62 Speech Challenge Explanation/Instructions

AC — Ban Private Schools CP

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2AC — Ban Private Schools CP

1. Immediate Action Key — the plan guarantees equal access to an excellent education for everyone now. This immediately initiates aggressive reforms. Counterplan-induced change takes generations.

Benedikt 13 — Allison Benedikt, Executive Editor at Slate, 2013 (“If You Send Your Kid to Private School, You Are a Bad Person,” Slate, August 29th, Available Online at http://www.slate.com/articles/double_x/doublex/2013/08/private_school_vs_public_school_only_bad_people_send_their_kids_to_private.html, Accessed 07-02-2017)

You are a bad person if you send your children to private school. Not bad like murderer bad—but bad like ruining-one-of-our-nation’s-most-essential-institutions-in-order-to-get-what’s-best-for-your-kid bad. So, pretty bad.

I am not an education policy wonk: I’m just judgmental. But it seems to me that if every single parent sent every single child to public school, public schools would improve. This would not happen immediately. It could take generations. Your children and grandchildren might get mediocre educations in the meantime, but it will be worth it, for the eventual common good. (Yes, rich people might cluster. But rich people will always find a way to game the system: That shouldn’t be an argument against an all-in approach to public education any more than it is a case against single-payer health care.)

So, how would this work exactly? It’s simple! Everyone needs to be invested in our public schools in order for them to get better. Not just lip-service investment, or property tax investment, but real flesh-and-blood-offspring investment. Your local school stinks but you don’t send your child there? Then its badness is just something you deplore in the abstract. Your local school stinks and you do send your child there? I bet you are going to do everything within your power to make it better.

And parents have a lot of power. In many underresourced schools, it’s the aggressive PTAs that raise the money for enrichment programs and willful parents who get in the administration’s face when a teacher is falling down on the job. Everyone, all in. (By the way: Banning private schools isn’t the answer. We need a moral adjustment, not a legislative one.)

2. Permute: Do Both. Federal guarantee plus private school ban best way to rapidly improve public schools. Avoids spending DA because private school ban transfers millions to public schools.

3. Parental Leverage Fails — wealthy parents will only lobby for their schools, not all public schools.

Munger 13 — Dave Munger, Editor of ScienceSeeker—a science news portal, former Co-Founder and Editor of ResearchBlogging.org—a website that collects posts about peer-reviewed research, 2013 (“No, sending your child to public school won’t save the schools. Not even if everyone did it.,” Word Munger—a blog, August 29th, Available Online at http://wordmunger.com/?p=1822, Accessed 07-02-2017)

An Allison Benedikt article on Slate is getting a lot of attention, partly due to its provocative headline: “If you send your kid to a private school, you are a bad person.”

Benedikt’s argument is basically this: People who send their kids to private school care about their kids’ education, so if those kids were in public school, the parents would work to make that school better.

Oh, if only that were true. If only somehow the children of the wealthy (and their parents) could make schools a better place for everyone by their mere presence. Wouldn’t that be great? But you know what? They wouldn’t. Sure, the wealthy parents might spend more time volunteering in the schools. They might lobby for more money to be spent on schools and for better schools to be built.

But they wouldn’t want this for everyone. They would want this for their kids. So they wouldn’t lobby for a new school to replace the crumbling central-city school; they’d lobby for a gleaming new suburban palace in their wealthy neighborhood (but not too close — wouldn’t want to spoil their view of the golf course).

Think I’m wrong? Look, this already happens. Plenty of wealthy parents are too cheap to send their kids to private schools. So they send them to public schools, then set up PTAs to raise money for those schools, turning them into the next best thing to a private school, at a fraction of the cost. They lobby against busing. They support zoning laws restricting high-density development so that poor people can’t afford to live in their neighborhoods. They do all this even though they could afford to send their kids to private school.

These people are not benevolent. Sure, they care about their kids. To a lesser extent they care about their neighbor’s kids. But they don’t care about poor kids. They might say they care, but they certainly aren’t volunteering to put on a bake sale at the poor kids’ school. They’re not coaching the poor kids’ Little League teams, they’re not advocating for higher wages so poor parents can afford a better life for their own children.

There are a lot of things wrong with the public schools. I may not know how to fix them, but I do know one thing: Asking wealthy folks to voluntarily stop sending their kids to private schools won’t fix the schools.

