Dr. E. G. West, Visiting Professor at the Center for Study of Public Choice, Virginia Polytechnic Institute and State University during 1976-77, recently has returned to his teaching post at Carleton University in Ottawa. He is the author of several books, including Education and the State and Adam Smith: The Man and His Works. His latest, Nonpublic School Aid (D.C. Heath, 1976), debates the issue with prominent educators and has aroused intense discussion.
The problems of American public education in 1977 examined in this article are not trivial, and it is not unthinkingly alarmist to speak in terms of hazards or even of perils. They extend from the decay in efficiency of the provision of conventional school services such as training for literacy, to the even more serious hazard of placing fundamental principles of constitutional democracy in grave jeopardy.
The first to be examined will be the deterioration in schooling effectiveness. The second peril is the growing threat of a large and expanding educational bureaucracy. The third is the increasing educational breakdown caused by strikes of teachers. The fourth is the peril of breakdown from strikes of taxpayers facing school bond issues. Fifth, there is the potential bankruptcy of many remaining religious schools brought on by unfair competition from the public system. The sixth is the possibility of takeover of the government-provided system by strong ideological groups who see it as the cheapest and most effective way of public indoctrination.
Seventh, and most importantly, there is the growing danger to constitutional democracy itself from the silent gradual eroding of the power of individuals to use their property and incomes in ways that respect their individual preferences as against the preferences of the administrators of the dispensations of government schooling.
Are there any feasible bulwarks against the perils just listed? Many people see the voucher system in the American setting as the only road left open. It will be argued here, however, that this system might, at most, be a change that is merely cosmetic. At worst, it will lead to the embroiling of the remaining private sector of education with the public system. The article will conclude – with the only really feasible solution—and one that will be readily dismissed as reactionary by those who do not wish to hear the argument through—the abolition of "free" education.
According to a recent admission of the U.S. Office of Education, more than twenty-three million American adults, that is about 20 per cent of adults, are unable to function effectively in today’s society. More than half of the American adult population are not proficient in reading, writing, computation and problem solving skills.’ Scholastic Aptitude
Test (SAT) scores have been falling steadily for two decades.2 Meanwhile because of unprecedented violence in schools, the increasingly hostile environments therein are less and less conducive to personal safety, let alone successful instruction. A Senate subcommittee report compiled on some 150 school districts in the mid 1970′s concluded that 70 thousand teachers annually are seriously injured in attacks by students.3
The Increasing Bureaucratic Hold on Education
The theorist will argue that families have control on their public education via the democratic process. In practice everybody now knows that their power has been severely attenuated, and especially in the last few years. The cause seems to have been the increasing centralization of education. Where a family lives in a district where there are only 100 families altogether, it has at least a one in one hundred chance of having its voice heard in educational policies, provided, that is, that the family is prepared to spare the time at the relevant public meetings, debates, committees, and so forth. But, when the local educational district becomes "consolidated" into a larger district containing, say 1,000 families, its chances of being heard are only one in a thousand. So, as school districts enlarge, it becomes less and less rational for the individual family to participate in the democratic process as it concerns education.
The strongest advocates of increasing consolidation have been the administrators of the public system. They have argued that larger school districts produce economies of large scale. Testimony to the influence of their reasoning is seen in the evidence on district sizes over the last two or three decades. In 1950 about half the pupils in America were enrolled in districts numbering less than 3,000 and another half in districts numbering over 3,000. By 1973 two thirds of all public school pupils were enrolled in districts of 25,000 or more.4
Despite the administrators’ arguments about economies of scale, the facts show the contrary. Per pupil costs increase with district size in most cases. Is it only an incidental fact that the salaries of public school professional personnel happen to be an increasing function of district size? In agitating for increasing district and school size, have they been oblivious of the fact that they have been arguing for an outcome that will benefit their own incomes, whatever the result for education of children?5
If we use the term bureaucracy in its widest sense, we include in it all people working for public enterprise. In this sense it includes teachers as well as administrators and other support personnel in the public educational system. Such a total population has now become of formidable size in political terms. For it includes at least 2 million people employed by the elementary and secondary public school system of America, and all of whom are entitled to vote. It is a population, moreover, that is apt to be more active in voting than average. Their organizations, such as The National Education Association and The American Federation of Teachers, meanwhile constitute one of the most concentrated and organized lobbying powers Washington has ever seen.
