The influential body of work of University of California, Berkeley Law Professor Emeritus John E. “Jack” Coons on the constitutionality of school finance systems has been motivated by a vision of simple justice that Coons has consistently put above all other considerations.
That same vision of justice makes Coons impatient with fellow Democrats who affect a deep concern for the poor while opposing efforts to empower them.
“So far as I can tell,” he said recently, “the Democrats are either running these state schools that warehouse the poor or–with the help of the teachers unions–are busy in the legislatures and Congress making sure that nothing in this system changes.”
Coons was a professor of law at the University of California, Berkeley from 1967 until his retirement in 1994. He maintains a busy office at the school. In 1999, he was awarded an honorary Doctor of Law degree by his alma mater, the University of Minnesota, Duluth, for his acknowledged eminence in the field of education and the law.
After receiving his B.A. in history from UMD, Coons received his J.D. from Northwestern Law School, where he subsequently taught for 12 years. He has been a visiting professor at the University of Tokyo and Arizona State University College of Law.
Coons is the author of eight books and numerous published articles and special reports. His latest book, with Patrick M. Brennan, is By Nature Equal: the Anatomy of a Western Insight (1999). Coons recently spoke with School Reform News Managing Editor George Clowes.
Clowes: What first drew you into the school choice arena?
Coons: It was in 1961, when I was a law professor at Northwestern University. I knew nothing about schools then, but I signed a contract with the U.S. Commission on Civil Rights to examine whether the Chicago Public School District was complying with the desegregation mandate of Brown v. Board of Education and the older, parallel principle of separate but equal from Plessy v. Ferguson.
In looking at desegregation, discrimination, and access to schools and resources, I got a good handle on how schools were financed. As a result, I became interested in the structures of school finance, and whether they were constitutional. In fact, at the end of the chapter I wrote for the Commission, I wrote: “This is an interesting constitutional problem.”
In 1963, I was joined by two Northwestern law school students, Stephen Sugarman and William Clune. We began to think about how the Fourteenth Amendment might apply to school finance in a manner that would solve the problem of inter-district capacity to raise money but would not limit the state in allowing differences in spending between districts according to any criterion that they wanted–including the willingness of people to invest in education with their own personal funds, but excluding the accident of the taxable wealth of their district.
In the course of that work, we developed what is known as the Serrano principle, which we argued explicitly before the California Supreme Court. It included the opportunity for vouchers. In fact, we were accused by the other side of supporting vouchers, and I said, “You’re absolutely right.”
We won those cases on the principle that the legislature would not be in any way impeded in using any decentralized system, including the family, as the school district, so long as it did not make the amount of public money for a child’s education a function of the wealth of the child’s family or the school district. To do that would be an irrational and unfair standard for a public agency, in our view. We published a book in 1970 called Private Wealth and Public Education, which expressed this constitutional theory. We analyzed 14 or 15 state school systems and described how they could be reoriented without either wrecking or decreasing local control.
Clowes: So each family is a school district, the ultimate in local control?
Coons: It could be. This was not a mandate to do it in one single way. For example, one way is to have the state take over everything, as Hawaii did, and have only one school district. You could go from that extreme–which we didn’t personally favor–to the other extreme, which would be vouchers.
Clowes: How would you describe the present public school system?
Coons: In the governmental system that we operate under, people with resources can buy a nice house in the district where they want their child to go to school, or they can send their child to a private school. But working-class and low-income families do not have those options because, generally speaking, choice is a direct linear function of a family’s capacity to pay. In fact, we have a system of choice, but only for upper-income families. The rule is: the rich get choice and the poor get conscripted.
Now, if the poor were all invincibly stupid, or had bad intentions toward their children, then we should not allow them to have the same authority that middle- class parents exercise over the education of their children. But I haven’t heard that as a justification for the system.
Not only that, but the system seems to assume that a unified curriculum is necessary for these disadvantaged children to get the right ideas, and that there is one methodology, one pedagogy, to transmit this one content to them.
The paradox is that there is no uniformity. With regard to pedagogy, there are a dozen different competing methods trumpeted by professionals in the public sector. So, depending upon which district or school you’re in, you may be using one kind of book or another, or one style of teaching or another. The approved methodology varies greatly from place to place.
With regard to content, there’s a basic core that people agree on: The three Rs, science, and not breaking the law. That’s about it. If you go beyond that and look at other issues, you find that there is no consensus at all.
Our society does not agree on the answers to questions such as abortion, evolution, sex education, women’s rights, and environmental issues. You can reel off another 25 issues on which there is no one American view. So, whatever you teach is not a public but a private view, chosen by some person who happens to be given authority within a state school system.
What you have then, is a smorgasbord of content and pedagogy among public schools. For the middle class, this means that they have a market in schooling. It’s not a good one, but they can shop around, and if it gets too bad in the public sector, they can get out.
But for the disadvantaged family, it means their child just gets sent some place, and whoever happens to be at the other end will decide whether their child gets, for example, condoms or chastity. I’m not taking a side on that question, only illustrating that, if you’re poor, you just take potluck on content and methodology. That strikes me as a rather difficult enterprise to justify on rational grounds.
Clowes: The justification I often hear is that public schools are the only places where all children come together to learn about democracy and civic values.
Coons: That can’t be true, except for the poor and working class, because the rest have their choice of schools and cluster where they please. For the poor, it’s conscription, a military-type democracy where you get conscripted to some unit. But in any case, it’s impossible to imagine the teaching of democratic values if you can’t agree on what they are.
