Privatizing Education:The Liberal Democratic Idea, Constitutionalism,and the Politics of Vouchers

African-American Organizations. While voucher proponents have assiduously wooed inner-city blacks, major African-American organizations remain firmly committed to integrated public schools. African-American legislators and community leaders remain deeply suspicious of the racial motives of voucher proponents and the likely results of voucher programs. (Witte 2000, 168-70)

Interest groups are not the only forces driving the debate. Just as abortion is a Republican issue despite the fact that many Democrats are anti-choice, vouchers have become a Republican issue. (Witte 2000, 159; Blomquist 2000;Geib 2000) The groups most opposed to vouchers — teachers’ unions, civil libertarians, blacks — represent important Democratic constituencies. Furthermore, "Vouchers are a very useful item in the kit of "wedge issues" with which Republicans have pursued a [partisan] strategy." (Blomquist 2000)

According to Blomquist, vouchers offer a number of advantages over other wedge issues, particularly abortion, because vouchers are less polarizing. Proposals to outlaw abortion, like proposals to adopt vouchers, were intended to appeal both to northern ethnics, mostly Catholics (the so-called "Reagan Democrats") and to southern Baptists, constituencies which otherwise agree on very little. (Geib 2000) But the abortion appeal to Reagan Democrats turned off significant numbers who would otherwise have been Reagan Republicans. For a Republican party increasingly divided between its libertarian and theocratic wings, vouchers offer an appeal that bridges, rather than exacerbates, the divide. As Blomquist notes,

In addition to appealing to middle-and working-class whites on a combination of values, self-interest and racial orientations, vouchers work with the upper-class base of the Republican party for ideological reasons. Vouchers would, it is said, promote a marketplace of competition in education, which would lead to better schooling at less cost. Thus, college-educated Republican voters, who provide the base of party activists and financial contributors, can get behind vouchers too, because of the appeal to their ideological orientation toward marketplace and competition. (Blomquist 2000)

Louis Mahern, an Indiana Democrat who favors vouchers, notes that they allow Republicans to appeal to lower middle class white resentments without overt racism, and to target an appeal to inner-city African-Americans with which they can feel philosophically comfortable. (Mahern 2000).

The resentments to which Mahern alludes are both economic and racial. Vargus describes the target demographics: people (mostly male) who are lower middle class, without a college education, who see themselves blocked in their careers by women and minorities, and whose attitudes provide "a classic example of disengagement from anything involving collective action." (Vargus 2000) These are parents who lack the means to escape public schools that have become "increasingly ethnically (and even linguistically) diverse." (Blomquist 2000) Such observations are suggestive of the racial undercurrents of the voucher debate. Originally proposed as a way to help poor, overwhelmingly black inner-city families escape failing public schools, vouchers are now being promoted as "subsidies for middle-class, non-inner-city families to make choices they would have made on their own." (Witte 2000, 9) From the perspective of at least one Democratic political consultant,

"The arguments in favor of vouchers often are nothing more than a thinly veiled attempt to bring back the days when ‘separate but equal’ was an acceptable way of life in America. That is clearly the subtext to the argument that vouchers will allow every child to have access to the kind of education that best suits their families’ interests."(Vigran 2000)

John Witte, an educational researcher who has evaluated the voucher program in Milwaukee and supports it, has nevertheless expressed concern that the Milwaukee experiment has led to more segregated schools than would have been the case without it.

"Regardless of one’s beliefs or hopes, the overwhelming social factor of

the integration movement was white flight from our cities. It is difficult for me to

see how a [wider]market model of choice would do anything but accelerate the growing balkanization of our schools and country. Whether that result will be class or racially motivated, is in one sense irrelevant given the correlation between the two." (Witte 2000, 203)

A December, 1999 investigative series in the Akron Beacon Journal focused on yet another aspect of the political ground war: the role of campaign contributions and political influence in producing legislation to benefit favored individuals and cater to important constituencies.

