Review: Public School Meltdown Reviewed Work(s): Education by Choice: The Case for

Family Control by John Coons and Stephen Sugarman Review by: Stephen Arons Source:
Michigan Law Review, Vol. 79, No. 4, 1981 Survey of Books Relating to the Law
(Mar., 1981), pp. 792-801 Published by: The Michigan Law Review Association Stable
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SCHOOL MELTDOWN Stephen Arons* EDUCATION BY CHOICE: THE CASE FOR FAMILY CONTROL.
ByJohn Coons and Stephen Sugarman. Berkeley: University of Cali.fornia Press. 1978.
Pp. xi, 249. $10.95. John Coons and Stephen Sugarman have written a stimulating,
tive, reassuring and iconoclastic, it is a pragmatic formula for the reconstruction
of consensus through the legitimizing of dissent. The authors' tone is hopeful; but
the problem they address is grim. The existence of such a book, which has as its
avowed purpose to justify family control of children's schooling, is in itself
striking evi.dence that American culture is in a state of confusion -that we do not
know how to understand childhood, whether to trust institutions, or how to
extrapolate from the present to the future. In such a situa.tion, politicians and
others who seek public support turn increasingly to law and policy to take the
place of dysfunctional values. It is for.tunate, therefore, that in articulating a
case for family control of schooling, Education by Choice has managed an air of
humility:"lawmakers must be helped to understand that conflict, confusion, and
ignorance respecting the child's interest are not a disaster but the stuff of which
a rich pluralism can be forged" (p. 222). The argument of the book is
straightforward, even if it is filigreed with legal nicety: the design of public
education and the accident of personal economics prevent most Americans from
exercising anymeaningful choice concerning one of their most intimate and per.sonal
concerns, the education of their children. This situation short.circuits the most
efficient and reliable means of ascertaining and pro.tecting the best interests of
the child -the family. Worse still, it undermines the potential for achieving
legitimate social or political consensus among adults in areas where such a
consensus is vital. The virtually unstated premise of this argument is that
schooling is such a manipulator of consciousness that unless families possess the
power to control the transmission of culture through schooling, � Associate
Professor and Director of Legal Studies, University of Massachusetts. Am.herst.
B.A. 1965, University of Pennsylvania; J.D. 1969, Harvard University. -Ed. 792 our
society risks becoming statist, monolithic, and repressive. It is a theme which is
both depressing in showing how far we have moved toward conformity, and encouraging
in its implication that voluntary school association can be a significant tool for
community recon.struction. The failure to make this theme explicit is the only
signifi.cant weakness in this otherwise encyclopedic discussion of educational
policy. The authors have been so concerned to bring all interested parties into the
fold of their choice plan that they have elected to downplay their concern that
American schooling is under.cutting the principles of liberty and pluralistic
political order. Coons and Sugarman demonstrate fairly convincingly that "value-
neutral schooling" never was and never will be. They quote G.K. Chesterton to good
effect: "'It is quaint that people talk of separating dogma from education. Dogma
is actually the only thing that cannot be separated from education. It is
education. A teacher who is not dogmatic is simply a teacher who is not teaching' "
(p.81 ). It is to the authors' credit that they are not deterred from this
realization by the fact that so much of today's taught dogma is wrapped in candy-
coated psycho-babble or secular claims about "good citizenship" or Americanism. The
issue, as Coons and Sugarman clearly see, is not what is best for the child in a
particularsetting or what is good education in general, but whether the family or
some apparatus of the majoritarian state will hold the balance of decision-making
power over the schooling of a child. This battle for control of children in school
has been going on ever since the late nineteenth and early twentieth centuries,
when the rise of compulsory, universal, publicly supported schooling began to
reverse the presumption of parental competence in child rearing and to transform
education into a professional prerogative. In an earlychapter entitled "The
Intellectual History of Choice in Education" (pp. 18-32), Coons and Sugarman
acknowledge the durability of these struggles for control and show that the courts
have been able or willing to provide only the most general guidance for the
resolution of what are essentially school-based disputes over public orthodoxy.
