Apropos of Erwin Chemerinsky’s illiberal proposal to close down all private and religious schools, here is a liberal argument for accommodation of the educational preferences of (some) religious and other “perfectionist” groups: The Educational Autonomy of Perfectionist Religious Groups in a Liberal State, by Mark Rosen. The influence of Rawls on Rosen’s work is very substantial, but Rosen departs from Rawls in several interesting ways. Arguments like Rosen’s are not the only way to think about issues of educational pluralism (and it seems to me that Rosen’s piece has nothing to say about the educational autonomy of non-perfectionist groups, such as one might find at your typical secular private school). For a different approach, see this earlier post on Ashley Berner’s essay. But, like Berner’s essay, Rosen’s is a serious and thoughtful attempt to grapple with these problems. Here’s the abstract.
This Article draws upon, but reworks, John Rawls’ framework from Political Liberalism to determine the degree of educational autonomy that illiberal perfectionist religious groups ought to enjoy in a liberal state. I start by arguing that Rawls mistakenly concludes that political liberalism flatly cannot accommodate Perfectionists, and that his misstep is attributable to two errors: (1) Rawls utilizes an overly restrictive “political conception of the person” in determining who participates in the original position, and (2) Rawls overlooks the possibility of a “federalist” basic political structure that can afford significant political autonomy to different groups within a single country. With these insights, I argue that some, though not all, religious Perfectionists are consistent with a stable liberal polity, and explain why foundational Rawlsian premises require that Perfectionists be accommodated to the extent possible.
My ultimate conclusions are that liberal polities ought to grant significant autonomy to those illiberal groups that satisfy specified conditions, and that the autonomy of such “eligible” illiberal groups is subject to two further constraints, which I call “well-orderedness” and “opt-out.” The autonomy to which eligible Perfections are entitled includes the authority to educate their children in a way that provides a fair opportunity for the groups to perpetuate themselves. The constraint of well-orderedness, however, permits the State to impose educational requirements that facilitate peace and political stability. Accommodating eligible illiberal groups, subject to these constraints, is an instantiation of liberal commitments, not a compromise of liberal values.
Chemerinsky Urges Compulsory Public Education
I am not attending the AALS conference this year, but I thought to reproduce (with permission) a message on a constitutional law listserv that I’m on, written by Pepperdine law professor Mark Scarberry. Mark reports his impressions of a presentation by UC Irvine law dean Erwin Chemerinsky:
Dean Chemerinsky stated, if my memory is correct, that the only way to deal with educational disparities and the problem of (de facto) resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas. That would include suburbs along with inner cities, so that racial integration by busing will be possible. He stated that Milliken v. Bradley should be overruled, so that suburban school districts could be, for these purposes, combined with inner city school districts to allow integration. He also stated that Pierce v. Society of Sisters should be overruled, so that all children could be required to attend these racially mixed public schools. As I understand it, he thinks that only if whites are required to put their children in the same schools as those attended by racial minorities will there be the political will to provide the resources so that minority students can receive a quality education. He said that parents who wanted to have their children receive religious education or other forms of education could have them receive it after school or (I believe he said) on weekends.
I don’t think he meant to say that the right of parents to control their children’s upbringing and education would be eliminated, but that the right should be overridden by a compelling state interest in providing an adequate education to all students. It wasn’t clear to me whether he wanted all the work to be done by the courts, with courts holding that the Constitution requires that all students attend schools on such a metropolitan-area racially-mixed basis (either as a matter of equal protection or as a matter of a fundamental right to an adequate public education) — or, alternatively, that the Court should allow Congress or states to impose this scheme.
Since it impinges on various law and religion issues, I thought this proposal might be of interest to CLR Forum readers — the legal implications of compulsory public education and the overruling of Milliken v. Bradley and/or Pierce v Society of Sisters would be substantial, and it is notable that someone of Chemerinsky’s status in constitutional law is suggesting this. There is certainly a pressing need to take seriously the problem of grossly undereducated children in urban and poor areas, and the consequences of Milliken were pretty awful, though what exactly is to be done about that is obscure, at least to me (this is not my area of expertise). But this proposal seems, as Mark later notes in his message, rather illiberal. It also doesn’t quite do justice to the reasons for attending a religious school, or any private school for that matter (admittedly, my own educational experience has been entirely within such schools).
I also wonder whether Dean Chemerinsky, as part of his proposal, would be favorably disposed to overruling McCollum v. Board of Education, in which the Court in 1948 held that it violated the Establishment Clause for public schools to release students for religious instruction on school premises, taught by teachers outside the public school system. It seems to me that Dean Chemerinsky would probably approve of Zorach v. Clausen (but maybe not, because the released time program was being conducted during regular school hours, let alone all of that “Supreme Being” stuff), where the Court in 1952 approved released time religious instruction off school premises. In conjunction with the (constitutionally mandated?) elimination of private schools, does he envision a larger role for the state (financial or otherwise) in religious education? If not, after private and religious schools are closed down by the state (whether by judges or by legislators), where would students receive the education that their parents, and they, actually want?
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Posted in Commentary, Marc O. DeGirolami
Tagged Establishment Clause, Parental Rights, Public Schools, Religion and Education, Religious Education