"Obviously the fact that the public schools are "free" to the parents, being supported out of taxes, places religious and other private schools at an arbitrary disadvantage, so there is nothing wrong (remember I am speaking only of the economics of the question) with providing a comparable subsidy so that parental choice will not be distorted."

There is something very wrong "economically" with that statement. I can get near universal agreement with the premise "every child deserves a good education". Vouchers will allow more parents to buy their way out of public schools, which will further impoverish those schools. The public schools most in need of money will be exactly the schools most hurt. Many will close. Not every child will get an education. A betrayed norm of universal access is an economic cost. (Even if unquantifiable.)

Vouchers would have the practical effect of further segregating schools on class lines. (Much the same way "No Child Left Behind" will.) You do not fix impoverished struggling schools by cutting funding or by encouraging the top students to leave for private, religious, or charter schools.

In other words, there is a very specific reason to subsidize public schools over private. It is the only way to guarantee an education to everyone. Universal parental choice is a red herring for many because geography and poverty will bar access to private/religious schools for them even with vouchers. Thus parental choice conflicts with universal access. Markets are cold, and can't employ or educate everyone. It is not competitive to guarantee service to ALL takers, so you need a subsidy to encourage that.

Private and religious schools are selective. They exist because some people are willing to pay for their kids to go to a school that is segregated by class or religion. Selectivity is in obvious tension with the longstanding American norm of equal opportunity. I read Becker and Posner's favorable allusions to vouchers as a rejection of that norm.

I realize I am probably one of the few public school educated people that posts to this blog. I don't need to hear horror stories. Think of how much better those horrible schools would have been with all of the parental involvement and dollars at your private school.

We can assess the validity of what you are saying only if we accept the State as an utility maximiser.

If the role of the State is to decide and impose on a distribution of utility, and since in most cases there is no one distribution which is absolutely best for everyone, the State is turned into a "battleground" for interest groups. In this case it's naive to give arguments for one side or another. It's just political cannibalism.

My point is this, that a minimal state would reduce or eliminate these struggles (e.g. the "game" of net winners and net loosers in taxation) As for the 10 commandments... whoever will win will win, obviously, but if the nature of the State would be that I described this would be a non-issue.

This post seems to me to a good illustration of the weakness of ecenomic analysis when applied to constitutional law. The economic analyst makes assumptions about how the world works, as Adam Smith did, but the framers made their own assumptions which are deeply embedded in the fabric of the Constitution and the Bill of Rights, and it is frivolous to depart from their assumptions because they don't conform either to the economist's contrary assumptions or to the results of the latest survey (mis?)designed by some Harvard professor.

With respect to freedom of religion, the Framers knew (a) that they wanted a society characterized by the freedom to practice any religion or no religion, and (b) that an established church was inimical to the creation asnd survival of such a society. We could debate endlessly whether the latter was a sound assumption or whether some theoretically appealing counterintuitive proposition is really correct (established churches weaken religion) but the Constitution quite clearly rejects that logic in favor of (b) above.

The desire to permit the free exercise of religion and the rejection of an established church reflect values independent of economic assumptions. I still remember the Menora decision applying this mode of analysis to whether an Illinois high-school association's rule prohiting Jewish players from wearing yarmulkes affixed by bobby pins due to the dangers allegedly posed by the alleged insecurity of the fixture could pass constitutional muster. I don't even really disagree with the outcome of that case, but I do find the economic reductionism of the analysis a troubling constant from that early decision more than 20 years ago to the present post.

It seems silly not to acknowledge that the Framers largely built the Constsitution on non-economic values and models and behavior, and that they were prepared to tolerate inefficiencies (gasp) to implement their values. They evn clung to the stubborn belief that not all human behavior can be reduced to economics. Hadn't the fools even read Marx?

A survey of history does not tend to confirm the proposition that utilitarian analysis of religious issues as a basis for social policy will yield the type of society any rational person would really want to live in. The Constitution rejects that proposition and so should we.

There is much to say here, but one brief cliche sums it up: those who do not learn from history are doomed to repeat it.

State establishment of religion has been responsible for much strife, repression, killing, torture, and warring -- among and within nations -- over the course of human history. The insatiable human desire to legislate one's religious preference has left a trail of graves, hatred, and inhumanity that persists even in this "enlightened" age. In fact, much of the strife in the world today stems from groups attempting to impose their religious dogma on society at large. The founders of this country looked at that history (and immediately at their own history of persecution for rejecting the Anglican church) and drafted the establishment clause. If every country in the world had such a clause, the human tendency toward war and repression would be much diminished.

That said, there are silly questions at the margins of establishment clause jurisprudence, such as whether surrouning a creche with three plastic animals makes a holiday display secular rather than religious. We can debate both sides of those silly questions, and it is probably one of them whether surrounding the Ten Commandments with exhibits about Texas sports teams renders the display secular, even as it proclaims, "I am the Lord thy God."

No doubt the Supreme Court's jurisprudence on this issue can be cleaned up a bit so that it represents a coherent theory rather than a fact-based mess. Still, it's better that we debate these silly, marginal questions than questions like whether Alabama can establish the Southern Baptist church. In the end, the framers' somewhat permeable wall between church and state makes us more civilized and tolerant as a nation. And it teaches us that religion is a private virtue, not a question to be debated in the halls of Congress.

Ed Rubin:

Remember Posner is speaking to a system designed from the ground up, setting ASIDE any legal questions.

And you're quite mistaken on what they intended. Even Jefferson and his "wall of separation" is quite different than what liberals believe. He had no problem with established churches at the state level. You might notice, or maybe not, that the textual command of the Establishment Clause literally forbids the federal government from DISESTABSLISHING religion established in the several states. Notice also the neurality of the language. The clause commands that Congress make "no law respecting an establishment of religion." Notice that the clause does not only limit Congress in establishing religion but ALSO from disestablishing religions established in the several states. That isn't a result of poor construction, it was contructed that way on purpose.

Even if one accepts the validity of incoporation, Posner calls it "questionable," how does one incorporate a clause against the states which was more of a structural guarantee of division of powers than a liberty guarantee?

My comment is similar to Edward Rubin's--

"A public display of the Ten Commandments is a far cry from a state-salaried minister, so far as the impact of public support of religion on proselytizing is concerned."

I think Becker and Posner pretty much nailed an economic analysis of state activity in religious markets and agree with it. The above quote also addresses interpretation of the establishment clause, which is a bit trickier to analyze either using your preferred jurisprudence, or an economic analysis.

The role, as Edward Rubin rightly pointed out, of economic analysis is limited towards in Constitutional Jurisprudence because the Constitution created an inviolate system of axioms that cannot be circumvented no matter how inefficient. Under the system created by the Constitution, no marginal social gain can ever outweigh the marginal social cost of violating one of the principles laid out in the Constitution.

However, the sort of analysis used to interpret what is barred and what is allowed by the Establishment clause, does allow for an economic analysis. In fleshing out the necessarily vague Establishment Clause, it is useful to see what the consequences of a particular action would be.

Does allowing state displays of religious artifacts empirically amount to an establishment of religion or not? Do state displays of religious artifacts create an unfair market advantage for a given religion, and if so, does this violate the Establishment Clause?

As I understand it, if an economic perspective abhors anything it is a monopoly. In this sense, the correlations between economic thought and the Carolene Products footnote four fascinate me. While the Constitution is sacrosanct against economic analysis, there is this backdoor through which economic thought enters into fleshing out the broad Constitutional provisions and in that sense there is an economic jurisprudence--think of all subjet areas in terms of markets and monopolies.

What are your thoughts on Song of Solomon?

"The role, as Edward Rubin rightly pointed out, of economic analysis is limited towards in Constitutional Jurisprudence because the Constitution created an inviolate system of axioms that cannot be circumvented no matter how inefficient. Under the system created by the Constitution, no marginal social gain can ever outweigh the marginal social cost of violating one of the principles laid out in the Constitution."

OK, step into the real world now. You really believe the Constitution is an "inviolate system of axioms?" Maybe you believe it SHOULD be, but I can't think of a single scholar who thinks it is one, as interpreted by the judiciary.

p.s. On the subject of "silly" cases at the margins of the establishment clause, here is one of the quirkier Posner opinions of all time. Have you ever wondered what water skiing in Hawaii had to do with the establishment clause? Read on! A word of warning: the views expressed by Posner in this opinion might seem to conflict with his current post. But maybe that's the difference between applying the law and theorizing about how to rewrite it:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=7th&navby=case&no=942563

"Obviously the fact that the public schools are "free" to the parents, being supported out of taxes, places religious and other private schools at an arbitrary disadvantage"

My rhetoric and writing professors at a public university taught me to use the word "obviously" very sparingly...

