The idea of justice as fairness is thus a good starting point for study and discussion in school and college. It can cut across an enormous range of society's activities--from passing laws that are fair and reasonable to making decisions in the quiet courtroom that are fair to persons who disagree or are in conflict, or who have been wronged or injured, or who have been deprived of benefits to which they are entitled. The idea of procedural due process encompasses the processes in civil and criminal justice, courts of law, and the use of juries, legal counsel, punishments, and imprisonment. I have categorized questions of procedural justice and corrective justice under the heading of due process; and issues of fair distribution of social benefits and burdens under the heading of equality.
It is useful to think of Justice as the very moral basis of a democratic society, what Rawls calls the "first virtue of social institutions." It is what must govern the conduct of persons in their relations to one another, if the society is to be self-sufficient and well-ordered. Rawls speaks of a public sense of Justice that produces a well-ordered society in which everyone accepts, and knows that others accept, the same principles of justice. This means that the members of a well-ordered society must develop strong moral sentiments and effective desires to act as the principles of justice require:
If men's inclination to self-interest makes their vigilance against one another necessary, their public sense of justice makes their secure association together possible. Among individuals with disparate aims and purposes a shared conception of justice establishes the bonds of civic friendship; the general desire for justice limits the pursuit of other ends. One may think of a public conception of Justice as constituting the fundamental charter of a well ordered human association. 6What the public sense of justice does is to establish the claims of what is right as prior to the claims of what is good, since what is good is defined differently by individuals and groups according to their particular life-styles and their particular personal desires. The principles of what is right and what is just thus put limits and impose restrictions on what may be reasonable conceptions of one's own good. A just social system defines the boundaries within which individuals and pluralistic communities may develop their aims and actions.
Rawls defines two principles of justice that set these boundaries, and the first principle must be satisfied before moving on to the second. The first principle is the citizen principle. It is stated as follows:
Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all. 7What are the "equal liberties" of citizenship? They bear close resemblance to the American constitutional order guaranteed by the Bill of Rights:
The basic liberties of citizens are, roughly speaking, political liberty (the right to vote and to be eligible for public office) together with freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person along with the right to hold (personal) property; and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law. These liberties are all required to be equal by the first principle, since citizens of a just society are to have the same basic rights. 8After the citizen principle of equal political liberties is satisfied, then the second principle of justice should come into play. It has to do with the regulation of social and economic conditions on behalf of equality:
Social and economic inequalities are to be arranged so that they are both:Once the political principle of justice is satisfied, then a just society will move on to distribute income and wealth and develop a design of organization that makes use of differences in authority and responsibility:
While the distribution of wealth and income need not be equal, it must be to everyone's advantage, and at the same time, positions of authority and offices of command must be accessible to all. One applies the second principle by holding positions open, and then, subject to this constraint, arranges social and economic inequalities so that everyone benefits. 10The total position elaborated in great detail by Rawls cannot be covered here, and of course it has been severely criticized by some philosophers and social scientists. 11 But his position points unmistakably to the priority of achieving a common civic community based on the citizen principle of justice, which I regard as the prime authority for the purposes of public education.
The philosophical contrast between the roles of equality and freedom in a just society has been sharply drawn in recent years by Rawls on one side and Robert Nozick, also professor of philosophy at Harvard, on the other side. While Rawls argues that only those inequalities are justified that adhere to the benefit of the least advantaged through the action of the state, Nozick argues that justice requires that each individual has full entitlement to what he or she acquires from the state. Limited government and a minimal state are required for full freedom of individual rights. This is bound to result in certain inequalities, because people indeed are unequal in talents, skills, and efforts, but they, not someone else, are entitled to what those talents, skills, and efforts produce. According to a minimalist view like that of Nozick, any equality imposed by government is unjust. And, according to advocates of a liberal welfare state like Rawls, the enforced equality of a totalitarian state of the left is as much a corruption of the principle of justice as is the enforced inequality of a totalitarian state of the right.
Rawls has not elaborated a full scale philosophy of education based on his underlying political and moral philosophy as John Dewey did. But I believe he has paved the way for philosophers and practitioners of education to restore a profound civic, moral, and political basis to public education, if we but will. Our task is to try to find out if there are common agreements on civic education among academic specialists who differ among themselves on fine or major points of political philosophy. For example, Michael Walzer attacks many aspects of Rawls' position, but he also says that inclusive schools are better than separate schools and that teachers committed to the basic discipline necessary for democratic politics will try to establish a shared knowledge among their students:
The aim is not to repress differences but rather to postpone them, so that children learn to be citizens first, workers, managers, merchants, and professionals only afterward. Everyone studies the subjects that citizens need to know. 12When Walzer goes on to say that equal citizenship requires a common schooling, and when he argues against vouchers and tuition tax credits for private schools but is in favor of the state setting common curricular requirements for private schools, these arguments sound as though they coincide with Rawls' citizen principle of justice.
The formulation of a comprehensive role for public education in achieving civic community still lies before us. Recapturing a sense of legitimacy and of moral authority for public education may well rest on the success with which the academic and educational profession can bring about what so many of the American people have hoped for it for 200 years–establishing as a priority the vigorous promotion of the basic values of the American civic community–justice and liberty and equality. It may just be that not only is the future of public education at stake, but the future of the democratic community itself. For there have also been many Americans in our history who have been only too willing to believe that a rough and ready frontier justice of law and order or lynch law is good enough for some people. "Justice" often seemed to be served by "keeping them in their place," and they could call on Plato's Republic or even the Bible for justification.
More recently, in the 1950s and 1960s, Southern state governors invoked the principle of maintaining "law and order" when they called out the troops or police to prevent black students from attending public schools or state universities on the grounds that angry white crowds would commit violence unless they did so. Fortunately, the Supreme Court, the President, and the Justice Department during the administrations of Eisenhower, Kennedy, and Johnson held that such appeals to local standards of law and order could not be achieved at the expense of the federal constitutional rights of black students. Justice could not be justified in the name of such community standards of law and order.
Freedom
What is most significant about Rawls' theory of justice for my purposes here is his assignment of first priority to the idea of equal basic liberties.The just political community will then be committed to the idea of freedom as well as equality. I view freedom as having at least three elements relevant to civic education. 13 Freedom involves:
- the right, the opportunity, and the ability of every human being to live his or her own life in dignity and security and to seek self-fulfillment or self-realization as a person or as a member of a chosen group without arbitrary constraint by others. This is the freedom of the person and of private action.