And it especially won’t help the public schools that need help the most.

4. Ban Gets Circumvented — rich families will buy out-of-school supplements so their kids retain a huge advantage. Removes their incentive to push for improved public schools.

5. Religious Freedom DA — banning private schools violates it.

Garnett 13 — Rick Garnett, Professor of Law, Concurrent Professor of Political Science, and Director of the Notre Dame Program on Church, State, and Society at the University of Notre Dame, holds a J.D. from Yale Law School, 2013 (“Mandatory public education,” PrawfsBlog—a scholarly legal blog, January 7th, Available Online at http://prawfsblawg.blogs.com/prawfsblawg/2013/01/mandatory-public-education.html, Accessed 07-02-2017)

At Mirror of Justice, frequent Prawfsblawgger Marc DiGirolami passes on a report from the AALS Annual Meeting. Apparently, at the presentation jointly sponsored by the Constitutional Law and Education sections, Dean Erwin Chemerinsky stated (quoting the report) that "the only way to deal with educational disparities and the problem of (de facto) resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas."

In my view, this highly illiberal proposal is, to put it gently, morally unattractive (putting aside questions about whether it would achieve or advance the stated objectives). Marc raises some important and interesting questions about it. I'm certainly open to (dramatic) changes in the ways we fund education (e.g., un-linking education funding from local property values), but – as I tried to flesh out in more detail, a few years ago, here – the burden the proposal would impose on religious freedom is far more weighty than Chemerinsky seems willing to acknowledge. (For example, the idea that after-school religious education, or even "release time"-type policies, are sufficient to allow all parents and children to exercise their religious-freedom rights is, in my view, mistaken.) A better way, it seems to me, to alleviate some (we can never eliminate all) of the inequalities that Chemerinsky (rightly!) regrets is to expand (and support financially) choices and options, and to include (appropriately qualified) religious schools fully in the enterprise of public education, i.e., educating the public, at public expense.

6. Residential Clustering DA — the counterplan causes rich people to move to the suburbs. They still won’t care about urban schools.

Adler 13 — Ben Adler, Freelance Journalist who has reported for Newsweek, Politico, and The Nation, 2013 (“Even if Private Schools Didn't Exist, There Would Still Be Rich Suburbs,” The Atlantic, September 3rd, Available Online at https://www.theatlantic.com/national/archive/2013/09/even-if-private-schools-didnt-exist-there-would-still-be-rich-suburbs/279295/, Accessed 07-02-2017)

"You are a bad person if you send your children to private school," argues Allison Benedikt in an article that appeared on Slate last week. Benedikt makes two points to parents: that going to a diverse public school will provide their kids with an education no less important than what they learn in the classroom, and that rich parents have a moral obligation to suffer the same frustrations with public schools as poor parents, so that they will be motivated to demand that the schools be improved. Conservatives criticized Benedikt on liberty grounds, but others have failed to point out how Benedikt's argument is not right on its own terms. Even Benedikt's usually insightful colleague Matthew Yglesias praised it. Benedikt's argument is objectionable, and not just because it is obnoxious and ignorant, but because it would lead to bad policy. Benedikt claims inner-city public schools would be better off if parents were unwilling to consider private school, but she is wrong.

The reason is the narrowness of Benedikt's view of America, as if she had just landed in New York City from Mars. She seems to think that the only types of people in America are the urban poor and the urban rich. She writes, "Whatever you think your children need--deserve--from their school experience, assume that the parents at the nearby public housing complex want the same. No, don't just assume it. Do something about it. Send your kids to school with their kids."

Benedikt bizarrely assumes that her readers are wealthy and educated but that they live near a public housing complex. From that false premise, she infers that the only choice facing the rich is an homogenous private school or a diverse public school.

What's missing from this portrait? The suburbs. You know, they're the place where a majority of Americans live. Sending their kids to private school is only one approach the affluent take to avoid sending their children to inner-city public schools. The more common choice is to move to the suburbs.

So, is someone who moves to an exclusive, wealthy suburb and sends their kids to the gold-plated public schools a good person in Benedikt's view? Implicitly, yes, since she makes no distinction between cities and suburbs, or rich school districts and poor ones.

In fact, though, the average student in a wealthy suburban public school may be exposed to no greater diversity—possibly even less, thanks to private school scholarship programs—than one finds in most urban private schools.

