Strange New Rights in Education Law

The continual expansion of rights in contemporary legal theory leads to some pretty bizarre policy suggestions. Among the looniest that I have seen recently comes from Derek W. Black (pictured here), Associate Professor of Law and Director of the Education Rights Center at Howard University School of Law.  In an article in the Boston College Law Review (you can see the abstract and download the article here),  Black takes note of the fact that students who are surrounded by middle-income peers in school tend to do better than students who go to school with lower income peers. Further, he observes, correctly, that poor and minority students are more likely to go to school with lower income peers than with those with middle incomes.  On this basis, he essentially argues that middle income peers are a "resource" that school districts allocate. Therefore, poor and minority students have a constitutional right to an equal share of middle income peers. That's correct - the children of the poorest of the poor have the constitutional right to the influence of your children.

In this command and control line of thinking, the middle income students themselves are simply educational commodities, to be passed around by government.  Decisions lie not at the level of individual families, but at the level of bureaucracies that decide how to allocate people, as well as funds. My own research has supported the common-sense view that when middle-income people are treated by a school system as "resources" to be exploited for the sake of the least advantaged, those middle-income people tend to leave the system. They are not, of course, just resources to be distributed by government mandate, but people in families that seek their own best interests. And it is certainly not in the best interests of middle income families to see their children "allocated" among those who can contribute least to a healthy educational environment.

The 2012 Pell Grant Appropriation

The single largest item in federal education appropriations  for 2012 is the Pell Grant Program, with a cost of 22.8 million dollars, or one-third of total education appropriations. Although the Pell Grant funds are slightly down from last year, they still make up a sizeable amount of money.  This is also a fairly recent area for federal spending, since the grant did not exist as recently as when I started college.

In 1972, Congress made new provisions for subsidizing low-income students in postsecondary schooling when it introduced Basic Educational Opportunity Grant, which became known as Pell Grants after Rhode Island Senator Claiborne Pell, who was the primary sponsor of the legislation. Unlike the federal loans that have also come into existence in the effort to put more Americans through higher education, these grants have been free money, requiring no repayment and no particular academic preparedness or ability.  The numbers of low-income students receiving Pell Grant money grew from 176,000 in the 1973-1974 academic year to 5,428,000 in 2007-2008, according to Jackson Toby in The Lowering of Higher Education in America: Why Financial Aid Should Be Based on Student Performance.

As Jackson Toby argues in this excellent book, distributing financial aid on the basis of need alone, without consideration of ability or achievement, lowers the quality of higher education by promoting the enrollment of less-prepared students who tend to lower the intellectual environments and the standards of colleges.  In addition, I argue in my article “The Mass Production of Credentials: Subsidies and the Rise of the Higher Education Industry” that the federal subsidization of students in higher education contributes to rising tuition costs. By trying to engineer upward mobility for everyone, moreover, federal subsidies simply intensify the competition among students to distinguish themselves by attending the most prestigious possible institutions, while creating shortages at the lower rungs of the socioeconomic ladder.

Our current massive budget deficit requires us to look closely at every program.  Perhaps it is time to question the wisdom of the federal education budget’s biggest expense.

An End of Year Look at School Vouchers

In an end of the year article in City Journal, Marcus A. Winters celebrates 2011 as “The Year of the Voucher.”  After a decade of slow movement on expanding the voucher approach to school choice, Winters reports, suddenly 2011 saw legislatures in 12 states adopt voucher policies or expand existing programs, and the U.S. Congress saved the D.C. voucher program at the last minute.  This is good news for many families, especially those with low incomes, but I’d caution against seeing vouchers as the solution to educational shortcomings in the United States.

Vouchers and charter schools are two kinds of market-based approaches to schooling. Vouchers subsidize demand. Their purpose is to increase buying power among consumers of education (families) and give those consumers the power to choose among providers (schools). Charter schools subsidize supply. Their purpose is to increase the range of school types by funding institutions with competing strategies for education, with the idea that the consumers can then choose among many different providers. Both of these market-based approaches represent efforts to break down state monopolies on public schooling. State monopolies, choice advocates argue, have no motivation to provide high quality or varied goods to consumers. Just as the stores in the old Soviet Union were scantily stocked with inferior merchandise, so a monopolistic school system stocks its classrooms with shoddy curricular offerings and mediocre teaching.

The poor in this market perspective suffer the greatest damage because they are most subject to monopoly.  Higher-income families can opt out of low-performing schools by moving to other school districts, by enrolling in private or parochial schools, or by home-schooling. In effect, then, our present public school system is a competitive market for those who have sufficient resources, but a monopoly for the disadvantaged.