Their history is too brief, however. It is not pointed enough in its analysis of
the politicization of schooling, 1 and it is often overly aph.oristic in dismissing
certain libertarian perspectives. The idea that parents' rights have something to
do with the balance of power over schooling is treated in one early page and
summarily dismissed: "we view parents primarily as potential instruments of the
child's wel-I. See D. NASAW, SCHOOLED TO ORDER (1979); and Coons & Sugarman's own
note 10, at p. 230. fare; the chief issue is whether family choice would be a
blessing for children, not whether it is a right of the parents" (p. 23 ). The
radical individualism of people from John Stuart Mill to John Holt receives a
similarly abbreviated treatment that concludes with the following summary judgment:
"Little children will not be liberated; they will be dominated. The only question
is by whom and for what ends" (p. 24). These sentences are not only facile; they do
not correctly state the authors' position on the issues. Later in the book, a more
lengthyand sensitive discussion of the rights of children as against the do.minion
of parents makes it clear that Coons and Sugarman are com.mitted to increasing the
autonomy of the young and to incorporating such autonomy in legal rules and public
policy (pp. 63-64, 71-87). Moreover, their discussion of "The Issue of Ideological
Pluralism" ( chapter 6) shows them to be articulate advocates of parents' rights in
schooling even if they find the label "parents' rights enthusiasts" (p. 22)
uncomfortable: "Can there be doubt that one effect of public education as presently
structured is to chill the expression of minor.ity views?" (p. 101 ). Current
battles for control of public schooling make the book's case for family choice even
more important to the preservation of ideological pluralism, political democracy,
and the institution of the family than Coons and Sugarman seem to perceive. A more
direct discussion than the authors provide of modern American schooling as anti-
democratic might show that their proposals are not onlyworkable but necessary. Two
kinds of contests over schooling -the censorship of texts and teachers, and the
attack on home education -are proliferating at an alarming rate. They serve as
evidence that schooling continues to provide a generally accessible means of
suppressing dissent in America. The current climate of confusion and disagreement
is find.ing expression in innumerable pitched battles over public orthodoxy played
out as issues of who shall control the education of children. In Island Trees, New
York, for example, a four-year contest over the power of a school board to ban
Malamud's The Fixer as anti-Semitic and Langston Hughes's edition, Best Short
Stories of Negro Writers as anti-Negro has only recently been remanded for trial by
the Sec.ond Circuit Court of Appeals.2 It contains all the emotional and polarizing
strife of a seventeenth-century battle between English Pu.2. Pico v. Board of
Educ., 474 F. Supp. 387 (E.D.N.Y. 1979), revd., 638 F.2d 404 (2d Cir. 1980). ritans
and the Anglican Church. As mindless asthe censor's claims about these and other
banned books may seem, the battle exhibits a parental desire to replace the
perceived confusion of values with an imposed order. The willingness of the Island
Trees School Board to useschool policy as aninstrument of orthodoxy is also
exhibited by more ideologically articulate groups all over the country who are
fighting everything from sexism and racism in textbooks to flabby moral relativism
and Darwinism in the curriculum. The sad truth about the hundreds of instances of
school censorship arising yearly is that these are intractable contests over issues
of conscience whose heat is melting down the structure of school governance and
whose existence is encouraged and even made necessary by the majoritarian structure
of American schooling. The system of educa.tion by choice which Coons and Sugarman
advance holds the strong possibility of eliminating at onestroke much of this
polarizing and unreconcilable strife over schooling. The recent flare-up of
contests over parental assertions of the right to educate children at home, though
less visible
tothe public, exhibits the same emotional intensity and institutional repression
found in the censorship cases. Parents who have rejected the domi.nant ethic of
schooling and, because of their lack of funds orradical individualism, decided to
teach their children at home, have been faced with the most extreme reactions from
public school adminis.trators. From unreasoned refusals to authorize home teaching
to at.tempts to take legal custody of children or to fine or imprison parents,
those charged with operating the public schools have often shown that while
