What Liberty? Whose? Three arguments in defense of Chemerinsky’s proposal to shutter the private schools.

Erwin Chemerinsky has been catching a lot of flack in the blogosphere lately for proposing that private schools be abolished as a path to educational equality. Most of the criticisms have been focused on the idea that there’s something offensive to individual liberty about the proposal. Thus, Eugene Volokh says that ” a clearer example of how an excessive focus on equality undermines liberty is hard to find. ” Rick Garnett says it’s a serious infringement on religious liberty (and really gets riled in comments on Mirror of Justice). Josh Blackman and I have had one exchange on this, on his blog, and later Josh suggests that there may be a deep-down conflict, that roughly tracks the difference between progressives and libertarians(?), between commitment to ideals of liberty and ideals of equality.

I actually think that the Chemerinsky proposal is consistent with a strong commitment to individual liberty. And this blog post very (very) lightly sketches out the case. I’ll lay out some numbered and thinly argued propositions, divided into broadly related arguments, that together gesture toward a libertarian-ish case for abolishing private education.

Argument A: Wealth as Coercion

This argument assumes that the kind of liberty we care about is Berlinian negative liberty. It is mainly addressed to an imaginary audience composed of traditional libertarian/classical liberals (who need converting to my commie views).

A1. The distinction, popularized by Berlin, between “negative liberty” and “positive liberty,” while interesting in the abstract, is not terribly useful in a world in which people’s access to the means to achieve their ends is deep-down structured by a pervasively coercive political/legal/economic system.

That is, it might be defensible to say, in the abstract, that there’s a difference between the “negative liberty” of not being subjected to others’ coercive interference with one’s choices, and the “positive liberty” of being affirmatively guaranteed some set of choices, the two blur together in a world structured by things like property rights in essentially every good that one needs to live and make choices except (for now) air itself. As Gerry Cohen persuasively argued, things like property rights themselves are interferences with choices. Whenever someone else has a property right over some good, that person has a license to interfere with my choices to use that good; it is vapid, in such a context, to say that supporters of negative liberty want people to be able to use their property rights without interferences, while supporters of positive liberty want to give people enough property to be autonomous. We might as well say that the supporters of negative liberty want to get rid of the interferences with choices represented by concentrations of (coercive) property interests.

A2. The coercion represented by individual property rights in A1 might not be objectionable, if all in a community had a reasonable opportunity to acquire significant personal property. Were this the case, people would still be subject to widespread interference with their choices, but only over a fairly narrow scope — that is, everyone would be subject to interference with their choices to live in a particular house (owned by someone else), but would not be subject to interference with their choice to live in a house at all. Everyone would be subject to interference with their choice to attend a particular school, but not to interference with their choice to have a decent education at all. et. cetera.

Unfortunately, we do not live in such a world. In this world, there are many who do not have a reasonable opportunity to acquire significant personal property. Because of a variety of systematic injustices and inequalities, including segregation and resource hoarding, there are many against whom the game is rigged from the start, and who are very unlikely to be able to acquire a significant amount of property. (For a brilliant account of how this works for the case of race in particular, see Elizabeth Anderson’s recent book The Imperative of Integration. I will suggest without further argument that similar phenomena, on a smaller scale, apply for the case of social class, primarily because of things like disparate access to social and cultural capital as well as childhood investments, etc.)

A3. Given A1 and A2, we have some reason to object, on liberty grounds, to the use of concentrations of wealth (that is, inherently-coercive property) by some to outcompete others for important social goods. Outbidding others for a limited supply of a good education is exactly the same as using systematic coercion to prevent them from having that education.

and given that,

A4. It’s permissible, on negative liberty grounds, to use coercion to overcome or prevent coercion;


A5. It’s permissible to use coercion to keep those with wealth from outbidding those without wealth for a good education, by shutting down the private schools.

The most plausible objections to argument A involve an appeal to the non-economic interests represented by private schooling, and, particularly, to a liberal interest in religious toleration and to the notion that refusing to permit religious schooling amounts to an illiberal regulation of religious practice. On this family of objections, even if it’s ok to put a stop to the property-facilitated hoarding of educational quality, the way to do so is by, e.g., a tax and transfer system of wealth redistribution, not shutting down the public schools. To answer it, I offer:

Argument B: Children and Religious Liberty

This argument is very simple.

B1. Children have claims of religious liberty not only against the state, but also against their parents.

This claim seems trivially true. There’s nothing special about the parent-child relationship that grounds a normative argument for unconstrained religious indoctrination. Traditionally, in the west, parents have controlled their children’s education. However, to say some practice is traditional is not to say that this practice is morally required or even permissible.

As a corollary to this, children also have claims to knowledge that might be contradicted by some religious teaching: children have claims to access to information about evolution, for example.