- the right, the opportunity, and the ability of every human being to speak, to read, to inquire, to think, to believe, to express, to learn, and to teach without arbitrary constraint or coercion by others, especially as a means for making deliberate choices among real alternatives on the basis of reason and valid and reliable knowledge. This is the freedom of the mind and of intellectual inquiry.
- the right, the opportunity, and the ability of every citizen to take active part in shaping the institutions and laws under which he or she lives in common with others and to do this by making uncoerced choices and by participating through active consent in cooperation with one's fellow citizens; and to do it in such a way as to promote justice, freedom, and equality for others. This is the freedom of the citizen and of public action.
Meiklejohn believed that the First Amendment guarantees these public freedoms of belief, expression, and discussion to be virtually unlimited. They cannot be abridged, because they are indispensable for the public decision-making process that is essential for the maintenance and improvement of a free and democratic political community. Indeed, the liberal state is obligated actively to safeguard and promote the public freedoms of teacher, learner, and citizen from threats by either majorities or minorities in the community. On the other hand, private freedoms are those that inhere in the individual, but may be limited for the public good under due process of law as guaranteed by the Fifth and Fourteenth Amendments. These limitations can be applied under certain conditions and in the interests of justice to life, liberty, and property.
The idea of freedom is not only fundamental to the very nature of a liberal democratic political community, it is at the heart of the pluralistic elements of diversity, privacy, due process, and human rights as well as property. Tensions between freedom and equality, authority, and personal obligation for the public good become readily apparent when one begins to inquire as to the limits that should be placed on individual freedoms of action that threaten the freedoms of others. Freedom of speech is limited by penalties for libel and defamation of character; freedom to accumulate and dispose of property or advertise it falsely is subject to limitations of fines, taxation, and monopoly; freedom to produce goods is limited by threats to the public interest and to the environment; freedom to discriminate and segregate in public education is limited by the belief in equality and the equal protection of the laws.
I agree with Meiklejohn on the fundamental importance of the continuing study of freedom as a fundamental purpose of civic education. Just as we need a "public conception of justice" as the basis for a well-ordered society, so do we need a "public conception of freedom" that is held sufficiently in common to assure the vitality of a free and democratic political com- community. Meiklejohn puts it this way:
...[A] primary task of American education is to arouse and cultivate, in all members of the body politic, a desire to understand what our national plan of government is.... [This] is a challenge to all of us, as citizens, to study the Constitution. That constitution derives whatever validity, whatever meaning it has, not from its acceptance by our forefathers..., but from its acceptance by us now. Clearly, however, we cannot, in any valid sense, "accept" the Constitution unless we know what it says. And, for that reason, every loyal citizen of the nation must loin with his fellows in the attempt to interpret, in principle and in action, that provision of the Constitution [the First Amendment] which is rightly regarded as its most vital assertion, its most significant contribution to political wisdom. What do We, the People of the United States, mean when we provide for the freedom of belief and the expression of belief? 15And, speaking of "our forefathers," it is well to remember that Madison clearly had in mind that the bill of rights he was proposing would protect individuals not only from abuses by government but would mean that the government itself would protect individuals from abuses of their liberties by other individuals in the community, namely the majority.
Discussion of political and social issues in the classroom are more likely to be freer than they were 50 years ago, but it took the great convulsions of the period following World War 1I to move as far as they have. 16 For two decades of the post-war period teachers were subjected to four kinds of restrictions under the hammer of many community groups and legislative actions at federal and state levels: special loyalty oaths for teachers; expulsion from teaching on the basis of membership in the Communist party or other subversive organizations; restrictions and censorship on teaching, writing, and discussion of controversial issues; and restrictions on political activities of teachers.
Details of this long and complicated history cannot be given here, but the constitutional principles of public freedom were eventually formulated by the Supreme Court. 17 One of the clearest statements was given by Justices Felix Frankfurter and Hugo Black in their concurring opinion in Wieman v. Updegraff, which struck down the Oklahoma oath law for teachers at the height of the McCarthy era:
To regard teachers–in our entire education system, from the primary grades to the university–as the priests of our democracy is, therefore, not to indulge in hyperbole. It is the special task of teachers to foster those habits of openmindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion....
They [teachers] must have freedom of responsible inquiry, by
thought and action, into the meaning of social and economic
ideas, into the checkered history of social and economic dogma.
They must be free to sift evanescent doctrine, qualified by time
and circumstance, from the restless, enduring process of extending the bounds of understanding and wisdom, to which the freedoms of thought, of speech, of inquiry, of worship are
guaranteed by the Constitution of the United States against infraction by National or State Government. 18
"Freedom from whom" thus poses one of the most difficult, sensitive, and inflammatory of the issues facing the inter-relationships of school-community-home, as the bitter struggles over racial and ethnic inequality in segregated schools have illustrated. Without some guidelines, the cherished freedoms can lead to the corruptions of anarchy, license, and
unbridled libertarian individualism, as Aristotle and subsequent advocates of a high ideal of citizenship so often feared. The first principle of justice, according to Rawls, requires that each person is to have an equal right to basic liberties but only so far as compatible with a similar system of equal basic liberties for all. Thus we come to the idea of equality.
No one would argue that the founders defined with exactitude what they meant when it was declared that "all men are created equal," but the historian Edmund Morgan argues that the creed of equality achieved a kind of consensus during the Revolutionary period that has had a powerful and pervasive influence ever since:
The Fourteenth Amendment puts the idea in terms of the "equal protection of the laws," but it was not until the civil rights movements of the 1950s and 1960s that positive government action was taken to wipe out long-standing legal restrictions on equality of opportunity in education, housing, voting, employment, and in a wide range of civil rights on behalf
of disadvantaged and minority groups. The Brown decision of 1954 was a landmark in stressing equality of educational opportunity, followed a decade later by the Civil Rights Act of 1964, the Voting Rights Act of 1965, and much else.
As the First Amendment was the charter for freedom, so the Fourteenth Amendment became the charter for equality. It was soon clear to the civil rights movement that a stronger–not a weaker–government would be required to achieve equal protection of the laws in order to overcome the historic discriminations that had resulted when states and local communities practiced "freedom of choice" by allowing dominant local groups to impose their views on their institutions and their schools.