Consider Potomac, Maryland, which is the kind of wealthy coastal blue state community where Slate readers might live. The median household income in 2011 was $167,436. Despite being next to the "Chocolate City" of Washington, D.C., the population is less than six percent African-American. At Winston Churchill High, a public high school in Potomac, fewer than five percent of the students qualify for reduced-price or free school lunches. By contrast, elite urban private schools in D.C., such as Maret and Georgetown Day, report that their student bodies are approximately 20 percent African-American. Then there is the fact that living in many urban neighborhoods will expose a child to diversity that raising her in car-dependent fancy suburb will not.

So how does a wealthy family moving to Potomac for the fancy public schools help anyone but the family itself?

It doesn't. (For the New York region, just substitute for Potomac a town such as Scarsdale, in Westchester, where the median household income in 2011 was $220,119 and the school district is only 1.3 percent black.) If the choice you are making—and for most rich parents, this is the choice, if they consider staying in the city at all—is between living in the city and sending their kids to private school or moving to the suburbs and sending their kids to public school, the inner-city poor benefit more from the former. In that case, at least the family's income and taxes will stay in the city. While the public schools don't benefit from the family's social capital, they also have one fewer student drawing on their resources. The existence of private school options may help keep rich families in the city, and cities are undoubtedly better off with wealthy residents than without them. Just compare the fiscal health and crime rates of Detroit, St. Louis or Cleveland to New York, San Francisco or Boston.

Another hole in Benedikt's logic is the presence of another option on the spectrum of urban public-school avoidance: magnet schools and charters. Plenty of well-off urban parents who do send their kids to public school choose selective magnets, or at least charters that require some parental involvement to apply. If you send your kids to public schools that are disproportionately wealthy and white compared to the city as a whole, are you an evil person? By following Benedikt's thinking on private schools, the answer should be yes. But since, like "suburbs," the words "magnet" and "charter" appear nowhere in her piece, she is implying sending your kid to an elite public magnet school is a morally pure choice while sending her to private school is evil.

The same goes for gifted programs and tracking. Are parents who send their kids to the local public school's gifted program evil as well? If not, how is their decision to make sure their child is challenged academically any different than that of a private-school parent?

I grew up in Park Slope, Brooklyn. My parents were among the earliest wave of the neighborhood's gentrifiers. Gentrification is now seen by many people—ironically, often gentrifiers themselves—as a dirty word connoting the arrival of Starbucks and the ejection of longtime residents. In 1979, though, when my parents bought their house, New York City was struggling with rising crime, near fiscal insolvency and rapid out-migration. The decision of any educated professionals to stay was widely viewed--including by many working-class families hanging on in the Slope--as a blessing. (As Suleiman Osman, a native Slopie and professor of American Studies at George Washington University, explains in his 2011 book The Invention of Brownstone Brooklyn, the middle-class and working-class families who did not want to leave neighborhoods like Carroll Gardens and Park Slope actively recruited gentrifiers as a stabilizing force.)

Every Slope kid I know from a middle-class or wealthy family attended a magnet school, a Catholic school, or a private school, rather than one of the locally zoned public schools. Why? Some urban public schools are so bad that parents fear more than a sub-par education if their kids go there. My local district school, Sarah J. Hale—since shut down by the city for failing its students academically—was known as "Sarah Jail" and was on the news while I was in high school because a student sliced a teacher.

If there were no private or magnet school options, the college-educated liberal parents who revived Park Slope would not all have, as Benedikt naively imagines, simply sent their kids to John Jay and Sarah J. Hale and shrugged at the thought they would have a better chance of getting stabbed than getting into a good college. They would have moved to the suburbs.

7. No Solvency — no parental leverage in public schools.

Pethokoukis 13 — James Pethokoukis, Columnist and Blogger at the American Enterprise Institute, former Washington Columnist for Reuters Breakingviews, former Business Editor and Economics Columnist for U.S. News & World Report, 2013 (“Please, sending your kids to private school doesn’t make you a bad person,” AEIdeas—the American Enterprise Institute’s blog, August 29th, Available Online at https://www.aei.org/publication/please-sending-your-kids-to-private-school-doesnt-make-you-a-bad-person/, Accessed 07-03-2017)

I am actually reluctant to comment on Slate’s trolling-masquerading-as-analysis piece “If You Send Your Kid to Private School, You Are a Bad Person.” And I certainly don’t want to spend much time refuting writer Allison Benedikt’s fact-free, data-free “argument”: If more upper-middle class and wealthy parents — a.k.a. Slate readers, I guess — sent their kids to their local public schools, the US education system would suddenly improve.