I cautiously support vouchers (and charters) as ways of improving schooling for some families in some places. But I don’t have as much faith in them as Winters and other choice advocates. This is because, although I do see schools as competitive markets, I think most exponents of school reform of all varieties misunderstand just what kind markets they are. Specifically, voucher and charter advocates tend to describe students at different times as consumers of schooling and as products of schooling. But students (and the families and communities from which they come) are also, very importantly producers of schooling.  The quality of a school depends, more than anything else, on the efforts and dedication of the students, who bring their capacity to learn to the school from their families and communities. Each student shares whatever capacity for learning he or she brings to the school with all other students. For this reason, when parents have the opportunity to seek a good school what they really want is a school with highly motivated, well-prepared students who will create a desirable environment for their own children. By giving low-income families choice through vouchers or some other kind of subsidy, we essentially offer ambitious, committed poor families a chance to escape from concentrations of bad students.

Ironically, even market-based subsidies can worsen the problem of education by encouraging misplaced accountability. If we maintain that students don’t learn because their schools are failing them, we are preserving the myth that students succeed or fail because of something that systems or policies give them or don’t give them. By adhering to the illusion that everyone can and will achieve some accepted level of learning if only officialdom gives them the right program, we move responsibility away from the social structures that primarily shape children.  It will probably help some people in 2012 if there are voucher programs in more places, and those programs won’t be worse than the present system. But let’s hope in 2012 we can get away from the idea that tinkering with the education industry can enable schools to crank out the right kinds of products.

Affirmative Action Comes Up Again

Notre Dame Professor James Sterba, in a rejoinder to comments by George Leef, recently repeated arguments in favor of affirmative action. Professor Sterba devotes most of his attention to race-based preferences, although he also states his support for class-based affirmative action.  As I’ve argued elsewhere,  proponents of socioeconomic preferences tend to present their case as if everyone could be upwardly mobile and our policies simply need to promote mobility from families at the lower rungs of the socioeconomic ladder in order to create a more diverse elite.  In fact, since positions in a society are limited in number at any given time, everyone who moves into a preferred position must displace someone else. There is no way around the fact that preferring individuals who come from lower income or less educated families means discriminating against individuals who come from higher income or well educated families. Socioeconomic  affirmative action systematically disfavors the success of some for no other reason than that their parents have been successful.

Professor Sterba, like other advocates of racial preferences, bases his advocacy on the social benefits that will supposedly flow from these preferences.  Chief among these is the putative role of affirmative action in propelling blacks and other minorities into highly desired elite occupations. Once again, since there exist only a limited number of top occupational positions, favoring members of some categories occupationally automatically means disfavoring others. In other words, we should have racial preferences in educational admissions because these will promote racial preferences in socioeconomic rewards throughout life. The argument in favor of such a continuing practice of discrimination is that it is a necessary evil in order to pursue the “compelling national interest,” in the Supreme Court’s term, of a more diverse society.  This, however, raises the question of the extent to which social policy can re-shape our society, as well as the question of whether a representative democracy should attempt to redesign its citizenry.

Group level differences in achievement and attainment constitute the fundamental characteristic of American society that bureaucratic efforts at diversification intend to eliminate. Race-based affirmative action would not exist if there were no variations in achievement across racial and ethnic groups. The Supreme Court recognized this in the 2004 decision, Grutter  v Bollinger, when Justice Sandra Day O’Connor portrayed race-based admissions as contrary to the principle of treating all individuals equally. Therefore, they could be justified only temporarily in order to achieve the diversity that supposedly would eliminate the variations in achievement.  As I have pointed out, though, there is no evidence that the group-level achievement gaps have diminished during the time that the United States has pursued affirmative action policies in educational admissions. In fact, these gaps have increased. While the performance gap between blacks and whites has remained relatively constant over the past quarter century, those between Asians and Hispanics, the two fastest growing groups in American society, have increased. This is largely due to the fact that average Asian achievement levels have steadily gone up. Inconveniently for supporters of race-based affirmative action, this means that preferences for under-represented minorities disadvantage Asians, vastly over-represented in elite educational institutions, more than people in any other category.  The continuing achievement gap, then, calls into question the idea that American society can be redesigned by the tinkering of policy makers. At best, it seems, we end up moving individuals from underrepresented groups into highly desired positions at the expense of individuals from other groups.

Like other supporters of affirmative action, Professor Sterba also maintains that racially preferential policies have benefits for those ineligible for preferences. Notably, he remarks that 8 out of 10 white law students at Harvard and the University of Michigan reported that discussions with students of other races affected their views of the criminal justice system. The role of minority students, then, is to teach whites the black or Hispanic truth. Professor Sterba expects minority students to act as group representatives, whose function will be to consistently remind other students of the goals and interests of the group. Like Irving Howe, in the Dissent magazine exchange with Ralph Ellison in the early sixties, Sterba lays on black Americans the obligation to perform as protestors.