As we all know, the Supreme Court said in 1954 in Brown v. Board of Education that the constitutional command of the national political community on behalf of equality must override the freedom of lesser political communities to institute segregational practices. It is well to recall once again the words of the unanimous Court:
We conclude that in the field of public education the doctrine of
"separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs... are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. 24
A turning point seemed to arrive in 1974 when the Court, by a 5-4
decision, unparalleled in bitter opinions, ruled that a Detroit plan to achieve a metropolitan solution to school integration was outlawed. 25 For the decade since then, civil rights advocates and black leaders have become increasingly concerned that resegregation may be under way. How much of this is the result of a rising conservative mood, the actual incidence of busing itself as a cause of white flight, or crass political maneuvering is a matter of rancorous debate in public as well as in scholarly circles. A Harris poll in January 1987 reported the startling findings that there had been a dramatic decrease in the proportion of Americans opposed to busing since 1981, especially among younger Americans, namely those who had been bused. 26
Civil rights advocates had been given a lift by the Supreme Court's decisions in 1979, upholding the orders of lower federal courts to institute large-scale busing in Dayton and Columbus, Ohio to overcome the vestiges of segregation that had existed for 25 years. 27 The Court reaffirmed its 1973 decision on Denver that said that if a board of education intentionally took actions that resulted in segregated schools in one part of its system the presumption was that there was segregation throughout the system. 28 But, meanwhile the hope that desegregation can work if given a fair trial was losing ground. In its report of February 1979 the U.S. Commission on Civil Rights echoed the report of the National Advisory Commission on Civil Disorders (the Kerner Commission) in its prediction that "our nation is moving toward two societies, one black, one white–separate and unequal." A similar refrain was heard in 1988. 29
The role of the Civil Rights Commission during the Reagan administration would make a vivid story in itself. Its reconstitution in 1983 by appointment of a chairman, a director, and members known to be opposed to busing and to affirmative action led to extreme dissatisfaction among civil rights organizations. Some even virtually advocated its abolishment in
preference to its conversion from "watchdog to lapdog," as the headline in The New York Times read on October 30, 1985, reflecting the views of Rep. Don Edwards of California, chairman of the House Subcommittee on Civil and Constitutional Rights.
With regard to admissions to graduate and professional schools, the principle that special consideration could be given to race was left ambiguous by the Bakke decision in 1978. The Court's decision had it both ways: Bakke had been discriminated against as a white person because the medical school of the University of California at Davis had reserved a number of
its admission places for qualified blacks and thus excluded him. He was ordered to be admitted, but the Court also said race could be taken into account as a "plus" factor in other circumstances. Thus a "Solomon's decision." 30
Such a question involves some of the deepest tensions between the
freedom of individuals to make personal choices and the obligations of the community to act through law on behalf of equality. Should the opportunity of access to education, which public authorities have historically provided for qualified majority persons (freedom), be limited in any degree in order that the opportunity for educational access be increased for some
qualified minority persons (equality) whose group identity has long denied them such access? Does a democratic political community have the obligation to limit a portion of the private freedom of some in order to achieve a more extensive system of equal basic liberties for all? In order to achieve a more just society? I believe that the answer to these questions is yes.
The Supreme Court began to take this position in a series of decisions in 1986 and 1987. It ruled in the Weber case that private employers could give preference to black steel workers by reserving half the places in a special training program in order to eliminate traditional patterns of racial
segregation and that the historical context of the Civil Rights Act of 1964 intended just such elimination. And in another case in 1986, the Supreme Court ruled that a Michigan board of education could legally give preference to blacks in hiring teachers, but could not lay off white teachers
with seniority simply in order to hire blacks. 31 Other cases decided in 1986 and early 1987 began to reject the Justice Department's arguments that any use of racial preferences in hiring g~ promoting of minorities was unconstitutional in a "color-blind" society. 32 Meanwhile, the argument continued in academic circles as well as in the courts. Laurence H. Tribe of Harvard Law School argued against the Meese Justice Department, saying that it has long been recognized that the Constitution is not simplistically color blind. 33
Finally, in March 1987 came the first unambiguous decisions in favor of affirmative actions in which employers could apply gender and racial preferences in hiring and in promotion in order to make their work force reflect the makeup of the local labor market or population characteristics, even though there was no proof of past discrimination against women or minorities. 34 In upholding the right of the County of Santa Clara (California) to promote a qualified woman as a road dispatcher rather than a somewhat more qualified man, Justice Brennan, however, did not support rigid numerical quotas nor the use of sex or race as the only criteria in employment decisions. Women's activist groups were delighted by the 6-3 decision, noting that Sandra Day O'Connor voted with the majority even though on different grounds from Brennan's.
Two months later, the Court went still further in broadening the scope of civil rights by upholding the right of ethnic white minorities to sue as a legal remedy for proven discrimination in employment, housing, contracts, and property dealings. 35 Thus, affirmative action toward equal protection of the laws for all kinds of minorities was taken a step further. And this time,
the appeal was made to the "original intention" involved in the legislative history of the Congressional framers of the hundredyear-old Civil Rights Act of 1866 and its amendment of 1870.
In one case, the rights of a U.S. citizen born in Iraq and in the other the rights of Jews were protected by the older post-Civil War acts, now part of the U.S. Code, as well as by the Civil Rights Act of 1964. Justice Byron R. White for the Court pointed out that the term "race" as used in the 1860s applied not merely to the three categories of human classification used by modern biologists (Caucasoid, Negroid, and Mongoloid,) but applied also to ethnic distinctions within the Caucasoid race. So Arabs,
Jews, Hispanics, and numerous other categories of ethnic heritage or national origin could be protected against discrimination. The Reagan administration's broad attack on affirmative action seemed to be stalled, not just by "liberal activists" on the Court, but also by "strict constructionists" and moderate centrists. In the women's case the dissenters were Justices Scalia, Rehnquist, and White. In the ethnic case, Justice White
wrote the opinion for a unanimous court.
And all this happened within three short years after the Reagan administration had won its first significant victory in a civil rights case. In the Grove City College case of 1984, the Court had adopted a narrow view of Title IX of the Education Amendments of 1972, which outlawed sex discrimination in educational institutions that receive federal financial assistance. Three previous administrations had assumed that if any part of a college received federal funds, then no part of the college could exercise sex discrimination without losing all federal funds. Instead, the Court now ruled that only the program receiving direct federal aid was covered by the law barring sex bias. 36 Women's groups and members of Congress immediately began efforts to adopt legislation that would clarify Congress's
original intention to include a broad interpretation of the affirmative action laws prohibiting discrimination against women in college admissions, athletics, and freedom from sexual harassment. By the end of May 1987 bills in both the Senate and House that would nullify the Grove City College
ruling had still not been brought to a full vote in Congress.
