Jay P. Greene's Blog

(Guest Post by Matthew Ladner)

Philosopher John Rawls’ A Theory of Justice argued that societal ethics ought to be decided as if we were behind a theoretical “veil of ignorance.” Behind the veil, no one would be aware of what his or her position would be in a forthcoming society. You would not know whether you would grow up the child of a billionaire or poor in the inner city. The veil creates an incentive to leave a path out of the latter scenario.

Rawls’ philosophy is hugely influential in left of center thinking. Too often, progressives have used Rawls as a justifying myth, while refusing to examine whether their favored programs live up to the ideals of the philosophy.  For example- Rawlsian principles could certainly be used to justify the creation of public schools to attempt to ensure the education of all children, including the disadvantaged. It could also be used to justify, Rawls himself noted, a system of vouchers. Does however today’s system of public education remotely approach the Rawlsian ideal of providing a path out for the least advantaged?

No, not even close. In fact, today’s public education system closely resembles the opposite. Let’s examine the case of special needs children, in light of the recent Arizona Supreme Court decision.

The Arizona Supreme Court struck down a voucher program for children with disabilities last week under a suit brought by the People for the American Way, the American Civil Liberties Union and the teachers union.  They used the state’s Blaine Amendment to do so.

To fully explain the true horror of this, alleged progressives using KKK-era language to kill a program to help the least advantaged students in the system, will require three steps. Step one, some background on special education. Step two, some background on the Blaine, and step three, some background on the case.

Special Education as a Rawlsian Half-Measure

Until the early 1970s, public schools simply excluded children with disabilities from attending public schools. When the federal government put an end to this practice, as many as a million students were excluded from public schools.

The federal requirement that public schools accept children with disabilities stands to this day as a landmark piece of civil rights legislation. All however is not well. Parents register enormous dissatisfaction with the lack of services provided to their children; researchers point to the over-identification of minority students and out-of-control costs; and teachers vent their frustration with the amount of red tape and paperwork involved.

The conservative Fordham Foundation and the liberal Progressive Policy Institute teamed up to summarize this situation as follows: “For this program that has done so much is also sorely troubled. America’s program for youngsters with disabilities has itself developed infirmities, handicaps and special needs of its own…we are not educating many disabled children to a satisfactory level of skills and knowledge. Too often we are frustrating their parents, distracting their teachers, hobbling their schools, and making it harder to keep order in their classrooms, all this despite the best of intentions and the most earnest of efforts by families, educators, and policymakers.”

Growth in special education has made IDEA simultaneously costly and ineffective. By some estimates, 40 percent of the increase in K-12 spending has gone into special education. Special education, in short, does too little to help children with disabilities and too much to harm children without disabilities. Jay Mathews of the Washington Post noted that the available research “suggests that the special education system has led to widespread, if well-intentioned, misuse of tax dollars and has failed to help kids.”

The Arizona Blaine Amendment

The amendment which brought down the Arizona program has a very ugly history.

After the failure of the federal Blaine Amendment, anti-Catholic forces began requiring Blaine language in state constitutions in return for their support for admission. Arizona, which joined the union in 1912, included Blaine language in their constitution. Last week at an event at the Goldwater Institute, Arizona State University Paul Bender tried to argue that the framers of the Arizona Constitution went out of their way to include greater liberties than those included in the U.S. Constitution. This is clearly the case. Professor Bender then argued that the Blaine amendment was a part of this yearning for liberty, which was clearly not the case.

Arizona included this language to ease admission, and the origins of the language lie in bigotry, not in a desire for liberty.

Sol Stern wrote on the amendments:

During the mid-nineteenth century, Protestant ministers, regarding Catholic schooling as an abomination, launched a powerful social movement to create exclusive, government-run public schools—controlled by Protestants—that the Catholic kids would be herded into, and where they would be cleaned up and Americanized. The movement succeeded in defunding Catholic schools in New York City, even though the popular, progressive governor, William Seward, stood with the Catholics in demanding equal treatment for religious schools.

The new public school establishment recognized that the first amendment did not rule out government aid for religious schools. That’s why the movement worked for the passage of a separate constitutional amendment prohibiting public funds going to such independent schools. In 1875 the Blaine Amendment fell short by four votes of the necessary two-thirds margin needed for passage in the U.S. Senate. The movement, joined by the nativist Know Nothing Party and the Ku Klux Klan—their anti-Catholicism the only thing uniting them—took the campaign to the states. Eventually, 29 state legislatures, including New York’s, added Blaine Amendments to their state constitutions.

The U.S. Supreme Court has noted the “shameful pedigree,” of Blaine Amendments. Florida adopted their version of Blaine in an 1885 constitutional convention that also banned interracial marriage and required segregated schools.

A previous Arizona Supreme Court decision, establishing the constitutionality of education tax credits in Arizona, discussed the bigoted origins of the Arizona amendment the better than I can, starting on page 35

“In any event, we would be hard pressed to divorce the amendment’s language from the insidious discriminatory intent that prompted it,” the court ruled. Sadly the current court did not feel the same.

The Case before the Arizona Supreme Court

Andrea Weck, a plaintiff in this case, is a single mother of a daughter, Lexie Weck with multiple disabilities. The East Valley Tribune profiled Lexie and Andrea. The disability scholarship program gave Lexie’s mother the opportunity to choose a specialty private school for her, and she has thrived in it.

Lexie’s mother Andrea Weck said “something clicked” for Lexie in her new school:  “She’s signing; she’ll make eye contact now. She’s feeding herself. She’s verbalizing sounds . . . She still isn’t speaking, but I know it’s in there. And they’ll find a way to get it out.”

The specialized school Lexie attended cost in the same neighborhood as Andrea’s annual income. With the vouchers and additional assistance, she was able to get her what she regarded as much higher quality care.

In short, Lexie Weck is precisely the sort of person that John Rawls is concerned with. In the lottery of life behind a veil of ignorance, Lexie drew the straw that you do not want. Arizona’s voucher for special needs program helped her, and in a way that didn’t hurt anyone else. Public schools have been complaining for years that they don’t get enough money for special needs children. They howl that they have to shift money out of general education into special education.

In Arizona 85% percent of children who qualify for a free or reduced lunch and have a disability fail to score at the basic or better level on 4^th grade reading.

Eighty five percent.

Evidently, the success rate is not so great in Arizona public schools for children in Lexie’s situation. Obviously some children will never learn to read at a 4^th grade level, but that is no excuse not to let the people who care most about them choose the program that gives them the best shot at reaching their potential.

The state of Arizona then let children like Lexie Weck walk away with their supposedly inadequate funding-creating a Rawlsian path out for the least advantaged. That is, until the poorly named People for the American Way and American Civil Liberties Unions came and took it away from her using weapons forged by bigots of a bygone age.

Wealthy kids with access to specialized attorneys, of course, will continue to access private schools making full use of their IDEA rights. School choice only for rich kids looks to be the “progressive” way.