In Ohio, Catholics comprise 21% of the electorate, and are a powerful lobbying force. While traditionally thought to lean Democrat, a study found in the archives of Republican Governor Voinovich, who was instrumental in the passage of voucher legislation, argued that Catholics "could easily swing to the Republican side if the right bells were rung." Other documents disclosed close (and occasionally inappropriate) cooperation between the Governor and the Catholic Bishops on legal and legislative voucher strategies to benefit the Catholic schools. As a result of that collaboration, one in three children sitting in a K-5 Catholic school in Cleveland today is using a state voucher (Oplinger and Willard1999).

While the Beacon Journal charges that cooperation between the Catholic Church and officeholders went beyond an acceptable political response to a valued voting constituency, its criticism of the Church’s role paled in comparison to the evidence of cronyism and quid pro quo to campaign contributors it uncovered. The individual who has reaped the largest financial benefit from voucher and charter legislation in Ohio is an Akron entrepreneur named David Brennan, whose company runs 11 schools with 3,267 students and is projected to take in $16 million dollar s for this academic year. Brennan made numerous significant political contributions to those who could advance his financial interests, and later hired as his lobbyist the Governor’s assistant who had been most closely involved with the voucher issue just four days after he resigned from the Governor’s office. Brennan’s schools were created expressly to take advantage of the voucher program he had lobbied for; according to independent state evaluations, they have performed more poorly than other private schools in the program, and more poorly than the public schools (Willard and Oplinger 1999a).

To further complicate the conduct of the ground war, the voucher debate occurs in the context of an American system informed and controlled by basic constitutional principles of limited government and democratic accountability. There are thus prudential and constitutional constraints on the use of tax dollars that necessarily factor into both the theoretical and practical politics of the voucher issue.

The most significant constitutional roadblock confronted by voucher advocates is the First Amendment doctrine of separation of church and state. The Establishment Clause of the First Amendment prohibits the use of tax dollars to support religious programs or institutions. The vast majority of private schools are religious, and as we have seen in the Milwaukee and Cleveland experiments, any voucher program purporting to give students and their families significant "choice" will include pervasively sectarian institutions. (Witte, 2000) In Cleveland, seven of every eight voucher recipients are enrolled in parochial — overwhelmingly Catholic — schools. (Oplinger and Willard 1999) Proponents argue that for constitutional purposes, vouchers should be considered similar to the GI Bill, which gave soldiers tuition money to spend at the institution of their choice. The claim is that because the voucher goes to the parent and the parent decides where to spend it, any choice of a religious school is the choice of the individual and not the state. The voucher represents a return of the parent’s tax dollars, for use as the parent sees fit, and thus loses its character as public money.

This is an ingenious argument, and it may well prevail, but constitutional scholars point to serious problems with it. The GI Bill is arguably a particular form of compensation to soldiers for services rendered; it is thus "their money" in a way a voucher given to every school-age child is not. Similarly, the amount of a voucher bears no relationship to the amount of taxes paid, and in many cases will simply represent a shift of monies from taxpayers who do not have school aged children to those who do (much as tax support of public education does now) and from taxpayers in rural areas with student populations insufficient to support multiple schools to taxpayers in urban areas (which is not currently the case in most states). Tax credits to defray the costs of private schools would probably have a better chance of passing constitutional muster, but would benefit only those who pay relatively substantial income taxes.

Even if the Supreme Court eventually upholds vouchers against Establishment Clause challenge, as Harvard Law Professor Martha Minow has predicted (Minow, 1999), a number of constitutional issues will remain to be decided under both the First Amendment and state constitutions (many of which have stricter "separation" provisions than does the First Amendment). Can schools receiving public funds discriminate against students or teachers (or janitors), based upon race, religion, disability, sexual orientation? Must schools accepting vouchers accord staff and student bodies some minimal level of due process?

