Law School Dean: outlaw private/homeschooling

[Violet Crown]

Here's the article:

http://www.wcl.american.edu/journal/lawrev/52/chemerinskyessay.pdf

 

It's a couple years old, but apparently Dean Chemerinsky recently gave a talk restating his proposal. It's hard to know even where to start with the wrongheadedness of all this, but I find myself thinking about Compelling Interest Inflation.

----------------------------------------

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.

[AimeeM]

:crying: The need for equal schooling outweighs parental rights?

*sigh*

[kewb]

I don't disagree with him that their is inequality in the public school system from town to town and state to state. Nor do I disagree that society as a whole should care about the education students in public school receive. However, my children are not fodder for the great experiment of the government raising my children as the goal of equal schooling is rolled out.

 

What does equal schooling even mean? Is it the flat tax that will make all public schools equally funded so one district does not have an advantage over another? As if the PTA wouldn't be doing massive fundraising so their kids could have extras in the well to do towns. Is it equal opportunity to learn the 3R's or to learn more then that? Who is setting the standard? Maybe I don't agree with the chosen standard. As a whole society would have to choose what an education is and what the benchmarks of success are going to be. Test scores? That has been working out so well. Factory/cubicle office workers? What is the purpose of school?

[Snickerdoodle]

This right, however, like other fundamental rights, is not absolute.

 

? Is he saying that all fundamental rights are not absolute or that just this particular one is not?

[Alte Veste Academy]

He is a wackadoodle. That will never happen. Legislation to demand stricter oversight of homeschooling I could see gaining popularity. Elimination of private and parochial schools? Don't make me laugh. On the very bright side, he makes himself easy to dismiss on the homeschooling issue by including private/parochial in his argument. Not gonna happen.

[wapiti]

It's hard to know even where to start with the wrongheadedness of all this, but I find myself thinking about Compelling Interest Inflation.

 

 

Eh, I wouldn't waste effort thinking about this article (and his related talk) at all. I'd assume it's simply an attempt at being controversial enough to get published/noticed, by a dean of a law school that's so low-tier that it's not even ranked and coming from a certain extreme political viewpoint.

 

If he wants to know what his dream looks like, he can ask my dear friends what it was like being educated in the Soviet system, because that is exactly what he proposes.

[Violet Crown]

One of his many questionable assumptions is that the rich escape bad public schools by private or (snicker) homeschooling. In this city, homeschooling and most private schooling is middle class - the wealthy live in the part of town with the fabulous public schools, and send their kids there, where we proles couldn't possibly afford to live.

[Violet Crown]

 

 

Eh, I wouldn't waste effort thinking about this article (and his related talk) at all. I'd assume it's simply an attempt at being controversial enough to get published/noticed, by a dean of a law school that's so low-tier that it's not even ranked and coming from a certain extreme political viewpoint.

 

If he wants to know what his dream looks like, he can ask my dear friends what it was like being educated in the Soviet system, because that is exactly what he proposes.

 

Oh, you're certainly right, but my dudgeon needs exercising.

 

Anyway, I'll bet Dean Chemerinsky's new improved American schools would have nothing near the Soviet level of math education.

[snowbeltmom]

He is a wackadoodle. That will never happen. Legislation to demand stricter oversight of homeschooling I could see gaining popularity. Elimination of private and parochial schools? Don't make me laugh. On the very bright side, he makes himself easy to dismiss on the homeschooling issue by including private/parochial in his argument. Not gonna happen.

 

I agree. The elimination of private and parochial schools would mean the politicians would be forced to send their own kids to the public schools that the politicians are currently destroying via NCLB and the Common Core. There is no way the politicians would vote to subject their own kids to that type of education.

[shawthorne44]

This reminds me a bit of the "Dog Eat Dog" article posted after Sandy Hook that said that the problems of public schools would go away if all kids went to public schools.

[wapiti]

Anyway, I'll bet Dean Chemerinsky's new improved American schools would have nothing near the Soviet level of math education.

 

That's very true, even if the reality wasn't quite as impressive as it seems from my perspective of having looked at a few books. Maybe I'll ask my friends about it when we get together this weekend; in the past, they were decidedly negative on the top-down, one-size-fits-all approach.