ignoring thousands of drop-outs, they can see home teaching as a threat to public
schooling. Individualism and choice are anathema to a monopolistic organization of
schooling. Schools are a primary means of transmitting culture in industrial
so.cieties, and the control of this process is firmly lodged with the polit.ical
majority and its agents. Yet neither the public nor the authors of Education by
Choicehave squarely addressed the contradiction be.tween majoritarian control of
schooling and the right of any individ.ualor family to formulate and hold basic
values apart from those of the majority. Though they do not fully explore its
consequences for political legitimacy, here is how Coons and Sugarman describe the
orthodoxy they perceive in public schools as presently structured: Explicitly the
schools emphasize technology, uncontroversial informa.tion, and skills, an approach
officially deemed to be "neutral." On its surface the intended message appears to
have little philosophical con.tent; by and large, the schools shun explicit
treatment of controversial moral and political issues. Implicitly, however, they
endorse maJontarian social and political norms. Historically and currentlythey have
striven with enthusiasm to produce "true Americans" byconditioning the children to
the mind-set accepted in the larger -or at -society. This "hidden curriculum"
relies principally on the social ambience of the teaching personnel, who are
generally mid.dle class and trained in similar institutions. [Pp. 42-43.) On the
whole a basic goal in most American public schools has been the creation of one
version of conditioned man. The proper product is a fundamentalist rectitude
embodied in per.sonal models of the American Gothic -industrious, flinty,
intelligent, and narrow .... The pervasiveness of ideology in the schools has not
been much diminished by First Amendment strictures. The Constitution has
frus.trated only the cruder forms of pious edification, and the vacuum has been
filled by subtler persuasions wisely preferred by more sophisti.cated purveyors of
gospel. The work of the apostles can be seen in the books, pictures, teachers,
silences and ambience of our public schools. The civil religion includes the
virtues of hard work, accumula.tion, . . . marriage, small families, . . . thin
girls, aggressive boys, reverence for applied sciences, health through professional
medicine, denial of death, and ( above all) "belonging" . . . . [Pp. 78-79.] Small
wonder that public school officials react with irrational hostility to home
educators who do not want to belong. Greatwon.der that Coons and Sugarman do not
follow their owncivil religion analogy to its logical conclusion: Education is
asmuch undermined byalack of separation of school and state aspolitical life would
be by alack of separation of church and state. Perhapswehave a right to expect that
two persons who aresuch powerful thinkers, eloquent writers, and influential
scholars will not pull their best punch in the public struggle overhowourschool
sys.tem should be structured. Certainly they did not hold back in their analysis of
economic discrimination in school funding, Private Wealth and Public Education
(written with William Clune III). But Coons and Sugarman have chosen another avenue
of argument, per.in the genius of convinceasignificant number of people that
education by choice is asafe and technically feasible expression of traditional
American values. At bottom their chosen argument has two parts which are re.peated
and summarized in numerous ways and places within the book: that parents are best
able to perceive and pursue the educa.tional needs of their own children; and that
the two legitimate collec.tive goals for education -achieving a consensus in
support of the political structure and promoting racial integration -are probably
better served by a system of choice than by our present government monopoly in
schooling. The authors point out with their customary force that this monopoly
constrains only those without the substan.tial wealth required to choose
nongovernment schools, and that such economic discrimination in the allocation of
school choice contra.dicts important principles of equality and fairness. Early in
the book the economic issue is brought to the fore: The combination of compulsory
school attendance, the public school administrative structure, and the taxing
apparatus displace the normal parental-choice standard and substitute a presumption
that only rich parents are the best judges of their child's educational
interest ... in matters respecting basic loyalties, intellect, and fundamental
values .in short, where the child's humanity is implicated -the state must dominate
the prime hours of the average child's day. Whether a dis.tinction of this sort
