Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, January 6, 2013

Chemerinsky Urges Compulsory Public Schooling and the Elimination (and Unconstitutionality?) of Private Schooling

I am not attending the AALS conference this year, but I thought to reproduce (with permission) a message on a constitutional law listserv that I'm on, written by Pepperdine law professor Mark Scarberry.  Mark reports his impressions of a presentation by UC Irvine law dean Erwin Chemerinsky:

Dean Chemerinsky stated, if my memory is correct, that the only way to deal with educational disparities and the problem of (de facto) resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas. That would include suburbs along with inner cities, so that racial integration by busing will be possible. He stated that Milliken v.  Bradley should be overruled, so that suburban school districts could be, for these purposes, combined with inner city school districts to allow integration. He also stated that Pierce v. Society of Sisters should be overruled, so that all children could be required to attend these racially mixed public schools. As I understand it, he thinks that only if whites are required to put their children in the same schools as those attended by racial minorities will there be the political will to provide the resources so that minority students can receive a quality education. He said that parents who wanted to have their children receive religious education or other forms of education could have them receive it after school or (I believe he said) on weekends.

I don’t think he meant to say that the right of parents to control their children’s upbringing and education would be eliminated, but that the right should be overridden by a compelling state interest in providing an adequate education to all students. It wasn’t clear to me whether he wanted all the work to be done by the courts, with courts holding that the Constitution requires that all students attend schools on such a metropolitan-area racially-mixed basis (either as a matter of equal protection or as a matter of a fundamental right to an adequate public education) --- or, alternatively, that the Court should allow Congress or states to impose this scheme.

I thought this proposal might be of interest to MOJ readers, and I am opening comments -- though in the comments, it would be best either to get (a) confirmation and/or further elucidation of Dean Chemerinsky's remarks; or (b) analysis of the legal implications of compulsory public education and the overruling of Milliken v. Bradley and/or Pierce v Society of Sisters.  There is certainly a pressing need to take seriously the problem of grossly undereducated children in urban and poor areas, and the consequences of Milliken were pretty awful, though what exactly is to be done about that is obscure, at least to me (this is not my area of expertise).  But this proposal seems, as Mark later notes, rather illiberal.  It also doesn't quite do justice to the reasons for attending a religious school, or any private school for that matter (admittedly, my own educational experience has been entirely within such schools).  I also wonder whether Dean Chemerinsky, as part of his proposal, would be favorably disposed to overruling McCollum v. Board of Education, in which the Court in 1948 held that it violated the Establishment Clause for public schools to release students for religious instruction on school premises, taught by teachers outside the public school system.  It seems to me that Dean Chemerinsky would probably approve of Zorach v. Clausen (but maybe not, because the released time program was being conducted during regular school hours, let alone all of that “Supreme Being” stuff), where the Court in 1952 approved released time religious instruction off school premises.  In conjunction with the (constitutionally mandated?) elimination of private schools, does he envision a larger role for the state (financial or otherwise) in religious education?  If not, after private and religious schools are effectively closed down by the state (whether by judges or by legislators), where would students receive the education that their parents, and they, actually want? 


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Since it is true that there is nothing in our Catholic Faith that precludes us from becoming Good and productive citizens, it is unjust discrimination to deny a Catholic Education to those students who desire one, or those parents who desire a Catholic Education for their children.

Posted by: N.D. | Jan 6, 2013 6:48:38 PM

Silly me - I thought Erwin was a liberal. His proposal at AALS was extremist and dramatically incongruent with any remotely plausible account of ordered liberty under and through law.

Posted by: [email protected] | Jan 6, 2013 9:36:02 PM

Rick, How would you propose to deal with the "brain drain" from public schools to private? I'm also not sure that the proposed solution is necessarily feasible, but you can't deny the severity of the problem. If everyone was "bought in" to the public educational system, it seems to me that it would have a much higher possibility of success in serving the common good, since those who are most motivated and invested in their (and other) children's education would actually be putting their money and their minds where their mouths are. As it is, it seems like there are a lot of people sniping at the public school system from the private school bushes, which doesn't seem to help matters either.

Posted by: Eric Bugyis | Jan 7, 2013 8:04:38 AM

I should add that I received a comment through email that Chemerinsky's proposal would not necessarily require the "elimination" of private schools, because those schools could continue to exist, just like many schools are attended after hours (e.g., Hebrew School, violin school, travel soccer "school," etc.).