[Crimson Wife]

I agree. The elimination of private and parochial schools would mean the politicians would be forced to send their own kids to the public schools that the politicians are currently destroying via NCLB and the Common Core. There is no way the politicians would vote to subject their own kids to that type of education.

 

Not to mention the donors who provide the majority of their campaign financing.

[Violet Crown]

 

 

I agree. The elimination of private and parochial schools would mean the politicians would be forced to send their own kids to the public schools that the politicians are currently destroying via NCLB and the Common Core. There is no way the politicians would vote to subject their own kids to that type of education.

 

But I gathered that Dean Chemerinsky would expect this to come via the courts, not the legislators. Employment Division v. Smith, which he cites as a keystone for his proposal, was hugely unpopular with politicians on both sides of the aisle - but it's still controlling law on the free exercise of religion.

[wapiti]

But I gathered that Dean Chemerinsky would expect this to come via the courts, not the legislators.

 

maybe in the 9th circuit, anyway LOL

[butterflymommy]

We'd only see a more severe version of what we have now-- middle and upper middle class huddling together near the good schools, while those who can't afford the real estate prices are stuck wherever fate throws them. Unless the government plans to tell people where they can live to ensure proper racial and economic diversity?

[butterflymommy]

How would "adequate" funding ensure that the quality of the education is also adequate? Better funding does not necessarily equal better schools. I am sure educational reform is necessary, and it could be achieved even without more funding.

 

On another thread someone answered this question by mentioning the Kansas City School experiment. The failing district was literally given a blank check, and $2 billion (yes, that's a "B") later the schools were no better and more segregated than ever. At the few magnet schools that did attract white students, they out performed black students by as much as 5 grade levels.

 

http://www.cato.org/pubs/pas/pa-298.html

 

Money isn't the answer-- if there even is an answer.

[Anne in CA]

It must be nice to be able to believe that equal education can be attained. I have read that in Finland they did away with private school and that was a big factor in making sure public school worked for everyone. But Finland is a small country. America is too diverse for every school to be equal without a Soviet style restructuring. Which would, as other posters pointed out, make every school equally bad. I just don't believe that positive social change can be ruled by the courts. But it must be nice to live in that idealistic, academic world where those thoughts are possible. Some of us have to live in THIS world.

[Arboreal TJ]

For his plan to "work" it would take public boarding schools. Kids and parents need to be separated for truly "equal" access to education. Not all parents are going to promote education in the home...

 

I have always said if your worldview requires universal compliance your worldview will result in conflict not peace.

[Violet Crown]

We'd only see a more severe version of what we have now-- middle and upper middle class huddling together near the good schools, while those who can't afford the real estate prices are stuck wherever fate throws them. Unless the government plans to tell people where they can live to ensure proper racial and economic diversity?

Well, if that compelling interest is compelling enough, why not? You wouldn't even have to tell people where to live - just regulate development to ensure mixed-income housing.

 

Then we'd need to outlaw private tutoring, even by parents. Except, apparently, religious studies, which you get to have because that way we can ban religious schools with a clear constitutional conscience.

 

Further, I think if you have too much education (clearly acquired unjustly under the old system of education), you will need to equalize your time between your own children and the children of less educated parents. And if you buy a book for your child, you need to get a copy for every other child in the neighborhood. Isn't this fun? I could be a law school dean!

[Violet Crown]

For his plan to "work" it would take public boarding schools. Kids and parents need to be separated for truly "equal" access to education. Not all parents are going to promote education in the home...

 

I have always said if your worldview requires universal compliance your worldview will result in conflict not peace.

You got in there just ahead of me. Though I'm not sure I hate the boarding school idea. Certain days.

[prairiewindmomma]

 

maybe in the 9th circuit, anyway LOL

 

 

Yeah, I noticed he was dean in a California school too. That was the first thing I looked for. ;)

 

Wasn't 2003 before the whacko Cali homeschool legislation?

