Realizing Educational Rights: Advancing School Reform through Courts and Communities

Realizing Educational Rights: Advancing School Reform through Courts and Communities

by Anne Newman

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In Realizing Educational Rights, Anne Newman examines two educational rights questions that arise at the intersection of political theory, educational policy, and law: What is the place of a right to education in a participatory democracy, and how can we realize this right in the United States? Tracking these questions across both philosophical and pragmatic terrain, she addresses urgent moral and political questions, offering a rare, double-pronged look at educational justice in a democratic society.

Newman argues that an adequate K–12 education is the right of all citizens, as a matter of equality, and emphasizes that this right must be shielded from the sway of partisan and majoritarian policy making far more than it currently is. She then examines how educational rights are realized in our current democratic structure, offering two case studies of leading types of rights-based activism: school finance litigation on the state level and the mobilization of citizens through community-based organizations. Bringing these case studies together with rich philosophical analysis, Realizing Educational Rights advances understanding of the relationships among moral and legal rights, education reform, and democratic politics. 

Product Details

ISBN-13: 9780226071886
Publisher: University of Chicago Press
Publication date: 10/28/2013
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 176
File size: 931 KB

About the Author

Anne Newman is associate director of the Bowen H. McCoy Family Center for Ethics in Society at Stanford University. She is coauthor of Between Movement and Establishment: Organizations Advocating for Youth

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Advancing School Reform through Courts and Communities



Copyright © 2013 The University of Chicago
All rights reserved.
ISBN: 978-0-226-07174-9


Education Policy Making in the Shadow of an Enduring Democratic Dilemma

How can a democratic government both honor popular will and promote just public policies, given that collective decisions may compromise some individuals' rights? Political philosophers have focused a great deal of attention on this classic tension between democratic decision making and rights. Far less attention has been directed at the implications of this tension in the education arena, where it deeply shapes individuals' life chances. The significance of the tension in this arena is evident when we ask moral questions about how we should make education policy in the United States. For example, should local majorities rule when it comes to setting property tax rates and passing school bonds, given that these decisions significantly affect school quality? Or should they rule when it comes to developing school-assignment policies that dictate which children learn together, and therefore the level of diversity in schools?

Resolution of such issues may involve difficult trade-offs between democracy, understood as rule by the people, and rights, understood as constraints on popular rule in the name of justice. But these competing principles are rarely given equal consideration in education policy making. Through elected school boards and local school councils, democratic majorities have wide latitude over important education policies. Although the federal government in the United States regulates many aspects of public education (for example, civil rights protections and accountability policies for student achievement), the long-standing norm of local control safeguards citizens' authority over significant determinants of educational opportunity. Citizens' authority is evident in recent state ballot initiatives curtailing affirmative action and bilingual education, and in the more regular decisions voters make about tax policies that affect school funding. To see the extent to which the principles of justice may be disregarded in these collective decisions, we need look no further than the well-documented disparities in educational opportunity that track race, class, and geographic borders.

Leading accounts of democracy, even those with egalitarian intentions, often fail to protect the interests of marginalized students. This failure not only exacerbates educational injustices, but it also undermines the legitimacy of democratic decision making itself. The respective priority accorded to democracy and justice in the education policy process are thus out of balance. My central purpose in this chapter is to call attention to this imbalance and to propose a way to correct it: we should regard education, which prepares individuals for equal citizenship, as a fundamental right that is shielded from democratic politics far more than existing practices permit, and far more than most theories recognize as necessary.

I locate my arguments about a right to education in the context of deliberative democracy for two reasons. First, deliberative democracy, which stipulates that public policy should be decided through inclusive public discussions, has become the most widely debated view of democracy among political theorists. And its academic prevalence is spreading across disciplines as empirical scholars test its principles in different real-world contexts, including education politics. Deliberative enthusiasts look to school board meetings and local school councils to observe deliberation in action, and they advocate more and better deliberation to improve the education policy process. As interest in deliberation grows among education scholars and reformers, it is especially important to consider how well this approach to policy making serves less advantaged students—a concern that researchers overlook when they assume that deliberations are egalitarian.

Second, deliberative theory is an apt framework for thinking about a right to education because it reflects an idealized site of democratic citizenship: the New England town meeting, where citizens discuss public policy with an eye to the common good. According to this ideal, government is not the business of experts but the work of engaged citizens. If this popular vision of democracy is to be realized, citizens must be provided an education that enables them to participate in collective decision making as civic equals. Whether citizens have access to such demanding education should not be left to the sway of majoritarian politics to the extent that it often is, in both theory and practice.

