the standard of “public reason.”

In my view neither book makes enough of the poisonous effects of the present school monopoly upon the very values that liberals cherish. Nor does either author highlight the explosion of public charter schools; perhaps this new diversity only compounds the liberal fear. In these books, even talk of vouchers is brief. Levinson highlights criticisms from early studies of Milwaukee, neglecting the now dominant success stories. Macedo thinks that parental choice depletes our moral capital, while monopoly “helps to advance values.” But he is far from closed“minded, and”having whispered “I will ne’er consent””in the end consents to properly regulated vouchers even for religious schools that are not (in that happy phrase) “pervasively sectarian.”

Turning to Rosemary C. Salomone provides something of a relief from ideology. Not that her book Visions of Schooling: Conscience, Community, and Common Education (Yale University Press, 352 pp., $30) is anything but liberal in spirit or content; indeed, she appreciates Macedo’s earlier work, and she can recite the orthodoxies of the liberal sects. But she is not herself anxious to satisfy any litmus test or to privilege one authentic version of the creed. Indeed, Visions is more a story”even a pageant”than a unified theory. It is a well“tempered tale of ideas at war over the concept of a common school.

From the beginning, Salomone says, certain American educators wanted the state school “to be inclusive by being uncontroversial”; for others public education was to practice straightforward “imposition and indoctrination.” Yet a few others hoped the school might be diverse and inviting to all ideas. What was common to neutralists, inculcators, and eclectics was the impulse to disconnect the child from the lower“class family. We hear from Salomone how these contrasting and harmonizing aspirations played out in prolonged ideological struggle inside and outside (and for and against) the public monopoly.

This is an oft“told tale but includes new insight from two resources specific to the author. One is her professional grasp of the constitutional principles at stake; she is a professor of law at St. John’s University in New York and in full command of the legal sources as well as the many sub“ isms of liberal philosophy. The other is her book’s initial inspiration; it rises out of Salomone’s earlier study of an outbreak in the 1990s of parental dissent in the patrician New York suburb of Bedford. A long chapter of Visions summarizes this story, and the five chapters preceding it are an artful Baedeker to the incubating theories of lawyers, philosophers, educators, and dissident families that met head“on in the Bedford high school.

The objecting parents in this tale cooperate with central casting by being Christian”but with a twist. These are not Appalachian fundamentalists but a half dozen suburban Catholic professionals. I won’t spoil the story, but in brief these parents think that weird cultic stuff is going on at the elegant state school their children attend. They are partly right but wind up with most citizens mad at them, including the trial judge who gives them only a partial victory in litigation. (The case is now on appeal.)

The Bedford story confirms the ubiquity of conflict and ideological imposition within the traditional governmental schools, and not only over specifically religious issues. Such conflicts seem inevitable to Salomone, who tends to picture tax“supported schools as a unitary ideological system that must cope with a diverse clientele. She considers one remedy that might heal and justify the old monolith: simple accommodation, where schools excuse dissenters from the offending portions of the curriculum. To this reader her argument here seems (properly) half“hearted and even despairing; in any case it ends in a near requiem for the “neighborhood school as [representative] of a functional community.” She sees now that America has succeeded in creating ideological diversity even among the wealthy”one size can never fit all”and she lacks Levinson’s stomach for universal coercion.

Or does she? In the end, as her preferred solution, Salomone would extend a more or less uniform state curriculum to the private sector but now within a system of choice”charters and vouchers. She would include only those religious schools “that agree to advance certain core political principles and comply with educational standards imposed by the state to assure . . . adequate education for democratic citizenship.” This uniform civic curriculum is, she thinks, “a relatively modest” proposal, but one wonders. It appears that she would add materially to the regulations that now affect private schools; but it is not made clear how these new restrictions would enhance the learning and good citizenship of their graduates. The social science of today tells us that these youngsters are already distinctly civil”at least by state school standards.

On this very note enter Charles L. Glenn, who, from a rather different planet, brings us The Ambiguous Embrace: Government and Faith“Based Schools and Social Agencies (Princeton University Press, 304 pp., $35). Glenn is an inner“city Episcopalian priest, a professor of comparative education at Boston University, and a father of seven. For many years he was chief designer and administrator of successful programs of racial integration in public schools that employ various mechanisms of choice. He is also our national guru on European systems of family empowerment. His new book is an invitation”enthusiastic and even (in some sense) liberal”to trust the family and its favored private institutions; but it is also, and first of all, a warning. Glenn dons the role of sentry for those private religious schools that Salomone and Macedo are prepared to embrace. He plays Cassandra, not as a bureaucrat manqué (he is unrepentant), but as a prudent steward of precious but fragile institutions.