It may help to expand on this thinking a little more and think in "net" terms. Religious and other private schools (the schools, the students, the alumni and other stakeholders) benefit from large portions of the population able to read, write, make change, know about civics and govt, and other education skills(interactive effects).

"other private schools" (Harvard,Princeton, Yale, Stanford, Univ of chicago, etc) are not necessarily (or "obviously") at an arbitrary "disadvantage".

Private schools today (vs 30 years ago) may be in a position to compete. Marginal income tax rates today are much lower than they were prior to Reagan (35% today vs. 70% in 1980 *). Wealthy people get to keep more of their money today and arguably should be able to create very competitive schools, which has happened. Coffers at private schools appear to be doing okay despite being arbitrarily disdvantaged. If private school people are concerned about "advantage and disadvantage", perhaps they should fund more scholarships for their own schools?

The tax rate system may be "flatter" today than people think - the "all-in" effective tax rate on people of moderate means (all in meaning payroll taxes - employer and employee, federal and state income taxes, property taxes, sales taxes, fees and other) may (not sure) be close to 35% or higher.

* tax rates from http://www.taxfoundation.org/publications/show/151.html

First Amendment jurisprudence is about as intellectually confused as possible. Why are displays of creches illegal, but Christmas Day a national holiday?

"Why are displays of creches illegal, but Christmas Day a national holiday?"

Because Christmas has become secularized (sort of like Frosty the Snowman), and creches -- at least without three plastic animals around them -- are a purely religious display.

Don't blame me; I'm just the messenger. That is the law of the land according to the Supreme Court. And it's why we need to rethink -- but not trash, as Posner did -- what it means to have "separation" of church and state.

The Easter-Bunny-Santa Claus argument has this little constitutional flaw; if recognizing religious holidays was once acceptable on religious accommodation grounds, where's the constitutional amendment that changed that?

I've read the 'water skiing in Hawaii' case decision, and it seems to me that the dissent was far more coherent.

Posner: "That is a good economic argument: if you are paid a salary that is independent of your output, you will not be motivated to work beyond the minimum requirements of the job."

I can see how this relates to priests, but how about judges?

Corey

Think of how much better those horrible schools would have been with all of the parental involvement and dollars at your private school.

Elementary and secondary public schools already expend 60% more money per student than private schools (see http://www.census.gov/prod/2003pubs/02statab/educ.pdf) yet public schools produce inferior results overall.

Furthermore, students who move to private schools do better, particularly disadvantaged students, after controlling for other factors (e.g. IQ).

These facts suggest private schools are onto something. Don't you think an expansion of private sector schooling would improve education, particularly if targeted at the poor (e.g. Becker?s idea of a voucher system for the poorest quarter) and provided everyone still had the option to go public? (there is no reason this could not happen. Anyway, in view of its cost advantages it is arguably the suppression of the private sector that is reducing access to education)

Just a point about the issue of whether government sponsored religiosity "offends" the non-religious. While I realize that this seems to be a concern of the Courts at various times, I find it particularly unhelpful way of looking at things. I am not a Christian, but I am certainly not offended by it. (It's a weird belief, but so are a lot of others.) It's not that I am offended by state sponsored religion that's an issue. Frankly, I am offended by far worse things that this administration does than promote religiosity. But I do not find in the Constitution the right not to be offended by actions of the government.

What I find objectionable about state sponsored religious events (or memorials) to me is far more insidious. It is the implication that there are favored religious groups in this country; that those who do not bow down to the state sponsored view of the correct religion are thus second class citizens - tolerated but not full members of the body politic (thank Roy Moore and kiss his ring for his tolerance but don't ask for justice!). I can think of no better way to coerce people to join the dominant religion than to display the creed at the Courthouse where justice is supposed to be blind to such differences. The message is painfully obvious: join or get second class justice.

In Madison's time, the concern was over taxes used to support religion. In all of Madison's writings there is the concern that citizens will be forced to contribute money to a religion that they do not agree with. Some now argue that argument is not applicable to such things as Ten Commandment Monuments or school prayer, issues never specifically addressed by Madison in any of his writings. But that is not really true. All government actions cost money -however minimal. Taking 1 minute to have a religious service at school does cost taxpayers money - we are paying teachers for that time to proselytize. Madison recognized the dangers of even such small taxation - that it was the Camel's nose under the tent (to use another cliche) - and once we accepted such a thing in principle that there was nothing to stop us from going down a slippery slope to full church recognition and taxpayer support.

The idea that separation of church and state is only a structural guarantee of a division of powers is ludicrous! The Establishment Clause is a liberty interest that we all have. Madison certainly recognized it as such, and while in its original form it did not apply to the states, I think it is pretty clear from the comments of the framers of the 14th Amendment that they meant to incorporate all of national freedoms in the Amendment and apply them to the states. There is no religious freedom without the complete separation of church and state.

"Elementary and secondary public schools already expend 60% more money per student than private schools (see http://www.census.gov/prod/2003pubs/02statab/educ.pdf) yet public schools produce inferior results overall."

Thank you for the URL to more data. I would have to spend more time calculating some ratios in a spreadsheet...

Tentatively, based on cursory review: it looks like there are differences between k-12 and college\university.

And some questions:
...If there were no public schools, would private schools take everyone?
...What would this do to a private school's "selectivity", "exclusivity" and "prestige"?
...Should we have less education?
...Is education a public good?
...Are ideas in "tragedy of the commons" at all applicable to education?
http://en.wikipedia.org/wiki/Tragedy_of_the_commons

Doesn't the constitution have something to do with the laws protecting the rights of minorities? I know that the constitituion and discriminatory laws coexisted for a long time but it was supreme court cases rulings that "separate but equal" was unconstitiutional etc. that opened the doors to these laws. Therefore, I really don't think you can use minority rights laws as evidence that a law mandating a particular religion would be unlikely to pass.

Not too long ago, a diarist wrote about the effects of disestablishing state religon.

"Sunday 10 August 1662 (Lord�s day). Being to dine at my brother�s, I walked to St. Dunstan�s, the church being now finished; and here I heard Dr. Bates, who made a most eloquent sermon; and I am sorry I have hitherto had so low an opinion of the man, for I have not heard a neater sermon a great while, and more to my content. So to Tom�s, where Dr. Fairebrother, newly come from Cambridge, met me, and Dr. Thomas Pepys. I framed myself as pleasant as I could, but my mind was another way. Hither came my uncle Fenner, hearing that I was here, and spoke to me about Pegg Kite�s business of her portion, which her husband demands, but I will have nothing to do with it. I believe he has no mind to part with the money out of his hands, but let him do what he will with it. He told me the new service-book1 (which is now lately come forth) was laid upon their deske at St. Sepulchre�s for Mr. Gouge to read; but he laid it aside, and would not meddle with it: and I perceive the Presbyters do all prepare to give over all against Bartholomew-tide. Mr. Herring, being lately turned out at St. Bride�s, did read the psalm to the people while they sung at Dr. Bates�s, which methought is a strange turn. After dinner to St. Bride�s, and there heard one Carpenter, an old man, who, they say, hath been a Jesuit priest, and is come over to us; but he preaches very well. So home with Mrs. Turner, and there hear that Mr. Calamy hath taken his farewell this day of his people, and that others will do so the next Sunday. Mr. Turner, the draper, I hear, is knighted, made Alderman, and pricked for Sheriffe, with Sir Thomas Bluddel, for the next year, by the King, and so are called with great honour the King�s Sheriffes. Thence walked home, meeting Mr. Moore by the way, and he home with me and walked till it was dark in the garden, and so good night, and I to my closet in my office to perfect my Journall and to read my solemn vows, and so to bed."

If we were talking about establishing the one true Roman Catholic church, then, great!

one more posting and then I'm quiet.

On the "majority": sometimes the majority is a bunch of lemmings and is wrong - obviously and embarassingly so in retrospect. Have you ever been around an entire group of people (smart people too) that walk around massively deluded to their own detriment?

Please note I am not saying that I think Christian people are deluded or are wrong.

I do think there is such a thing as the tyranny of the majority though, and logic that supports this is worth discussion.

http://www.serendipity.li/jsmill/jsmill.htm

Christianity was arguably spread through persecution and non-mainstream channels. Your reference to Hume seems to pick up on this. A couple thousand years ago, the official courts and govt-controlled public spaces did not "endorse" or "promote" Jesus Christ.

"The idea that separation of church and state is only a structural guarantee of a division of powers is ludicrous!"