among economic classes is good public policy is the basic issue. [P. 27.] Coons and
Sugarman are at their iconoclastic best in discussing these economic issues, in
stripping tax structure of its technical cam.ouflage and pointing out the value
judgments which many support out of simple ignorance of their existence. It is more
than a little painful to confront this economic discrimination when, as the
au.thors make clear, a majority of American families are its degraded and repressed
victims, and when it is the freedom of a pluralisticdemocracy which is most
threatened by the absence of equal school choice. No doubt just such a tweaking of
public conscience is in.tended later in the book when the "basic issue" of American
public education is being addressed: It has been argued that the problem with
public education today is that the rich can exit; if they were forced to remain,
they would exer.cise their voices and such complaints would bring about needed
change. Our interpretation of the problem is the converse. The prob.lem is that
only the rich can exit, and that it is the extension of the right of exit to the
nonrich that will induce educational improvements. [P. 164.] Having made their
arguments from the qualifications of parents to judge a child's best interest and
the need of the society to rest its constitutional order upon a minimum consensus
as to political struc.ture, Coons and Sugarman have the honesty and good sense to
con.front directly the issue of racism in schools. It does not take a particularly
long political memory or a particularly well-read legal scholar to note that
freedom of choice has been the battle cry of so.phisticated racists almost from the
moment that Brown was handed down. Indeed voucher plans of all stripe have been
produced in the interest of maintaining segregated schooling and continuing the
stig-equality may here be tempered" (p. 2). Coons and Sugarman devote considerable
space to this issue, ex.amining the success of court and administratively ordered
desegre.gation (p. 112), the uses and limits of existing legal protections against
racial discrimination in private schools (p. 119), and the au.thority of the
judiciary to order desegregation "under conditions of choice" (p. 115). They
evaluate the problems presented by the rare teaching of explicit racism in schools
and by the widespread racism implicit in teaching and in officially condoned peer
pressure (p. 105). The authors conclude that a set of regulations and incentives
and a partial reliance on the good faith of most families give "reason to believe
that family choice could further . . . racial integration" (p. 129).3 The
conclusion is one I would like to believe; but it suffers from contradictory flaws.
On the one hand, we are asked to relyupon public good faith that few will choose
racism despite contradic.tory experience ever since the first black men and women
were ripped from their culture and brought to America. On the other hand, we are
provided with an elaborate set of incentives and legal protections designed to
assure a minimum of good faith, but which constitute such broad over-regulation
that nonracist choices may be significantly hampered as well. But perhaps this
complaint is merely a restatement of a terrible dilemma, and the thoughtful effort
of Education by Choice reallydoes represent the best that can be done to advance
both liberty and equality. At the very least, we are led to think about the real
possi.bility that more freedom of choice, sensibly designed, would reduce racism in
schools, and that the supporters of the present structure of compulsory schooling
have not cornered the ideological or practicalmarkets on the issue of reducing
school segregation. In roughly the middle of the book, the focus shifts from the
mak.ing of arguments and the sometimes endless mentioning of further considerations
to "Designing The Instruments of Choice." Althoughit has been only 130 pages to
this point, the reader welcomes what For a more skeptical view, see Arons &
Lawrence, Manipulation of Consciousness: A First Amendment Critique of Schooling,
15 HARV. C.R.-C.L. L. REV. 309 (1981). promises to be a hard-nosed practical
approach. The first half of the book suffers slightly from an over-ambitious survey
of issues. The focus and impact of the argument is sometimes lost in the
prolifera.tion of erudition. Coons and Sugarman have tried to be all things to all
people, thereby commiting a sin similar to that of the publicschools
which they so aptly criticize: "Here is a role for school, not to'broaden' the
experience of the already worldly child, but progres.sively to narrow and focus
that experience until at last the school has brought his education to a point" (p.