Finally, Professor Sterba cites several studies that have found continuing discrimination in various sectors of American society and, following his expectation that affirmative action will enable minorities to educate whites, maintains that propelling more minority members into elite colleges and universities will create the “political will” to eradicate discrimination. He does not say what he means by this term, but I interpret “political will” to mean the exercise of governmental power.  He seems to be suggesting that affirmative action is desirable because it will lead to a massive inquisition and state intervention to eliminate all discriminatory behavior.  His advocacy of affirmative action, then, appears to be part of a larger authoritarian project for restructuring American society.

A Race with No Losers?

In his commencement address to Howard University in 1965, President Lyndon Johnson introduced what would become one of the most widely quoted justifications for the use of racial preferences in education and employment. Johnson declared that achieving the freedom of all individuals to “share, fully and equally, in American society” was not enough. “You do not,” the President said, “take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair.” American society, in this view, is a competition, a race for high prestige occupations, for wealth, and for success in all of its many forms.  But races, whether “fair” or not, generally end up with contenders in first place, second and third place, and also rans, with at least one runner finishing dead last. We could, in the name of fairness, give our recently chained runner a good head start or even walk this competitor to the finish line before the starting shot and announce a winner. This would be an unusual and interesting athletic event.

Opponents of affirmative action frequently object to it not because they are against fairness but because they object to rigging the game. The objections are stronger than they would be in a footrace because the winners get those real prizes of widely desired jobs and good incomes. The response of the policy-making advocates of preferences has been to pretend, or to convince themselves, that the race of American life is one in which everyone’s a winner. Over the past half-century many Americans have decided that education is the track on which everyone can compete and end up at front.

In truth, though, like every race and every other competitive activity, the dash for educational benefits is a zero-sum game, just as the succeeding scramble for positions or opportunities in life will be a zero-sum game at any point in time. At my own university, the numbers of freshman admissions have been growing each year, so that we’ve been struggling to keep up with providing enough classes, but the numbers have still been limited in any given year. Everyone who gets in by definition deprives someone else of a spot.

Each advantage to one competitor of necessity becomes a disadvantage for another, a basis of discrimination. Footraces discriminate in favor of individuals with better training, greater inherent leg strength, and longer strides, and against those without those qualities. The more we try to compensate by giving head starts to those who (perhaps for reasons beyond their control) are weaker athletes, the more we discriminate against the better athletes and lessen their chances of winning the ribbons that will not go to everyone.

When we grant special consideration to any characteristic of competitors, we engage in intentional discrimination, not only for those with that characteristic but, by logical necessity, against those without it. Giving points for being non-white, poor, the first college applicant in a family, or having an unconventional sexual orientation must also mean taking points away for being white, non-poor, the scion of well-educated parents, or being heterosexual. Apart from the fact that these types of categorical discrimination are invitations for strategic self-misrepresentation (I think many of my fellow white Louisianians could reposition themselves as non-white with enough genealogical research), they also lead to some bizarre scenarios: Your parents worked hard to be successful or managed to make it through professional schooling, so we are going to hold that against you. We are going to mark you down because you prefer members of the opposite sex. Ultimately, though, we have to recognize that however we set the game up, it is not possible to simply pass around winning positions to a wider and more diverse set of players.

College Degrees and Wages

Over the past forty years, the percentage of the American population with college degrees has gone up dramatically, from only about 16 percent in 1970 to nearly 30 percent today.  The gap between the earnings of college graduates and those without degrees has also increased somewhat, from a median income difference of $24,416(in  inflation-adjusted 2008 dollars) in 1970 to $25,885 in 2008. Therein lies a debate. Are we overproducing college graduates? Those who would answer "no"point to the continuing and even slightly growing wage gap. They maintain that the demand for people with degrees must be growing even more rapidly than the supply, and that the United States should therefore continue its efforts to put more sheepskins in more hands.

The problem is that the kinds of jobs that really do require advanced training really haven't been growing as fast as our pool of graduates. The production of degree holders outpaced the percentage of the labor force in professional and technical fields beginning about 1980. In addition, the growth of the undocumented immigrant population is, in part, a reflection of the fact that much of our labor demand is for workers in low-skilled, low-paid occupations.

So why are graduates still making more money? The answer is that credentialization makes relative rewards to credentials a self-fulfilling prophecy. As more employers in the mainstream of our economy use degrees as a gate-keeping strategy, it becomes essential to have a degree for any kind of job, even one in which nothing one supposedly learns in college is put to use. Having a BA becomes an entry-level qualification, and those without it tend to drop further behind, except in cases in which they have some specialized trade skills.

As a degree becomes an entry-level qualification, differentiation among degrees becomes greater. While any BA may have assured one a good job in earlier years, today the competition is between those with high-demand degrees and those with low-demand degrees. So, the relative economic value of a degree in English or philosophy goes down, leaving students to abandon those fields of study. Thus, at least part of the apparent decline of the humanities is paradoxically a result ot their having been put within reach of more people.