Glenn first assembles and analyzes whatever social science has to tell us about the responses made by two sorts of religious institutions”schools and social agencies”to their experience of government regulation, money, or both. To this he adds fresh historical accounts of two prominent Protestant agencies, the Salvation Army and Teen Challenge (a drug recovery program); carefully he assesses their adjustments to public threats and enticements. All this is further enriched by recurrent comparisons of these domestic American encounters to European patterns of interrelation between private religious agencies and governments.

The evidence strongly suggests that faith“based social agencies and schools serve certain governmental social goals better than can government itself. Our national project to “reinvent government” thus should seek out the genius of those “mediating institutions” that happen to be religious. They affirm in their nature the transcendent duty of the Christian to serve the common good through the church and thus” ceteris paribus ”the duty to be open to service within government programs of contracting, grants, vouchers, and the like.

Glenn’s caveat is this: the efficacy of religious agents appears to be a direct function of maintaining their identity; they succeed at the secular task precisely when they conduct their work without suppressing their own beliefs, values, or confessional style. Liaison with government can threaten this religious identity through clumsy regulation. The federal “charitable choice” provisions presently assure some measure of religious freedom to private social agencies; strangely, however, there is no constitutional or statutory counterpart in education. Religious schools must beware the sirens of subsidized choice.

Nor is government itself even the chief source of danger. Glenn shows that the identity of religious agencies and schools is vulnerable, first and foremost, to standards touted by private professionals. Their impulse to rationalize and regulate charitable work is plausible and hard to resist even inside the religious organization. It goes down hard with professionals (and their sometime government sponsors) to hear that, for many clients, therapeutic programs work precisely because they deploy the enthusiasm and spontaneity of amateurs. Glenn allows that professionalism must be respected; the trick is to regulate minimally and in a manner that preserves the religious identity of the provider.

Glenn makes his warning vivid with a scattering of statistics and a few horror stories of virtual capitulation by religious providers. However, he never retracts or dilutes the imperative”itself religious”that under the right conditions these institutions be ready to serve the common good. Nor, on the other hand, is he fazed by the specter of “cults” and “sects” that haunts our liberal authors. Here our national experience with the regulation of hate groups and racists is relevant. In any school voucher scheme, Glenn would limit participation to schools that respect the norms of racial neutrality, civil order, and the rule of law. Regarding curriculum, the standards now governing private schools are sufficient; as for the rest, little more is needed beyond certain protections for the poor, namely admission and tuition rules plus transportation and information guarantees of the sort presently embodied and operating successfully in the low“income programs of Wisconsin, Ohio, and Florida. Private schools must also be allowed to apply religious criteria in hiring; the point always is to maintain identity.

The reader will apply his or her own standard in assessing the individual merits of these very different books. But all four can be recommended for their relative candor and balance, qualities sometimes wanting in the literature of school reform. Each of the books, moreover, is a step”in Glenn’s case a substantial and enthusiastic step”toward greater trust of ordinary people and their mediating institutions.

Nevertheless, I am puzzled by two qualities of the writing (though I now spot them in my own). One is the apologetic air with which all but Glenn peck tentatively at the issue of state dominion over children, especially the children of the poor; at the same time, by contrast, every small concession to parental choice is accompanied by worries of an educational Munich. The other odd note, possibly related, is the relative neglect in books otherwise so professional of the more scholarly arguments for choice. When, as here, skeptics make concessions to choice, one would expect strong justifying reasons. But, apart from Glenn, the rationales are principally that the Constitution allows it, that dissenters will be grateful, and that competition may improve test scores in the state schools. That choice would empower the non“rich is grudgingly agreed, but such freedom for parents is met with faint praise.

