I tend to be under-impressed by Julian Sanchez's posts, at least the ones I've seen because they were linked by someone whom I read regularly. I fear that some of this is just law student snobbiness -- in reading Sanchez, I seize upon an error or omission about caselaw and thus miss the insight that other people with legal educations are pointing out. Nonetheless, I confess not to getting what Will Baude finds notable about this comment by Sanchez:
I think what Meg's bumping into here is a common (but misguided) tendency to place excessive stock in formal "guarantees," almost as though the word (at least in statues) had some kind of hypnotic power. Sure, actually existing public schools may produce a caste system as rigid and inequitable as anything you'd find in the fevered free-market dystopias that haunt Noam Chomsky's nightmares, but in theory, Marge, in theory, they're engines of equal opportunity. This is the progressive version of the intelligent design fallacy -- the implicit belief that complex results must be consciously aimed at to be achieved -- indeed, that to declare the intent to produce quality and equality vigorously enough in the appropriate magic statute books is sufficient to produce the result: fiat iuxta! Of course, if you actually want to promote greater educational equality, it seems as though one big and obvious thing to do would be to decouple schooling from geography and local property taxes to the extent possible. Maybe I'm excessively sanguine here, but supporting vouchers seems like one of the few ways to make this otherwise politically very difficult project more feasible.(Also, as people who have suffered under my editorial red pen know, I am prejudiced against excessive italics. As Florence King says, "There's a rhythm to good prose, which is why I oppose the use of too much punctuation and textual enhancements. If you write a sentence with the proper attention to rhythm, you don't need to add emphasis. You can pick the reader up and carry him along with you -- dance with him, as it were -- so that he catches your rhythm and supplies the italics and commas in his own mind.")
First, despite what McArdle* and Sanchez may believe, public education was a government service originally provided more in the interests of quality than equality. A 1647 Act of the MA Bay Colony required "that every town of one hundred families or more should provide free common and grammar school instruction" -- not so the children of colonists could compete equally in a free market, in which case instruction in a trade would have been more useful, but so they could read the Bible and comprehend matters under vote. It was education in service of religion and politics. Even Adam Smith, who in the Wealth of Nations** ought to have been considering how public education would assist economic meritocracy, instead frets that lack of education makes laborers dull.
But though the common people cannot, in any civilised society, be so well instructed as people of some rank and fortune, the most essential parts of education, however, to read, write, and account, can be acquired at so early a period of life that the greater part even of those who are to be bred to the lowest occupations have time to acquire them before they can be employed in those occupations. For a very small expense the public can facilitate, can encourage, and can even impose upon almost the whole body of the people the necessity of acquiring those most essential parts of education.He recommended that education be locally based because the benefits are most proximate at the local level, but he sees the benefit to the state at large to be primarily in preventing the populace from being liable "to the delusions of enthusiasm and superstition, which, among ignorant nations, frequently occasion the most dreadful disorders."
I'm not sure when a notion of education as a path to success became common. I would guess it to be mostly a 20th century invention, given that many of the self-made wealthy of the 19th century didn't even finish high school. Vanderbilt quit school at 11 and excused himself by saying "If I had learned education, I would not have had time to learn anything else." An ability to read, write and especially count seemed to suffice in a less specialized time than our own age of IBM and Microsoft fortunes.
The lack of a historical sense that education should be equal is reflected in U.S. Supreme Court jurisprudence. Brown found its rationale against "separate but equal" schools not in their obvious inequality, but in the effect of racial segregation on children's psyches; Rodriguez ruled that grossly inequitable school funding was permissible under the federal Constitution because there was no right to education. Texas's school funding formula eventually was found to violate the state constitution, and we've gone through many, many, many rounds of Robin Hood fights since then. At this point, I think even some Texans, fierce defenders of state prerogatives though they are, would welcome the federal government's settling the matter. I expect New York to go through some similar contortions.
But anyway, the point is that guarantees of equality in education -- even of a guarantee of any education -- are only possible if a judge finds them in a state constitution. If Sanchez knows of statutes in every state that require the state to fund each child's education with an equal amount of money***, I hope he will point them out on his blog. Therefore his implication that educational equality is in the "magic statute books" seems rather dishonest, and his argument that the good intentions of legislators have failed but the market will succeed appears to lack part of its base. Most of the legislators I've observed at most will say that all children should get a good education -- I've found few that will say they should get an equal education. Before we say that a legislative will for equal education has failed to produce it, I would like to see evidence that such a will has existed.
* McArdle makes the usual complaint that failing schools are the teachers' faults. "Matthew's argument is that politically, a different kind of system is not possible. Well, yes, it's not, as long as nice people like he and Kevin line up with the teachers' unions to oppose any substantive change to the current system that don't involve giving tmore teachers a whole lot more money without asking them to do anything much to earn it." My understanding is that teachers' unions would be delighted to have more money spent on schools that doesn't go to teachers. I've never heard of a teachers' union protesting that new money shouldn't be spent on the physical plant, supplies, books, computers, security, parent outreach or any of the other factors that go into making a school a safe environment where teachers can succeed in teaching and students in learning. I know the image of the state bureaucrat grown fat, lazy and greedy on her palatial state salary is one dear to libertarian and -- when it's not a defense-related bureaucrat -- conservative hearts, but it's not one I've often encountered even at my mediocre public high school (though at least our security guard was armed).
** Now with a P.J. O'Rourke gloss!
*** Or more to the point, fund each child's education as is needed to get the child to a minimum proficiency level, because children with learning disabilities, health problems or lack of English need more resources. This is one of those little details the voucher fans often ignore, as do the type of people who wail about how we're spending more on education now than we did in the halcyon days of the 1950s, but getting so much less. Well, there are costly difficulties in trying to educate kids who are mentally retarded or who come to school speaking a foreign language, instead of keeping them at home or laboring in the lettuce fields. But the mean ol' federal government has in this case required the public schools to do so -- something that private schools do not have to do.