Russell and Duenes

Dean of UC Irvine Law School: Legally Force Every Child to Attend Government Schools

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chemerinskyThe Dean of U.C. Irvine’s Law School, Erwin Chemerinsky, has written something so stunning that it almost does not deserve comment. Except that Chemerinsky is the Dean of a law school that, though only established in 2009, will no doubt be a highly ranked law school within a few years. Further, Chemerinsky is regarded as an influential constitutional scholar. Therefore, his proposal deserves to be addressed, for it shows the kind of ideas that can be cooked up by law professors and others in the academy. And ideas have consequences, as Richard Weaver famously wrote.

Dean Chemerinsky laments “the simple and tragic reality . . . that American public education is separate and unequal.” Separate and Unequal: American Public Education Today, 52 Am. U. L. Rev. 1461 (2003). This is certainly something to lament, but it’s Chemerinsky’s proposed solution that is so galling. He states:

“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 schools, except where educational needs dictate otherwise, and efforts will be taken to ensure desegregation. Third, states will ensure equality of spending among metropolitan schools districts within their borders.” Id. at 1472.

“Metropolitan school districts” are essentially districts that transcend the boundaries of town or city borders. Id. at 1468-69. We must have larger “unitary” school systems that encompass urban as well as suburban areas in order to blunt the segregational effects of “white flight.” Id. at 1469. This will allow not only for continued desegregation, but for the equal funding that is necessary to achieve educational equality. Id. at 1462.

Chemerinsky spends a good deal of time in his article explaining the inequalities that beset public schools. Yet this is not a new problem, nor is it one that only people of Chemerinsky’s political persuasion are concerned about; though Chemerinsky does not really make a case for what “equality” would look like, nor why it is the highest good in education.

In his proposal, he first singles out the “rich and powerful” as those who have “far too much to lose if they cannot send their children to private or parochial schools or to separate, wealthy public school systems.” Id. at 1463. But he really needs to get out more if he thinks that the “rich and powerful” are the only ones who have opted out of public schools. Homeschooling has caught on like wildfire over the last two decades not because the rich and powerful were driving it. Further, many people have abandoned the government schools because they rightly perceive it is an ‘indoctrination in secularism’ program, and this fact cuts across all socio-economic classes.

Next, Chemerinsky imagines that wealthy parents who are forced to send their kids to public schools “will ensure adequate funding of those schools.” Id. at 1473. This will give them an “incentive to care about funding in public schools,” and bar them from “flee[ing] to private schools.” Id. But of course, people “flee to private schools” for many reasons, which Chemerinsky concedes. Id. One of those reasons is parents’ deep-seated belief that they have a fundamental right “to control the upbringing of their children,” including, their spiritual education. Id. Yet for Chemerinsky, his undefined “equality” trumps all. Thus, he “does 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.” Id. In other words, the officially secular, agnostic government schools, run by total strangers, can have your children for the lion’s share of their waking hours (including the homework that will be assigned), and then you can do your religion-thingy on the side. This bald-faced marginalization and privatization of religion is maddening in itself, but is made more so by the fact that this is the de facto arrangement already.

Chemerinsky holds that the state has a “compelling interest” in disregarding parents’ wishes for the upbringing and education of their children, and thus, a compelling interest in “achieving equality of educational opportunity.” Id. And forced public schooling is properly tailored to meet this goal “because no other alternative is likely to succeed.” Id. Even the Amish would be caught in his net. Id. Who cares if their entire culture is wiped out. Some things must be sacrificed to achieve “equality.” “Simply put, the courts should hold that the compelling need for equal schooling outweighs this parental right.” Id. at 1474.

This kind of thing has been tried before. It’s called the Soviet Union, and it was an unmitigated human disaster on every level and facet of life. This somehow never seems to stop academics like Chemerinsky from proposing it under another guise. Eugene Volokh properly outs this kind of failed Marxism, by noting the other areas of life where Chemerinsky’s theory could apply. See Equality vs. Liberty. He writes that rich people don’t have to use public defenders, so let’s force everyone to have the same level of legal representation. Id. Further, there is inequality in police protection, in private housing, in the ability to communicate one’s ideas in a public forum, and in access to books. Id. As Volokh poignantly says, “Maybe people should be limited in the number of books they can own, so that they will have to go to the public library instead, and thus have an incentive to vote to fund the libraries.” Id.

Chemerinsky is at least right about the importance of education. Though he does not paint any clear picture of why equality of education is the highest good (other than the observation that “[i]n our society, education is the basis for creating good citizens and preparing them to function well in their environment,” whatever that means), he is probably giving voice, albeit in a radical way, to what many other public “educators” and NEA employees think. The fact that they think it should be evident to observers of the public schools. The fact that such a prominent and mainstream law professor could float this proposal tells you where we are, and should continue to be part of the wake-up call to God’s people as to how they should respond. The Church (with a capital “C”), not merely individual Christians, must wake from her slumber, and act with the appropriateness that befits the unique nature and importance of education.



Written by Michael Duenes

June 2, 2013 at 6:53 pm

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