If choice comes, is it to be tolerated simply as an efficiency device and/or a concession to popular whim? Or are there strong positive arguments? Offhand I can think of over two dozen; most could be arrayed in categories such as these: practical arguments about measurable elements such as test scores; vocational considerations such as the elevation of teaching to professional status; intellectual values that insist upon a free market for ideas held by the poor; child welfare claims about the best decider of the right school for this individual child; the autonomy argument that it is the empowered family, not the state, that best nourishes the independent self; tolerance theory holding that social trust among groups is maximized when family identity is respected by government; arguments from justice that would end the system of conscriptive school assignment focused upon the poor; arguments for racial integration founded upon a new freedom of association across arbitrary government boundaries; and family theory which understands the corrosive effect of losing responsibility for one’s own children.

Why are these categories of justification largely ignored? I suspect that most of us who are not libertarians have come to the school question wearing an ideological blinker: there is a diverting myth that remains a confounding premise for those who write about education. This is the widespread assumption that American state schools are functionally “public.” For two reasons they do not merit the label, and this matters, for the false premise clouds all our judgments.

For a thing to be public, notes the Oxford English Dictionary , the first requirement is that it be “open to all” in the manner of the park, the pool, the library, the museum, the street, the square. But what Americans still call the “public” school is accessible only to its neighbors; to attend, one must first manage to live nearby. Stretching things one could, perhaps, say that the schools in poorer neighborhoods such as Watts are functionally “public” because most of us could afford to move there. But Beverly Hills we cannot save, for it is a legislated scheme of private choice that in effect peddles school vouchers in the housing market. The rich buy autonomy; the rest get conscripted. “Public?” To the contrary, the system is a balkanized plutocracy. This is the first abuse of this important word.

The second is more subtle; it is the unexamined premise of universality that is inserted into virtually all discourse on state schools. The word “public” is deployed to imply some intellectual unity that is a quality of the system. The OED recognizes such a restraint upon the use of the word: any conception offered as “public” must be “extended . . . or universal.” Publicness entails a unity of informing spirit; in order to be truly “public” in the modern state an educational policy must be the declared and coherent enterprise of a people.

Intellectual coherence can, of course, inform a conception that is not yet complete, a work in progress. Such, perhaps, was the idea of state education in its first century. Its literature, though discordant, was united in its confidence (as in John Dewey) that the competing inspirations were all vectoring and that a common core could and would eventually be sculpted and realized as a truly public reality. If such a common vision still exists, it is a work in regress. What remains is a narrow core curriculum that pursues, first, the child’s personal utility, and, second, the barest kind of social contract. State schools do all seek to raise test scores and teach the rule of law. Learn the skills, the sciences, and a little history; avoid committing crimes and torts. That much is coherent and universal, and thus is still truly “public.” (Of course it is also part of the mission of every “private” school.)

But that’s about it. Beyond these basics each state school stands on its own moral bottom, for there is no cultural agreement”no public gnosis”about what it is to be a good person, or what such a person should seek to realize as the common good. This is not an observation about religion, its sects, or its enemies. It is a claim about human conduct. To make this plainer, consider the range of contested moral questions on which individual educators must take a side”or simply avoid: animal rights, gender roles, obedience to parents, obedience to other adults, premarital chastity (and condoms), assisted suicide, pornography, economic justice, civil disobedience, the role of sports, ethnicity, abortion, environmental policy, gun control, cloning and genetic engineering, global capitalism, diet, free speech. Should P.S. 91 teach that homosexual conduct is good, bad, or a lifestyle option? Practical choices must be made concerning every such issue. And each question will be answered yes, no, or maybe, for even silence is a message. I have no advice on the right answers, but this I now see. Schools engage these questions differently from one another whether by a decision of the state, district, school, or teacher. Whose preference the individual child will encounter thus is determined more by chance than by any philosophy that could be called “public.”

But add to these specific cases the grandest disagreement of them all. It concerns the very possibility of serious moral teaching. Is there a real good, or is social contract the only source of obligation? What sort of pre“institutional imperative, if any, is available to schools once they are forbidden to acknowledge religious foundations? Could natural law inform the curriculum of an Aristotle Charter High School? Perhaps, but even if enough of us could agree on the source of a natural morality, we would still divide over its specific applications, just as Robert P. George and Andrew Sullivan recently divided over its application to homosexual conduct.

