Out of the Fire and Into the Frying Pan

Politics, Markets, & America’s Schools
by john e. chubb and terry m. moe
brookings institution, 336 pages, $28.95

Politics, Markets, & America’s Schools is an enlightening, albeit statistically overstuffed, study of achievement, organization, and the political context of schooling. The authors, John Chubb and Terry Moe, reach one sound and important conclusion: deep structural reform of U.S. schooling, leading to a system of family choice among schools that operate independently of majoritarian politics, is the only possible way to save public schooling from self-destruction. Unfortunately, the path that Chubb and Moe follow to this long overdue conclusion (and many of the policy recommendations that accompany it) is so inadequate that their work could well do more harm than good to public understanding and policy debate.

The authors’ “proposal for reform” envisions a system of diverse schools, some operated by private organizations, others by government, but all regarded as part of the restructured public school system. Parents would be permitted to choose”with the assistance of a state provided “Parent Information Center” and its local “Choice Office”—among schools meeting “minimal” state requirements. Public funds, roughly equalized across different income groups, would follow the students to their chosen schools as “scholarships.” The state would continue to certify teachers, but would eliminate statewide teacher tenure. Each individual school would determine its own structure, including governance and admissions policies (consistent with nondiscrimination requirements). Judgment of any school’s achievement or effectiveness would result not from state assessments of quality or performance, but from individual parental decisions about enrollment.

The most compelling reason for such a deep restructuring is to restore to American families and schools that freedom of belief and intellect guaranteed by the First Amendment and systematically denied to virtually all but the wealthy by the present structure of schooling. But Chubb and Moe miss this point entirely, choosing instead to base their conclusion upon narrow-gauge achievement benefits alleged to be the result of competition, consumer choice, and a partially regulated market. In so doing, they leave their proposal without the conceptual defenses essential to resisting a return to the disempowerment of parents, the resurgence of bureaucracy and a reductionist form of schooling, and increased government restrictions on freedom of intellect and spirit.

Chubb and Moe have intelligently analyzed the flaws in the myriad non-structural reforms that have flooded the public debate in the last decade. But in disregarding the First Amendment argument for school choice they have been guilty of the same short-sighted thinking and naive analysis that they rightly condemn in many other well-intentioned education reformers.

Because their analysis and proposal are based largely upon economic values and concepts, the adoption of their program would disappoint many who support school choice. American families in search of spiritually meaningful, intellectually engaging, and personally useful education for their children might escape some of the deadening influence of majoritarian political control of schools. But they would find their children entrapped by the narrow-minded and commoditized conception of education likely to emerge from an economic marketplace unregulated by the protections embedded in the First Amendment system of freedom of intellect and belief. To put the matter more simply. Politics, Markets, & America’s Schools offers American schools and families a way to jump out of the fire and into the frying pan.

II

To appreciate how an otherwise intelligent, well-researched, and rightly motivated study could arrive at such a vulnerable proposal, it is necessary to state first what the right path to the restructuring of American schooling would be. John Stuart Mill took the first step on this path in 1859 in On Liberty:

[State-sponsored education] . . . is a mere contrivance for molding people to be exactly like one another: and as the mold in which it casts them is that which pleases the predominant power in the government, whether this be a monarch, a priesthood, an aristocracy, or the majority of the existing generation, in proportion as it is efficient and successful, it establishes a despotism over the mind . . . .

In the following years, state governments in the U.S. developed a system of universal, publicly funded compulsory education. The core assumption of this system was then and remains now the belief that it is appropriate for a majority of voters in a school district to control the content of the schooling of all children in that district. No matter how different the beliefs, opinions, or values of a dissenting minority of families may be from the prevailing majority, the dissenters’ children must still undergo school socialization approved by the majority. Looked at from the minority perspective, the system seems to state that my neighbors have a greater right and power to control the education of my children than I do. The U.S. Supreme Court reaffirmed and restated this ominous principle in Island Trees v. Pico (1982), when it agreed that local school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values . . . . There is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.”

As both Mill and the Court imply, schooling can never be value-neutral; it inevitably conveys, as a necessary and important part of learning, values and beliefs through which action and understanding are filtered. The problem lies in determining whose values and beliefs schools will adopt. It would seem, therefore, that the Court has approved what Mill condemned: empowering the political majority to use schooling to regulate the fundamental freedoms of conscience, belief, and expression that the First Amendment withdraws from majority control.