Then why did they choose the language "no law respecting an establishment" when they could have written "no law establishing religion." How can one incorporate a clause which text precludes incoporation (i.e. incorporating the Establishment Clause against the states WOULD be making a law "respecting an establishment of religion.") Incorporating the Establishment Clause disestablishes religion established in the several states, thus the Courts are violating the command to "make no law respecting an establishment of religion." Why is that ludicrous?

"Madison certainly recognized it as such, and while in its original form it did not apply to the states, I think it is pretty clear from the comments of the framers of the 14th Amendment that they meant to incorporate all of national freedoms in the Amendment and apply them to the states."

One more clarification. Yes, even accepting the theory of incorporation there is a problem. Because if one understands the Establishment Clause's neutral language to be a liberty interest for states to choose establishment, then one can't very well contradict that liberty it was intended to protect.

Again, if the language merely prohibited Congress from making a law establishing religion, then there would be no problem. But the command is to make no law either establishing or disestablishing religion, and that creates a serious problem when incorporation would nullify that language by disestablishing religion established in the several states.

> If there were no public schools, would private schools take everyone?

I have no doubt it is possible to design a public funding mechanism that ensures everyone receives a private education. The question is probably hypothetical, however. There is evidence that public schools raise quality in response to competition from private schools (though not from other public schools) (Brasington 2000). This would work against the exit of the public sector. In addition, the political costs of a full public sector exit probably presents a prohibitive exit barrier (as well as a great opportunity for alliteration).

Incidentally, Brasington's findings, if correct, mean greater private provision also benefits students who remain at public schools.

> What would this do to a private school's "selectivity", "exclusivity" and "prestige"?

I don't know.

> Should we have less education?

I don't know.

> Is education a public good?

My answer, if you mean "public good" as economists define the term, is yes and no. Public funding of education is usually justified on externalities, and in this sense education has public good characteristics. However, the delivery of education is a private good because it is both rival and exclusive. This makes it suitable for private sector provision.

> Are ideas in "tragedy of the commons" at all applicable to education?

Can you be more specific?

"Elementary and secondary public schools already expend 60% more money per student than private schools... yet public schools produce inferior results overall"

You can't just compare public and private schools straight across because they are serving different markets. A good deal of that extra expenditure is in higher teacher salaries at public schools. That is not wasted money, families are eating and buying clothes with it. The "inferior results" are because public schools must take every kid while private schools select on ability. The private schools also drain off top performing students, so its a rigged comparison.

"Furthermore, students who move to private schools do better"

Ok, fine, but they would also do better if we stuck all the private school kids and parents who care back into their public schools. Your argument if true really indicates that putting kids of differing abilities together is more helpful than segregating them on merit.

"These facts suggest private schools are onto something."

Yes, that you can avoid hassle and raise your test scores by shutting out the kids who need the most help. Meritocracy is efficient, but we are not the Borg, there is more than efficiency.

"Don't you think an expansion of private sector schooling would improve education"

No. All of the stupidest people I know came from private schools.

I have an idea, Harvard is rumored to be the best school in the land right? Lets make every school Harvard! What works for them will work for EVERYONE!

Or not. You can't make every school Harvard. Giving every parent in an urban ghetto a voucher won't magically make Eaton appear on their doorstep. The only thing competition will do for every school is make every school competitive above all else. The only thing competition will do for every religion is make every religion a little less tolerant.

It is established "truth" in economist land that a free labor market will have a "natural" unemployment rate. Well, a free education market will have a "natural" un-educated rate. Problem is, we believe in universal access and equal opportunity. Show me a realistic practical way that a voucher system will bring enough dollars into your nearest urban ghetto or rural backwater to run a decent school there. You can't, because it won't. Vouchers inject a massive collective action problem in the name of "parental choice".

And not only will many areas be under-served in a private market, less of every dollar spent on education will actually go to education, because now the schools will have shareholders and dividends and profit-sharing.

On the religion side, one thing I have learned since coming to live in the Bible belt is that Christian churches are constantly splitting off and factionalizing over personal or ideological fights. In order to attract members, new and old churches put large portions of their budgets into bigger and fancier new buildings. The end result is that HALF the church buildings in many towns sit completely empty. That's just waste production, which I belive old Marx said was a common problem with capitalist structures. If churches were more unified, they might instead be able to build homeless shelters or feed the hungry.

Competition and resulting segregation is bad for schools, competition and resulting factionalization is bad for religion.

"However, the delivery of education is a private good because it is both rival and exclusive."

This blog is not exclusive. Is it educational in nature? Why is education "exclusive"? Consider Professor DeLong's blog at Berkeley - he routinely posts academic papers to read for free or for very small amts of money (NBER - $5). You can discuss them with other people around the world. The U.S. has free internet access in public libraries. Is education exclusive?

"There is evidence that public schools raise quality in response to competition from private schools (though not from other public schools) (Brasington 2000)"

Competition for the University of Illinois basketball team is the University of North Carolina.

Are you using Internet Explorer to discuss education with me? In the Menu Bar on Internet Explorer, if you go to "Help" and "Properties", you will see the following:
"Based on NCSA Mosaic. NCSA Mosaic(TM); was developed at the National Center for Supercomputing Applications at the University of Illinois at Urbana-Champaign."

anecdotal, i know. (how many web browsers run IE?)

I'd emphasize Posner's implicit view that U.S. science education, particulary in evolutionary biology, suffers from lots of things besides (though, I would add, perhaps related too) the well-known religious controversies. And, while REQUIRING teaching intelligent design as science is obviously a bad idea, the question of how schools will teach the relation between science and religion is at least as hard a question as (though very different from) deciding how they will accommodate the varying prediclictions of their students/their students' parents regarding religions. Debates about funding have to handle the former question to. Unhappily, we could easily wind up with poorer science education as a result of equally funded religious education.

These are two of the most insightful posts I've seen on this blog and I say that as someone who's profited from about everything I've read on it.

> Are ideas in "tragedy of the commons" at all applicable to education?

Can you be more specific?
----------------------------------------------

Perhaps another time-

in Internet Explorer, it is "Help" ... "About Internet Explorer" (not "Help" ... "Properties")
'

Nate

I had classroom delivery of education in mind. You are right that blogging is non-exclusive.

I don't understand the rest of your post.

"and that creates a serious problem when incorporation would nullify that language by disestablishing religion established in the several states."

Its only a problem if you are a textualist who happens to belong to the Federalist Society. I find myself strangely untroubled by the incorporation of my basic rights against more possible oppressors.

States with established religions don't have a very good historical record of being nice to people. Why would we want that back? Is it unreasonable to ask for some sort of proposed good that would be served other than fidelity to the wishes of some dead white man? Is there a state that could even democratically establish a religion now that everyone gets to vote? I don't even think Utah could get 51% for that. There is more than one brand of Mormon too.

http://www.cato.org/pubs/journal/cj14n3-9.html

For some reason, cognitive dissonance also comes to mind. If you just pay tons for a private education, when you could have gone to state university or public schools and had a similar experience, you have to rationalize all the spending somehow.

excerpt from http://www.learningandteaching.info/learning/dissonance.htm :

"and�counter-intuitively, perhaps�if learning something has been difficult, uncomfortable, or even humiliating enough, people are less likely to concede that the content of what has been learned is useless, pointless or valueless. To do so would be to admit that one has been "had", or "conned". "

Disclaimer: I am not a psychology or sociology or education major and may be totally wrong.

Posner's argument that nonsectarian establishments of religion might be permissible as a subsidy to offset government subsidies for secularism is interesting. But I think the argument by some evangelicals for government establishment is different and more forceful. They seem to hold that government secularism produces a kind of market failure in religiosity and good conduct. Government "establishments" are thus a way of creating a public good in the form of God's blessings for this country from which no one can be excluded.

The argument goes like this. When government banishes religious expression from public spaces, it implies that religion is purely private and that God does not care whether we pray or publicly acknowledge His supremacy. Government sets the tone, and as a result many will not pray or believe (even if they tell the pollsters that they do). A purely private market in religiosity does not produce sufficient homage to God to earn His blessings for this country. Some evangelicals say this is why the country has gone downhill ever since prayer was banned from public schools. Vice (abortion, promiscuity, crime, hedonism) and disbelief (the media, Hollywood) spread when religious expression is privatized. We experience a market failure for this good.

Like national defense, God's blessing is a public good. Government helps to generate this good when it establishes religious expression in public places. God gets the homage to which He is entitled and government sends the signal to citizens that they should be faithful in order to earn God's blessing. Citizens are admonished to avoid a counterproductive, free-riding secularism.

If so, government establishment of religion does more than offset the subsidy for government secularism. It creates a valuable public good.

But if the case for government establishment is really a "public goods" argument, those who employ a "law and economics" approach might rethink their willingness to endorse government establishment of religion in any form. The argument illustrates the dangers of an expansive view of public goods.