To render coherent the debates on education we would need to give correct names to the phenomena at issue, exercising self“restraint in the use of “public.” Beyond the basic curriculum no ideas presently qualify as such; what is taught is chosen according to the preferences of the individuals who happen to be in charge. Answers to contested questions always consist of somebody’s private convictions. On such matters the public square of education is not merely naked; it is not even public. Thus it is that state schools like Beverly Hills which fail the criterion of free access also fail the test of universality; often they teach a variety of private moralities inside their own communities. In the rich suburbs this is by consent of the individual families who could, if they chose, flee to Santa Monica”or St. Mary’s. In Watts, by contrast, the various private orthodoxies are simply imposed; whether the moral menu features sports, philanthropy, or zen, it is a dish du jour.

It has always been convenient to assume a vague state of neutral uniformity among state schools as a premise for our national conversation. In doing so myself I have too often miscast the message of the state educator as the “Vanilla curriculum.” Many educators do serve vanilla; but clearly this is only one of several flavors. We need a more candid image of this uneven moral topography. My candidate is the Rocky Road curriculum; it may be laced with vanilla, but its soul is a particularity of hard chunks, marshmallows, and”for the connoisseur”nuts galore.

What exactly is the harm in such a government menagerie? The evil consists in the collaboration of this unprincipled diversity with a monopoly system of assignment for the ordinary citizen. Being choiceless, the non“rich family is conscripted for a moral lottery operating at its very un“public local school. But seeing this is halfway to fixing it. And ordinary Americans now seem to grasp the reality; observing the curriculum wars in the media they have come to understand their status as a captive audience for whatever gospel is delivered to their child. This populist insight could account for much of the huge shift of opinion toward subsidized choice among ordinary families, especially minorities. The poor do not fancy all the surprises their children now encounter in the Rocky Road curriculum. If my child is going to be taught somebody’s pet ideas, that somebody might as well be me.

John E. Coons is Professor Emeritus of Law at the University of California at Berkeley. His most recent book, coauthored with Patrick M. Brennan, is By Nature Equal: The Anatomy of a Western Insight (Princeton University Press) .

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Is Choice Still a Choice?

Mon, 01 Aug 1994 00:00:00 -0400

Last November, California voters defeated “Proposition 174.” Had it passed, 174 would have provided scholarships to all school children in an average amount of $2,600 (half the cost of a California public school education). The scholarships were to be usable in participating private schools or in a new form of state school operating with virtually the autonomy of a private school. These new schools in both sectors were to be guaranteed total freedom (within federal law) to determine their own admissions and-in private schools-to charge whatever extra tuition the traffic would bear. For more than a decade opinion surveys had shown (they still do) that subsidizing educational choice-even in religious schools-is a popular idea. Until the campaign got into full swing last fall, the California polls showed strong support for Prop 174; thereafter its popularity rapidly declined. In the November election, the proposal was crushed 70 to 30.

Various plausible explanations are available for what was either an amazing shift-or a colossal misperception-of public attitude. The possible causes are interrelated. The first is an old favorite of political losers: The school establishment was able to outspend the proponents about eight to one; most of its twenty-four million dollars went for an exquisitely deceptive television campaign featuring such phantasmagoria as new private schools run by witches. The campaign was run by no-holds-barred publicists, typified by the young PR hot shot who in the summer of 1993 told me with relish of his firm’s plan to portray California’s future educators as ranging from religious eccentrics to Nazis. He assured me that he had nothing personal against his intended victims and that school choice was probably a good idea.

Second, the teachers’ unions-state and national-carefully cultivated the apprehension of the suburbanites that Prop 174 would deliver hordes of inner-city children to their schools. These middle-class folk-though generally well disposed to family choice and the market-feared that their schools might get even worse. The reality (of which they heard little) is that relatively few inner-city families are interested in suburban schools and fewer still would be willing to endure the burden of time and travel. Nor could most afford it, since the proposal failed to guarantee transportation (a feature well advertised to the inner city).

Third, the media tended to assume that Prop 174 was an ideological caprice of free market extremists hostile to public schools. And they said so. Nothing from the sponsors disabused them, and the actual language of Prop 174 allowed the interpretation that a great deal of money would have to be drawn from the public system, thereby reducing per-pupil spending. Simultaneously it was read to threaten an overall increase of spending to cover children already in private school. The text of 174 was labyrinthine, and the media-as was proper-played its ambiguities both ways.