Strikes by Teachers and Taxpayers
One of the associated perils of this formidable political power among teachers is their increasing propensity to strike. It is a common feature in the 1970′s for the school year to begin with school strikes in several of the big cities, strikes that appear to be more involved, to be more bitter, and to extend for longer periods each year. The objective of the usual strike, of course, is the increase of pay. Often this is accomplished indirectly by strike pressure to strengthen the teachers’ monopoly position.
Teachers’ certification now restricts entry in most states to teachers who have been trained in the standardized way that is approved by administrators and teachers organizations. This arrangement, of course, restricts competition from other disciplines and from other forms of training. And it excludes mature people with valuable experience that might be used in an imaginative way in the classroom. Even university professors would not qualify to teach their subject in high schools because they, too, are not certified.
In forty states, teachers have now been granted the right of collective bargaining. In fifteen, the law now recognizes the "agency shop." This means that one union becomes the exclusive bargaining agent for all teachers in a school. Those teachers who refuse to join the union are compelled to pay fees that match the union dues, and much of the revenue from both sources is subsequently used for political purposes. It is in these states in particular that the effective control of public education seems to be passing from democratically elected or appointed public school boards to the heads of teachers’ unions.
The major aim of the National Education Association and the American Federation of Teachers seems to be universal control of the policies and revenues of the public-school system. Already the unions have secured important places for themselves on many school curricula committees. Implicitly, therefore, an effective union-inspired, if not imposed, censorship of the content of education seems to be around the corner. What is still more dangerous is the possibility that ultimate success in the aim to control school finances will probably mean that all additional money squeezed from the taxpayers will be preempted for teachers’ salary increases.
Monopolizing the Funds
The likely consequences can be illustrated from the recent experience of one school district in Michigan. The school board has now abolished the teaching of English literature and of physics in the high school on the argument that there isn’t enough money any more to pay for such "fringes" in the curriculum! Most of the money, it seems, has gone in increased teacher salaries through the efforts of the local union which appears to have "drained board and district nearly dry."6
Even before teacher certification and teacher unionization, the public education system was already equipped by law with some of the strongest monopoly weapons. Most monopolies have to content themselves with costly stratagems to restrict entry. In education, the law performs this function free of charge to the monopolists. For new entrants cannot usually compete for a service when they are giving it away free. The public school system has the additional power of compelling people to pay for their services even if they do not consume them. Thus, they do not have to wait for customers to come into their "store," the customers have their incomes "garnisheed" well in advance and in substantial proportions.
The crowning monopoly power of all, of course, is the compulsory education laws. Few other monopolists enjoy the privilege of being able to compel by law the attendance of customers in the monopolist’s "store." The public education "stores" (schools) have enjoyed this privilege for about a century. Whether they have served children as well as alternative methods of providing education is now a subject for considerable doubt. What is clear is that compulsion has served the private interests of public school personnel very well.
Religious Schools in Peril
Some of the main remaining competitors of the public system are the parochial schools. These, however, are experiencing severe financial hardship and many face potential bankruptcy. And this is not surprising. The main threat to the survival of nonpublic schools is rising costs, especially personnel costs. Education is labor intensive. Teachers, and even administrators, are so strongly unionized that their organization is now spreading to the nonpublic schools. And these schools cannot place the bill for increased salaries upon the taxpayers. School expenditures per student in America have increased five times in real terms in three decades. And the cost difference to families between using the private and using public schools continues to widen.