For example, if you’re in a public school, teaching about civic values and obeying the law, how do you respond when the question arises: “Where do these rules come from? What is the source of authority?” It’s very hard to answer because there is no consensus on the answer.
A lot of us would simply say it’s a religious source. But some people say, “The authority is from nature; we’re made a certain way.” Still others say, “It’s from the social contract.” Then students ask, “How did I get into this contract? And how do I get out of it?” And the answer may come back that, “There really is no basis, but it’s better not to kill each other.” Then another student asks, “Why not, if you can get away with it?”
There are many different ways to answer the question of authority, but there is no public answer.
Clowes: And you can’t say that the authority comes from the parents because the school system has overridden their authority.
Coons: That is exactly right. You’ve got schools that profess very different ideas about why we should be responsible, if at all. So, it seems to me, in that respect, we do not have public schools at all. Instead, we have a system of schools created by the state in which very important values are taught in a very unsystematic and unpublic way. Teachers have very different opinions about the fundamental sources of value.
For example, what if a teacher is asked, “Should we cut down redwoods and make houses out of them?” A teacher up in Eureka might say, “Yes, of course.” Down here in Hollywood or Berkeley, they might say, “No, you should never cut a redwood.” Others would say, “Gosh, I don’t know. What do you think?” There are seven or eight different answers to this question, but none of them is a public answer.
Similarly with sex education. In the Bay area, different school districts have adopted very different programs. Some emphasize chastity or abstinence, and others emphasize safe sex with abortion as a last resort. If you’re stuck with a school that dishes out condoms and you happen to be a Muslim fundamentalist with a daughter that’s in the school, you wouldn’t be too happy.
Clowes: A child could come home with a report card filled with As and the parents might still be very unhappy with the school?
Coons: Oh, absolutely. If your child is getting As in safe sex, you could be very unhappy about the school, particularly if you can’t afford to go any place else.
Clowes: So if you are going to enhance school choice, it should first be for the poor.
Coons: Absolutely. There are a lot of benign effects of school choice but, for me, choice is family policy. It is one of the most important things we could possibly do as therapy for the institution of the family, for which we have no substitute.
The relationship between the parent and child is very damaged if the parent loses all authority over the child for six hours a day, five days a week, and over the content that is put into the child’s mind.
What must it be like for people who have raised their children until they’re five years old, and suddenly, in this most important decision about their education, they have no say at all? They’re stripped of their sovereignty over their child.
And what must it be like for the child who finds that his parents don’t have any power to help him out if he doesn’t like the school? We are always complaining about the lack of responsibility in low-income families. But, the truth is, we have taken the authority away from them in this most important aspect of their child’s life. And then we rail at them for being rotten parents.
It’s a shame that there are no social science studies on the effect of choicelessness on the family. If you are stripped of power–kept out of the decision-making loop –you are likely to experience degeneration of your own capacity to be effective, because you have nothing to do. If you don’t have any responsibilities, you get flabby. And what we have are flabby families at the bottom end of the income scale.
Clowes: What about the effect of choice on the health of private schools, where there are concerns about increased regulation?
Coons: As you know, I do not quail at regulating voucher schools–but they should be regulated as lightly as possible. There have to be some baseline rules: You can’t teach racial or religious hatred, gender inferiority, or anything like that. But beyond that, the private school’s identity must be preserved. You have to let the religious ones be religious, establish their own size limits, select their own curriculum, and even have a compulsory curriculum if they want to, where students have to learn the school’s religious material even if they don’t believe it.
I’m not sure exactly where you would draw the line here, but you could say to a student, for example, “You have to take this religious course, and you have to pass it, but you don’t have to believe it. You don’t have to make an affirmation of faith in our belief, but you have to understand what it is and why we believe it.”
In fact, I think that the choice programs in Milwaukee and Cleveland have gone too far in allowing students to opt out of religion classes. That is going too far toward stripping the school of its identity.
Clowes: So even though the parent spends public funds at a private school, that school should still be able to say, “This is the way we do things here.”
Coons: Right. The school would say, “You’re free to come here. We won’t exclude you by charging you extra tuition that you can’t afford.” As far as I’m concerned, the school can only charge extra if it wants to apply a means test, so that the rich parent pays more than the poor parent. The school shouldn’t be permitted to charge an additional fee over the voucher and say, for example, “Bring your voucher and $10,000.” That wouldn’t help the poor at all.
Clowes: One alternative you’ve suggested, which would permit additional charges to certain students without a means test, would be for the school to say, “We will make 15 to 20 percent of the seats at our school available to low-income students who will bring whatever voucher they’ve got, and then those students can enroll at no extra charge.”
Coons: That would be fine, and some for-profit schools might choose that option. You and I would knock around the details for five hours before we would settle on a program, but we agree in principle. In fact, I wouldn’t stop schools from charging poor people. I would just say, “You can’t charge them very much.” I think it’s good for people to pay. But the voucher has to be big enough in the first place, otherwise it’s not going to start any new schools.
One of the fallback positions of the unions and others is to say that choice is going to breed schools that are really destructive. I would think that quite the opposite is the case.
If you treat the poor as if they were a bunch of nincompoops, giving them no responsibility, then they will react to this unfair treatment by having no allegiance to this society. If you want loyalty and a sense of respect for other people’s beliefs, then encourage people to exercise their own beliefs–within the limits of the law–and we’ll have a lot more “unum” out of our “pluribus.” What we’re getting out of the present public schools system is “E pluribus pluribus.”
Finally, for people like me, who still have this romantic notion of achieving racial integration some day, this is the place to start. You can do it with school choice.