Topic: Education and Child Policy

Analyzing Arne’s Era and What’s to Come

Arne Duncan announced Friday that he is resigning as Secretary of Education, effective sometime in December. He will be replaced – sort of – by Deputy Education Secretary John King, who will not be put up for the permanent job but will be kept until the end of the administration in an “acting” – and Senate confirmation-less – capacity.

Of course, what Duncan has done as Secretary reflects what the Obama administration wanted, not what Duncan did on his own. Regardless who was ultimately calling the shots, though, Duncan presided over a period that has fulfilled some of the worst fears of anyone who has ever said, “It might be a bad idea to have a federal education department. They might start trying to run things.”

The overarching theme under Duncan has been huge consolidation of power not just at the federal level – alone blatantly unconstitutional – but in the Department itself.

Protecting School Choice from the State

As economists have understood for more than half a century, government agencies charged with regulating industries are often subject to regulatory capture. Rather than protect consumers from bad actors in the industries they were created to oversee, regulators too often develop cozy relationships with industry leaders and work at their behest to advance their interests. In Free to Choose, Milton and Rose Friedman detailed a particularly egregious example: the Interstate Commerce Commission (ICC).

Established in 1887, the ICC’s mission was to regulate the powerful railroad industry, which critics accused of engaging in cartel-like price fixing and market sharing. Instead, the railroad industry took almost immediate control of the ICC. The ICC’s first commissioner, Thomas Cooley, was a lawyer who had long represented the railroads and, as the Friedmans explained, many of the agency’s the bureaucrats “were drawn from the railroad industry, their day-to-day business tended to be with railroad people, and their chief hope of a lucrative future was with railroads.” 

Liberty Usually Violated before the “Ban”

It is Banned Books Week, designated by the American Library Association and others as the time for “celebrating the freedom to read.” Of course, having the freedom to read whatever one wants is essential to a free society. But regular abuse of the term “banning,” and the violations of freedom that often occur before any so-called banning is attempted, are just as crucial to recognize if we really care about liberty.

Unfortunately, just about any time a parent or taxpaying citizen challenges the presence of a book in a public library or school, deafening alarm bells are rung that there is an attempted banning underway. But, as this Slate article nicely explains, there is very little actual “banning” being attempted, if by banning we mean “officially or legally prohibiting” someone from accessing a book. Just because you may not be able to get a book at a library does not mean you cannot legally obtain it at all. For the most part, it just means you have to hop onto Amazon and buy the book yourself. Which takes us to the violation that occurs before most “banning” is even tried.

As I explained a few years back, when a public library or school purchases a book with taxpayer dollars, it compels taxpayers to support someone else’s speech – a violation of liberty. This is even more the case if the library decides that it will purchase some books and not others, which it must do unless it has, essentially, infinite funds. Then a government entity not only compels support of speech, but chooses to elevate some speech above others.

A Solution in Search of a Problem

Last week, Georgia Governor Nathan Deal’s Education Reform Commission released its draft recommendations for improving and expanding the state’s school choice programs. While some of the commission’s proposed changes are meritorious, the commission failed to recommend expanding the state’s highly popular, nearly universal scholarship tax credit (STC), instead proposing that the state create a new STC that is highly regulated and much more limited in scope.

The commission’s two proposed changes to the existing STC (having the Department of Revenue count actual contributions against the tax credit cap rather than mere pledges and changing the start date for claiming credits) would make it easier for scholarship organizations to raise funds. The commission also explored the possibility of converting the STC into an education savings account (possibly still funded through tax credits, though the report is not clear about that), enabling families to use the scholarship funds for a variety of educational goods and services beyond private school tuition along the lines of what I described in my testimony before the commission in May. 

The Year of Educational Choice: Update V

This is the sixth post in a series covering the advance of educational choice legislation across the country this year. As of my last update in early July, there were 17 new or expanded choice programs in 14 states. On Friday, North Carolina lawmakers finally passed a long-overdue budget that expanded the state’s two school voucher programs for low-income and special-needs students, bringing the total number to 19 new or expanded programs in 15 states. The updated tally is below.

A lawsuit against the Tar Heel State’s voucher law impeded implementation so only 1,216 low-income students participated last year, barely 10 percent of the 12,000+ applications the state received. In July, the North Carolina Supreme Court upheld the program, clearing the way for the legislature to expand it. 