The public has understood this. The past one hundred years has seen an endless struggle among various groups in society for control of the values that will form the content of public school curriculum, texts, and standardized tests. Whether these contests involve evolution and Genesis, traditional versus liberated roles for women, religion, moral relativism, or sex education, their results have been destructive. Either some parents lose the right to influence the value content of their children’s education, or all parents lose to a least common denominator that will offend no one. The latter situation may seem preferable, but in avoiding offensiveness, this watered-down schooling anesthetizes students, renders their schooling meaningless, and commits scarce resources to pursuing the unworkable and unworthy goal of value-neutral schooling.

These perpetual struggles, imposed by the zero-sum game of majoritarian control of schooling, do not simply cripple and devalue the education of students. They also deprive many families of the right to pass on to their children the heritage and values in which their vision of life and self is anchored. Were the political majority allowed to have this same direct power over religious beliefs and education, the rebellion would be swift. It is a wonder that the same constitutional protection of freedom of belief has not been demanded for the schooling which Ivan Illich said has “become the established church of secular times.”

The destructiveness of the present structure of schooling does not end with the dumbing-down of education or with restrictions on the freedom of intellect and belief of dissenting students and families. Struggles over the content of government schools also paralyze the governmental process within schools and undermine political institutions in the society generally. The Supreme Court recognized this risk in the famous flag-salute decision (West Virginia v. Barnette, 1943): “Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public education officials shall compel youth to unite in embracing.”

Nevertheless, the people have gone right on struggling over what doctrine and whose program public education officials shall compel youth to unite in embracing. The Court has only rarely interfered, perhaps because there is no alternative to this struggle in a school system that puts political majorities in control of the socialization of all children. As the Supreme Court observed in the same flag-salute case, “If [public education] is to impose any ideological discipline . . . each party or denomination must seek to control, or failing that, to weaken the influence of the educational system.”

Majority control of the content of public schooling is thus at the root of a series of deprivations of rights of belief and expression as well as problems of conflict-ridden government and ineffective, unsatisfying, and destructive schooling. That school choice has a role to play in resisting such a tyranny of the majority is made clear by another landmark Supreme Court case Pierce v. Society of Sisters (1925).

In spite of the defendant’s name, the case was not decided as an issue of freedom of religion. In 1922, the state of Oregon had passed a xenophobic law requiring that all students attend public schools. Private schools and the right of parents to choose them were effectively extinguished by the law until the Court declared it unconstitutional three years later. In upholding the right of families to choose alternatives to government (majoritarian) schools, the Court uttered its now-famous ruling, “the child is not the mere creature of the state.”

In Pierce the power of the political majority over school socialization and individual freedom of belief and intellect was curbed, and the idea that even secular schooling inevitably involves the formation of conscience was embedded in law. In the Court’s words, “the act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.”

But economic developments have rendered this constitutional right to choose an alternative to government schooling all but meaningless. The cost of paying tax for the support of government schools as well as tuition for attending a non-government school has become prohibitive for the vast majority of families. In essence, those who dissent from majority values in schooling have faced the choice between sacrificing their freedom of belief and expression to obtain a government-subsidized education or paying twice to secure their birthright under the Constitution.

What this analysis suggests is that we need a separation of school and state to match the separation of church and state. The government (read, political majority) must be denied the power to control the content of schooling just as it is denied the power to establish religion or prohibit its free exercise. These fundamental political, constitutional, and human rights, and not the benefits of competition in an economic market, are or ought to be the driving force behind the growing public demand for choice in education. Chubb and Moe’s work, by losing sight of these rights, increases the likelihood that American families will settle for a poor substitute for real school choice and a minuscule increase in freedom of intellect and spirit.

III

There are four fundamental flaws that flow from failure to ground an argument for school choice on First Amendment freedoms of belief and expression. The most glaring of these flaws is seen in the authors’ blasé attitude toward the inclusion of religious schools in a system of choice. In presenting the proposal for reform which arises from their study, Chubb and Moe state, “Whether private schools are included is simply a matter of policy—they need not be.” They further state that “Our own preference would be to include religious schools as well, as long as their sectarian functions can be kept clearly separate from their educational functions.”