A very interesting thing has happened to affirmative action. The more the government has been importuned to issue regulations on compensatory education or affirmative action for the benefit of the historically disadvantaged, the more the resistance and litigation have arisen over such regulations; and, the more aggressive the Reagan Justice Department became in opposing affirmative action as "reverse discrimination," the more
defeats it has received from the Supreme Court--so far. The continuing tension between the ideas of justice and equality on one side and the ideas of freedom and diversity and privacy on the other side has escalated in the course of the 1970s and 1980s. So many of these tensions have arisen over education policies and school practices that civic education programs
for students and teachers now have great resources for study and inquiry easily at hand and explicitly of interest to teachers and students alike--from desegregation and busing to open admissions and affirmative action. The idea of equality need not be studied in purely abstract terms.
If indeed, "all men are created equal" and are entitled to the "equal protection of the laws," a society that permits persecution, or segregation, or discrimination on the basis of race, religion, ethnicity, national origin, or gender is to that extent an unjust society. Gender injustice is the latest to
receive scholarly attention. 37 This persistent tension between equality and freedom should be faced in civic education programs as directly and as honestly in all its manifestations as possible. In recent years the tension has become especially strained with regard to the values of diversity.
So, diversity or plurality is one of the major values to be studied, analyzed, and honored in any program of civic education for American schools. This becomes all the more important as large numbers of persons from Latin America, South Asia, and other countries raise the temperature of discussions about bilingual education, making English the official language of
various states (as in California) and of the United States. But, like all the other values, diversity has its problems and costs as well as its advantages and benefits. The problem is often simply referred to as the tension between unity and diversity, or order and liberty or the public and the private.
The historical efforts to reckon with diversity have been variously defined: Nathan Glazer refers to the bipolar traditions of inclusivity (welcome all comers) and exclusivity (keep the aliens out or in their place). Robert Wiebe refers to the recurring emphasis on the public and the private in the tradition of social segments in American life. Milton Gordon defines the
various approaches to assimilation as Anglo-conformity (be like us or go away), the melting pot (we will all become something new) and cultural pluralism (we will each maintain our identities). And John Higham identifies two persistent approaches that he calls integrationism (eliminate ethnic boundaries in the search for a greater community of the future based on an equality of individuals) and pluralism (maintain ethnic boundaries in
the goal to hold fast to the small communities of the past based on the equality of groups). 38
In recent years several educational views see great values in the reassertion of pluralism. Others have cautioned against excessive pluralistic chauvinism. 39 For myself, I find merit in views that attempt to arrive at a balanced tension between the values of cultural plurality and political cohesion. For example, John Higham speaks of "pluralistic integration" and distinguishes between ethnic boundaries that keep people in or out of
groups and ethnic nuclei that give identity and sustenance to different groups. In this sense, boundaries are permeable, but nuclei are respected:
No ethnic group under these terms can have the support of the
general community in strengthening its boundaries. All boundaries are understood to be permeable. Ethnic nuclei, on the
other hand, are respected as enduring centers of social action ....
Many who are concerned about ethnic justice feel pessimistic
about the ability of our society to develop the necessary appreciation of diversity. But it is possible... that our greater problem in moving toward pluralistic integration may come in rediscovering what the participants in our kaleidoscopic culture have in common. 40
But stable pluralism in a democracy also requires a strong and
lasting inventory of psychological legitimacy: understanding, acceptance, and pervasive confidence in the composite system
necessary to make it run smoothly rather than by fits and starts. 42
An illuminating illustration of the equal protection guarantees of the Fourteenth Amendment as applying to Hispanic children in Texas was drawn by the Supreme Court in 1982 when it declared unconstitutional a Texas law that would have permitted local boards of education to charge tuition for the children of illegal aliens, thus effectively preventing them from obtaining a public education. For a majority of five, Justice Brennan wrote:
What we said 28 years ago in Brown v. Board of Education still holds true. 44
The Court's majority ruling takes on added significance in view of the major immigration law passed by Congress and signed by the President on November 6, 1986, whereby illegal aliens who entered the United States before January 1, 1982, could obtain citizenship if they resided here continuously since then. The political process desired by the Court's dissenters eventually resulted in Congress approving $1 billion a year for four
years to reimburse state governments for providing public assistance, health care, and education to illegal aliens who gain legal status. 45
But "the political process" can also lead to the reassertion of a majoritarian nativism that fears or dislikes the inroads of the most recent newcomers. Civil libertarians suspect some such motivations in the rapid expansion of efforts to pass legislation making English the official language in the states as well as in the nation. In the November election of 1986 Californians
voted 3 to 1 for an initiative to amend the state constitution prohibiting the legislature from making any law which "diminishes or ignores the role of English" and permitting individuals or groups to bring law suits to enforce the law. Hispanic and Asian and other civil rights groups charged that an organized campaign by USA English played on the fears of voters in such way that it would led to further distrust and divisiveness in society. By
February 1987 some 14 other states were considering such laws, and by June 1987 it was reported that this number had increased to 37 states, with flaring animosities evident in several states. 46
The rapid influx of immigrants from Asia and Latin America along with a change in the views of the U.S. Department of Education under conservative pressures had led to similar and rancorous debates over bilingual education. Hispanics and others were alarmed that nearly two decades of special attention by the federal government to children whose first language was not English were threatened. In 1968 the Bilingual Education Act was passed to give federal aid to local school districts to enable them to meet the special needs of children of "limited English-speaking ability." For much of the time since then, there has been controversy as to whether the bilingual education programs were the best way to enable children to become proficient in English or whether it was a device to keep alive the original languages, or both.
In 1974 the Supreme Court ruled that a school system's failure to provide special language instruction for children whose mother tongue was not English denied them equal opportunity to participate in public education programs and was thus a violation of the Civil Rights Act of 1964. In Lau v. Nichols Justice William O. Douglas spoke for the Court without dissent in finding that California had to take special affirmative action to enable
Chinese-speaking children to profit from their school experience; simply providing the same texts and curriculum to all children alike was not equality of treatment. 47
But since the advent of William Bennett as Secretary of Education in 1984 there has been fractious controversy between the U.S. Department of Education and professionals in bilingual education over whether the best way to develop fluency in English was by use of the native tongue in the transition to English or by "immersion" in English. The conflicts have been more than a little tinged with politics as well as pedagogy. Disputes over
the results of research validating or invalidating different methods of classroom approach spill over into charges and counter-charges about the threats of too much pluralism resulting from unassimilated foreign-speakers versus the need to encourage the cultural values of newcomers whilst they acquire the civic values of American citizenship. 48 At root was the basic issue concerning how active government itself should be in achieving a stable pluralism as well as legitimate authority in a democratic
society.