Fourth, the issues were in fact complex, and the public might have been far from understanding them even after a well-financed campaign in favor of the proposal; when in doubt, voters generally say no to ballot propositions. Fifth, the timing was very bad; economic recession intensifies the tendency for voters to stand pat. Sixth, the proponents very soon fell into faction and scattered their meager resources. One group is now suing another.

Finally, apart from its unintended ambiguities, Prop 174 was not a sound piece of policy; and one suspects that, after all, the people really did understand it. Essentially it was the same device that was presented to the voters of Oregon and Colorado in the two preceding years with identical (and predicted) results. Its most salient flaws can be stated briefly: Although a $2,600 scholarship would fill up the remaining spaces in the existing inner-city parochial schools, the mass of low- income children would have no schools in which to spend their scholarships. As a similar experiment in Milwaukee demonstrates, $2,600 does not start many new schools in the city.

Suburbia is another matter. There the middle-class family could add to the state scholarship whatever tuition would be necessary to initiate new private institutions. That is good and proper, but-unless the aim is educational triage-the inner city is where reform must begin, and in a more substantial way.

Compounding the effects of short supply, Prop 174 guaranteed the absolute freedom of private providers to reject unpromising students. I intend no criticism of existing private schools; long observation and involvement convince me that they are in general more cordial to the hard-to-educate than are the public schools. Nor should private schools be expected to take special education cases of the kind local public schools can typically reject. But considerations both of principle and politics argue that schools operating on public money should make some modest commitment to the common task. Politically, the private schools must overcome the defamatory image that has been carefully nourished by teachers’ unions, school boards, government administrators, and apologists like the Clintons. But, in any case, Prop 174 came off as morally ambiguous. It not only permitted the private providers to reject less gifted children; they were also permitted to charge whatever tuition would assure that no low-income (or for that matter working- class) families would darken their door.

This question about the criteria of admission is a source of division among friends of family choice. Some of the libertarian proponents of Prop 174-taking their cue from Milton Friedman-still cling to the notion that private providers should get the state’s money while making no commitments whatever. In the fall of 1991, they contracted for a public opinion survey on the specific question as to whether an initiative should require participating schools to reserve 15 percent of new admissions for low-income children, if so many were to apply. They directed their pollster to label such a provision a “quota.” To their astonishment, a majority of the respondents approved it. And it is a measure of the proponents’ devotion to principle that they nonetheless struck this guarantee from the final draft of 174. It is a measure of the political alertness of the drafters of the current proposal for the Oregon state ballot that they have included a 20 percent set-aside for low-income children as a condition of any school’s participation. If there is anything certain in the politics of school choice it is that reforms that would shunt all the harder cases to the government sector will be pilloried by the media and rejected by the public.

So, what are the prospects for school choice? The short run will depend upon the so far unimpressive capacity of choiceniks to agree upon moderate proposals. By “moderate” I mean that the following principles must be satisfied.

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Getting Grover’s Goat

Tue, 01 Dec 1992 00:00:00 -0500

Herbert Grover is the increasingly visible state superintendent of public instruction for Wisconsin and a man determined that no tax dollar shall be soiled by the hand of a parent on its way to school. The superintendent has fought vigorously against educational choice and is back in the papers with some new heroics that I will shortly report. First, however, some background. Milwaukee is the site of an experimental state program that provides a $2,500 scholarship to a limited number of low-income parents who would like to move their child to a private school. The law was introduced by a black Milwaukee Democrat supported by a white Republican governor. The Democratic mayor of Milwaukee applauds the idea and would extend it. Social scientists report that despite several design flaws, it is working well enough. The few hundred poor families able to make practical use of the scholarship love it.

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School Choice as Simple Justice

Wed, 01 Apr 1992 00:00:00 -0500

The media have at last grasped the fact that test scores and graduation rates improve where schools are freely chosen by families. But what many people still fail to appreciate is that the case for choice in education goes much deeper than market efficiency and the hope to overtake Japan. Shifting educational authority from government to parents is a policy that rests upon basic beliefs about the dignity of the person, the rights of children, and the sanctity of the family; it is a shift that also promises a harvest of social trust as the experience of responsibility is extended to all income classes. So far, that part of the message is not making it in the current great debate about schooling.

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Parable from the Prairie

Sun, 01 Apr 1990 00:00:00 -0500

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