I largely endorse deliberative theory; my purpose in advancing a rights-based approach to educational opportunity is not to challenge deliberative theory as a democratic ideal. Rather, by highlighting the scope and significance of the educational prerequisites of deliberative democracy, I aim to show why deliberative policy making is ill-suited to remedy educational inequalities and inadequacies when those prerequisites go unmet. This reality does not undercut the merits of deliberative ideals. But it does call into question the prevalent appeals to deliberative norms in contexts where these norms are unlikely to mitigate—and may very well exacerbate—the considerable educational injustices that obtain in the United States today.


Deliberative theorists have varying conceptions of the proper aims, processes, and outcomes for collective decision making. Differences among theorists arise, for example, with respect to the importance of achieving consensus; the types of reasons citizens should offer to explain and defend their views to each other; and the relative priority assigned to procedural fairness (how collective decisions are made) and to outcomes fairness (what is decided). I set aside these differences for now to focus on goals that are common across conceptions of deliberation; these goals shed light on the theory's educational implications.

Deliberative theory can be understood as an egalitarian response to majoritarian, vote-centric views of democracy, which I refer to as economic theories. Economic theories of democracy are driven by observations and assumptions about the realities and limits of democracy in practice, in contrast to deliberative theory's focus on how democracy should function. According to the economic view of democracy, politics is a competition among self-interested individuals seeking to advance their discrepant interests. Joseph Schumpeter's view of democracy, though extreme, exemplifies this position. Schumpeter is deeply pessimistic about citizens' capacity for intelligent political participation (he calls most people's political opinions "an indeterminate bundle of vague impulses"), and he concludes that democracy is better off with limited citizen engagement. In his view, democracy is little more than a matter of aggregating citizens' preferences and abiding by the majority's opinion.

Deliberative theorists rightly reject this strictly majoritarian approach to collective decision making as the "numerical version of might makes right," as Amy Gutmann puts it. As she and other critics emphasize, majoritarian theories of democracy are morally problematic for two reasons. First, they are insensitive to the fact that some viewpoints are unlikely to constitute the majority opinion. This relegates certain groups to permanent minority status, so their interests lose out in democratic politics over and over again. Second, by assuming that citizens' preferences are largely fixed and that they maximize self-interest, majoritarian views of democracy discount the possibility that citizens might revise their opinions and become more public-spirited when presented with others' perspectives. Such assumptions are useful for the formal modeling of political behavior but are ethically troubling because when individuals form their starting preferences, their views may be benignly ill-informed or malevolently prejudiced.

To correct for these problems, deliberative theorists advocate widely inclusive public discourse as the best way to make collective decisions. As they see it, public forums provide an opportunity for all viewpoints to receive consideration, whatever the size of their support base. Many deliberative theorists also argue that if citizens are given a chance to share their beliefs and hear from others, they will come to have a more capacious understanding of the common good and will revise their views accordingly. In theory then, deliberation improves upon the mere procedural equality of voting by ensuring that marginalized groups have a fair hearing and by prompting citizens to become more informed, tolerant, and public-spirited.

Deliberative ideals hold great promise for education policy making, especially compared to the alternatives. Under a majoritarian vote-centric model, minority interests may have little chance of gaining serious consideration in the policy process. In addition, citizens' most significant opportunity for political expression might come at the polls, where secrecy provides cover for self-interest. The 1978 passage of Proposition 13 in California, which capped property tax rates, is especially illustrative of the problems endemic to a vote-centric model of democracy. Some supporters of this taxpayers' revolt might have been disinclined to publicly defend their position, which prioritized individual financial concerns over collective support for public schools. By contrast, when public deliberations are the locus of decision making, citizens are mutually accountable for the exercise of their shared authority. In the case of Proposition 13, childless homeowners would have to encounter and grapple with the perspectives of families with children attending public schools. This public and more transparent process better honors the notion of public schools as a collective good, which is an ideal increasingly challenged by market-based reforms, privatization, and the educational arms race of college admissions in privileged communities. Deliberating about education policy, it seems, might help revitalize the notion of public education as a public good.

Yet deliberative theory faces significant criticism because of deliberation's potential to exacerbate existing social and political inequalities. This line of criticism is important to consider from the vantage point of educationally disadvantaged individuals, especially when it comes to collective decision making about education policy.

Egalitarian critics worry that citizens have unequal chances to influence public deliberations because the norms for participating privilege certain communication styles. As a talk-centric form of collective decision making, public deliberations aim to hold citizens mutually accountable for the expression of their beliefs through the norms of public reason. These norms place limits on how individuals engage with each other in the public sphere; various conceptions of deliberation advance different norms, but some limits are common across theories. For example, citizens are expected to refrain from making sectarian claims that are rooted in particular belief systems (such as religious frameworks); they should make appeals that are rooted in reason rather than emotion; and their preferences should be guided by concern for the common good rather than self-interest. The purpose of such limits is to facilitate discussions among citizens who may have widely diverse political, religious, and moral commitments, and to ensure that citizens can participate in deliberations on equal footing.