No one points out that it's the Dallas Cowboys not the Texas Cowboys? For shame, dear readers.

I respectfully disagree with the line of argument that sets up a dualism between religious and non-religious activities. Rather, the issue should be understood to have three parts: religious, a-religious, and anti-religious.

Not allowing religious monuments on public space is not akin to promoting anti-religious sentiments. To be anti-religious, one would have to place the "athiest ten commandments" on a public space.

Thus, Posner's idea of religious v. secular subsidies is a little off, at least legally speaking. Unless Santa Claus was an athiest, which I believe he wasn't, his appearence is not anti-religious - it is a-religious. If anything, Santa Claus is more of a religious figure than not, and aethiests are being denied their free opportunity to enjoy their version of the month of December.

Becker seems to acknowledge the above argument and even expand it beyond three parts: for him it is more about a monopoly of any idea, rather than religion vs. a-religion vs. anti-religion. Perhaps this is the best way to look at it.

Eitherway, the religion vs. a-religion dynamic seems to be a poor way of understanding the issue.

cheers,

Neerav

palooka is making a very good point about the 'neutral language' of the establishment clause. Madison's first draft of the 1st Amendment simply stated that no national church should be established. It seems that the actual language we got meant that not only couldn't congress create an official religion it couldn't interfere with the states (four, iirc) that had established, tax-supported churches.

And, thus, the 14th Amendment 'incorporation doctrine' is shown to be bizarre in its logic. Not to mention that the Amendment could have simply said that its passage would incorporate all (or specific) 'rights' found elsewhere in the Constitution. Since it didn't, the most logical conclusion is that that was not its intention.

"The argument goes like this. When government banishes religious expression from public spaces, it implies that religion is purely private and that God does not care whether we pray or publicly acknowledge His supremacy."

And, since atheism or agnosticism isn't neutrality toward religion, favoring those beliefs would be exactly the kind of establishment of religion that the strict separationists profess to be alarmed about over 10 Commandments and creches on public property.

jake:

i've never read a "public goods" argument for establishment of govt religion.

interesting to talk about dangers of an "expansive" view of public goods. what are the definitions\guidelines for a public good?

"Obviously the fact that the public schools are "free" to the parents, being supported out of taxes, places religious and other private schools at an arbitrary disadvantage, so there is nothing wrong (remember I am speaking only of the economics of the question) with providing a comparable subsidy so that parental choice will not be distorted."

Mr. Posner,

I respectfully disagree with this oppinion for the following reason. Assume we are providing basic education as it contributes some pubic good, ie there are benefits to all for living in a society of educated people. This is the specific benefit to which we are willing to contribute. If religious education per se falls outside of this criteria (which I belive it does), then parents should be forced to provide for this education themselves. Enroll your children in a Sunday school or other religion class and send them to public school. If it is looked upon by these people that general education in a secular public school is so distinct from a similar education at a parochial school, then we a clearly subsidizing some portion of the education that is religious in nature. In other words, there must be some reason why these parents feel there child must be taught calculus by nuns. The simplest solution is to provide a free basic education and allow people to seek religious instruction on their own in any discreet packet that is available.

"since atheism or agnosticism isn't neutrality toward religion, favoring those beliefs would be [an] establishment of religion"

this may or may not be true, but is typical of the confusion caused by the false "dualism" criticized by neerav above; as he notes, there is (at least) a tri-partite division. based on a personal poll of friends plus the experiences of a relatively long life, I'd bet the typically ignored "areligious" group, is much larger than the routinely maligned "atheist/agnostic" group, the latter labels suggesting as they do, high level attention to the concept of god. many of us really are "neutral" (more accurately, indifferent) toward religion and god per se. to parrot judge posner in his introduction as a guest blogger for brian leiter, they simply aren't a part of our lives.

until, that is, the zealots start trying to push them down our throats. then, contrary to judge posner's (and other's) interpretation, we don't get "offended", we get scared and defensive. having "christmas" parties, setting up creches on the town common, putting up a monument in the corner of the capitol grounds, etc, aren't a big deal - they're easy to ignore. prayer in public schools is a bigger deal - you can't escape (I know - been there). even bigger is degrading science education with pseudo-science drivel. and biggest of all is the threat (reality?) of government policy driven by religious dogma. "offended" doesn't begin to capture the consequent emotions.

Judge Posner,

While as you say, we currently live in a country where religious pluralism predominates in every state except Utah, I'd like to speculate that this pluralism may in fact be a result of the current interpretation regarding the establishment clause to de-establish religion. (Although, I'm not certain about the historical demographic trends regarding religious pluralism...sounds like an idea for my thesis)

Nevertheless, perhaps there would be some migratory consequences of allowing marjorities in every state to pick the kind of religious billboard they prefer. David Brooks recent op/ed in the NYtimes "All Cultures are not Created Equal" makes some insights in this regard.

To sum it up, he says we are seeing greater social fragmentation nowadays then in the past, as conservatives flock to where more conservatives live, and liberals flock to where liberals live. I think the same effects could occur within religious populations.

I'm a bit worried about increasing internal isolation within the United States as it is, and I wonder about the migratory effects a relaxed criteria for public religious symbols might have.

I imagine a community where there occurs a slow narrowing of religious scope that begins from broadly endorsing monotheism (intended or not), to one that endorses christianity, and then Protestant sects...so on.

As a result, we see a ghettoization of American society where a reduced melting pot effect causes an increase in transaction costs and nepotism, while also undermining the uniform cultural structural support that holds a large union together.

From such a perspective, I think it might be appropriate to view 'secular' exclusive billboarding rights as more of a nuisance we have to tolerate in the status quo, yet, their monopoly would be preferable to opening floodgates to all religious symbols.

(At the same time, as a speculative benefit of ghettoization might we see a a reversal of declining civic engagement trends Robert Putnam discussed in 'Bowling Alone?' Maybe a country this big and frictionless isn't natural, thus explaining some of our discontents?)

Also just as an aside regarding Hume, I wonder if a state established religion would work (in contrast with Euro-style established religion) if paired with a strong federalist style system.

Maybe I'm wrong but I think the number of religions has reached equilibrium (maybe except for Tom Cruises' Scientology), and in such a situation it would be feasible to implement a mechanism for a small township based upon an electoral process that could efficiently replace a market alternative. This may especially hold true for smaller communities as it would offset to a degree the centralization disadvantage.

You can't just compare public and private schools straight across because they are serving different markets. A good deal of that extra expenditure is in higher teacher salaries at public schools.

Only a fraction of the difference probably goes to salaries. Since the additional overhead per student in public schools is about $3000, a class size of 20 costs $60,000 more year at a public school. I believe the average public school salary is in the order of $45,000. So unless the public/private salary gap is huge, differences in salaries cannot explain the cost gap.

The "inferior results" are because public schools must take every kid while private schools select on ability. The private schools also drain off top performing students, so its a rigged comparison.

No. The comparisons control for differences in ability and background. I must say, however, some studies find a public/private performance gap after controlling for ability etc, but others do not. None that I am aware of report a negative private effect. Still, not bad in view of the significant cost gap.

>>"Furthermore, students who move to private schools do better"

Ok, fine, but they would also do better if we stuck all the private school kids and parents who care back into their public schools. Your argument if true really indicates that putting kids of differing abilities together is more helpful than segregating them on merit.

Your segregation theory could be true, but why not reduce segregation by putting more disadvantaged kids into private schools? This has the twin benefits of sending kids to where results are better (or no worse) and costs are lower. Going your way rests on the precarious hope that public school systems will improve.

Levitt (2002) “Understanding the Black-White Test Score Gap in the First Two Years of School” (available at nber.org) argues that there are bad schools (bad in terms of gang problems and non-student loitering, not class size or funding). All students at these schools are disadvantaged but black students are more likely to attend a bad school and this, he suggests, may be the cause of the black-white gap, at least in early years. Your proposal Corey would see those bad schools expanded (ie. rewarded). Mine would see them replaced.

>>"These facts suggest private schools are onto something."

Yes, that you can avoid hassle and raise your test scores by shutting out the kids who need the most help.

No. The suggestion was to provide the poorest with the means to choose other schools.

It is established "truth" in economist land that a free labor market will have a "natural" unemployment rate. Well, a free education market will have a "natural" un-educated rate.

Classic straw man. Imagine a scenario, pretend it is plausible and knock it over. Universal access can be preserved with vouchers. And in case you hadn’t noticed the current system has dreadful inequalities. Vouchers provide a way for the poorest to have the choice wealthier parents enjoy.

And not only will many areas be under-served in a private market, less of every dollar spent on education will actually go to education, because now the schools will have shareholders and dividends and profit-sharing.