It may be feared that if parochial schools disappear the school system that will be left will be a monolithic organization producing homogenized students taught along uniform lines. This situation would hardly be consistent with the traditional aspirations of America to be the land of individuality, spontaneity, and freedom.
Ripe for Seizure
Historical experience, nevertheless, shows that once a country has produced such standardized machinery for instructing the young, this same machinery becomes a prize of the first order to totalitarian political groups who wish rapidly and effectively to change the philosophy of the people and to convert it to its ideology. Should such sentiments be rejected as inappropriate in a country like America?
The danger in the past has materialized in countries like Nazi Germany, Fascist Italy, and Communist Russia. It will be argued that such events could not occur in America since her democratic process would not allow it. Nevertheless, one should be aware of the fact that in several parts of America a resolute attempt is now being made, and under the leadership of some important colleges of education, to capture the public system once and for all and to disseminate one particular point of view, the view of socialism.
It is interesting that its intellectual leaders, the American socialist writers on education, are against the voucher system. Indeed they are opposed to any other scheme that would promote immediate free choice among families. People would only use such freedom to choose their education in a way that will perpetuate the capitalist class system. People have been indoctrinated, this same argument continues, to know their station in life, and to respect upper classes and their traditional privileges. The public school system, so far, has been the chief handmaiden of capitalists over the years in a subtle process of indoctrinating the public into docile acceptance of their lot. The public school system has been more than proportionately represented on its committees by leaders of industry, a characteristic that goes back a long way into the nineteenth century. Ordinary Americans are thus not yet ready for freedom in education and need a transitional period of deprogramming so that they are finally schooled out of their die-hard beliefs. The socialists, therefore, do not wish the public school system to be abolished. For they want to take it over themselves and to turn it into a huge citizen education camp in which people can, slowly but surely, be released from what Marx called the state of "false consciousness."7
Typical of the stream of socialist writing on education is the recent book by Martin Carnoy, Education as Cultural Imperialism (New York, 1974). Much of the message is already in the title. The author, an influential and experienced scholar in the educational world, eventually reveals that "there are many people now in the school system willing to work toward changing the hierarchical structure of society." Moreover, the new education "should be designed to create or reinforce a nonhierarchical society, in which property will not have rights over people, and in which ideally no person will have the right of domination over another." (pp. 364-366) But Carnoy insists that "… any transformation requires changing people’s understanding of the social contract and the meaning of work, responsibility and political participation." (p. 366)
The Voucher System
On the voucher system, another leader of the new socialists in education, Professor Henry Levin, has recently made explicit the radicals’ objection to it:
.. but, if the present schools tend to contribute to the reproduction of social class from generation to generation, educational vouchers will surely exacerbate this phenomenon… vouchers would make this class stratification and socialization even more "efficient" by making it possible for parents to choose particular primary and secondary schooling environments based upon these [indoctrinated] values.8
Meanwhile, the family itself is regarded as a reactionary institution. The very top leaders of the new socialists in education, Samuel Bowles and Herbert Gintis, warn that:
The male-dominated family, with its structure of power and privilege, further articulated according to age, replicates many of the aspects of the hierarchy of production in the firm.9
In their new and influential book, Schooling in Capitalist America (New York, 1976) Bowles and Gintis speak much of the need for democratization of American education. But to ordinary people, democracy means the right to influence and the right to choose. A voucher system, whatever its ultimate effectiveness, sets out with the intention of encouraging individual choice explicitly. It would allow people to vote with government-supplied cash funds as well as with their feet. Bowles and Gintis, however, do not really want such democratic popular preferences expressed in education, at least not in the short run. Rather they want leadership in the public schools by their own socialist elite. This is their real conception of democracy.
It is ironic that the socialists believe that capitalist influences have been at work to promote the "cult of efficiency" in education as a preparation for unquestioned adaptability in the work place. But looking at the school system of America, nothing could appear more unlike an efficiency promoting enterprise. The records of increasing illiteracy, falling SAT scores, growing truancy, increasing violence that was mentioned earlier, are surely eloquent testimony to this. The fact is the public school system is not a capitalist organization. Rather, it is nearer a socialist institution, dominated as it is by the huge and increasingly centralized public bureaucracy.
