86 Pages Posted: 13 Oct 2003
More than a decade ago, Professor Girardeau Spann revealed that the Supreme Court had become unreceptive to legal claims brought by, or on behalf of, racial minorities. Paradoxically, the Court's recent decision affirming the constitutionality of school vouchers as part of a program to provide improved educational opportunities to largely black children in a failed school district, implies that the liberal minority of the Court may be inclined to preclude programs which might protect and nurture minority interests in a first-rate as opposed to simply a public education. Whether the liberal wing of the Court is correct or incorrect, their views may simply be part of a prevailing conception of the Establishment Clause of the First Amendment, that may not only have a disparate impact on black Americans and other outsiders but may also be attached to unconscious racial subordination.
The Zelman decision has been preceded by a firestorm both within and outside the Court. Only a few years ago, the idea of allowing parents greater freedom to choose their children's schools was considered unnecessary, unrealistic and even undesirable by some. Today, almost everyone agrees that our schools are failing. Achievement is down, violence is up and no amount of money seems to insulate schools against these trends. The magnitude of this educational malpractice is staggering: Of the roughly 20 million low-income children in K-12 schools, 12 million are not even learning the most elementary skills. The repeated failure of political reforms to cure the ills of poorly performing government schools has led to widespread frustration among parents, students, teachers, and other education professionals. Given the contemporary circumstances facing many minorities, and African Americans in particular, uncertainty continues to evolve pertaining to the efficacy of progressive and liberal educational paradigms grounded in the one-common public system.
One danger that afflicts the voucher and school choice debate is the prevailing social vision of our time - and the dogmatism with which the ideas, assumptions, and attitudes behind the vision are held. Within this contested terrain, commentators and judges often congratulate themselves about unverifiable insights including the divisiveness of religious practice, the asserted yet unproven tolerance generated by the one common public school system, the imaginary wall of separation between church and state, and the public versus private dichotomy which some see as a bulwark against fragmentation. While some critical legal studies scholars and feminists target the public/private divide as an illusory and mystifying element of liberal liberalism, the unverifiable insights of judges and commentators, evidently trump the interest of outsiders. Conversely, when the voucher debate is properly situated to place the interests of outsiders at the core and not the periphery of this dispute, it reveals that educational experimentation has the probable effect of increasing the political, economic and social power of black Americans. That conclusion diminishes the credibility of judicial claims to neutrality when expediently attached to resistance to school choice programs and ideas.
Keywords: School Vouchers, race, establishment clause, liberal hegemony
JEL Classification: K10, K40
Suggested Citation: Suggested Citation
Hutchison, Harry G., Liberal Hegemony? School Vouchers and the Future of the Race. Missouri Law Review, Vol. 68, No. 3, pp. 559-647, Summer 2003; George Mason Law & Economics Research Paper No. 07-16. Available at SSRN: https://ssrn.com/abstract=432100