[airforcefamily]

The part that gets me is the last sentence. "The compelling need for equal schooling". I'm not sure there is a compelling need to take away anything that makes anyone different. If funding is a measure of equality in education then suburban kids are getting the short end of the stick, around here low performing city schools get significantly more money per student. I agree with the post that said compulsory boarding schools where kids from all over the country have their names pooled and are sent to random schools would be the only way to make things truly equal. Then what? Mandatory daycare followed by babies being raised in government institutions where they are assigned a number so their diverse population of equally trained and qualified caregivers won't be biased by their names.

 

Wait. Wasn't there an episode of the twilight zone like this? :glare:

[Um_2_4]

In CA, most home schools are private schools. Homeschooling is not officially on the books here in CA as I understand it.

Your choices here are: Public, Private (which anyone can open a private school for kids 5+ yo), and hire a licensed tutor(ie a teacher with credentials).

Private schools in CA are not required to hire credentialed teachers or submit any paperwork other than an paper stating address, who is in charge of records, number of students per grade and then they agree to keep attendance records. There is a list of subjects that must be taught (basics), but no paper work needs to be turned in. It is a very hands off state.

I don't see this ever happening here in america. Just the other day, DH did ask what I would do if they did this. I laughed and said "not gonna happen " too many things stand in the way.

I am originally from Kansas City and saw what happened with that mess. My mom's BF was a teacher there. It was a MESS!

And as far as getting rid of the religious exemption, that won't happen either, because there are too many things in text books (math, science, history, reading) written from one perspective or on a topic that I would have issue with religiously, as would many others. How would the remove ALL of that??

[AimeeM]

Equal schooling. Equal opportunity.

So does that mean that we wouldn't be allowed, in his perfect world, to provide our children with any religious instruction that contradicts state schools?

What about music lessons? I believe there is proof out there somewhere that music instruction can lead to greater academic success.

What about parents who read to their children? Are we going to ban home libraries? Those parents who have access to the internet -vs- those who do not and can thus help their children delve deeper into their studies, obviously making it "unequal"?

Complete hogwash.

[b.motherofthree.harvey]

From what I am reading, the fundamental flaw in his logic is that money fixes a broken school.

[Dmmetler]

And how does he plan to equalize kids? Harrison Bergeron comes to mind. If my DD were able to get an education that met her needs in our local schools, we wouldn't be homeschooling.

[Violet Crown]

And how does he plan to equalize kids? Harrison Bergeron comes to mind. If my DD were able to get an education that met her needs in our local schools, we wouldn't be homeschooling.

You have to have some sort of prize for the first Vonnegut reference.

[Violet Crown]

Right, here is dmmetler's prize:

 

http://www2.ljworld.com/news/2005/may/05/vonnegut_lawyers_could/

[PachiSusan]

From what I am reading, the fundamental flaw in his logic is that money fixes a broken school.

 

When will we ever learn this??

 

This article doesn't surprise me in the least. I haven't been here long enough to really say what I think about this-my feelings about our education system today run very deep and sometimes controversial.

 

I HS in CA with an umbrella school and do standardized testing to be sure that the whackadoodles can't come and haul me away for not schooling my child.

[Parrothead]

Wow! They are everywhere aren't they. Really, there is no getting away from the wackadoodles, is there?

[*Lulu*]

Wow! They are everywhere aren't they. Really, there is no getting away from the wackadoodles, is there?

 

If you ever doubt it visit WalMart on a Saturday.

 

 

 

[Allearia]

 

The most significant objection to this proposal is that it is unconstitutional under current law.

[PachiSusan]

If you ever doubt it visit WalMart on a Saturday.

 

Ha ha!!!!!

 

This Christmas we could only find the LEGO Friends set at Wal Mart so we went. I felt creepy most of the time but when we left I felt strangely gypped because I didn't see any crazy people of WalMart while I was there.

[lauracolumbus]

I wouldn't dismiss the judge too quickly as a whack job. Yesterday's whack job can turn into tomorrow's prophet.

 

BTW, I'd never heard the KC school story. Thanks for the Cato article. I also discovered that the Russian fencing coach mentioned in the article was my kid's fencing coach last year.

 

 

Laura

[*Lulu*]

That left me a bit flummoxed. I think I need to re-read it without all the background noise of plastic snake charming, volcano escaping, and top of the lungs singing going on around here.