Perhaps the thorniest issues involve accountability for performance and fiscal management. If taxes paid by all citizens are to flow to private schools, lawmakers arguably have a fiduciary duty to insure the proper application of those dollars. How shall "proper application" be defined? In Ohio, some voucher schools were located in facilities that did not meet fire or other safety standards (Willard and Oplinger, 1999). John Witte points out that public schools must be accountable to the public which both uses the schools and pays for them, while private schools are primarily accountable only to their clients. (Witte, 2000, 14) How will that distinction change under vouchers, if at all?

Privatization raises accountability issues different from those involved when government is providing services directly (Kettl 1993, 174; Lipsky and Smith 1993). Much of what critics call bureaucratic and governmental inefficiency is really what Russell Hardin (Hardin 1998, 12) calls "institutional design that encapsulates the self-interest of government officials" and what less tactful observers call safeguards against corruption. Oversight mechanisms and institutional checks and balances protect the public purse.

In Milwaukee’s program, voucher schools are not subject to the state’s open meetings or open records laws, need not hire certified teachers (nor even teachers with college degrees), are not required to publicly divulge teacher salaries or benefits, need not administer statewide achievement tests, and do not have to publicly release test scores, attendance or drop out rates. This poses a classic privatization dilemma: if lawmakers impose too much regulatory red tape on participating schools, compliance costs will diminish the benefits a true market provides. Yet without adequate information, neither taxpayers nor lawmakers will be able to evaluate an extremely expensive public initiative, and parents will have no meaningful basis for making the informed choices the program was intended to give them.

All of these elements of the political "ground war"–the factions, the partisan strategies, the constitutional and accountability debates–are rooted in the historic and quintessentially American tension between individual rights and collective civic aspirations. The foregoing, necessarily sketchy description of motives and tactics can only be understood as a manifestation of that enduring conflict.

Liberal democratic theory emphasizes the importance of the individual as an autonomous, rights-bearing being. Libertarian philosophy begins with the construct of a "social contract" by and among political equals. Under that construct, governments and other social organizations are created by independent persons who knowingly and voluntarily trade certain of their rights and liberties for the promise that government will protect others. Because the state has an exclusive right to the use of coercive power, it is dangerous: the government that is powerful enough to protect is by definition powerful enough to oppress and exploit. Prudent people, recognizing this, will limit the reach of the state.

The theory of politics that emerges from the political literature of the pre-Revolutionary years rests on the belief that what lay behind every political scene, the ultimate explanation of every political controversy, was the disposition of power. (Bailyn 1992, 55)

Power, as Bailyn notes, was understood as compulsion, dominion, and force. The central concern of the Bill of Rights was to protect the individual against the improper use of the coercive power of the state and the tyranny of the majority.

One cannot understand the American experience without understanding its libertarian roots; on the other hand, it is equally misleading to view the national history only through the lens of radical individualism. Beginning with Aristotle, political theorists have described citizenship as first and foremost a sharing, a process of forming community around things held in common. That sharing and commonality has been as important a part of the American character as has our individualism. As Francis Kane has suggested, there are few public issues that do not presuppose a civic understanding of, and broad agreement with, a common purpose, a shared vision of the public good. This constant tension between notions of a public or common good and our commitment to the rights of the individual is a truism of Constitutional law and political debate. As Kane notes,

The balancing of these two poles, at once repelling the state’s unwarranted intrusion into the private lives of its citizens, and at the same time attracting those same citizens to the sweet joys and harsh sacrifices of community life, is what the American experiment is, in large measure, all about. (Kane 1998, 11)

In the last several years, renewed academic and popular concern with the health and importance of civil society, and the communitarian "backlash" against the liberal democratic emphasis on individual rights, have focused attention on the importance Americans place on the public good and the depth of our yearning for community (Barber 1993; Bellah et al. 1996; Haldane 1996). Robert Putnam and others have sparked a renewed interest in the importance of social capital: those features of social organization, such as networks, norms, and trust that facilitate coordination and cooperation for mutual benefit. (Putnam 1993) In the face of an increasingly multicultural America, Stephen Macedo cautions that

