a democratic framework for educational rights

7

A DEMOCRATIC FRAMEWORK FOR EDUCATIONAL RIGHTS

Anne Newman

School of EducationStanford University

Abstract. Educational theorists frequently invoke rights claims to express their views abouteducational justice and authority. But the unyielding nature of rights claims presents a significantquandary in democratic contexts, given the tension between rights claims and majoritarian democracy.Educational theorists have given limited attention to this tension, while political theorists tend tosideline education in their analyses. In this essay Anne Newman addresses this gap by advancing ademocratic rationale for educational rights. Newman’s purpose is to provide a framework for advancingeducational rights that protects these rights from the whims of majoritarian politics. Her centralargument is that the importance of educational rights warrants giving democratic bodies far lessdeference than they are typically accorded. Yet the assertion of a right to a quality education, Newmanemphasizes, should not be viewed as an undue constraint on democratic authority but rather is consistentwith and required by the values that underlie democracy.

Educational theorists commonly express their views about educational justiceand authority in terms of rights. This is especially true of analysis that addressesthe competing interests of parents, students, and the state, where appeals torights are practically ubiquitous. The prevalence of rights discourse in educationalphilosophy is understandable considering its theoretical advantages. Rights claimsadd a certain gravitas to one’s arguments: they assert the normative priority ofone’s views, which can undercut competing claims that are not conveyed in suchforceful language. The unyielding nature of rights claims, however, presents asignificant quandary in democratic contexts. What should we do when rightsclaims conflict with the majority’s will? Theorists who argue that students havea right to a certain type of education have focused a great deal of attention onthe conflicts this right may prompt between individual stakeholders (for example,between parents and children in the context of religious schooling).1 Yet far lesshas been said about the broader tension that exists between educational rightsclaims and majoritarian democracy. This tension is evident in the underlyingquestion: What should be done when majoritarian decisions about educationalpolicy flout some students’ right to high-quality educational opportunities?

Many accounts of educational rights seem to sideline this tension or tounderestimate the difficulty of resolving it. On the one hand, educational theoristsfocused on issues of distributive justice describe students’ entitlements to aparticular sort of education (for example, to an equal or adequate education) anddefend specific allocative principles (such as merit, utility, or need) for educationalresources. Yet this analysis often says little about the democratic question athand — that is, whether the entitlements that theorists defend should trumpmajoritarian opposition or give way to it. On the other hand, theorists who

1. For example, see James G. Dwyer, Religious Schools v. Children’s Rights (Ithaca, New York: CornellUniversity Press, 1998).

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examine the scope of democratic authority over educational policy tackle thisquestion more directly. But their analysis often seems overly sanguine about thelikelihood that democratic bodies will protect the rights of all students, and thusdoes not grapple much with the tension between rights and democratic rule. Inshort, many accounts of students’ rights do not take a firm stand on how to managethe inevitable disagreement about these rights in democratic contexts.

This ambiguity about the strength of educational rights can be traced backto what is ‘‘perhaps the outstanding philosophical dilemma of American politicaltheory,’’ which is the tension between justice and majoritarian democracy, or putanother way, between rights and popular will.2 This tension raises some of themost vexing questions that have engaged political theorists. What is the value ofdemocratic decision making, given that its outcomes may not protect the interestsof all citizens? And should democratic authority be limited to ensure just policyoutcomes? Political theorists have dedicated a great deal of attention to thesequestions, with several recent books that propose fresh ways to square particulartypes of rights with democratic rule.3 But they have been practically silent abouteducation in their analysis, focusing instead on how other welfare goods (forexample, basic income and employment) may fit into a democratic framework.

Putting this together, educational theorists have given limited attention tothe democratic problem that rights claims present, while political theorists havelargely sidelined education in their analysis of this problem. In this article I addressthis gap by advancing a democratic rationale for educational rights. My purposeis to provide a framework for advancing educational rights that protects theserights from the whims of majoritarian politics. To be sure, not all conceptionsof democracy center on majoritarian rule, and many egalitarian theorists havecriticized such a narrow view of collective decision making for its lack of concernfor justice.4 I recognize and endorse this line of criticism. Yet in framing myanalysis, I focus on majoritarian conceptions of democracy both because of theirprominence in policymaking, and because of the foundational tension they raisebetween rights and popular will that is often neglected in discussions of educationalrights.

2. Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (NewYork: W.W. Norton, 1999), 131 (emphasis added).