 

No matter how grand the ideals behind the quest for equal education, people who carry on about more money being needed come across, IMO, as having little experience with the actual system as it currently exists.

[PachiSusan]

Yesterday's whack job can turn into tomorrow's prophet.

 

That's very true. However, from what I've seen and read, more money has never equaled better education yet. Even in lower socio-economic areas, more money was less efficacious than involved parents, students and teachers.

[creekland]

Well, he's entitled to his opinion. I definitely disagree with it and I can't see it becoming reality in our country. There are simply too many people out there who know that isn't the answer... at least - for now and the next few years. Who knows as time passes on. I'm glad my youngest will be out of school after next year.

[JennyD]

I think his take on current constitutional doctrine is correct, in that the Court would not have to go far at all to find that parents do not, in fact, have a right to homeschool their children. Employment Division v Smith kicked the free exercise leg out from underneath Yoder, and the remaining leg -- substantive due process -- is on thin ice, to say the least. Furthermore, the usual political calculus on these issues is completely reversed on the Court. in no small part because both reproductive rights and homeschooling rest on the same line of doctrine. Justice Thomas has made it very clear that he thinks that the entire line of cases -- including Meyer and Pierce -- should be overturned (see his concurrence in Troxel v. Granville) , and the rest of the conservative Justices would surely throw homeschooling under the antiabortion bus in a nanosecond.

 

That said, IME the most pertinent line in the whole article is this: " I have repeatedly emphasized that I do not see this proposal as

having the slightest chance of implementation for the foreseeable future."

 

Okay then! Thanks for taking up space, Professor. How about offering us some constitutional commentary on the educational trends in the actual, you know, real world that the rest of us live in? LIke, say, is an online public school run by a publicly traded company a state actor or a private entity? How can schools gain meaningful oversight of private testing companies? Articles like this is why people outside of the legal academy don't read law reviews.

[shawthorne44]

I wouldn't dismiss the judge too quickly as a whack job. Yesterday's whack job can turn into tomorrow's prophet....

 

I remember reading about a political/social theory called (?) The Moving window. My memory might be faulty on the name. But the idea is that some people propose something way more radical than they want. People know it is way radical. But, it moves the window of reasonable much closer to the whack-a-doodle's proposal. Same idea behind why adding a $450 breadmaker to a store catalog, caused sales of the $250 breadmaker to rise sharply.

[PachiSusan]

 

I remember reading about a political/social theory called (?) The Moving window. My memory might be faulty on the name. But the idea is that some people propose something way more radical than they want. People know it is way radical. But, it moves the window of reasonable much closer to the whack-a-doodle's proposal. Same idea behind why adding a $450 breadmaker to a store catalog, caused sales of the $250 breadmaker to rise sharply.

 

Yes, that is a technique that is used a lot. I'm pretty sure it's called the Moving Window as well.

[regentrude]

I most definitely do not agree with the guy, but:

 

If he wants to know what his dream looks like, he can ask my dear friends what it was like being educated in the Soviet system, because that is exactly what he proposes.

 

The quality of Soviet math, science and foreign language education was superior to the education that happens in the majority of US public schools. Just saying.

I would greatly appreciate if my American college students had the math skills of their peers from a Soviet school. They would have taken my class as a high school course.

[lauracolumbus]

That's very true. However, from what I've seen and read, more money has never equaled better education yet. Even in lower socio-economic areas, more money was less efficacious than involved parents, students and teachers.

 

 

I agree. But then there's the judge in the CATO article and where we are school levies every 3 years.

 

Laura

[Lolly]

First and foremost, I would wonder about his academic abilities. One of the most basic things he should have learned studying law is that rights not explicitly given to the federal government are left to the states. This is one of those that shouldn't be messed with. (NCLB does mess with it!) Education is a state concern. He can go no further. The End.

[wapiti]

The quality of Soviet math, science and foreign language education was superior to the education that happens in the majority of US public schools. Just saying.

I would greatly appreciate if my American college students had the math skills of their peers from a Soviet school. They would have taken my class as a high school course.