There’s about $3000 of overhead per student in the public system. That leaves plenty of headroom for some combination of improving education and saving money. There is no reason private provision will not be dominated by not-for-profit institutions.

On the religion side, one thing I have learned since coming to live in the Bible belt is that Christian churches are constantly splitting off and factionalizing over personal or ideological fights. In order to attract members, new and old churches put large portions of their budgets into bigger and fancier new buildings. The end result is that HALF the church buildings in many towns sit completely empty. That's just waste production, which I belive old Marx said was a common problem with capitalist structures.

It’s funny you say that. I understand Catholic private schooling has particularly low cost per student. At least they did in 1994 according to Becker (http://www.worldbank.org/html/extdr/hnp/hddflash/workp/wp_00052.html) Perhaps your observation is only relevant for other Christian sects. Anyway, since Marx is wrong on this point for much or all the rest of the economy, what makes education the exception?

"No. The suggestion was to provide the poorest with the means to choose other schools."

is it possible it is something other than cost prohibits choice?

if private education is sufficiently better (as measured by a higher NPV of future earnings), and it is easy to borrow money, then people would be choosing schools regardless of "vouchers"?

Nate

Borrowing for education has two roadblocks. One, the borrower, being at the start of his/her education, usually has no collateral, particularly when from a poor family. Two, the asset produced by education is intangible and cannot be re-possessed.

interesting... we could have a long thread\discussion\background overview on cash flow lending vs. collateral-based lending -- in the context of education or other.

true, education can not be repossessed. however, it also can not be absolved through bankruptcy? (even prior to the recent bankruptcy changes)

ben: it is not completely inconceivable that some of your concerns could be addressed through financial innovation. one has to wonder why this innovation has not occurred if there appears to be a market-based reason for it to occur. If one believes in privatizing in general, then why not privatize the funding for private education? A lot of "poor" people may not own property and may not pay property taxes. Is it possible that a lot of the "poor" may have many dependents, low and unstable incomes, and no property ownership and may not pay much enough in taxes to cover a voucher?

Brief comment in response to the supposed dubiousness of the incorporation doctrine:

Akhil Amar's 1998 book the Bill of Rights offers powerful textual and historical reasons why the 14th Amendment, sec. 1 was written to incorporate the Bill of Rights and specifically to overrule not just Dred Scott but also Barron v. Baltimore. He casts serious doubt on the credibility of the anti-incorporation scholars such as Raoul Berger and Charles Fairman. He might be wrong, but the onus ought now to be on those who disagree with him to refute the wealth of evidence in his book.

Incorporating the establishment clause to protect against state established religion is intellectually more of a stretch than with other parts of the Bill, for the structural reasons Palooka mentions. Again, Amar offers good reasons why free exercise, equal protection, and other constitutional guarantees applicable to the states probably achieve the same result of disestablishment.

Also, Palooka is factually wrong about Jefferson's views on state's established churches, at least according to his contribution to Virginia's public policy:

http://www.worldpolicy.org/globalrights/religion/va-religiousfreedom.html

"Its only a problem if you are a textualist who happens to belong to the Federalist Society. I find myself strangely untroubled by the incorporation of my basic rights against more possible oppressors.

States with established religions don't have a very good historical record of being nice to people. Why would we want that back? Is it unreasonable to ask for some sort of proposed good that would be served other than fidelity to the wishes of some dead white man? Is there a state that could even democratically establish a religion now that everyone gets to vote? I don't even think Utah could get 51% for that. There is more than one brand of Mormon too."

Spain, Italy, Sweden, and Britain are some of the modern countries which have "established" churches. Don't hold your breath for the Court to cite that international "consensus."

At least you're honest in your approach and your distain for the Constitution. What I particularly dislike is those who feign respect and fidelity to that document but systematically erode its significance and purpose. One reason why I have great respect for Posner is because he's intellectually honest enough to admit where his jurisprudence comes from. Its not exactly my flavor, but he's not trying to dress it up as something it's not and pull a fast one on the American public.

On another thread you were rabidly pro-democracy, so much that you were willing to concede the elitist control of the judiciary is a bad thing. I'm not sure how your position with respect to establishment harmonizes with that position.

Your last sentence is the most puzzling. If Utah, one of the most religious and monolithic states, could not conceivably get the 51% required to establish a particular religion, then what is the particular problem with over-ruling the incorporation of the Establishment Clause?

"Also, Palooka is factually wrong about Jefferson's views on state's established churches, at least according to his contribution to Virginia's public policy."

I thought I had read some evidence to the contrary (though I thought the evidence was a mixed bag), but after a few google searches, I found nothing. I'll concede the point =)

http://www.weeklystandard.com/Content/Public/Articles/000/000/005/950kacks.asp

same URL, only put on two lines just in case the end of the URL in the previous post got lopped off in your web browser

http://www.weeklystandard.com/Content/
Public/Articles/000/000/005/950kacks.asp

Corey

Vouchers will allow more parents to buy their way out of public schools, which will further impoverish those schools.

I have just noticed the leap in reasoning here that seems to underpin your view. I do not think can be justified, at least not without some evidence.

Moving students from high-cost schools to low-cost schools must eventually leave spare money in the government's pocket. That money can be allocated anywhere, including, presumably, public schools.

Whether vouchers will cause higher or lower public school funding per student depends on the details funding mechanism. But if vouchers leave the government with spare money then it is hard to see how vouchers will cause a reduction in public school funding per student.

Of course total funding of public schools will be reduced by vouchers but surely you do not dispute the relevant funding statistic is expressed per student?

"Akhil Amar's 1998 book the Bill of Rights offers powerful textual and historical reasons why the 14th Amendment, sec. 1 was written to incorporate the Bill of Rights..."

How does he explain away that, after passing the 14th Amendment 7 years earlier, many of the same people who did, took up the Blaine Amendment which proposed:

"No state shall make any law respecting religion..."

That would be redundant if the 14th Amendment had been intended to incorporate the 1st Amendment.

"Akhil Amar's 1998 book the Bill of Rights offers powerful textual and historical reasons why the 14th Amendment, sec. 1 was written to incorporate the Bill of Rights..."

How does he explain away the fact that many of the same people who passed the 14th Amendment, seven years later took up the Blaine Amendment, which proposed that, no state shall establish a religion. Isn't that redundant if the 14th Amendment had already incorporated the 1st Amendment?

ben:

in your cost analysis, do you take into account that fixed vs. variable costs? Also, do you consider that education cost per student is probably not linear?

Would you be up for means-testing vouchers? (wealthy people do not need a voucher)

Why haven't more market-based means sprouted up for access to private education for lower-income people?

education cost per student may also be a function of interactive variables. not sure.

in your cost analysis, do you take into account that fixed vs. variable costs? Also, do you consider that education cost per student is probably not linear?

I tried to take account of fixed vs. variable by using the term "eventually". In the short term, the government will almost certainly not avoid the full average cost of a student that goes private, although it will incur the full cost of the voucher. However, in the long term, I expect the public school system will adjust its size to demand. Because of this, I believe costs will be roughly linear in student numbers and money will be saved overall when students go private.

In the short run, it is possible total education costs will spike. However, I do not believe short run costs usefully inform government policy and regulation.

Would you be up for means-testing vouchers? (wealthy people do not need a voucher)

Yes, because the poor suffer disproportionately from shortcomings in public education and vouchers overcome an important barrier to accessing better schools.

Why haven't more market-based means sprouted up for access to private education for lower-income people?

I can think of four reasons. One, a lack of tangible collateral. Two, crowding out by government subsidy: because only public education is free at elementary and secondary schools, the incremental cost of going private is made far higher than the incremental benefit. Three is that incremental income benefits of going private are very distant: a minimum of 15 years if starting from elementary. This sharply reduces private investment returns. And four, spillovers. Not all the benefit of education is captured by the individual, which is a justification for government funding.

"Vouchers will allow more parents to buy their way out of public schools, which will further impoverish those schools."

As usual, Corey has volunteered an incoherent argument. The purchasing power of a school voucher typically corresponds to the per capita spending a given child would receive within the public school system. In a public school system with 2 students, A and B, and a budget of $10,000, permitting vouchers would let A take $5,000 and apply it to tuition in a private school of his choice. While it is true that the public school system would be "impoverished" because its budget would shrink from $10,000 to $5,000, because the public school system would not have spent more than $5,000 on B even if A had remained within the system, B is receiving the same amount of resources allocated to his education. B is not being deprived of anything. Saying that the public system is being "impoverished" suggests that B is being short-changed, which is clearly untrue. The only persons being short-changed under a voucher system are bureaucrats, i.e., rent-seekers, who are better off the larger a budget they manage, because a larger budget means more money in raw dollar terms for "administrative costs". Of course Corey supports bureucratic rent-seekers: he is a Marxist right out of central-casting. Rather, central-planning-casting.