The New Dialectic in Education
In one sense, strangely enough, it could be argued that some kind of Marxian dialectic is at work in American education. The Marxian socialists’ process of thesis and antithesis, of class conflict and eventual overthrow, of revolution and ultimate withering away of once dominant but now discarded institutions, may all indeed be working in the American public education scene. But the "laws of motion" of public school development may be quite opposite to those predicted by Marxists. True, there is conflict already, and in a sense there is revolution taking place in various parts of the system. Only a few years ago to question the public school system in America was like questioning motherhood. Today, everybody is doing it. People of all persuasions are openly critical and it is now quite possible that the public schools could "wither away."
In several cities it is now commonplace for parents to go out in the streets protesting against school busing programs. In others (as in Oregon in the winter of 1976-77) the taxpayers have been "going on strike." This is done by their refusal to finance bond issues. And now in Missouri, 23 public school districts (in St. Louis County) have been sued by a group of taxpayers who charge that the schools teach religion in the form of "secular humanism." The plaintiffs have asked for a refund of their taxes, and meanwhile tax funds are placed in escrow by the courts. Indeed, a similar case has been filed every year since 1971, and each year the funds have been "frozen" pending the outcome of the litigation. A favorable ruling in Missouri could ultimately result in sweeping changes nationwide to the whole public school system.
The arguments of the Missouri plaintiffs include the view that any code of moral or ethical behavior taught by the schools can be considered religion. Certainly it is impossible for the schools not to teach some code or behavior. It is therefore not logical to give preference to one code of behavior that the government selects and not to give equal status to the moral and religious code of behavior selected by the parents. In this view the use of tax money to support public schools that teach religion is unconstitutional according to the First Amendment. The only fair way to support education according to the Missouri plaintiffs is the introduction of the voucher system. In this system, tax revenues for education would go directly to parents for them to use at any school of their choice: public, private, or parochial.
The St. Louis action seems to be no passing event. The plaintiffs seem to be resolute and determined to continue worrying the public school bureaucracy in an apparently endless battle. They have sent each school district a list of 31 questions that deal with how the schools handle discipline and teach about values, sex, human relations, drugs, and social problems.
In July 1976, the Ohio Supreme Court gave a unanimous decision supporting First Amendment rights of parents against the state’s imposition of education standards on nonpublic schools that would "deprive [individuals] of their traditional interests as parents to direct the upbringing and education of their children." Perhaps more significant, since it sympathizes with the complaints of the St. Louis parents, was the pronouncement by Justice Frank Celebrezze that the philosophy imposed by the state through its standards "relating to the teaching of citizenship, social studies and health, may be interpreted as promoting secular humanism, and as such, may unconstitutionally be applied…."¹º
Parents seem increasingly to be seeking legal alternatives to public schools that will not infringe the compulsory education statutes. Usually the motive is the protection of their children from what parents believe to be adverse or hostile school environments. There have appeared in the last few months a rash of "learning exchange networks," "travel study programs," independent home-study courses, tutorial instruction, and small nonpublic "family" schools. In the past, such attempts have been challenged by public school administrators on the grounds that the private education given was not organized or systematic as public schools, that the teachers were not certified, or that, generally, the education given was not "equivalent" to that of a public school. Today the courts seem to be less persuaded of such "equivalency test" since the public schools do not necessarily guarantee an efficient education anyway.
A judge in a lower level superior court in Maine recently rejected a criminal action against a parent who refused to send her child to a local public school and accepted the alternative "home-study educational program" given by the parent-teacher even though she was uncertified. The kind of argument put forward by the parent is very pertinent:
The monopoly nature of compulsory public schooling: we are forced to accept this service whatever our opinion of the quality of the service may be. Not only is there no alternative available but we are not even allowed to refuse the State offers if we don’t like it….