 

That's my understanding as well. I just recall my friends having a lot of negative things to say about their experience in that education system generally. What's even more depressing - it's hard to imagine that a unitary system in the US could ever pull that off in math and science, at least not if the educational beaurocracy were expanded out of the existing one.

The quality of Soviet math, science and foreign language education was superior to the education that happens in the majority of US public schools. Just saying.

 

Not to thread-jack, but I wonder why this was? Is it just a cultural difference? Is the education there now as rigorous as during the USSR days?

[Crimson Wife]

Not to thread-jack, but I wonder why this was? Is it just a cultural difference? Is the education there now as rigorous as during the USSR days?

 

 

I remember hearing a statistic years ago that the Soviets spent about the same percentage on gifted education as the U.S. spent on special education at the time, and a similar percentage on special education as we spent on gifted education. Their priority was on educating those with the highest abilities while our priority was on helping struggling students.

 

As mom to kids on both ends of the spectrum, I can see the flaws of both the Soviet and the U.S. systems. You can't just ignore a whole group of students, whether they are the gifted kids or the disabled ones.

[kiwik]

I do think your funding perhaps is a problem. In NZ the funding for schools comes from general taxes to the government and is allocated according to a formula - poor schools get more because parents can't afford to contribute as much to fundraising. Teachers are paid directly by the government (the number paid for depends on the school roll). That said we have public schools where you have to be rich to live in the zone to attend, schools no-one would send their kids to by choice, private schools (not many though as our pay is too low) and homes hooking so it is hardly a solution.

[Mrs Mungo]

Is it just me or is he implying that a desire for religious education is the only reason that one would not choose public schooling?

[regentrude]

Not to thread-jack, but I wonder why this was? Is it just a cultural difference? Is the education there now as rigorous as during the USSR days?

 

I don't know about today's Russian schools (I assume much is still the same), but yes, it was a cultural difference. ( I grew up in communist East Germany, so we got a similar system).

The main goal of the school was not to make the students feel good about themselves or to raise self-esteem or to make learning fun - the goal was to educate them, period. Teachers were supposed to be teaching and students were supposed to be learning.

I recall fewer coloring sheets - none after 3rd grade, no "projects" (no time was wasted on dioramas or toothpick models), no fill-in-the blank worksheets.

Teachers were trained experts in their subjects: a math teacher could teach math without a textbook (that was used as a source for homework problems only); he would lecture on the blackboard without notes. A foreign language teacher was fluent in the language she taught. Teacher training, IMO, is the single biggest difference - many teachers in the US are not qualified to teach their subjects, particularly in math and science.

Parents did not interfere much, so teachers would not have to teach and grade in a way as to appease parents. Grades of A were few and hard to obtain - you could not get 10% wrong and still get an A as it is here, one spelling or math mistake could mean a B.

 

At least for communist East Germany, it is not true that a large part of funds went to gifted education. Actually, the communists prided themselves in a uniform education for all students. Kids were taught together until grade 8 (in the 80s until grade 10) and then college bound students would continue through 12th grade at a college preparatory high school. It was a privilege to attend such a school, so there were no behavioral problems because they could always kick you out. The default was graduating after 10th grade and continuing to vocational training, nursing school, typist school, early childhood education school.... There were few opportunities for gifted students. There was a school with extended Russian classes where the kids were picked after 2nd grade; other than that, we had three magnet high schools in our city of 500,000 that were specialized in math, ancient languages, modern languages, respectively, for grades 9 through12.

I am not familiar with all the details of special ed. Kids were not mainstreamed, but instructed in separate schools. There were schools for students with severe learning disabilities, and other schools for students with physical disabilities (where they also had the necessary therapies on site.) Severely mentally disabled students were exempt from mandatory schooling; I do not know how large of an impact this had.

[butterflymommy]

Interesting. And yes, there is an answer. Homeschooling :).

 

I wish I could agree with this. While I'm reluctant to decree any parent "shouldn't homeschool," there are parents who, if they homeschooled their children, would not leave them better off than the public school does.

 

Not to mention the countless parents who count on B&M schools for watching their kids while they work.

 

So I think it's unrealistic to say homeschooling is the solution for educational equality. Too many parents who wouldn't, or couldn't, do it.