1. So I asked AEI’s Michael McShane for his two cents:

Because public schools are by and large residentially assigned, the rich have their totally awesome (and essentially private due to the home price in the school’s catchment area) public schools and poor people are trapped in failing schools because they can’t move away. That’s what leads to Balkanization. You choosing to send your kids to a suburban public school does nothing for the kids in SouthEast.

Private schools, especially with public support, break the connection between residence and schooling, which holds more potential for desegregation and a mixing of students from different background than residential assignment of public schooling.

2. Aren’t the “bad people” — to use Allison Benedikt’s language — here the ones who would trap lower-income and poor kids in their local education monopoly? Or as Alex Tabarrok puts it: “Barricading parents into the poor schools their government offers them is like barricading people into communist East Germany.”

Tabarrok also notes that merely having more activist parents inside a school monopoly might not change much without competition: “When you complain of delay where is your voice more likely to be heard; at a restaurant or at the department of motor vehicles? It’s the threat of exit that makes people listen.”

3. Oh, by the way, do we have any data on the educational impact of helping lower-income and poor kids escape the public education monopoly? Like, say, data from the District of Columbia Opportunity Scholarship Program? Well, the US Education Department’s OSP study found the program, McShane points out, “produced $2.62 in benefits for every dollar spent on it. In other words, the return on public investment for the private-school voucher program during its early years was 162 percent.” What’s more, “The OSP increased the high-school graduation rate of students by 12 percentage points if they were lucky enough to win the annual scholarship lottery.”

4. One more from McShane:

It’s also a proud tradition in America (since Pierce v. Society of Sisters in 1925) to recognize that children are not instruments of the state. They do not exist to promote the goals of the government or the community, they (and their parents) are free to (within limits) to be educated as they best see fit. Obviously this person has no idea about the anti-Catholicism and anti-immigrant racism that lead people to make the same argument that she is making, albeit 100 years ago.

Choice won’t fix everything wrong with America’s school, but choice and competition create the environment where change is possible.

8. Constitutional Liberty DA — the counterplan crushes it.

Volokh 13 — Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law at the University of California-Los Angeles School of Law, Academic Affiliate for Mayer Brown LLP—a law firm, holds a J.D. from the University of California-Los Angeles, 2013 (“Equality vs. Liberty,” The Volokh Conspiracy—a scholarly legal blog, January 23rd, Available Online at http://volokh.com/2013/01/23/equality-vs-liberty/, Accessed 07-02-2017)

The Center for Law and Religion Forum had a post a couple of weeks ago about a talk by Erwin Chemerinsky (dean of the new UC Irvine law school), in which he made a rather striking proposal. Indeed, Dean Chemerinsky has made the proposal in print several years ago, in an article titled Separate and Unequal: American Public Education Today, so I thought I’d quote that article and put the matter in Chemerinsky’s own words, because I think it more broadly illuminates the danger that excessive equality arguments pose to liberty:

My proposal is simple, although unrealistic at this point in American history. First, every child must attend public school through high school. There will be no private schools, no parochial schools, and no home schooling. Second, metropolitan school districts will be created for every metropolitan area. In each metropolitan area, there will be equal funding among the schools, except where educational needs dictate otherwise, and efforts will be taken to ensure desegregation. Third, states will ensure equality of spending among metropolitan school districts within their borders.

How could this happen? One possibility would be through the Supreme Court, though of course not with the current Court. The Supreme Court could find that the existing separate and unequal schools deny equal protection for their students, and order the creation of a unitary system as a remedy. Another way to achieve a truly unitary system is by legislative action. Congress could adopt a law to achieve these goals or state legislatures could do so within the states’ borders.

I do not minimize the radical nature of this proposal, but this may be the only way that equal educational opportunity can be achieved. If wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools. Currently, they have no incentive to care about funding in public schools as long as their children are in private or suburban schools. Moreover, as described above, desegregation can be meaningfully achieved only through metropolitan school systems, which include suburbs and cities, because white students could not flee to private schools.