"Is it unreasonable to ask for some sort of proposed good that would be served other than fidelity to the wishes of some dead white man?"

As usual, Corey relies on fallacies, e.g., complex question, to volunteer his incoherent argument. The argument one might tease out of the gibberish above is this: Slavishly adhering to rules laid down by long-dead rulemakers ignores that relevant facts may have changed over time which render those rules no longer useful. While that may be true, that does not negate that law requires sufficient process for valid enactment. Law cannot simply be made up whole cloth by a single person and imposed on the rest of us in an antidemocratic fashion. That would be tyranny. It is just as tyrannical to bind us all to the wishes of some living tyrant as it is to bind us to the wishes of a dead tyrant. Whether that person is male or white is irrelevant. I must therefore conclude that Corey is a racist and a sexist. Is it so unreasonable to ask for Corey to attempt to make his incoherent jabberwocky of an argument without resorting to sexist and racist comments?

"vouchers overcome an important barrier to accessing better schools."

See, that is exactly what I do not buy. Your hope is that by giving parents in poor neighborhoods vouchers, they will overcome collective action problems and induce a private organization to open a school within bus range. But the private school will still face higher costs and more operational hassles vs. building the same school across town. It won't get built.

Don't believe me? Drive through the 'hood. You see liquor stores, payday loans, and churches. There aren't enough banks, grocery stores, clean parks, movie theatres, or retail shops. Every single one of those shortcomings shows the "market" failing to serve poor neighborhoods.
Why would schools be different?

"I can think of four reasons... This sharply reduces private investment returns."

So you pretty much admit that it will take government subsidies to stick private schools in poor areas. Why then would you prefer a market based "voucher" system rather than straight $ support to existing schools? Is it just the $3000 per student cost savings you expect to realize?

Teachers at public schools make at least $15K more in salary and benefits than at private. Partly because of unionization and state retirement benefits, and partly because of pay incentives to attract talent. Catholic schools pay the least relative to public. So given a class size of 25, at least $600 of the $3000 savings you expect to realize comes straight out of teacher's pockets and off their kid's dinner plates.

Public schools also have a much higher enrollment of special needs students. Those students cost more to educate. I believe this is the single biggest reason for the cost difference between public and private. Private schools would NOT see a cost savings if they took on special ed.

Public schools also spend more on athletics, lunch, music, and after-school programs. Private schools also manage to hide some of their expense in these areas by extracting it direct from parents rather than through a tax bond.

So I think your expected cost savings are a myth, and would never be realized if private schools served the same market that public schools do now.

"There is no reason private provision will not be dominated by not-for-profit institutions."

So far, the dominant players in the privatization market (for curriculum and school operation) have been for-profit and traded on the NASDAQ. Opportunity for profit routinely trumps charitable intent, which is why you have to tax for charity.

"Your proposal Corey would see those bad schools expanded (ie. rewarded). Mine would see them replaced."

If the things which are making the schools bad are environmental or geographic (gang violence, loitering, drugs, parents working 3 jobs) then it makes no sense to REPLACE the school. The new school will inherit the exact same problems and be just as bad or worse for the same money! You can't find more than a few schools where the key problem is mis-management, and even there, the prudent approach would be to replace administrators, not the whole school.

The key paradox that confuses this issue is that it is precisely the worst schools that need the most money. Great teachers and administrators work in poor schools, they need support to fight the gangs or meth-addicted parents or mal-nourished kids. At the school where my girlfriend works, they have to feed dozens of kids breakfast every day or else they are too hungry to learn. There are so many special needs kids that every classroom teacher has to have an aide to keep the disruptions down.

So yeah, public schools cost more, and I want to give schools in bad neighborhoods more money. I don't know how to convince corporate management in Manhattan that a rural Indiana school needs extra funds for breakfast. I do know how to convince the local school board and townspeople.
We haven't even talked about governance and accountability to parents, which is also a concern as privatization inevitably leads to consolidation.

That's all I have to say on the subject.

"On another thread you were rabidly pro-democracy, so much that you were willing to concede the elitist control of the judiciary is a bad thing. I'm not sure how your position with respect to establishment harmonizes with that position."

My position with respect to establishment is that I believe a democratic majority would oppose it in all 50 of the states. Therefore I do not care about Madison's or Jefferson's vote either way because they are dead. (Although you are welcome to use their public domain rhetoric to try and persuade voters)

I could be wrong, Utah could vote to establish the LDS church. I would respect that result.

The constitution is good and valuable to the extent that it is allowed to represent the common norms and values of a democratic and plural whole. It can just as easily be made to serve "tradition" against a majority consensus for change, or to oppress a minority that dissents. The constitution is not a Aristotelean good-in-itself.

I would like to point out that in the course of one evening, I have been refered to here as "rabidly pro-democratic", as a "marxist", "sexist", and "racist". I'm positive that no one person can be all of those things. I am also positive that I am NOT three of them.

Thank you for the negative attention. Infamous is a type of famous. :)

"The only persons being short-changed under a voucher system are bureaucrats"

That's patently false. IF administrative functions are shortchanged, then so is every single school-wide function that takes a % from each student. That includes Band, Choir, Athletics, janitorial services, utilities, the cafeteria, groundskeeping, security, the library, the computer lab, special needs programs, afterschool programs...

Every single one of these things is technically "overhead" and has a cost that does not linearly decrease as students leave.

Its nice that you learned how to say "rent-seeking" in school, what year do they teach pro-capitalist attack speech in private schools anyway?

Just as an aside, here's an excerpt of conversation overheard in saloon on the south side of the City:

Mr. Hennessey: "An wat yer tink of dat Supeme Kort rulin dat say da tem komandents don belong on de wall a de Kort?

Mr. Dooley: Well- de Constitutin sez wat it sez. An if dem hi-flootin tips kaint figger it out, GAWD hep us.

Mr. Hennessey: Karful Mr. Dooley deys mite be some a dem types in here dat take ceptin to dat word- an ye kno wat dat kin led to...

Perhaps Sarte was right, the world and life really is absurd. ;)

Corey

The content of argument that our kids be put through a system that costs more and performs worse amounts to a series of red herrings, straw men and unsubstantiated assertions, most of which fall over under the vaguest inspection. I can go chapter and verse through what you have said, but instead I will try to point out the key problems in your argument.

First, if you are right and a voucher system saves nothing and private schools turn out not to be viable under the system, or choice isn't valued, then nothing is lost. The status quo is prevails and vouchers are not cashed outside the public school system.

Second, you lack imagination as to how private schools could work. It may not be necessary to build a school from the start. How about a retired teacher who gets certified and decides to teach 5 kids in a dis-used classroom at the neighborhood school for some extra income? His 20 year old grandson takes sports after school. Subject to regulations, any number of delivery permutations exist.

Third, the collective action problem is demonstrably solved by private schools who already teach 11% of our elementary and secondary school kids. Even if the collective action problem rears its head in poor neighborhoods (and why would it? Liquor stores and churches don't tell me much), the status quo will prevail, public schools keep their funding and nothing is lost.

Fourth, private schools do accept special needs children. I have taught at a private school and in fact had three special needs children under my instruction (out of 24). I can't find data on this but I strongly suspect special education at best accounts for only a limited fraction of the cost gap. But, again, if private schools have no cost advantage, vouchers need produce no change from status quo. (BTW, if private schools are unwilling to accept special needs children for financial reasons, the value of vouchers can be tailored to account for the child's needs, which are observable.)

Fifth, it is not clear private schools will simply inherit the problems of gang-ridden public schools. Private schools do not face the same political constraints in dealing with gang and drug problems. But, again, if private schools turn out to be no better in this respect, what has been lost?

Sixth, governance and accountability to parents are a problem of the public school system, not private. Decision making at public schools has become highly centralized and politicized at state and federal government level. Furthermore, existing private schools are not run like corporations, so the 'Manhattan' example is a complete red herring.

Teachers at public schools make at least $15K more in salary and benefits ...at least $600 of the $3000 savings you expect to realize comes straight out of teacher's pockets and off their kid's dinner plates.
I had to respond to this: your argument amounts to saying private school teachers don't feed their children.

When it comes to education in the U.S. "public" schools are open to the public at large whereas 'private" schools are open to those who can come up with the tuition or comes from the appropriate class. In the UK a "private" school is open to the public whereas a "public" school is open to whom ever can come up with tuition or comes from the appropriate class. So which system is better, public or private? Confusin ain't it?