Here Chubb and Moe indicate misunderstanding both of the nature of education and of freedom of belief. No education, including religious education, can be neutered—deprived of its value content—and still be regarded as education. Moreover, the approach to school choice represented by the “secular/sectarian” distinction has been tried and declared unconstitutional precisely because that distinction cannot be made. In Lemon v. Kurtzman twenty years ago the Court invalidated public funds for secular education in religious schools because the secular could not be distinguished from the religious without entangling the government in the affairs of religion.

Much more to the point, in a school-choice argument built on the First Amendment rather than market economics, religious schools must be included. It is not “simply a matter of policy.” How could freedom from the imposition of government-sponsored ideology be accorded by a system of school choice without recognizing the rights of families whose values are religiously centered? On what basis could the society, or those creating a new school structure, legitimately distinguish between secular and sectarian values as worthy of tax-funded “scholarships”? These questions are especially hard to answer in view of the fact that there is no constitutional impediment to providing equal choice to families who choose religious schools, so long as the parents’ choice is the operative one and there is no financial incentive for choosing a religious school over a secular one.

The second fundamental flaw in Politics, Markets, & America’s Schools is that its analysis contains no principle that can be used either to keep the majority from imposing its values on nominally independent schools or to sustain those higher-order values that should be applied to all schools. As the authors say, “Direct democratic control stimulates a political struggle over the right to impose higher-order values on the schools through public authority . . . . ” In this statement, Chubb and Moe make the important point that it is our majoritarian school system that produces endless struggles over school content. But their argument goes at once too far and not far enough. It goes too far because it makes the assumption, echoed elsewhere in the book, that there are no higher-order values that should be imposed upon schooling. It does not go far enough because it provides no principle for invalidating attempts by the majority to impose a system of regulations so thorough-going as to render all “independent” schools virtually identical.

Basing the argument and proposal for school choice on First Amendment freedoms solves both of these problems at once. It is a well-established part of First Amendment law that the government may make no content-based regulation of expression or belief unless a compelling justification for such overriding of First Amendment rights is presented. The government—or the political majority—may regulate the so-called noncontent “incidents” of First Amendment rights, such things as time, place, or loudness of expression. Under this theory, the government could impose fire and safety standards on schools or other places of communication. The government may also override First Amendment rights—imposing higher-order values—when the public interest in so doing is “compelling.” Thus racial discrimination in schools must be prohibited, and minimum standards of literacy or familiarity with constitutional values might be required in otherwise diverse schools.

Chubb and Moe leave their newly independent schools without any protection against a constant encroachment by state authorities—through standardized testing, curriculum requirements, teacher certification standards—on their content and pedagogy. The statement that state approval of schools of choice “should be quite minimal” will hardly be encouraging to those existing independent schools already struggling against state regulation. It will certainly be inadequate protection once the political majority has lost its power to control every school in the district through local and state bureaucracies. Under the Chubb and Moe proposal, state education authorities and their constituent interest groups will constantly be arguing that every regulation they desire is essential. The authors’ analysis gives us no way to distinguish those regulations that truly are essential from those that represent nothing more than a return to the bureaucratic school world in which everything is either required or forbidden.

The third significant flaw in Politics, Markets, & America’s Schools is more amorphous. It traces back to the achievement-based judgments that the authors make about school effectiveness. Their study is grounded on the provable hypothesis that majoritarian as opposed to market organization of schooling creates conditions that depress student achievement. But even though they acknowledge that “virtually everything about good education . . . defies formal measurement,” their measures of achievement are narrow, being restricted to those attributes of schooling that can be measured by standardized tests. Though interesting and significant, this basis of judgment is insufficient. It reduces education to much less than any parent or student knows to be its true content. And it reduces to a kind of consumerism the justification for parental empowerment in a system of school choice.

The problem is aggravated when the authors discuss the role of parents in their children’s schooling. Though ostensibly arguing for parent choice, Chubb and Moe treat parents rather shabbily. Direct parent involvement in schools is something “which can become burdensome,” and schools that have a high level of parental involvement must put up with “parental interference.” The data on effective independent schools and ineffective government schools suggests to the authors that “schools do not seem to benefit in a large or systematic way from direct parent involvement.” These are problematic thoughts to accompany an argument for parent choice based on a quantitatively defined notion of school effectiveness.