Why does the burden of proof have to rest on the parents, to show that they can teach their children? I am trusted to provide adequate food, shelter, clothing and medical care for my children without any direction or supervision from the State…. Why can’t I be trusted to educate them also?
The parents have the ultimate responsibility for raising the children, whose time and energy is being appropriated and who bear the ultimate consequences of educational failures. It is not reasonable to deal out the responsibility to the parents, the consequences to the children, and leave all the authority with the schools."
The famous Pierce case of 1922 which decided that a state could not compel all students to be educated in public schools seems now, in the late 1970′s, to be enjoying something of a revival. The Vermont Supreme Court, citing Pierce, rejected in 1976 criminal actions brought against several parents for sending their children to a school that was not approved by the state." The Court also referred to the recent Yoder case in the U. S. Supreme Court which stated that "compulsory attendance, even in an equivalency basis, must yield to First Amendment concerns."
The First Amendment is also much referred to in current litigation on teachers’ unions. One of the most significant has been the Holmquist case that was ruled on December 10th, 1976. Albert M. Holmquist, a teacher in Wisconsin, started a long court struggle in 1971 when he argued for 21/2 minutes, at the meeting of the Madison Board of Education, against a proposal to compel teachers to pay agency fees to unions. The local teachers’ union protested that Holmquist should not have been allowed to speak because the union had exclusive bargaining rights with the board. The Supreme Court ruled unanimously that when the school board conducted public meetings the First Amendment prohibited it from discriminating between speakers "on the basis of their employment or the contents of their speech."
Another Supreme Court case, decided in May 1977, concerns about 600 Detroit teachers ("Abood")¹³ who do not belong to the union and who have been refusing to pay compulsory fees to it as required by the agency shop legislation. Their complaint has been that the arrangement is unconstitutional because it obliges public employees to contribute to a political organization. If the Supreme Court had found the agency shop unconstitutional, the power of unions in education would have been severely curtailed since they would not only have faced competition from new unions, but would also have depended on voluntary, not compulsory fee payments—a situation which would have reduced considerably financial resources for campaigning.
The Supreme Court ruled, however, that public employees could be required to pay "agency fees" to the one union that represents them as a collective bargaining agent. The Court added, however, that if an employee objects to the use of his fees for political purposes not related to collective bargaining, his fee must be reduced by the amount spent on those activities. The Court acknowledged that there would be "difficult problems in drawing lines" between collective bargaining activities and other political activities. Those lines will clearly have to be drawn in future decisions.14
In spite of all the previously mentioned dangers from the increasingly monolithic public school system, the system seems clearly to be in peril itself. New revolutions are clearly afoot; but they could "explode" in several directions. The remainder of this article will concentrate on possible financial "revolutions."
Abolition or Vouchers?
Those who are fully aware of all of the above serious problems in the state system of schooling are faced with an enormous task when seeking ways for reform. Some would advocate the extreme policy of abolishing the whole public school system as quickly as possible. This is clearly an unrealistic policy and it could easily alienate the majority of people. This is not to mention the formidable body of conservatives who would be ready to heap scorn on such a radical proposal and to use their extensive political influence to stifle it. The term "conservatives" is used herd in its proper sense to mean all those people who wish to conserve intact the existing institutions. It includes all the most vigorous supporters of the public school system whether bureaucrats, teachers, democrats, or socialists.
The second and most widely discussed reform that could begin to combat the disadvantages of the public school system is that of the voucher system, and we have seen that the Missouri parents are arguing for it in the courts. The current leading intellectual advocate for this scheme (a scheme that has a long history going back to Tom Paine) is the 1976 Nobel prize winning economist Professor Milton Friedman.