Egalitarian critics take issue with the norms of public reason, and some worry more broadly that a discursive policy process is inherently elitist. They argue that deliberation privileges the communicative styles of more advantaged citizens (for example, white, middle-class men), at the expense of people whose manner of speaking does not follow Enlightenment views of rationality, whose worldview is rooted in a religious framework, or who have less social and political power. In short, critics charge that because it privileges nonsectarian logic and reasoning over emotional pleas, religious claims, and personal narratives, deliberative theory is culturally biased.

Concerns about cultural bias have understandably dominated most criticism of deliberative theory. To be sure, the challenge of ensuring that all citizens are equally recognized in public discussions may be an intractable problem for deliberative theory. Beyond inequalities that stem from communicative norms, we must also be attentive to how inequalities in resources impact citizens' standing in public discussions—particularly educational inequalities in the context of decision making about education policy. Many deliberative theorists acknowledge that certain background conditions must be met if deliberations are to proceed fairly, but they typically do not give educational opportunity sustained attention. The question of why educational inequalities are particularly problematic in deliberative settings is also underexplored, especially when it comes to deliberations about education policy itself. Leading theories of deliberative democracy fail to shield educational rights from democratic diminishment, and this failure has significant consequences for deliberative determination of education policy.


While most deliberative theory (like political theory more broadly) pays scant attention to its educational implications, Amy Gutmann and Dennis Thompson's work is a notable exception. Gutmann is especially attuned to the civic importance of education in a participatory democracy given her earlier seminal work on the subject. Gutmann and Thompson state that deliberative democracy "goes even further than most other forms of democracy" in its educational demands. Yet even their approach to collective decision making does not sufficiently safeguard educational entitlements from majoritarian politics. This calls into question the fairness of applying deliberative norms to education policy making and portends more significant problems for deliberative theories that are less attentive to education.

Gutmann and Thompson advocate a hybrid conception of deliberation to balance concern for a fair democratic process with attention to the justice of deliberative outcomes. Their theory does not privilege principles of procedural fairness or substantive fairness. Instead, "both interact dynamically in ways that overcome the dichotomy between procedure and outcome." This hybrid approach, coupled with Gutmann's concern for education, makes their conception of deliberation a fitting test case for the question, Can deliberative theory both safeguard individuals' right to education and respect democratic authority? After all, a purely procedural view of democracy would be a straw-man counterpoint to my arguments for a firmer right to education, while a purely substantive view would not grapple enough with concerns about democratic participation.

To achieve this balance between rights and democracy, Gutmann and Thompson endorse welfare minimums for basic social goods like education, health care, and income. These minimum thresholds establish a floor for citizens' entitlements to public provisions and then leave room for democratic decision making above that floor. Gutmann and Thompson emphasize that an egalitarian standard that guarantees equal outcomes for all citizens is too demanding, both democratically and practically. So too is John Rawls's difference principle, according to which basic social goods would be distributed to maximize the well-being of the least well-off. For example, if we were to fund health care until the health of the least well-off citizens is maximized, we would have few resources left for other goods. Even a more modest outcome-oriented proposal to provide health care so that all individuals reach a baseline of good health may be unrealistic, Gutmann and Thompson argue.

To be sure, there are sound practical reasons to resist robust welfare rights in conditions of scarcity. Thick rights in such contexts could effectively deny democratic bodies the latitude to decide and to reconsider how resources should be allocated. Gutmann and Thompson's approach at first pass is compelling because it ensures that citizens have an adequate level of basic resources without implausibly guaranteeing equal outcomes in these domains. This approach mirrors how Gutmann balances education entitlements with democratic authority in her earlier work, where she advances a "democratic authorization principle" that enables democratic bodies to determine the level of public provisions for education while forbidding them via a "democratic threshold principle" from denying any citizen the education necessary to participate effectively in the democratic process. Upon closer inspection, though, this approach is deeply problematic because it relies on the deliberative process to determine what counts as an adequate education: "The best way of determining what adequacy practically entails may be a democratic decision-making process that follows upon public debate and deliberation." Because of the tight correlation between education and political influence in deliberative settings, by giving deliberative bodies the discretion to decide the scope of what counts as an adequate education, this view provides little protection for the interests of educationally disadvantaged citizens.

Excerpted from REALIZING EDUCATIONAL RIGHTS by ANNE NEWMAN. Copyright © 2013 The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS.
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Table of Contents

Acknowledgments        Introduction Part One: Educational Rights in Theory 1. Education Policy Making in the Shadow of an Enduring Democratic Dilemma            2. The Shape of a Right to Education    3. Historical Attempts to Advance a Right to Education Part Two: Educational Rights in Practice 4. The Rose Case: A Case Study in Legal Advocacy     5. Coleman Advocates for Children and Youth: A Case Study in Community Organizing            6. Conclusion: Collaborating to Realize Rights   Notes   Bibliography     Index   

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