Meanwhile, opponents of educational choice have launched a second legal attack on Nevada’s new education savings account law. Last month, the ACLU filed a similar lawsuit. The state of Nevada has hired one of the top law firms in the nation to help defend the ESA program. In addition, the Institute for Justice will be defending the law against both challenges on behalf five families who would benefit from the ESAs. You can learn about their stories in this short video:

Pope’s Visit Good Time to Contemplate Educational Freedom

The nation is abuzz with the visit of Pope Francis. There is, of course, a lot that could be discussed with the coming of the Pope, but for education it is a good time to remember the crucial importance of freedom. After all, for much of our history the biggest fights in education were over the public schools’ inability to accommodate Roman Catholics.

From the earliest advocacy of public schooling, arguably the primary goal has been to unite diverse people. As Founding Father Benjamin Rush put it in his Thoughts upon the Mode of Education Proper in a Republic, “Our schools of learning, by producing one general and uniform system of education, will render the mass of the people more homogeneous and thereby fit them more easily for uniform and peaceable government.”

Of course, there is a fundamental problem with this: diverse people will almost certainly want diverse things out of education, so conflict – and suppressing of politically weak minorities to end it – is inevitable.

For much of American history, there was no bigger flashpoint than religion.

Notably, the first religious disputes over “common schools” were not between Catholics and Protestants, but among Protestants. In the Massachusetts of common schools “father” Horace Mann, many orthodox Protestants took issue with the public schools that were to teach “nonsectarian” Christianity, a lowest-common-denominator Protestantism that, among many things, appeared to be Unitarian – Mann’s denomination. It is likely that Mann just wanted to avoid doctrines that would spur theological disputes, but even that proved impossible, with the absence of such doctrines also appearing sectarian.

“Holistic” Review of College Applicants = Using Race in an Arbitrary, Unaccountable Way

Two years ago, the Supreme Court’s 7-1 ruling in Fisher v. UT-Austin (Fisher I) made clear that race-conscious college admissions programs must be subject to strict judicial scrutiny, requiring universities to prove that their consideration of race is precisely tailored to serve a compelling government interest. Because Fisher I came to the justices without a developed factual record, the Court remanded the case for further development.

After the lower court essentially rubber-stamped its previous ruling, Abigail Fisher—the applicant who claims that she was denied admission because she’s white—got a second trip to the Supreme Court, which will finally have to determine whether the University’s “holistic” review process passes constitutional muster. Cato has again filed an amicus brief supporting Fisher.

Texas’s program allows application readers to take race into account when assigning applicants a “personal achievement score.” But there’s no oversight of readers’ use of race in assigning these scores, with the result that the university can’t explain how (or how often) race plays a role in admissions decisions. All we’re left with is an opaque, arbitrary, and unaccountable program supported only by the talismanic use of the word “holistic” to evade scrutiny.

But invoking that word should not be the end of judicial review. The Court’s equal-protection precedents establish four distinct requirements that a university employing a race-conscious admissions process must satisfy to demonstrate that its plan is narrowly tailored. The University of Texas has satisfied none of them.

First, the university can’t show that its program is necessary to achieve diversity because it can’t show how or when race affects application decisions. (Moreover, about 80 percent of its freshman class is admitted under the race-neutral Top Ten Percent Law—the top 10 percent of students from each Texas public high school are automatically admitted—which the university hasn’t shown to be insufficient to produce the desired diversity.)

Second, Texas can’t show that its chosen means properly “fit” its ends because it hasn’t offered any evidence that would enable a court to evaluate whether the use of race is narrowly tailored to achieve its purported “qualitative diversity” goal.

Third, the university can’t show that the program provides individualized consideration to every applicant—which the Supreme Court demanded in its 2003 Grutter v. Bollinger decision. This requirement ensures that colleges don’t make race the “defining feature” of the application process, but the black-box nature of Texas’s admissions policy makes it impossible to ascertain whether race amounts to a thumb or a brick on the scale.

Finally, UT-Austin’s program frustrates accountability and transparency because the school wields “holistic review” as a shield to obscure the role of race in admissions and frustrate scrutiny, judicial or otherwise. This opaqueness may create more racial hostility than it remedies. Further, holistic review can serve as a cover for the illegitimate or unnecessary use of race, as statistics from a variety of American universities indicate. Even the Harvard Plan that Justice Powell in Regents of the University of California v. Bakke (1978) assumed would withstand strict scrutiny has a less-than-illustrious history, beginning with its origin as a less-controversial alternative to explicitly capping the number of Jewish students admitted. More recently, evidence suggests that Harvard’s holistic review has facilitated forbidden racial balancing with regard to lowering the number of Asian admittees.

Accordingly, the Supreme Court should review the holistic review regime at the University of Texas with an eye toward curtailing the improper use of race in university admissions nationwide.

For more on our arguments, see this SCOTUSblog essay.