"Talk of diversity and difference too often proceeds without taking adequate account of the degree of moral convergence it takes to sustain a constitutional order that is liberal, democratic, and characterized by widespread bonds of civic friendship and cooperation." (Macedo, 2000, 2)

While civil libertarians caution against either-or communitarian formulations

intended to justify a shift of power to the "collective" (Kennedy 1997), many would nonetheless echo the sentiments John Haldane attributes to Aquinas:

[M]an stands in relation to society as a part to a whole; and every law is directed toward the establishment, maintenance, and improvement of the common good. The first is a familiar thesis of communitarianism–the irreducibility of society as a unified substance that bestows a form of moral identity on its members. As a corrective to a radical corporatist reading, it is relevant to add that Aquinas also regards individual persons as complete substances. By implication, then, he rejects a dichotomy that bedevils current debates, that which regards persons as either parts of a greater whole–society–or else as preexisting individuals out of which society is formed. A way through lies in the direction of saying that persons are both wholes and parts–wholes as selves, parts as social selves. (Haldane 1996, 71)

Chandran Kukathas has suggested that the dispute between liberals and communitarians is one of priority. The rights of the individual and the common good are both important; however, to the extent that a collective good is considered of greater importance than an individual liberty, cultural practices and institutions which strengthen norms of reciprocity, solidarity and fraternity will take precedence over individual rights and freedoms. (Kukathas 1996).

Perhaps Will Kymlicka puts the issue most succinctly by asking the question: what is the basis of social unity and political stability in a liberal state that contains significant ethnic [and, we might add, political and cultural] cleavages? (Kymlicka 1996) In many ways, Americans continue to struggle with the implications of Aristotle’s original insight. If communities are created and sustained by the things we have in common, by mutual engagements that build social capital (Putnam 1993) how do we transmit, support and reinforce those essentials without infringing upon the liberties of individual citizens?

The balance we strike between the libertarian and communitarian ideals has both social and economic implications. Private property and a free market economy are hallmarks of the individualism we protect; social welfare programs are concessions to the social capital/communitarian side of the equation.

Social capital cannot be categorized as a purely political or social phenomenon. It is also coming to be seen as a vital ingredient in economic development. There is mounting evidence that a "vigorous network of indigenous grassroots associations can be as essential to [economic] growth as physical investment, appropriate technology or ‘getting prices right’" Social capital is thus a public good. (Putnam 1993) A public good, in the classic economic sense, is characterized by joint, non-rival, consumption; difficulty in excluding non-payers (sometimes called the "free rider problem"); minimal marginal costs; and substantial positive spillovers. Traditional economic theory suggests that public goods will be underprovided in a pure market economy. Pure public goods are rare, but many pieces of the social infrastructure — schools, parks, libraries — have attributes of a public good.

Thomas Jefferson, the third President of the United States, described knowledge in the following way: ‘He who lights his taper at mine, receives light without darkening me.’ In doing so, Jefferson anticipated the modern concept of a public good. Today, we recognize that knowledge is not only a public good, but a global or international public good. (Stiglitz 1999)

The central public policy implication of public goods is that the state must play a role in providing them.

National public goods provide one of the central rationales for national collective action and for the role of government. Efficiency requires public provision, and to avoid the free rider problem, the provision must be supported by compulsory taxation. (Stiglitz 1999)

Voucher proponents will generally not dispute the classification of education as a public good and (except for the most ideological libertarians among them) do support a limited role for the state: the role of funder. Where they differ from proponents of a strong public education system is on the identity of the provider of educational services. Privatization proponents argue that the market can and should provide the education services and that government should enable individual families to purchase them. On the theoretical level, the voucher debate is one more instance of the tension between the libertarian insistence on market economics and individual choice, and the communitarian preference for mechanisms to encourage social cohesion.

While most voucher proponents are not free market libertarians, as the ground war demonstrates, the voucher movement began with the ideology of privatization, and it remains theoretically grounded there.