B2. The state has a legitimate interest in protecting children’s religious liberty, even against their parents.

Again, trivially true. The state has a legitimate interest in protecting the vulnerable in general against those who may exploit them; indoctrination is one form of exploitation.

B3. Religious schooling has the potential to impair impair children’s religious liberty.

This is more controversial. Rick Garnett, for example, disagrees. Just to sketch out a very brief argument for this proposition: 1) Children are psychologically malleable. They’re easy to indoctrinate. 2) Doing so makes them less free to choose a religion for themselves.

Garnett’s argument to the contrary rests on the notion that “someone is going to make decisions about children’s lives, their education, and their religious training,” and the state isn’t any more neutral than parents. I deny this. The state can provide an ecumenical education, one that discusses all faiths as well as faithlessness without advocating between them (or simply not discuss it at all, and leave it for the home). Indeed, religiously neutral public education might not lead to children choosing atheism; it might lead to their choosing religion—just a different religion from that of their parents.

B4. Closing religious schools and replacing them with neutral public schools (not secular: the proposal is not for the public schools to teach against religion, just to be neutral between religions and between religion and non religion) will not prevent parents from giving their children some religious education.

Again, trivially true Schools only get children for 7 or 8 hours a day, 5 days a week, 9 months a year. That leaves a lot of time to talk about the deity of one’s choice.


B5. Closing religious schools is a reasonable compromise between the religious education interests of parents and the state’s interest in preserving children’s religious freedom and intellectual autonomy. Doing so would not prevent children from being raised in the family faith (from B4), but would provide some scope for permitting children access to different ideas and knowledge.


B6. Closing all private schools, including religious schools (in a nondiscriminatory fashion) is consistent with liberal religious toleration.

Finally, a wholly different argument.

Argument C: Democracy and Education

C1. A sufficient education is necessary to participate fully and effectively as a democratic citizen.

This is analytic, if we define sufficient education as just that education that enables full political participation. But there’s also a non-analytic indirect causal relationship between education and political effectiveness.

That is, it’s not just that better educated citizens have the tools to organize politically. But also, better educated citizens have more economic opportunities, and more economic opportunities (and the social capital etc. that goes with) also leads to political power.

C1-ii (corollary). Integrated (racially, economically, socially, perhaps even religiously, though I’m less sure about this one) education is necessary for all to participate fully and effectively as democratic citizens, because integration supplies weak ties and social capital necessary to be politically effective.

C2. Full and effective democratic participation is necessary for two kinds of liberty.

First, it’s necessary for political liberty: the liberty to be collectively self-governing, to live under laws and yet be free, as Rousseau would said.

Second, it’s necessary for individual negative liberty in the classic Berlinian sense. This is so because it’s necessary to acquire and hold onto a share of political power, and those without political power tend to have their freedoms taken away by those with it. The surest guarantee of individual freedom is a state in which those whose freedoms might be taken away have access to power. And we can see that this is true by watching the way that, for example, police relate to poor black people without much political power (arresting, beating, shooting) compared to the way police relate to rich politically connected white people (regretfully making appointments for them to check themselves in to camp fed when they get caught in particularly egregious crimes).

C3. Therefore, if closing the private schools is necessary to deliver a sufficient and/or integrated education to all citizens, it is necessary to supply political liberty as well as secure individual negative liberty to all citizens.

That argument assumes a slightly stronger premise than Chemerinsky has. I take him to be claiming that closing down the private schools is necessary to provide an *equal* education to all. Here, I make the stronger assumption that closing down the private schools is necessary to provide a sufficient and/or integrated education to all. This is a strong but not indefensible assumption. For sufficiency, it might be defended by pointing to tipping point/cascade phenomena, in which bad public schools get worse and worse as more parents flee them and by doing so deprive them of resources. (Plus, public officials have less incentive to support schools populated by the poor and powerless.) For integration, it might be defended by pointing to the way that certain socioeconomic and racial classes have the best opportunities to flee public schools. But if you reject these claims, you have reason to reject argument C. Doing so, however, doesn’t impinge on arguments A/B.

(n.b., comments may take a while to appear: I have anti-spam moderation on, and don’t check as often as I should for new comments.)


2 Responses to “What Liberty? Whose? Three arguments in defense of Chemerinsky’s proposal to shutter the private schools.”

  1. Liberty, Equality, and Modernity | Josh Blackman's Blog Says:

    [...] Update: Paul Gowder has a post responding to mine here. [...]

  2. Paul Gowder Says:

    Footnote at the nexus of arguments A and B: parental control over their children is itself a form of coercion backed up directly by the state (which can backstop parent’s authority and coercive power with its own in extreme cases) as well as indirectly by enforcing parental monopolies on resources (i.e. property etc.)

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