The Center for Law and Religion Forum had a post a couple of weeks ago about a talk by Erwin Chemerinsky (dean of the new UC Irvine law school), in which he made a rather striking proposal. Indeed, Dean Chemerinsky has made the proposal in print several years ago, in an article titled Separate and Unequal: American Public Education Today, so I thought I’d quote that article and put the matter in Chemerinsky’s own words, because I think it more broadly illuminates the danger that excessive equality arguments pose to liberty:
My proposal is simple, although unrealistic at this point in American history. First, every child must attend public school through high school. There will be no private schools, no parochial schools, and no home schooling. Second, metropolitan school districts will be created for every metropolitan area. In each metropolitan area, there will be equal funding among the schools, except where educational needs dictate otherwise, and efforts will be taken to ensure desegregation. Third, states will ensure equality of spending among metropolitan school districts within their borders.
How could this happen? One possibility would be through the Supreme Court, though of course not with the current Court. The Supreme Court could find that the existing separate and unequal schools deny equal protection for their students, and order the creation of a unitary system as a remedy. Another way to achieve a truly unitary system is by legislative action. Congress could adopt a law to achieve these goals or state legislatures could do so within the states’ borders.
I do not minimize the radical nature of this proposal, but this may be the only way that equal educational opportunity can be achieved. If wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools. Currently, they have no incentive to care about funding in public schools as long as their children are in private or suburban schools. Moreover, as described above, desegregation can be meaningfully achieved only through metropolitan school systems, which include suburbs and cities, because white students could not flee to private schools.
The most significant objection to this proposal is that it is unconstitutional under current law. In Pierce v. Society of Sisters, the Supreme Court held that parents have a fundamental right to send their children to parochial schools. The Court based this on the right of parents to control the upbringing of their children. This right, however, like other fundamental rights, is not absolute. I would argue that strict scrutiny is met and therefore interference with the parents’ right to control the upbringing of their children is justified. There is a compelling interest in achieving equality of educational opportunity and the means are necessary because no other alternative is likely to succeed.
Parents desiring religious education for their children would claim a violation of their free exercise of religion. Of course, under the Supreme Court’s decision in Employment Division v. Smith, such a neutral law of general applicability would not violate the free exercise clause. Also, as explained above, strict scrutiny would be met by the proposal. I do not minimize the interests of parents in providing religious instruction for their children. Parents, however, could still do this through after-school and weekend programs. This is not the same as education where religion permeates instruction, but it does provide a way in which parents can provide religious education for their children.
Perhaps the Court would need to reconsider Wisconsin v. Yoder as well, to the extent that it is read as creating a right of parents to isolate their children from the influences of public education. In Yoder, the Court held that Amish parents had the right to exempt their fourteen- and fifteen-year-old children from compulsory school requirements so as to preserve the special Amish culture. Read broadly, parents could invoke Yoder to justify a right to home schooling if parents wanted to insulate their children from the influences of public education. Simply put, the courts should hold that the compelling need for equal schooling outweighs this parental right.
A clearer example of how an excessive focus on equality undermines liberty is hard to find. And the implications of this argument, if it were accepted, are striking. After all, the argument that “[i]f wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools” and that “[c]urrently, they have no incentive to care about funding in public schools as long as their children are in private or suburban schools” could apply to many things. For instance, if wealthy people know that, if they or their family members prosecuted, they will have to use public defenders, then they will be more likely to ensure adequate funding of public defenders; currently, they have no incentive to care about funding of public defenders as long as they can hire pricey private criminal defense lawyers. There goes the right to choose your own lawyer, together with the right to choose a school for your child.
Likewise, one can argue that public libraries are underfunded, too. Maybe people should be limited in the number of books they can own, so that they will have to go to the public library instead, and thus have an incentive to vote to fund the libraries. Naturally, private provision of medical care would have to be forbidden, too, since only that will give rich people an incentive to vote for more funding for medical care for the poor.
And of course people in poor, high-crime neighborhoods often don’t get enough police protection, especially given the greater needs for protection in those neighborhoods; and the housing stock in those neighborhoods is often quite undermaintained. How about this: Let’s bar people from buying private housing, and instead require people to live in housing units run and randomly assigned by the government. After all, if wealthy people must live in public housing in rough neighborhoods, then they will ensure adequate funding of that housing and of policing of those neighborhoods. Currently, the rich have no incentive to care about public housing and public policing of poor parts of town as long as they and their children are in private housing in safer parts of town.
Think also of the other ways that some people find themselves “separate and unequal” — how about in the ability to reach the public? If you are a highly educated and credentialed law professor, reporters call you, talk shows want to have you on, people are more likely to read your blog, and newspapers are more likely to run your op-eds. If you are poor and not very knowledgeable or eloquent (often through no fault of your own), obviously you don’t have equal access to an audience. Sounds like a good reason to limit the free speech rights of those whose circumstances have unfairly provided them with extra credibility and status, so as to at least reduce this inequality.
To be sure, some people (Justice Scalia is one) have indeed argued against parental rights, on the grounds that they — like abortion rights and sexual autonomy rights — aren’t mentioned in the Constitution, though I expect that many of those people would nonetheless say that limits on private schooling (or requirements that children go to government-run school 30 hours a week) would violate the freedom of parents to hire people to speak to their children. But Chemerinsky is not taking this view. He is acknowledging that there is a constitutional right to control the upbringing of one’s children, but is saying that this right, “like other fundamental rights, is not absolute,” and can be trumped by a “compelling interest in achieving equality of educational opportunity.” It follows that other fundamental constitutional rights, such as the right to counsel, the freedom of speech, and the right to choose where one lives (to the extent that it’s recognized as a constitutional right) would likewise have to yield to the “compelling interest in achieving equality.”
I agree with Dean Chemerinsky is that this proposal is “unrealistic at this point in American history.” But I think it’s worth thinking about it, and understanding what its implications are, and what is unsound about it. This, I think, will help us better evaluate other proposals to restrain constitutional rights in the name of equality; and I hope it will help keep the proposal unrealistic at future points in American history as well.