Beginning in the 1980s…privatization in the USA moved from an intellectual fringe to become a centerpiece in contemporary public policy debates. In part, this meant defining privatization more broadly, to include not only state-owned industries but any other properties in which the government held a major stake, and to include not just outright sales, but any other means of significantly increasing the role of private actors and market forces. The Reagan Administration began to target programs and assets for possible sale early in its first term. In early 1987, the first major privatization was carried out, with the sale of the government’s 85% interest in Conrail, a corporation established by Congress in 1976 to provide freight rail service in the Northeast. A President’s Commission on Privatization, established in September 1987, proposed further efforts to increase private participation across a broad range of policy areas including low-income housing, air traffic control, the postal service, prisons and schools. (Feigenbaum, Henig, and Hamnett 1999, 115)

In Shrinking the State, Feigenbaum, Henig and Hamnett argue that privatization theory was an ideological redefinition and appropriation of nonpartisan, pragmatic practices that had long preceded it. They note that laissez-faire economics had become politically passé.

Unable to account for the rise and endurance of the welfare state, laissez-faire ideas had lost much of their capacity to explain, guide and motivate. By applying economic principles to explain governmental behavior, the evolving theory of privatization provided a means to undercut the presumption that an expanded state reflected–and could best carry out–the pursuit of widely shared goals. (Feigenbaum, Henig, and Hamnett 1999, 117)

John Chubb and Terry Moe were among the first and most influential advocates of school privatization. Their 1990 book, Politics, Markets and America’s Schools, argued that privatization was necessary to save schools from what they described as abysmal performance. The core of the Chubb and Moe theoretical argument is found in a sentence from their introductory chapter:

For reasons we will elaborate and document at length, the specific kinds of democratic institutions by which American public education has been governed for the last half-century appear to be incompatible with effective schooling. (Chubb and Moe 1990, 2)

Although many commentators have challenged the data and methodology used by Chubb and Moe to paint their grim picture of America’s schools (Lee and Bryk 1993; Sukstorf, Wells, and Crain 1993) fewer have commented on their stated premise that "effective schooling" is to be measured against academic criteria only, that the "core academic mission" of our schools is to impart competency in the math, science and language skills "so crucial to a future of sophisticated technology and international competition." (Chubb and Moe 1990, 1) That is, to the extent that schools are to provide a public good, privatization theory defines that good solely as achievement of a level of academic competence sufficient to sustain economic growth and make America competitive in the global marketplace.

Critics of educational privatization quarrel with this definition, arguing that before the state relinquishes control of the American educational apparatus, citizens must carefully consider the role schools are to play. If the "public good" requires more than the transmittal of literacy and technical knowledge sufficient to support economic growth and individual self-sufficiency, if it instead requires the creation of a political community, a process of creating unum from our pluribus, the utility of vouchers becomes problematic.

In 1996, the Twentieth Century Fund issued a report on school privatization, in which the authors noted:

Under [vouchers], the educational funding stream flows directly from the government to private individuals without the mediation of a public system. Thus, education ceases to be a collective public undertaking and becomes instead a private relationship between each family and its school. Schooling ceases to be part of the public sphere; no longer a public service, it becomes a consumable item. (emphasis supplied) (Ascher, Fruchter, and Berne 1996, 7)

Voucher opponents like Stephen Macedo argue that treating education as a "consumable" represents a significant break with the American civic tradition.

"It may be that a greater reliance on educational choice and school competition

makes sense from the point of view of educational policy. And it may be that we

would do well to utilize the particular virtues and capacities of private groups and

civil society institutions in the delivery of social services. The last thing we should do, however, is to simply ignore or assume away the civic ambitions that

have been at the core of public schooling from the beginning." (Macedo, 2000, 21)

G.K. Chesterton, in a famous 1902 essay, wrote "America is the only nation in the world that is founded on creed." It is an observation that has been echoed many times since.