102). In broadening the discussion of family choice, Coons and Sugarman have tried
to reassure all those who have a stake in the multibillion-dollar schooling
industry that family choice is non.threatening and eminently sensible. The design
of the system .which follows designs by a range of other scholars from Milton
Friedman to Christopher Jencks, from Thomas Paine to the Na.tional Tax Payers Union
-is consistent with this appeal to all those in a position to influence its
acceptability politically. Here is one of their summaries of the instruments of
choice: [W ]e invite the reader to assume the following: that each year there is to
be provided to each school-age child in the experimental area(s) a scholarship
certificate entitling the child to education in the public or private school of his
family's choice; that the child himself, as he gains maturity, will be given
increased formal power over the choice made; that families will not face
significant schooling costs above the value of the scholarship (for example, no
added tuition); that participating schools will be approved by government, but
requirements for ap.proval will be limited to concerns about safety, fraud, and
minimum educational inputs; that an effective information and counseling serv.ice
will be provided to assist the family in making an informed choice; that, subject
to space availability, children will be admitted to schools of their choice, with
admission by a state-conducted lottery when there is excess demand for a particular
school; that adequate transport will be provided free; and that the present
population of teachers will be given substantial job protection in the transition
years. [Pp. 31-32.] This early summary only hints at the complexity and occasional
hyper-regulation involved in the Coons and Sugarman demonstra.tion of the technical
feasibility of a racially equitable freedom-of.choice plan. Its elaboration and
discussion over nearly 100 pagescontains some essential requirements as well as
some Swiftian exer.cises in working out hypotheticals. The entire enterprise is
couched in the unfortunate language of experimentation, suggesting that while the
aim is to smoke out the disagreements among reformers by� proposing specific plans,
the plans do not have to be taken all that seriously because they are to be tested
in only a limited number of areas.4 This penchant for limited experiments rather
than restructur.ing of the entire system may seem politically realistic, but it is
proba.bly doomed to failure through the same kind of machinations which aborted the
Ocean Hill-Brownsville "experiment" in school decen.tralization in the late l 960s.
In some ways, Coons and Sugarmanhave written a feasibility study reminiscent of the
Office of Eco.nomic Opportunity-sponsored effort of the Center for Study of Pub.lic
Policy in the early 1970s -a study which made proposals but never really received
an experimental try-out. In their attempt to add sophistication to previous voucher
de.signs, the authors cover four basic issues: admission and selection of students
( chapter 8), governance of schools eligible for vouchers (chapter 9), minimum
requirements for eligible schools (chapter 10), and the nature of the voucher
( chapter 11 ). Each of the chaptersprovides a thorough (sometimes too thorough)
discussion of the al.ternative structures and issues which they raise. There is
some veryenlightening analysis of the rights and political influence of teachers,
and a more than ordinarily thoughtful treatment of desirable and requireable forms
of governance for schools eligible to receive voucher students. The strongest
section, however, is the discussion of "The Nature of the Subsidy." It is here that
Coons and Sugarman take a giant step beyond the thinking of their predecessors on
the question of how to make a voucher system sensitive to the priorities of
different families without allowing the wealthy to price others out of the market.
This is the problem of equalizing family power on which the authors have been
working for a decade. Their plan begins with the principle that "[f]amily
circumstance should not unfairly affect choice of school" (p. 190). After a review
of four possible economic models, they conclude that their own "Quality Choice
Model" (p. 198) is most likely to maximize familychoices in a market unrestrained
by economic circumstances. This model allows a school to choose from among four
different tuition levels and thereby gives any family the choice of how much
theywish to spend and have spent on their child's education. The entire plan is
equalized according to a family's ability to pay, requiring that even the poorest
pay some tuition from their own funds but supple.menting this amount to the level
of the tuition through state equaliz.ing payments. The result is that any family
can choose a level of funding, pay according to its ability, and receive equalizing
support from the public treasury according to need. The eligible schools are 4. In
fairness, it must be said that the authors are involved in an attempt to create a
voucher system by citizen initiative for the nation's most populous state. This
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subject to https://about.jstor.org/terms not permitted to charge or accept tuition
supplements because that would have the effect of allowing the wealthy to
monopolize the most expensive schools. Private schools outside the tuition voucher
system would remain in existence for those who wish to buy their way out. With
these and other mechanisms, Coons and Sugarman have argued for a re-creation of
family choice in schooling, and have sought to show that choice is practical as
well as desirable. Their argument is at times less forceful than it might be
because of their avoidance of hard-nosed criticism of the public school monopoly's
effect on political freedom. Still, it is an admirable book in its intel.lectual
craftsmanship and in its sensitivity to families, children, and the nature of
education. Their closing paragraph echoes this sensi.tivity and reminds the reader
of the human dimension of their tech.nical work: When the industrial revolution
made children burdensome and when medicine made children avoidable, a new economy
of the family was born. Although these influences seem to threaten the basic
function of the institution, in fact they may be the sources of new life and a
fresh career. Today those who choose parenthood display the only reliable token of
craft and mastery known to the ancient vocation of child.rearing -the readiness to
sacrifice. [P. 223.]