Friedman has always separated three levels of issues. First, whether schooling should be compulsory, second, whether it should be governmentally financed or privately financed, third, how it should be organized. His argument for vouchers is continually made on the understanding that the first two of these issues, compulsion and the degree of government finance, are put on one side. In other words, assuming that we have compulsion, and assuming that the government is in the business of education to the extent of full, 100 per cent, finance, a voucher scheme would produce a better and more effective organization of government finance than the present one. That is, vouchers provide a superior alternative to a system of governmentally-run as well as governmentally-financed schools. If, for instance, the government is now spending $800 on a child’s education in a public school, Friedman’s voucher scheme would direct this same $800, not to the school, but to the parent or guardian. The parent would not be allowed to spend it on noneducational goods. When spending it on education, however, he would be allowed to do so at the school of his or her choice.
In my opinion, the voucher system does not stand much chance of being accepted in present American circumstances. Moreover, it would incur some further dangers even if it were accepted. The organized teacher unions have stated their uncompromising opposition to vouchers, and this alone is a political reality that must be faced. The second even more important "roadblock" is the current attitude of the Supreme Court. It is clear from their recent deliberations that the Court would regard vouchers as aid from the state.
The Court’s reasoning in the famous Nyquist case in 1973, treats vouchers along with tax exemptions for schooling as state aid.15 And under the First Amendment the state is not allowed to provide aid to parochial schools in any significant way. Since 90 per cent of the nonpublic school population in America are in parochial schools the chances of a voucher system having much effect in the short run at least will therefore be very small. It is true that the Nyquist case concerned the particular circumstances in New York where a state government was deliberately attempting to enable particular parochial schools to survive (largely in order to prevent embarrassment to the public schools). It is arguable that a universal voucher scheme for all parents whether in public schools or private would have no primary effect of aiding religion. My own review of the Court’s language in other cases besides the Nyquist leads me, however, to the opinion that they would not allow a universal voucher scheme, even on these wider arguments.
Even if the voucher system were accepted, there is another danger to consider. They would presumably be spendable in the small remaining private sector of education. At the least, the government authorities would impose some initial condition on these schools to qualify them for receiving the government finance that vouchers embody. Insofar as government inspectors have a prior interest in government (public) schools, there is a probability that they would begin to impose progressively more restrictive conditions on the private schools, especially where they threatened to "poach" the customers from the public schools. The ultimate result could be the destruction, or at least reduction, of the small private sector and the only remaining competitor with the public.
It is important to return to the two issues that Friedman assumes to be given or settled, the existence of compulsory legislation and the situation where government authorities finance schooling up to almost 100 per cent of requirements. The first of these issues, compulsion, for all practical purposes can be taken as undisputed in the way that Friedman does.
The second issue, however, full government finance, should not be taken as settled. In the past, Friedman has speculated that the rationale for government finance has stemmed from the "external benefits" of education. These arise where the action of an individual benefits not only himself but others in society. Society, it is argued, stands to gain for instance from the existence of a literate population. It will also benefit if schooling leads to a reduction of crime and the promotion of law and order.
But the trouble with this argument is that it could apply to most things. It follows that government should be providing most of us with our everyday needs at zero price. Every time I wash myself I provide benefits to people around me. On this argument should society provide me with free soap and free hot water? It will be replied that in this case the incentives to pursue my own personal comfort will be sufficient to secure my own cleanliness at my own cost. But if this argument is made in the case of cleanliness why not in the case of education? Where is the evidence that people will not purchase education and become literate in the pursuit of their own private benefits, and in sufficient quantities to make the marginal benefits to society not worth the marginal cost of further encouragement?
We should also remember that we are considering the educational purchasing behavior of private individuals not in the present world of high taxes but in a world where the government has not stepped in to tax them to provide them with "free" education. In the present world everybody pays taxes, right down to the poorest. "Free" education is purchased from revenues from regressive property taxes, sales taxes, and from many other taxes that the poor are not able to avoid. Were the poor to be excused from all these numerous taxes who is to say that they would not spend the proceeds in positively priced education? Where is the evidence?
