Last month, University of Chicago law professor Richard Epstein penned a provocative Wall Street Journal op-ed showing how both the conservative and liberal blocs on the Roberts Supreme Court inconsistently apply basic Constitutional principles in support of their own policy preferences.

Specifically, he examined when the justices find it appropriate to defer to the judgment of executive branch officials in reading the meaning of vague statutes. In one high-profile case (about special military tribunals), conservatives deferred to the president's discretion over foreign affairs, while the liberals weighed in with their own interpretation of the relevant statute. On another high-profile case (about protection of the wetlands), liberals deferred to the expertise of the Army Corps of Engineers, while the conservatives weighed in with their own interpretation of the relevant statute.

How did the two sides determine when it was appropriate to defer to the executive branch's judgment? Epstein argues it wasn't a matter of high principle, but of ideology. Both cases, he suggested, show that conservatives trust the president and military while liberals trust bureaucrats and regulatory agencies.

This interest-driven inconsistency with respect to core principles is also readily apparent in today's education policy debates. Here the challenge is not so much vague statutes as vague research--with people embracing quite different standards depending on the issue.

Take charter schools, the topic du jour thanks to a controversial new analysis of NAEP data from the National Center for Education Statistics (read the report here). What research evidence is required in order to justify charters' continuation and expansion? There are several possibilities:

  • They do no harm. This minimal standard was offered up by NCES Commissioner Mark Schneider, who said of charter schools, "We know they are not doing harm, so they pass a fundamental test of policy analysis."

  • Some do significant good. What if charters on the whole don't prove much better than traditional public schools yet a handful of them are among the best urban public schools in the country? As Washington Post reporters Lori Montgomery and Jay Mathews explain in a recent article about the District of Columbia, "Hidden behind the averages are individual charters that range from excellent to incompetent." Are a few excellent schools enough to justify the rest?

  • Through competition, they improve the whole system. The same Post article raises the question of whether the D.C.  Public Schools (DCPS) will respond to charter-driven market forces by getting better. One charter parent summarizes the tough-love approach well: "Don't punish the charter schools because our children have an option. If you don't like to see thousands of students leaving DCPS, then do something."

  • Rigorous studies show them to succeed at scale. This is the toughest standard, requiring charters on the whole to "prove" themselves worthy. (Of course, charter supporters point out that this week's NCES study doesn't count as "rigorous," given that it relied on old data; only looked at one snapshot in time; used faulty "free lunch" data as a proxy for poverty; etc.)

Which of these principles should be applied? Not surprisingly, charter opponents would pick the last and most stringent. AFT president Edward McElroy said, for example, that the NCES report "provides further evidence against unchecked expansion of the charter school experiment."

Most charter-friendly reformers, on the other hand, are content with some mix of the first three: as long as the charter system is doing no harm (while satisfying parents), pushing the traditional public schools to improve, and giving rise to some exceptional schools, it deserves support.

But flip the issue and watch what happens. Take universal preschool--which the AFT and most of the education establishment adore. Do they base their support on rigorous studies showing preschool succeeding at scale? Heavens no. Those studies (mostly of Head Start) show that typical pre-K programs confer scant benefit on poor children over the long term.

But reformers are inconsistent, too. After all, a handful of preschool programs (Perry Preschool and the Chicago Child-Parent Center are most famous) have been shown to be successful at boosting the academic performance and life chances of their students. (You might consider them the "KIPP" and "Amistad Academy" of the pre-K world.) Yet for many reformers (at least on the right), these exceptions are not enough to justify an expansion of publicly-funded preschool--though high-flying charters are enough to justify the expansion of the charter movement.

There are plenty of other examples. Ed schools pick on Teach for America because no one has ever proven beyond a shadow of a doubt that alternative certification is more effective; conservatives decry "small schools" for much the same reason, though they are popular with parents.

Perhaps consistency is too much to expect. (How did Emerson put it? A "foolish consistency is the hobgoblin of little minds.") If Supreme Court justices don't hew to constant principles, how can we expect policy advocates to do so? How about agreeing that ideology is not a dirty word? Instead of dressing up arguments with talk about what "the research says," advocates could just be honest about their preferences and gripes. The AFT could simply admit, "We want more money and more classrooms and we don't like non-union schools--they are bad for our members." Conservatives could simply declare, "We don't like turning over little kids to union members--and universalizing high-quality preschool programs would cost the earth." Then, possibly, researchers could go back to searching for knowledge and truth rather than supplying ammunition in the war of ideas.

"Trust Busters on the Supreme Court," by Richard Epstein, Wall Street Journal, July 12, 2006 (subscription required)

"Study of Test Scores Finds Charter Schools Lagging," by Diane Jean Schemo, New York Times, August 23, 2006

"The Future of D.C. Public Schools: Traditional or Charter Education?" by Lori Montgomery and Jay Mathews, Washington Post, August 22, 2006

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