On the other hand, power becomes legitimate authority when recognized as such and sanctioned by custom, institutions, law, constitution, or morality. Authority in a democratic polity is thus the exercise of influence and command by those in positions of power when done so within the confines of rules made by the consent of the governed and considered over a period of time as legitimate. Robert M. MacIver, long-time professor of political philosophy and sociology at Columbia University, defined
authority as follows:
I would also underline MacIver's broad definition of authority to include the general right of certain persons to act as leader or guide to others. Leonard Krieger, university professor of history at Chicago, points out that the idea of authority "as a consciously constituted or legitimate power to command or secure obedience" emerging during the sixteenth and seventeenth centuries led historians to mark the period as the origin of modern times and influencing the modern idea of citizenship in a nation state.
But he also indicates that there was another meaning of authority that originated in Rome, not so much associated with sheer physical power as with an uncoercive authority associated with persons or knowledge whose trustworthiness and responsibility are a warrant or guarantee that their deliberate judgments, convictions, and decisions are worth following as models or examples. 50 An auctor in Latin is a trustworthy writer, a responsible person, a teacher, a guarantor, a model whose ideas and judgments are worth following.
It is in this latter sense of authority as trustworthiness that has been so eroded in recent years. Students have revolted against the authority of schools and colleges, against the authority of government officials, against the authority of parents, churches, business, and other institutions that in
the past have claimed the right to guide the conduct and behavior of the young. This is what the Yankelovich survey meant when it referred to "deauthorization" as one of the reasons why both the young and their elders have turned to privatism. It is also in this latter sense of authority that the educational profession has been diminished. It has lost some of the capacity to exert leadership in the education of the public as well as of students. In the midst of the Watergate crisis, Archibald Cox called on the
legal profession to educate the public regarding the impeachment process. He said:
These are large orders to be sure, but it is noteworthy that the concept of authority both as legitimate power and as trustworthy leadership has become a matter for serious scholarly study in recent years. I have already referred to Richard Flathman's analysis of authority and citizenship along with that of many other scholars. But the concept has also had a revival of
interest among those in teacher education. Kenneth Benne's seminal doctoral study of 1943 has been republished and evoked considerable discussion and critical comment. 53 David Nyberg's more recent approach to power and authority is another very useful example. 54
Even radical spokesmen like Henry A. Giroux have taken up the cudgel to define authority in such way as to make it a tool by which "transformative intellectuals" can join forces with oppressed and exploited groups to achieve emancipation from the kind of authority imposed by conservative educators who would return to traditional moral aims of "promptness, truthfulness, courtesy, and obedience. 55 Critical study of a range of such materials would add zest, if not sting, to the usual academic fare on authority, which is fundamental and necessary but too often is not applied to the theory or practice of civic education. 56 This kind of study would enable the profession and the public to think of authority as more than orderliness or obedience in the "effective classroom."
Infringement of this right was one of the most irritating of the eighteenth-century practices that led to the Third Amendment's guarantees against the quartering of troops in private households and the Fourth Amendment's guarantees that the people shall be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. The revelations of the spying activities of the CIA and FBI on American citizens during the Vietnam War and the campus unrest, the Watergate
tapes, the Ellsberg trial, and much else have led to new concerns about the protection of privacy. The development of electronic devices has added a 1984 quality to all kinds of business activities (such as computers that keep credit ratings on millions of consumers) as well as those of government agencies. The 1970s gave added bite to George Orwell's inveighing
against the invasion of privacy and the unauthorized surveillance by "Big Brother" with attendant "Doublethink," "Newspeak," and "Oldspeak," and the ever present telescreen. The rapid development of technological surveillance led to some of the early scholarly studies of the idea of privacy. 58
1. Benjamin R. Barber's review of Arthur M. Schlesinger, Jr., The Cycles of American History (Boston: Houghton Mifflin, 1986) in The New York Times Book Review, November 16, 1986. back
2. R. Freeman Butts, The Revival of Civic Learning; A Rationale for Citizenship Education in American Schools (Bloomington, Ind.: Phi Delta Kappa Educational Foundation, 1980), p. 128. back
3. HistorySocial Science Framework for California Public Schools; Kindergarten Through Grade Twelve (Sacramento, Calif.: California State Department of Education, 1981). back
4. Quoted in Paul Monroe, ed., Source Book of the History of Education for the Greek and Roman Period (New York: Macmillan, c. 1901, 1908), p. 345. In the first half of the 20th century, prospective teachers for American schools often studied the history of ancient, medieval, and modern education. See R. Freeman Butts, The Education of the West; A
Formative Chapter in the History of Civilization (New York: McGraw-Hill, 1973). This book, a successor to my A Cultural History of Western Education, 1947 and 1955, has been out of print since 1977. back
5. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971); Michael J. Sandel, Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982); Michael Walzer, Spheres
of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983); Donald M. Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985); Lawrence Friedman, Total Justice (New York: Basic Books, 1985); and Bruce A. Ackerman, Social Justice in the Liberal State (New Haven, Conn.: Yale University Press, 1980).