It has never been demonstrated that most of the poor in America today are not paying for their own "free" education from their own tax contributions. Remember that these contributions are collected over a lifetime. I have estimated elsewhere that a poor family contributes a total undiscounted life-time contribution in education taxes of $7,380.16 We have to remember too, that the poor typically receive an education that is of a shorter duration than others. So while their cost contributions are lower than average so are their benefits. It is therefore not clear that they are not contributing enough to finance themselves entirely. If they are, and especially if means can be found to allow parents to borrow on their future incomes, then compulsion is the only form of intervention that is needed. Government-operated zero-price schools are superfluous, and, judging by the heavy bureaucratic overheads, excessively costly.
It is interesting that in 1976 Milton Friedman came to the opinion that the argument of external benefits to society is, after all, no longer valid as a justification for government finance of education." This means that of his three separate issues only the first, compulsion, now remains as undisputed in his reasoning.
One may now ask, if there is no argument for government providing the finance in education, why is there an argument for providing vouchers which are nothing else but tickets or checks that channel this finance through families? If we take the two issues together, the case for Friedman vouchers collapses; for there is no justified government finance to supply them. Friedman argues nevertheless, that, if we cannot take the two issues together, if we are in other words stuck with government school finance, then vouchers would be a better way of allocating it. If one has boldness to argue for vouchers however, it is difficult to see why the boldness stops at the government finance question. Why cannot the theory of government intervention be argued comprehensively in one package?
What then could be done? Radical or global overnight revolutions are out of the question. What is required in the first instance is a policy of gradualism, but gradualism in the right direction. The correct direction is indicated, in my view, in the insistence upon continuous questioning of "who pays for what" in education. Consider next year’s inevitable financial problem in the public schools. Undoubtedly there will be yet another cost increase and this for "genuine" reasons as well as for reasons for further monopoly or teacher union development. The key strategy is to focus on the method of providing revenues for this next annual increase. The government presumably knows on whom the burden will fall. If it doesn’t then, on its own admission, it is supervising a gigantic public school system in the dark, a system that certainly would not seem consistent with the Equal Treatment clause. It cannot argue that its taxes are not preventing every family from buying the same education privately.
The government therefore will be obliged, on persistent questioning, to announce its expectations about the distributions of the burdens of next year’s tax increase. Normally cost increases are financed out of marginal increases in several of the taxes, sales taxes, property taxes and so on. At this stage an estimate should be made as to how much each family with children at school will be contributing to these taxes. The next step is to insist that some of the family’s contributions be paid directly at the door of the school instead of indirectly via various conventional tax payments. In this way we will establish what can be called a "marginal user tax" as an additional tax source, but one that is direct and reveals some information as to who is paying for what.
This user tax system is in effect equivalent to a fee or tuition payment system. The objection will then be heard that the clock has been put back because education is no longer "free." This seems to be the key argument to meet head on. Its advocates always put quotation marks around the word "free" whenever they describe the public system. The proposal of the user tax made here is not one of abolishing free education (free without the quotation marks around the word). It is a proposal for abolishing the quotation marks around the adjective. But if education is not really free, as the advocates tacitly admit by their use of quotation marks, what is the argument against poor parents paying their conventional tax contribution in the form of a price at the door of the school? The program initially at least is a very modest one and meets the requirement of gradualism. For it is not the full price of their education that the family will be charged but merely a price sufficient to cover the marginal increase in the annual cost.