In fact, the tone of the study seems to assume that education is just another commodity to be bought and sold under various economic and political conditions. There is virtually no discussion of either the deeply personal or broadly cultural aspirations and needs that individuals, families, and subcultures bring to education. There are disclaimers about performance measurements in education and about the limits of achievement testing. But one searches in vain in these pages for an appreciation of education as a process of culture-transmission and individual liberation, an untrackable journey without specifiable goals that cultivates the most basic freedoms of mind and spirit along with the practicalities of learning to influence and live productively within American culture.

It may be unfair to tax the authors excessively for their limited and reductionist vision of education. But the practical consequence of their failure to think more deeply about the nature of schooling is that they leave us with a model of school choice that is likely to victimize those families whose aspirations and understandings exceed those that inform this study.

This complaint flows into the fourth and final flaw of Politics, Markets, & America’s Schools, its tendency to be naive and unanalytic in its approach to the economic model of the marketplace. Though scores of pages are devoted to a sharp-edged analysis of how majoritarian politics creates in the schools bureaucracy, oppressive regulation, inefficiency, ineffectiveness, and the stifling of teachers, students, and principals, the book barely mentions the problems caused by economic markets, consumerism, and the commoditization of education. It seems fair to ask whether market choice of schools—unchecked by the principles of freedom of belief, intellect, and expression—might not give rise to problems as severe as those attributed to majoritarian school structure.

A quick look at the “products” sold or the amount of meaningful choice permitted to consumers by such industries as energy, transportation, food, or housing might make one dread the inclusion of schooling in the market Chubb and Moe envision. Add to this an assessment of how much influence consumer choice provides over, for example, the environment in which we live or the way in which we develop as individuals and one becomes still more suspicious. The domination of the supply side of school choice by the ethos of economic markets might yield a nation of students well-trained to take their place in the workforce of international conglomerates. But it is not likely to provide an atmosphere conducive to either learning as liberation or teaching as a subversive activity.

The problem is not with a notion of schooling as a marketplace of choice that all families and children approach with roughly equal resources and that allows the same full freedom to educators. The problem is with basing the argument and structure of school choice upon an economic model instead of a marketplace of belief and expression envisioned and protected by the First Amendment. Chubb and Moe have provided important tools with which to subdue the tyranny of the majority in schooling. Unfortunately, they have barely stopped to think about whether the “invisible hand” of the economic market might not be every bit as tyrannical—every bit as bureaucratic, monolithic, reductionist, and disempowering of families—as the system of majority control of schooling bas turned out to be.

What is missing from Chubb and Moe’s otherwise helpful book is an analysis of how the principles of the First Amendment and a realistic understanding of the nature of education can together shape a system of school choice. Americans may be enamored of economic analyses of everything from environmental health to personal fulfillment, but American families and educators also know that there is more to schooling than the freedom to be a smart shopper.

From their own personal experiences and from their understanding of what makes constitutional democracy worth sustaining, Americans know that every family must have an equal liberty to choose schooling without being limited by accidents of family wealth, race, or religion. They know that every educator and every learner must be free of unjustifiable government restrictions if schooling is to support rather than undermine families. They know that every group of persons who wishes to create or sustain a community must be free to do so without the hierarchical imposition of order that is the accompaniment of bureaucracy And most of all, they know that freedom of conscience, of belief, of intellect, of opinion, and of individual self-development are as much the foundation of school choice as they are of constitutional democracy.

In trying to convince a public policy establishment preoccupied with economic analysis that school choice is a worthwhile reform, Chubb and Moe have lost sight of the principles that underlie America’s long-term dissatisfaction with its school system. This lapse alienates them from the most important potential supporters of a system of school choice—families, students, and teachers. If their analysis takes over the public debate, it will drive out more basic constitutional principles and educational understandings. We must hope that Americans hold out for a more realistically grounded and more thorough-going system of school choice, and do not accept the Chubb and Moe offer simply to substitute the frying pan for the fire.

Stephen Arons is Professor of Legal Studies at the University of Massachusetts, Amherst. He is the author of Compelling Belief: The Culture of American Schooling.