For curriculum materials, suitable for kindergarten–12th grades, see Law in a Free Society, Justice (Calabasas, Calif.: Center for Civic Education, 1979); and Update on Law-Related Education (Chicago: American Bar Association, Spring 1987). back
6. Rawls, Theory of Justice, p. 5. back
11. See, e.g., Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974); and William R. Torbert, "Doing Rawls Justice," Harvard Educational Review, November 1974. back
12. Walzer, Spheres of Justice, p. 203. back
13. For my views on freedom, worked out in the crucible of the McCarthy era in the 1950s, see R. Freeman Butts, "Freedom and Responsibility in American Education," Teachers College Record, December 1952, pp. 117-124; and "The Free Man in the Free Society," Chap. 12 in What Is
the Nature of Man? Images of Man in Our American Culture (Philadelphia: Christian Education Press, 1959),pp. 146-160. back
14. Alexander Meiklelohn, Political Freedom; The Constitutional Powers of the People (New York: Harper, 1948, 1960), pp. 35-36. See Justice William J. Brennan, Jr. "The Supreme Court and the Meiklejohn Interpretation of the First Amendment," Harvard Law Review, November 1965. back
16. See Robert O'Neil, Classrooms in the Crossfire (Bloomington, Ind.: University of Indiana Press, 1980). For an excellent high school text on freedom, see Isidore Starr, The Idea of Liberty: First Amendment Freedoms (St. Paul, Minn.: West Publishing Co., 1978). See also several issues of the quarterly published by the American Bar Association, Update on Law-Related Education, especially the issues on Freedom, Free Press, and First Amendment, Spring 1985; Fall 1985, and Winter 1986; and special section on "Academic Freedom, Censorship, and the Social Studies," Social Education, October 1987, pp. 424-449. back
17. See Leonard W. Levy, Kenneth L. Karst, and Dennis J. Mahoney, eds., Encyclopedia of the American Constitution (New York: Macmillan, 1986), articles entitled: Academic Freedom; Adler v. Board of Education;
Bill of Rights; Civil Liberties; Establishment of Religion; Family and the Constitution; First Amendment; Freedom of Association; Freedom of Petition; Freedom of the Press; Freedom of Speech; Loyalty Oaths; Public Forum; Religion in Public Schools; Religious Liberty; Separation of Church and State; Virginia Statute of Religious Liberty. back
18. Wieman v. Updegraff, 344 U.S. 183 (1952). back
19. Adler v. Board of Education, 342 U.S. 485 (1952). back
20. Keyishian v. Board of Regents, 385 U.S.· 589 (1967). back
2l. Tinker v. Des Moines, 393 U.S. 503 (1969). The ruling of the Supreme Court (5-4) in Bethel School District v. Fraser, 54 USLW 5054 in July 1986 may have weakened Tinker by asserting that socially inappropriate behavior by students (lewd, indecent, or offensive speech) does
not have the same protection as political speech. Still other dimensions to student rights of freedom of speech may appear when the Supreme Court decides a case involving prior restraint on articles planned for a high school newspaper dealing with teenage pregnancy and parental divorces (Hazelwood School District v. Kuhlmeier, No. 86-836). back
22. See Levy, Encyclopedia of the American Constitution, articles entitled: Affirmative Action; Brown v. Board of Education; Children's Rights; Civil
Rights; Civil Rights Act of 1964; Desegregation; Discrete and Insular Minorities; Equal Protection of the Laws; Fourteenth Amendment, Incorporation; Racial Discrimination; Racial Quotas; Segregation; Separate But Equal Doctrine; Sex Discrimination. See also American Bar Association's Update on Law-Related Education, Spring 1987; Spring 1981; and Fall
1981. back
23. Edmund Morgan, "Conflict and Consensus in the American Revolution" in Stephen G. Kurtz and James H. Hutson, eds., Essays on the American Revolution (Chapel Hill, N.C.: University of North Carolina Press, 1973), p. 308. back
24. Brown v. Board of Education, 347 U.S. 483 (1954). The excruciating tension between the majestic ruling of the Supreme Court and the tugs of local warmth of home, church, tavern, and neighborhood is vividly portrayed in the lives of three families in Boston wrenched by the demands of desegregation; see J. Anthony Lukas, Common Ground: A Turbulent Decade in the Lives of Three American Families (New York: Knopf, 1985). After 15 years of intense community turmoil, the U.S. Court of Appeals for the First Circuit on September 29, 1987 overturned District Judge W. Arthur Garraty's orders, beginning in 1974, requiring the Boston School Committee to use racial guidelines in assigning students to the public schools. back
25. Milliken v. Bradley, 418 U.S. 717 (1974). back
26. See especially Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (New York: Knopf, 1976); and Gary Orfield, Must We Bus? Segregated Schools
and National Policy (Washington, D.C.: Brookings Institution, 1978). The Harris poll was reported in Education Week, January 21, 1987, p. 6. For a short recent analysis, see Hugh W. Speer, "The Case of the Century: Brown v. Board of Education of Topeka," in this Constitution, Spring 1987, pp. 24-32. For a review of several recent books dealing with the busing question in Nashville, Mecklenburg, North Carolina, and Boston, see Ronald D. Cohen, "To Bus or Not to Bus? That Is the Question," History of Education Quarterly, Fall 1987, pp. 379-386. back
27. Columbus Board of Education v. Penick, 443 U.S. 449 (1979) and Dayton Board of Education v. Brinkman, 443 U.S. 526 (1979). back
28. Keyes v. School District No. 1, 413 U.S. 189 (1973). back
29. The New York Times, February 26, March 1 and 6, 1978; and "20 Years After the Kerner Report," February 29, 1988. back
30. For an early judgment of the case, see Joel Dreyfuss and Charles Lawrence, 3d, The Bakke Case (New York: Harcourt Brace Jovanovich, 1979). For a later judgment, see Levy, Encyclopedia of the American Constitution, article on Regents of the University of California v. Bakke. back
31. United Steel Workers of America v. Weber, 443 U.S. 193 (1979); and Wygant v. Jackson (Mich.) Board of Education, 106 S Ct 1842 (1986). back
32. Local 93 of the International Association of Firefighters v. City of Cleveland, 106 S Ct 3063 (1986); Local 28 of the Sheet Metal Workers v. Equal Employment Opportunity Commission, 106 S Ct 3019 (1986); and United States v. Paradise, No. 85-999. back
33. Laurence H. Tribe, Constitutional Choices (Cambridge, Mass.: Harvard University, Press, 1985). back
34. Johnson v. Transportation Agency, Santa Clara County, No. 85-1129. back
35. St. Francis College v. Al-Khazraji, No. 85-2169; and Shaare-Tefila Congregation v. Cobb, No. 85-2156. back
36. Grove City College v. Bell, 465 U.S. 555. back
37. David K. Kirp, Mark G. Yudof, and Marlene Strong Franks, Gender Justice (Chicago: University of Chicago Press, 1986). See also special section on "Women in Education," Phi Delta Kappan, March 1986. back
38. Nathan Glazer, Affirmative Discrimination; Ethnic Inequality and Public Policy (New York: Basic Books, 1974), Chapter 1; Robert H. Wiebe, The Segmented Society; An Historical Preface to the Meaning of America (New York: Oxford University Press, 1975); Milton M. Gordon, Assimilation In American Life; The Role of Race, Religion, and National Origins (New York: Oxford University Press, 1964); and John Higham, "Integration vs. Pluralism: Another American Dilemma," The Center Magazine, July/August 1974, pp. 67-73. back
39. Harold R. Isaacs, "The New Pluralists," Commentary, March 1972, pp. 75-79. back
40.