Ours was the first nation not to be based upon geography, ethnicity or conquest, but upon a theory of social organization. That theory–that idea–was incorporated in our constituent documents: the Declaration of Independence, the Constitution, and the Bill of Rights. (Kennedy 1997, 182)

In a diverse polity, knowledge of the creed, acceptance of the idea, becomes the primary source of social cohesion. Traditionally, in America, the public schools have been the mechanism through which we transmit our creed. As Benjamin Barber has written:

We have forgotten that the "public" in public schools means not just paid for by the public but procreative of the very idea of a public. Public schools are how a public — a citizenry — is forged…

Among the several literacies that have attracted the anxious attention of commentators, civil literacy has been the least visible. Yet this is the fundamental literacy by which we live in a civil society. It encompasses the competence to participate in democratic communities, the ability to think critically and act with deliberation in a pluralistic world…

Civility is a work of the imagination, for it is through the imagination that we render others sufficiently like ourselves for them to become subjects of tolerance and respect, if not always affection. Democracy is anything but a ‘natural’ form of association. It is an extraordinary and rare contrivance of cultivated imagination….At its best, the American dream of a free and equal society governed by judicious citizens has been the dream of an aristocracy of everyone. (Barber 1993, 44)

Neil Postman endorses Barber’s point when he writes, "[P]ublic education does not serve the public. It creates the public." (Postman 1995) And Robert Putnam has written that "[M]ost commonly discussed proposals for [school] "choice" are deeply flawed by their profoundly individualist conception of education." (Putnam 1993)

Barber and Postman define the nature of the public good to be provided as an experiential one: not only must we be concerned with constitutional competence and civic literacy in an intellectual or pedagogical sense, they argue, we must also provide environments that teach our young how to encounter, understand and go beyond difference, how to fashion American unity out of our incredible diversity. If we are to create and nourish social capital, we must demonstrate our commitment to equality by providing equal educational opportunity, and our commitment to community by the process of learning together. Martha Minow would signal that commitment by ensuring that the common school remains the norm from which deviations are permitted.

"[I]nculcation of the civic values of tolerance, equality, liberty, and democracy

is defensible in a nation committed to and dependent upon these values. Schools

that model these ideas are more likely to inculcate these values than schools

departing from them. Such a model is best provided by the common public school, the school intended to afford children from all walks of life equal

opportunities and a shared experience, even if a small percentage of families

exercise their constitutionally protected right to elect religious or other private

alternatives." (Minow 1999)

Stephen Macedo goes even further. Acknowledging the discomfort of some religious communities with public education, he argues that "common schools were [historically] deeply controversial not in spite of, but because of legitimate civic purposes" that may justify impositions on individual choices.

"[T]he children of fundamentalists are also future citizens, and our shared

political institutions are proper instruments to plan for the cohesiveness of our

political community…[S]ome account needs to be provided of how future

citizens acquire the character traits, habits and virtues they must have if the

liberal political project is to survive and thrive." (emphasis in original) (Macedo, 2000, 20)

The 19^th century crusade for common schools was, like America itself, an outgrowth of Enlightenment thought, particularly Enlightenment views about natural rights and political equality. Proponents of public schools stressed the need to produce educated citizens, to cement the fabric of the nation by ensuring that young people would share a common language, political culture, and values. Common schools would provide a civic infrastructure upon which would be built a polity with shared political traditions and beliefs. It was precisely this element of the public school mission that antagonized Catholics and others in the mid-nineteenth century. "[T]o a greater degree than many historical sources allow, some of the most basic and widely discussed conflicts around public schools have been the consequence of religious opposition to basic civic ideals." (Macedo, 2000, 43)

Clearly, the common school movement had economic roots as well: industrialization required a more literate workforce; urbanization required additional ways to supervise the young; immigrants required socialization. But it is equally important to note that "The animating ideology of the common school proclaimed that the public good could best be served by public, not private, education, because the moral and civic training of the young was the concern of all citizens, not just parents. For that reason, choices about education should be collective." (emphasis supplied) (Tyack 1999).