The most significant objection to this proposal is that it is unconstitutional under current law. In Pierce v. Society of Sisters, the Supreme Court held that parents have a fundamental right to send their children to parochial schools. The Court based this on the right of parents to control the upbringing of their children. This right, however, like other fundamental rights, is not absolute. I would argue that strict scrutiny is met and therefore interference with the parents’ right to control the upbringing of their children is justified. There is a compelling interest in achieving equality of educational opportunity and the means are necessary because no other alternative is likely to succeed.

Parents desiring religious education for their children would claim a violation of their free exercise of religion. Of course, under the Supreme Court’s decision in Employment Division v. Smith, such a neutral law of general applicability would not violate the free exercise clause. Also, as explained above, strict scrutiny would be met by the proposal. I do not minimize the interests of parents in providing religious instruction for their children. Parents, however, could still do this through after-school and weekend programs. This is not the same as education where religion permeates instruction, but it does provide a way in which parents can provide religious education for their children.

Perhaps the Court would need to reconsider Wisconsin v. Yoder as well, to the extent that it is read as creating a right of parents to isolate their children from the influences of public education. In Yoder, the Court held that Amish parents had the right to exempt their fourteen- and fifteen-year-old children from compulsory school requirements so as to preserve the special Amish culture. Read broadly, parents could invoke Yoder to justify a right to home schooling if parents wanted to insulate their children from the influences of public education. Simply put, the courts should hold that the compelling need for equal schooling outweighs this parental right.

A clearer example of how an excessive focus on equality undermines liberty is hard to find. And the implications of this argument, if it were accepted, are striking. After all, the argument that “[i]f wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools” and that “[c]urrently, they have no incentive to care about funding in public schools as long as their children are in private or suburban schools” could apply to many things. For instance, if wealthy people know that, if they or their family members prosecuted, they will have to use public defenders, then they will be more likely to ensure adequate funding of public defenders; currently, they have no incentive to care about funding of public defenders as long as they can hire pricey private criminal defense lawyers. There goes the right to choose your own lawyer, together with the right to choose a school for your child.

Likewise, one can argue that public libraries are underfunded, too. Maybe people should be limited in the number of books they can own, so that they will have to go to the public library instead, and thus have an incentive to vote to fund the libraries. Naturally, private provision of medical care would have to be forbidden, too, since only that will give rich people an incentive to vote for more funding for medical care for the poor.

And of course people in poor, high-crime neighborhoods often don’t get enough police protection, especially given the greater needs for protection in those neighborhoods; and the housing stock in those neighborhoods is often quite undermaintained. How about this: Let’s bar people from buying private housing, and instead require people to live in housing units run and randomly assigned by the government. After all, if wealthy people must live in public housing in rough neighborhoods, then they will ensure adequate funding of that housing and of policing of those neighborhoods. Currently, the rich have no incentive to care about public housing and public policing of poor parts of town as long as they and their children are in private housing in safer parts of town.

Think also of the other ways that some people find themselves “separate and unequal” — how about in the ability to reach the public? If you are a highly educated and credentialed law professor, reporters call you, talk shows want to have you on, people are more likely to read your blog, and newspapers are more likely to run your op-eds. If you are poor and not very knowledgeable or eloquent (often through no fault of your own), obviously you don’t have equal access to an audience. Sounds like a good reason to limit the free speech rights of those whose circumstances have unfairly provided them with extra credibility and status, so as to at least reduce this inequality.

To be sure, some people (Justice Scalia is one) have indeed argued against parental rights, on the grounds that they — like abortion rights and sexual autonomy rights — aren’t mentioned in the Constitution, though I expect that many of those people would nonetheless say that limits on private schooling (or requirements that children go to government-run school 30 hours a week) would violate the freedom of parents to hire people to speak to their children. But Chemerinsky is not taking this view. He is acknowledging that there is a constitutional right to control the upbringing of one’s children, but is saying that this right, “like other fundamental rights, is not absolute,” and can be trumped by acompelling interest in achieving equality of educational opportunity.” It follows that other fundamental constitutional rights, such as the right to counsel, the freedom of speech, and the right to choose where one lives (to the extent that it’s recognized as a constitutional right) would likewise have to yield to the “compelling interest in achieving equality.”

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