Higham, "Integration vs. Pluralism," pp. 72-73. back
41. Michael Kammen, People of Paradox; An Inquiry Concerning the Origins of American Civilization (New York: Vintage Books, 1973), p. 60. back
43. See Donald L. Horowitz, Ethnic Groups in Conflict (Berkeley, Calif.: University of California Press, 1985); and Levy, Encyclopedia of the American Constitution, articles on American Indians and the Constitution; Chinese Exclusion Act; and Lau v. Nichols. back
44. Plyler v. Doe, 457 U.S. 202 (1982). back
45. For useful materials to aid teachers to teach about the "new immigration," see the articles and bibliographies in Social Education, March 1986. back
46. See Education Week, June 17, 1987. back
47. Lau v. Nichols, 414 U.S. 563 (1974). back
48. See a special report on "Bilingual Education: Language, Learning, and Politics," Education Week, April 1, 1987, pp. 19-50; also March 18, 1987 and March 25, 1987. back
49. Robert M. MacIver, The Web of Government (New York: Macmillan, 1947), p. 83; and Mortimer J. Adler, We Hold These Truths; Understanding the Ideas and the Ideals of the Constitution (New York: Macmillan, 1987). back
50. Leonard Krieger, "The Idea of Authority in the West," American Historical Review, April 1977, pp. 249-270. back
51. The New York Times, January 24, 1974. back
52. John W. Gardner, The Nature of Leadership; Introductory Considerations (Washington, D.C.: Independent Sector, 1986), p. 6. back
53. Kenneth D. Benne, A Conception of Authority (New York: Teachers College, Columbia University, 1943; New York: Russell and Russell, 1971). back
54. David Nyberg, Power Over Power (Ithaca, N.Y.: Comell University Press, 1981). back
55. Henry A. Giroux, "Authority, Intellectuals, and the Politics of Practical Learning," Teachers College Record, Fall 1986. See also articles by David Nyberg and Paul Farber, Kenneth Benne, Dale Mann, and others. back
56. For excellent curricular materials for grades K-12, see Law in a Free Society, Authority (Calabasas, Calif.: Center for Civic Education, 1977). For constitutional issues, see Levy, Encyclopedia of the American Constitution, articles on Compelling State Interest and Federalism. back
57. See Levy, Encyclopedia of the American Constitution; articles entitled: Abortion and the Constitution; Fourth Amendment (Historical Origins); Griswold v. Connecticut; New Jersey v. T.L.O.; Privacy and the First Amendment; Right of Privacy; Roe v. Wade; Searches and Seizures; Substantive Due Process; and Unreasonable Search. For curriculum materials, kindergarten through 12th grade, see Law in a Free Society, Privacy (Calabasas, Calif.: Center for Civic Education, 1979; and American Bar Association, Update on Law-Related Education, Spring 1981, Spring 1982, and Fall 1983. back
58. See, for example, Alan F. Westin, Privacy and Freedom (New York: Atheneum Press, 1970); Charles Fried, An Anatomy of Values (Cambridge, Mass.: Harvard University Press, 1970); and J. Roland Pennock and John W. Sherman, eds., Privacy (New York: Atherton Press, 1971). back
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The process of education has naturally enough been the basis of hope for the perdurance of our democracy on the part of all great leaders from Thomas Jefferson onwards.
Justices Frankfurter and Black might have included that teachers should also be free from repression by community groups as well as from governmental agencies. In fact, Justice William O. Douglas did just that in his dissent in Adler v. Board of Education. He argued against the New York Feinberg law, which provided that a teacher's membership in a subversive organization should automatically be grounds for dismissal:The [Feinberg] law inevitably turns the school system into a spying project.... The principals became detectives; the students, the parents, the community became informers.... The prejudices of the community came into play in searching out the disloyal... there can be no real academic freedom in that environment.... It produces standardized thought, not the pursuit of truth. Yet it was the pursuit of truth which the First Amendment was designed to protect.... The framers knew the danger of dogmatism; they also knew the strength that comes when the mind is free, when ideas may be pursued wherever they lead. 19
Though this was a dissenting view in the early 1950s, the full Court finally came to agree with it when it struck down the Feinberg law by its decision in Keyishian v. Board of Regents (1967). 20 And two years later the Court applied the principles of academic freedom to students as well as teachers. The landmark case was Tinker v. Des Moines in which the orderly wearing of black armbands in school by Quaker children to protest the Vietnam war was defined as symbolic speech and thus protected by the First Amendment:First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate... Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligation to the state. 21
If these constitutional principles are to be taken seriously as fundamental to the well-being of a democratic political community, and the prime responsibility of public education is to prepare citizens for their civic freedom and their civic obligations, then what of the rights and freedoms of parents and
families to control the teaching of their teachers? I believe that public interest groups and community organizations should be as much concerned to demand freedom of thought for teachers and learners as part of their civic obligation as they are concerned to demand parental and familial rights over the teaching and learning process affecting their children. There is much evidence that community demands for censorship of books and teachers have increased again in the past 20 years. They range from efforts to ban materials offensive to conservative-minded parents on matters
of sex or religion or politics to materials offensive to liberal-minded parents on matters of biased minority stereotypes or sex role images of women and homosexuals.Equality
Along with justice and freedom, the idea of equality runs throughout the American creed of value claims for a democratic political community. 22 "All men are created equal" is the first of the self-evident truths of the Declaration of Independence. It even comes before the inalienable rights of life, liberty, and the pursuit of happiness. The idea of equality was a counterpoise in the eighteenth-century struggle for democracy against the tyrannies of privilege and the closed orders of aristocracy and hierarchy. But it is also true that ever since then there has been an almost constant contrapuntal discord between the claims of freedom and the claims of equality.The creed of equality did not give men equality, but invited them to claim it, invited them not to know their place and keep it, but to seek and demand a better place. Yet the conflicts resulting from such demands have generally, though not always, stopped short of large-scale violence and have generally eventuated in a greater degree of actual equality. After each side has felt out the other's strengths and weaknesses, some bargain, some equivalent to a Northwest Ordinance, is agreed upon, leaving demands not quite fulfilled, leaving the most radical still discontented with remaining inequalities, but keeping the nation still committed to the creed of equality and bound to move, if haltingly, in the direction it signals. 23
There have been two continuing conflicts over the meaning of equality. Basically, does the phrase "all men are created equal" mean that in fact they are equal, or that they should be treated as though they are equal? By and large, Americans have generally put their emphasis on equal rights and equal opportunity rather than on enforcing an equality of condition or income, which has been the stated goal of some extreme egalitarian communities and socialist parties in this and other countries. Enforced conformity or uniformity imposed by totalitarian governments becomes a corruption of the democratic idea of equality.Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures of education both demonstrate our recognition of the importance of education in our democratic society. It is required in the performance of our basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship... In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms....