As for the grounds of education, simply ask the question, "Why can't Dick and Jane read and write?" The answer is simple, they don't want to; and the reason, motivation or the lack of it. The issues of public or private institutions to education is meangingless.

"Private schools do not face the same political constraints in dealing with gang and drug problems."

Which constraints are those? Being forced to admit students with gang or drug problems? This has been my argument all along, nothing prevents private schools from solving problems through exclusion and externalization of costs.

"or choice isn't valued, then nothing is lost."

Yes it is, because as I said from the start, many parents value exclusion and those with the means will use the vouchers to take their kids across town. That further impoverishes existing schools, see my post above re: expenses shared by all students. Vouchers enable persons with sufficient means to betray the collective public school effort. Not everyone has sufficient means.
You can disbelieve it but the argument is simple.

"Even if the collective action problem rears its head in poor neighborhoods (and why would it? Liquor stores and churches don't tell me much)"

Then maybe you should educate yourself about poor neighborhoods. Go drive around, count full service grocery stores, now do the same in your neighborhood. Now imagine living in the poor neighborhood WITHOUT a SUV, carring your groceries home 4 miles on the bus.

"How about a retired teacher who gets certified and decides to teach 5 kids in a dis-used classroom at the neighborhood school for some extra income?"

Who will be accountable when it turns out that the retired teacher is incompetent? At best all your example does is disengage oversight and duplicate functions currently being performed. If the lone rugged individualist teacher takes a higher profit, then you've made education less efficient. If he/she does not, then only accountability has changed.

You would do well to just admit that you are concerned with accountability and that you trust market forces to bring it more than you trust democratically elected school boards. That's the question this argument boils down to, democratic planning vs. market planning.

By the way, I also decry centralization in public schools. You don't fight it by adopting an economic model that rewards consolidation in every other industry where it has been tried.

"I have taught at a private school and in fact had three special needs children under my instruction (out of 24)."

Try it with 6 or 8. You might actually get more parental involvement at the public school to help you out, or you might get abusive meth-addicts.

COREY: "Its nice that you learned how to say "rent-seeking" in school, what year do they teach pro-capitalist attack speech in private schools anyway?"

Not only is Corey a misologist, but, apparently, he is delusional. I attended public schools. I would also note that I am not pro-capitalist; I am pro-democracy. Since we have yet to elect a Marxist President....

COREY: "Every single one of these things is technically 'overhead' and has a cost that does not linearly decrease as students leave."

As a technical matter, "Band" does not qualify as administrative overhead. Note that I did not need selectively to misquote you to make my point.

I don't think Corey's concern about damaging public schools is without merit. Let me explain my thoughts.

Corey believes that vouchers will result in some students (presumably upper and middle class studetns) leaving the public system for private. The result is that the school in question loses funding because it now has fewer students. Corey hypothesizes an accelerating downward spiral for the public school. As it loses more money, more students leave, and the cycle continues until the public school is financially and academically destitute.

The proponents argue that this is OK, as both the students and the government win out. Students get to attend schools of higher quality, and perhaps a better fit. And the government gets to, perhaps, save a few bucks (if it's more effcient).

I would tend to support vouchers, but I see a problem. If a voucher only is a fraction of the cost the public spends on the child in public school, and is also only a fraction of the cost of a private school, then I see real problems ahead, and a high probability of the regressive potential of such a system, which I believe is Corey's concern.

In a system which only partially subsidizes private education, only those moderately well enough or perhaps highly motivated will take advantage of the situation. The poorest kids with the least involved parents will remain in public school (remember, these are the kids we want to help with vouchers, right?). As the relatively well off students are siphoned off into a superior system, the public schools are left with less money, with fewer highly qualified teachers, and with a higher proportion of the at risk student population. That is a troubling scenario.

To partially address this problem one could support increasing voucher amounts, or means testing them. The richest of the rich can pay for their education, the middle class a sizable subsidy, and the poor even greater subsidization. I am not familiar enough with voucher programs, but I would imagine some of the programs resemble the above. Any one know for sure?

I don't belive in vouchers and have no children. Does that mean I can opt out of paying taxes that will be used for vouchers and since I have no kids does that mean I will no longer have to pay the portion of tax that goes to support education? How many billions would that pull out of the system if all the DINKS jumped on the band wagon? ;)

"How many billions would that pull out of the system if all the DINKS jumped on the band wagon?"

Don't know, but it would be less than if all the pacifists like me opted out of the portion of our taxes that goes to fund the military/defense industry.

As far as subsidized industries go, I think war stands more to lose from your course of action than school. Are you for privatization of the military?

"I am not familiar enough with voucher programs, but I would imagine some of the programs resemble the above."

Even if they do, there is a more basic question. If you are willing to subsidize poor children moving to private schools, why not be willing to directly subsidize existing schools that serve poor children? Why isn't it the same thing?

How do you guarantee that a private school that stays in the same location and serves the same kids will do the job better? The governance model has changed, but the challenges are the same. Crime, drugs, poverty, overworked parents...

To be for vouchers, you have to believe that a market approach is superior to a socio-democratic "school board" approach. One vote per dollar rather than one vote per parent. It does not suprise me that people here would think that, but it isn't self-evident. If you means-test vouchers, you are just mitigating the worst effects of the free-market model and making it look more like what we have now, where all parents who choose to vote equally on school governance.

I am confused with your last paragraph and the "one vote per dollar" thing. I proposed, as a partial remedy, actually giving the poor MORE than the rich. In a way this does more than the current system for equalizing access and quality.

Your first question is fair, but I think that is a source of why you're opposed, you don't believe they are necessarily better. Private schools are better on discipline, often have better teachers, and are generally more flexible with curriculum. State schools have a harder time firing incompetent or burnt out teachers, for example. Obviously, the role of competition plays a part in promoting quality. Do I need to elaborate?

There are problems, of course. Many complications could arise as this becomes more popular. Private schools do not have to serve the disabled, is one example. Are the disabled kids going to be left out on this one? I hope not, that's a real valid concern. But that is not without a legislative remedy.

This is a very complex problem, which will require a lot of tinkernig in years to come if these programs expand. But I hope we can agree on some level. Do you believe parents and students having a choice is a good thing (setting a side all the other factors)? If I could write a check for whatever one's education cost, would you be confident in the private sector delivering? And if not, why not?

>> "or choice isn't valued, then nothing is lost."

Yes it is...many parents value exclusion and those with the means will use the vouchers to take their kids across town. That further impoverishes existing schools

My full quote is: "if you are right and a voucher system saves nothing and private schools turn out not to be viable under the system, or choice isn't valued, then nothing is lost." I am saying that if nothing changes i.e. nobody moves from public schools, then nothing is lost. Read the response.

It is simply wrong to assert schools are automatically made poorer by vouchers. That depends on funding rules and the nature of costs. A school loses half its students but only 20% of its funding students may well be better off. I have already set out why this is a plausible outcome.

>>"Even if the collective action problem rears its head in poor neighborhoods (and why would it? Liquor stores and churches don't tell me much)"

Then maybe you should educate yourself about poor neighborhoods. Go drive around, count full service grocery stores, now do the same in your neighborhood. Now imagine living in the poor neighborhood WITHOUT a SUV, carring your groceries home 4 miles on the bus.

This is non-sequitur. Any of a number of reasons could explain lower density of full service grocery stores in poor areas, like cost or the nature of demand. Nothing you say here addresses the question of why a collective action problem is occurring in poor areas.

>>"How about a retired teacher who gets certified and decides to teach 5 kids in a dis-used classroom at the neighborhood school for some extra income?"

Who will be accountable when it turns out that the retired teacher is incompetent?

I did say "who gets certified". For goodness sake, read the response.

If the lone rugged individualist teacher takes a higher profit, then you've made education less efficient.

No Corey. Not if s/he produces equivalent results at lower overall cost after profit. Not if s/he produces better results for the same cost after profit. Not necessarily if s/he produces better results at a higher cost after profit.

Why is it, Corey, that when the extra money for public school teachers puts food on their kids' plates, but when it's a private teacher it's just profit? You are making up the rules to suit.

You would do well to just admit that you are concerned with accountability and that you trust market forces to bring it more than you trust democratically elected school boards.

I'll happily admit both. You use the pejorative term "market forces" to describe what is really giving poor parents the opportunity that wealthier parents have to move their kids away from under-performing schools and their boards. I trust parents' judgment.

That's the question this argument boils down to, democratic planning vs. market planning.

This is not an ideological question, but you are making it one. What is optimal can be largely decided by evidence and reason. You are ignoring this in favor of an unconditional preference for central planning. The evidence presented so far suggests that, in this particular case, central planning is not optimal.