I guess that this is technically correct, but practically infeasible, and it misses the point about the reason that people attend school and what it is that a school provides. Private and religious schools would, I maintain, be eliminated -- as schools. They might remain as private clubs or analogous institutions, which could be attended, e.g., for a few hours on the weekend.

Posted by: Marc DeGirolami | Jan 7, 2013 8:11:56 AM

Eric, the "brain drain" from public schools is, in my view, a not-surprising result not of racism, but of freedom. Parents have a moral right (and duty) to direct the formation and education of their children, and -- in many instances -- this means that parents quite reasonably conclude that this education and formation will happen better in religious schools than in government-run ones (I reject the idea that only the government-run schools, and not non-state schools, provide a "public" education). Chemerinsky's is a hostage-taking argument, not a common good argument. It is clear to me that the common good, the public interest, and the well-being of the poor would be much better served by a regime that introduced more choice, competition, and equal-funding, and that reduced the power of teacher-unions and administrators. You can call it "sniping", but it seems to me that, from the "citizen bushes" and not the "private school bushes", that it is a bit much for state-school partisans like Chemerinsky to (a) oppose choice, reform, and competition *within* the state sector, and then (b) blame people for thinking that their children will be better educated (and the common good better served) outside that sector.

In any event, Chemerinksy's proposal is, beyond question, irreconcilable with the Church's social-justice teaching, which clearly states that parents have a right not only to select religious schools, but to receive equitable public support for that choice.

Posted by: Rick Garnett | Jan 7, 2013 8:32:24 AM

Rick, allow me to voice a friendly potential disagreement with you. Depending on how you define "freedom," ie. whether you mean only the well-ordered exercise of liberty or not, I'm not sure why you argue that the brain drain has been a result "not of racism, but of freedom." Can't it be both?

Of course it depends on when and where you're talking about, but obviously racism has been a significant causal factor in the departure of many good students and, just as important, committed parents from the public school system in many parts of the country. It is not an accident that in my hometown of Tuscaloosa, most of the private schools, religious or otherwise, opened roughly between 1957 and 1970. Nor is it an accident that Alabama fails to strongly support or maintain strong political interest in public schooling. I would add that, alas, the private schools are not always dramatically better. Nor, for political reasons, is there sufficient support for vouchers, charter schools, or other possible remedial approaches, among either Democrats or Republicans. That failure is, as you say, a failure to consider the common good. But it's also related to the fact that, having created an alternate school system in the wake of Brown, many politically powerful citizens in our state have a perceived lack of stake in public schooling. Finally, in the northern U.S. and elsewhere in the country, class- and race-based residential patterns, which impact the drawing of school districts lines, are also not accidental or purely a result of "freedom."

Not, of course, that I disagree with you about the wrongness of Chemerinsky's proposal, or the reasons why it is wrong! I was at the talk and my head jerked up at that one too. But, of course, freedom can and, too often, does include the freedom to make racist choices as well as sound ones, and that is surely part of the relevant context and history here, even if Chemerinsky is quite wrong in his suggestions about what to do about it.

Posted by: Paul Horwitz | Jan 7, 2013 2:20:52 PM

On The History of Catholic Education:

Posted by: N.D. | Jan 8, 2013 11:11:48 AM

I'd like Erwin Chemerinsky to be schooled - in the higher education bubble, that is. More specifically, in the law school bubble.

Close US Irvine's law school. Re-purpose it as a nursing and geriatrics care school. Let's see UC start to serve California's educated labor needs instead of egotist law professor dilletantes.

Posted by: Micha Elyi | Jan 9, 2013 1:03:53 AM

Some of us remember that Brown was about being able to send ones child to the closest neighborhood school and outlawing school assignment based on considerations of ones race.

Erwin Chemerinsky wants to restore a pre-Brown focus on race - very Democrat of him. The only difference between the klan and the Chemerinsky clan is that the race cards would be shuffled and played just a little differently. The principles he relies on remain the same.

Posted by: Micha Elyi | Jan 9, 2013 1:21:48 AM

Since it is true our Catholic Faith is a Living Faith, grounded in The Truth of Love, one should have no fear of proselytizing, as our Catholic Faith does not pose a threat.
For those who oppose public funds being used specifically for Catechizing in regards to Catholic Dogma, those costs could be calculated and be the responsibility of the Catholic Schools.

Posted by: N.D. | Jan 10, 2013 11:12:00 AM