A First Step
For the sake of illustration suppose it is found that parents with children in school fall into two classes—a rich class that will face additional taxes, raising from each member another $100 to meet the increase in school costs for the educational year 1978-79, and a poor class with members also facing additional taxes which take from them an additional $50 for the year in question. The proposal here is that all parents are charged $50 at the door of the school. (The rich parents will pay another $50 through increased conventional taxes.)18
If this policy is resolutely pressed, and if it succeeds, it will have the effect of removing one of the most entrenched illusions in the whole public education mythology, the illusion that people are getting something that other people are paying for entirely. The illusion of free education can be shattered even with the most modest weekly payments by parents. Even if a mere dollar a week is charged, the principle will be established, the illusion will be abolished and education might be set on the correct course once and for al1.19
After several years of cost increases the user charge or fee will gradually rise. People will be no worse off than they would have been had the present system continued. But they stand to be increasingly better off because they will be given increasing scope for choice. Every time a parent transfers his child from school A to school B he or she will now automatically transfer funds to the school of his or her choice. Because he now contributes funds directly in the form of fees his preferences will now be considered seriously. At the same time the school that is losing customers will be placed more on the defensive since they will automatically be losing revenues. This financial discipline is the claimed virtue of the voucher system of course. What is being demonstrated here, however, is an alternative to such a system, that the courts could not strike down, and one that does not involve the "two way or round trip" of money from parents to the government and back to parents again.
Finally it may be objected that the fees will never rise sufficiently to be of much significance to the administrators of schools. This is a matter of degree however. One would have thought that a fee paid by parents that covers even ten per cent of the school finances would be of considerable marginal significance. And ten per cent should be reached in a year or two.
However, if one wants to give the parents even further scope, one should concentrate on the lifetime taxes that they are paying under the present system. The parents could be given the option of access to their future incomes by way of a loan scheme to service lower education. This scheme would enable them to pledge their future incomes and draw upon them so as to pay up to full cost of their education. In this form the parents would handle all the finance as in the Friedman voucher system, but with this difference: There would no longer be any ambiguity as to who is providing the finance. If it is clear that it is the parents’ own money that is being spent there can be no argument by the Supreme Court that the state is aiding religion or anything else. The remaining government intervention will be a financial, not an educational one. It will be for the purposes of improving capital markets not for entering the education business.
A more important aspect of the return to direct fee paying is that it reinstates property in the common law sense of the term. When people pay for their education indirectly through the government process, their property rights become obscure and their liberty is curtailed. In contrast, if a person is called upon to pay a user-tax or fee only if he uses the school in question, he is at liberty to choose a private school over a public one if he so desires. This property right and this liberty do not exist in the present system which is a system wherein the parent has to pay twice for private education. The strengthening of common law notions of property is an important and necessary development if constitutional democracy in America is to be rescued. For it is in the spirit of this democracy that liberty and property go hand in hand.
It is in the setting of ambiguous property rights, a setting wherein nobody knows exactly who owns the schools, and who has the right to do what in public education, that the Supreme Court has in the last two decades begun to fill the vacuum with what amounts to legislative decisions. This development is contrary to the spirit of the American constitution with its separation of powers. It is contrary to the spirit of the First Amendment that is grounded on private law, not public law, conceptions of liberty.
The Supreme Court held in the San Antonio School District v. Rodriquez²º that the equal protection clause was not violated because of substantial variance in educational expenditures per pupil throughout several school districts. The Court’s judgment was not judicial but legislative. For it was educational policy judgment based on evidence of no significant correlation between expenditures and educational equality.
Similarly the 1977 Supreme Court reasoning in the Abood case seems to have been based more on the needs of the government than the First Amendment rights of individuals. It argued that respect for agency (union) shop legislation is justified by the state’s interest in establishing a system of labor relations in which one union serves as the exclusive representative of school teachers. The arrangement was thought to distribute fairly the costs of collective bargaining among those who benefit and to prevent "free riders." This again is surely a government policy issue, not a judicial question. The common law concept of the Court’s function forbids such technological excursions and confines it simply to the protection of legal relationships such as the enforcement of contracts once agreed upon.
Consider also the Supreme Court’s recent involvement in questions whether certain subjects can or cannot be taught. In reaching these decisions the Court imposes such a subject, or absence of a subject, upon large numbers of people who object. If these people had direct control of their own property they could take appropriate and effective action. They could remove their child from the offending school and transfer it to another which had their preferred curricula.
Finally, if there were a common law property interest, individuals would be able to hold their suppliers legally accountable in cases of mismanagement. Where there is no such property interest, as in the present public school system, the individual "consumer" seems to