By the way, I also decry centralization in public schools. You don't fight it by adopting an economic model that rewards consolidation

Vouchers clearly de-centralize decision-making by giving decision making rights to parents. Giving parents choice and the right to exit, in addition to voting rights, forces school boards to compete for the right to make decisions. This, by definition I believe, is de-centralization.

There are legitimate arguments with, and concerns about, vouchers - see Palooka's comment - but you, Corey, seem unwilling or unable to muster an argument, instead persisting with selective quoting and rhetorical devices.

...If you are willing to subsidize poor children moving to private schools, why not be willing to directly subsidize existing schools that serve poor children? Why isn't it the same thing?

It is the same thing. Existing schools get the subsidy should parents decide to put their kids there. Under the current system, choice for poor parents is limited to public schools. Under vouchers, choice can be extended to include private schools as well.

How do you guarantee that a private school that stays in the same location and serves the same kids will do the job better? The governance model has changed, but the challenges are the same. Crime, drugs, poverty, overworked parents...

Indeed. You guarantee it by giving parents - who, I assume, care more for their kids than anyone - the freedom to move elsewhere should the job be done better in other schools.

To be for vouchers, you have to believe that a market approach is superior to a socio-democratic "school board" approach.

School boards will continue to exist with vouchers. Democracy is enhanced by giving parents the right to vote as well as the opportunity to walk away.

One vote per dollar rather than one vote per parent. It does not suprise me that people here would think that, but it isn't self-evident. If you means-test vouchers, you are just mitigating the worst effects of the free-market model and making it look more like what we have now, where all parents who choose to vote equally on school governance.

Ideological clap trap. The existing system demonstrably works against the poor. It is disadvantaged kids who overwhelmingly end up in bad schools. The children of the wealthy end up in good schools because under the existing system a) only the wealthy have the opportunity to move, and b) despite receiving more expenditure per head than any other education system in the world, the public elementary and secondary education system is unable to provide anything like uniform quality.

The following passage, taken from "Say Anything" by Jim Holt in this week's New Yorker, is apt in view of Corey's extended commentary.

"The essence of bullshit, Frankfurt decides, is that it is produced without any concern for the truth. Bullshit needn't be false: "The bullshitter is faking things. But this does not mean that he necessarily gets them wrong." The bullshitter's fakery consists not in misrepresenting a state of affairs but in concealing his own indifference to the truth of what he says. The liar, by contrast, is concerned with the truth, in a perverse sort of fashion: he wants to lead us away from it. As Frankfurt sees it, the liar and the truthteller are playing on opposite sides of the same game, a game defined by the authority of truth. The bullshitter opts out of this game altogether. Unlike the liar and the truthteller, he is not guided in what he says by his beliefs about the way things are. And that, Frankfurt says, is what makes bullshit so dangerous: it unfits a person for telling the truth."

It's almost as if Frankfurt has our learned contributor in mind. :-)

"I did say "who gets certified". For goodness sake, read the response."

Certification exists now, and as you are quick to point out, schools end up with bad teachers anyway. Your bare assertion that private schools have an easier time identifying or firing bad teachers is nothing more than a bare assertion.
One might even call it a rhetorical device. :)

And as for reading the argument, what about the fact that I have been arguing since the first comment on this thread that vouchers can fail to provide choice to poor parents in economically unattractive areas. And you come back with:

"You guarantee it by giving parents - who, I assume, care more for their kids than anyone - the freedom to move elsewhere should the job be done better in other schools."

Two problems. Some parents don't care. Some parents can't move elsewhere even with a big voucher to use once they got there. Freedom is not freedom without a realistic possibility of acting on it.

"...central planning is not optimal."

I didn't say "central planning", I said "democratic planning" hoping to point out the democratic All-American nature of the local town school board. What was that about selective quoting and keeping the debate non-ideological?
What have you got against parents delegating responsibility for education to well-funded democratically elected school boards?

"but you, Corey, seem unwilling or unable to muster an argument, instead persisting with selective quoting and rhetorical devices."

Whatever ben, you are putting a lot of energy into debunking a supposed "non-argument" then. Everyone can scroll up and see what the person wrote, if you feel I misinterpreted your statement then by all means clarify, but don't accuse me of fraud and BS. You don't know me at all, and it is presumptuous and malicious to publically speculate that I do not care about the issues I advocate for. I assume that you are arguing from deeply held belief and understanding, please do me the same courtesy if you can.

I assume from the dearth of third party input into this "debate" that it has exceeded the mandate of the forum. I wish you well in your endeavors.

"I am confused with your last paragraph and the "one vote per dollar" thing. I proposed, as a partial remedy, actually giving the poor MORE than the rich. In a way this does more than the current system for equalizing access and quality."

To clarify... I would agree with you, except that I pessimistically do not believe that giving dollars to parents in poor areas will work to equalize access or quality. In the same way that giving out WIC vouchers in Watts does not make a Ralph's Supercenter appear to provide quality organic produce. Perhaps you could hand out enough WIC vouchers to do that, though I still wonder how the actual inducement would occur. When I lived in central LA it wasn't happening, there were 25,000 college students but we had to drive 30 minutes to get good meat or produce, that is once my friend got a car, before that I ate hot-pockets and ramen.

My experience does not match up to your (or ben's) optimism about choice. I cannot provide data to prove that those markets won't get served, any more than you can provide proof that they will. Consequently, I would prefer to direct subsidies to existing public schools in the area, and find a less radical solution to the accountability issue.

Response to Blaine Amendment /incorporation of establishment clause/Akhil Amar question:

I looked, and Amar's argument is essentially this: 1) people propose redundant legislation all the time, 2) some of the Blaine amendment's proponents conceded that the 14th Am. already worked by incorporation to disestablish state churches, 3) the Blaine amendment was proposed (and failed to pass) after the 14th was ratified, so the views of that later Congress are not terribly relevant (also Blaine was a package deal, including more than the redundant clause), and 4) the anti-Reconstructionist packed Supreme Court had already set back the incorporation of the bill of rights by gutting the privileges & immunities clause in the Slaughterhouse Cases before the proposal of the Blaine amendment.

Amar goes into some detail about the views of John Bingham, 14th Am. sec. 1's principal drafter, who openly stated numerous times, with a chorus of support from other Congressmen, that he was proposing his amendment to overrule Barron v. Baltimore. As I said, Amar's book may be wrong, but it should be enough to shift the burden of proof to the anti-incorporationists.

None of this is to dispute that there are good reasons independent of history and original intent to use the 14th Amendment to incorporate the Bill of Rights.

PALOOKA: "If a voucher only is a fraction of the cost the public spends on the child in public school, and is also only a fraction of the cost of a private school, then I see real problems ahead, and a high probability of the regressive potential of such a system, which I believe is Corey's concern."

The important phrase clause here is "which I believe is Corey's concern." Note that Corey did not make the argument made above so effortlessly by Palooka. Instead, Corey made a number of other arguments that have been rightly pointed out as founded on fallacies and decorated with childish rhetorical flourishes. He also impugned the motives and backgrounds of his opponents and refused to engage them once they repudiated his ad hominems and pressed onward to reveal the incohorence of his claims. At no point in time did he write "Where a voucher is a fraction of the cost of what the public system spends on a student and the voucher is also only a fraction of the cost of a private school's tuition..." Moreover, Palooka, while I think the distinction you made is correct, Corey did not make such a distinction when he had the opportunity to do so. The perfect time to make such a distinction would have been in reply to my claim that "The purchasing power of a school voucher typically corresponds to the per capita spending a given child would receive within the public school system." Instead of doing so, Corey made a silly and juvenile go at misquoting me. It is more likely that he did not make the distinction because his argument is not the one that Palooka has just made. Palooka made a sound argument; Corey would not recognize a sound argument if it screamed in his ear. Thus, I must disagree with Palooka: Corey's argument (in contrast to Palooka's reconstruction of it) is without merit.

"Thus, I must disagree with Palooka: Corey's argument (in contrast to Palooka's reconstruction of it) is without merit."

That's a long long way to go to discredit me! Its kind of silly really. I am a law student posting populist commentary to a blog full of people who violently disagree with me. You've got a nobel prize winner and an appeals court judge you could be addressing here instead of me.

I believe earlier in this thread you "concluded" out of spite that I was a racist sexist marxist? Am I wrong in feeling that you are the same person that has been making similar attacks for several weeks?

What course of action would you suggest for me? Should I bow before your relentless ability to deconstruct form rather than understand meaning?
What is it that you want?

"Corey did not make such a distinction when he had the opportunity to do so."

Do you want me to write more? I feel like I am repeating myself and I have already put in 18KB of text this week on an aside in Posner's original post. I feel like I have written too much already. I'll tell you what, I'll give you the last word... :)