At the time of the Constitution's Bicentennial, more than 30 years had passed since this fundamental linkage of public schools and the values of the democratic political community was so forthrightly affirmed as a part of the constitutional order. We all know that progress towards its fulfillment has been exceedingly slow and painful. Progress in dismantling the dual
system of schools has been ironically slower in the North than in the South, but progress has also been slowed at the federal as well as at the state and local levels. For 20 years the Supreme Court persistently dismissed all kinds of efforts to avoid, obstruct, or undo the decision, even to reaffirming courtordered busing despite the efforts of Presidents Nixon,
Ford, and Reagan to change the effect of the court's rulings by legislation, by constitutional amendment, or by interpretation by the Justice Department itself.Diversity
I should like to make it crystal clear that 1 believe respect for diversity and encouragement of a plurality of communities have been among the glories of the best elements of the American political system. Millions of immigrants have been and still are attracted to the United States because of their hope for life in a society that provides greater justice, greater freedom, and greater equality than they knew in their homelands. Of course they hope for greater economic advantage as well. And millions
have found their hopes at least partially realized in a country of enormously diverse geography, ethnicity, language, religion, race, and culture.In contrast to the integrationist model, it [the pluralistic integration model] will not eliminate ethnic boundaries. But neither will it maintain them intact. It will uphold the validity of a common culture, to which all individuals have access, while sustaining the efforts of minorities to preserve and enhance their own integrity....
The major point of my stress upon civism is exactly to rediscover what political values we have in common as well as redefining the values of plurality. Another view that I believe has merit in threading our way through the tugs between cohesion and pluralism is a distinction posed by Michael Kammen, Cornell historian and winner of the Pulitzer prize for his People of Paradox. In his analysis of a plural society, Kammen distinguishes between "stable pluralism" and "unstable pluralism" as follows:"...plural society" connotes a polity containing distinct cleavages amongst diverse population groups. Often there will be a dispersion of power among groups bound together by crosscutting loyalties, common values, and a competitive equilibrium or balance of power [stable pluralism]. Equally often there will be a conflict between racial, tribal, religious, and regional groups, to such a degree that the whole must be maintained by regulation and force. Because of the role of authority in any system of domination, there is commonly a psychological pressure upon subordinate cultural segments to deny legitimacy to the imposed order, and to reject law and authority as such [unstable pluralism]. 41
Thus, an unstable pluralism occurs when the cleavages in society threaten the very authority of the polity because of the conflict among racial, ethnic, religious, or regional groups, each of which forms its own political party and has its "own faction, each sect its own school, and each dogmatist his own ideology." On the other hand:Stable pluralism requires a strong underpinning of legitimacy. A plural society is best insured by the rule of law--law made within the framework of an explicit constitution by elected representatives, executed by a partially autonomous administrative staff, and adjudicated by an independent judiciary. Insofar as all of these were created in 1787 and achieved in 1789, those dates do distinguish a genuine watershed in American history.
The building of a "strong and lasting inventory of psychological legitimacy" is one perceptive way to define the purpose of civic education for the schools of a democracy in which a plurality of racial, ethnic, and religious communities is acknowledged and even welcomed. One need only note the stark contrast between the United States with all its pluralist problems and countries where unstable pluralism either prevents a psychological legitimacy toward government at all (as in Lebanon) or periodically threatens the stability of the polity (as in India, Sri Lanka, Malaysia, Nigeria, Ghana, Uganda, Northern Ireland, or Spain). 43 Public education is not a "right" granted to individuals by the Constitution.... But neither is it merely some governmental "benefit" indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction.... We have recognized "the public school as a most vital civic institution for the preservation of democratic system of government"... and as the primary vehicle for transmitting "the values on which our society rests".... In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests....
In his dissenting opinion, Chief Justice Burger agreed that it would be senseless for an enlightened society to deprive any children–including illegal aliens–of an elementary education, but he argued it was not the business of the Court but rather the business of Congress and the political process to make such a decision. He was joined in this argument by Justices Rehnquist, O'Connor, and White.Authority
The role of authority can usefully be illustrated for students at all age levels, ranging from the need for rules on taking turns in the kindergarten to the need for laws on stealing, assault, murder, and treason. At the heart of political authority is the difference between sheer power and legitimate or rightful authority. Power is usually considered to be the ability to exercise control over persons or conditions in such a way as to
direct their conduct or influence the outcome of an event desired by those in positions of power. The most common examples of sheer power to control events are military force and money.By authority we mean the established right, within any social order, to determine policies, to pronounce judgments on relevant issues, and to settle controversies, or, more broadly, to act as leader or guide to other men. When we speak of an authority we mean a person or body of persons possessed of this right. The accent is primarily on right, not power. Power alone has no legitimacy, no mandate, no office. Even the most ruthless tyrant gets nowhere unless he can clothe himself with authority. 49
Mortimer Adler nails down the idea in his felicitous phrase "rightful authority." I would underline the fact that the right of an official to make decisions, to determine policies, and to maintain order derives not from the official's private capacity, but by virtue of a right conferred by the society. So the exercise of democratic political authority ideally should be
under the constraint of the values of fundamental justice and fairness as well as functioning to insure the greatest amount of freedom and equal opportunity for the individual under rules of due process and with a fair distribution of privileges and resources in the society. Failing these constraints, authority is corrupted into authoritarianism or totalitarianism. Without authority, freedom degenerates into license or anarchy, pluralism
becomes unstable, and individuals can be assured of little privacy or due process. And without the accountability of public officials to explain their actions, to justify them, and to take responsibility for them, as was so often reiterated at the Iran-contra hearings, the constitutional restraints on authority are weakened, and tyranny looms.I am convinced that the legitimacy of the final conclusion in the view of the American people will depend upon the success of counsel and other public men in formulating general standards of conduct fairly applicable to any President, and in educating the people upon their meaning and legal and moral base.... 51
In much the same vein, I believe that the educational profession must take the lead in educating the public in the values and commitments required in the civic mission of education. Much criticism has been levied of late at a narrow and self-serving conception of "professionalism" in education as in law, medicine, and business. So, to reestablish its authority as trustworthy, the educational profession may well learn some of the lessons of
leadership being developed anew by John Gardner in his Leadership
Studies Program sponsored by Independent Sector. In his introductory monograph Gardner uses the term leadership to refer to...the process of persuasion and example by which an individual (or leadership team) induces a group to take action that is in accord with the leader's purposes or the shared purposes of all. 52
Thus, Gardner distinguishes leadership from coercion on one side and from authority as legitimized power of office on the other side. A leader is an active auctor who thinks in the longer term, looks beyond the immediate constituency, puts heavy emphasis on the intangibles of vision, values, and motivation as well as political skill.Privacy
Let me say at the outset that I view privacy as one of the basic pluralist values of a democratic political community along with freedom, diversity, and due process. I distinguish it from the privatism or excessive privatization of public services (including education), which I view as a perversion or corruption of privacy. As freedom includes the right to live one's life in
dignity and to seek one's self-development and self-fulfillment, so privacy is the right of individuals and groups to be left alone and to determine for themselves what information about themselves or their actions is communicated to others. 57
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