3. See Corey Brettschneider, Democratic Rights: The Substance of Self-Government (Princeton, NewJersey: Princeton University Press, 2007), which I discuss in subsequent sections. This work will becited in the text as DR for all subsequent references. See also Thomas Christiano, The Constitution ofEquality: Democratic Authority and Its Limits (Oxford: Oxford University Press, 2008).

4. This criticism of majoritarian democracy motivates many conceptions of deliberative democracy;see, for example, Amy Gutmann, ‘‘Deliberative Democracy and Majority Rule: Reply to Waldron,’’ inDeliberative Democracy and Human Rights, ed. Harold Hongju Koh and Ronald C. Slye (New Haven,Connecticut: Yale University Press, 1999).

ANNE NEWMAN is presently a Lecturer at Stanford University’s School of Education and previouslytaught at Washington University in St. Louis; e-mail [email protected]. Her research and teachingfocus on educational philosophy, policy, and politics.

Newman A Democratic Framework for Educational Rights 9

My central argument is that the importance of educational rights warrantsgiving democratic bodies far less deference than they are typically accorded. Yetthe assertion of a right to a quality education, I emphasize, should not be viewedas an undue constraint on democratic authority; rather, it is consistent with andrequired by the values that underlie democracy. The advantage of this frameworkis that it does not ground rights in a comprehensive view of justice or equality,which citizens could reasonably reject in a pluralistic society.

In the analysis that follows I do not argue for educational rights of aparticular sort, which other essays in this symposium cover. Instead I offer amore general framework for reconciling educational rights claims with collectivedecision making. My analysis proceeds in three sections. I begin by describingthe general tension between rights and democratic rule, and I elaborate upon theneed for a democratic account of educational rights given the gap in literaturepreviously noted. In section two I bring together insights from democratic theoryand educational theory to frame educational rights as entitlements that limitdemocratic authority, but in a way that legitimates rather than undermines it. Iconclude in section three with a brief discussion of how this framing can helpdiffuse concerns about ‘‘rights talk’’ and the loss of local control in two contestedareas of educational policy in the United States: school finance reform and nationalcurricular standards.

The Rights versus Democracy Tension:What about Educational Entitlements?

The tension between rights and majoritarian democracy can be understoodthrough the view that citizens in democratic states are both ‘‘authors’’ and‘‘addressees’’ of law — two roles that do not always fit together well.5 As authorsof law, citizens in a democracy collectively have the authority to determine thelegislation by which they live. As addressees of law, citizens are entitled to betreated fairly by the rules they are expected to follow. But what happens when ademocratic majority makes policy decisions that fail to treat all citizens justly?Should citizens’ rights as addressees of law take priority over citizens’ authorityas authors of law, or vice versa? Whose rights should trump when these interestsand roles are at odds, and why?

The range of possible answers to these questions gets to the core of competingbeliefs about the nature and scope of democratic authority. On one end ofthe spectrum, procedural democrats take majority rule to be democracy’s coreprinciple. As they see it, democracy’s main goal is to ensure that individuals havean equal chance to advance their interests. Once this is achieved, then whateveroutcomes result from collective decision making are legitimate. On the other endof the spectrum, liberal constitutionalists insist that democracy requires concernfor whether the outcomes of collective decision making are just, above and beyond

5. These terms come from Jurgen Habermas; I draw upon Brettschneider’s analysis of Habermas (seeDR, 28–38).


concern for a fair decision-making process. They argue that democratic decisionsshould not be honored if they are unjust, however wide their margin of support.6

The tension between these two views of democracy is especially significantin the educational arena since many policy decisions are made by popular voteat the state or local level. And as actual policy outcomes remind us, majoritariandecisions are often at odds with the interests of some students. One clear exampleis the ballot initiatives in California and Michigan that banned affirmative actionat public universities, and thus have limited underrepresented students’ access tohigher education.7 The tension between democratic procedures and just outcomesis also apparent in the more regular decisions voters face about whether to supportschool bond measures — a tension that can be especially pronounced in commu-nities with a growing population of elderly residents.8 In these cases, majoritariandecisions significantly affect students’ access to educational opportunities and thequality of those opportunities. Given the high stakes involved, should populardecisions be respected, whatever their consequences? In this section, I considerhow political and educational theorists have responded to this question.

The Gap in Political Theory

Political theorists who argue that popular decisions should not beunconditionally accepted often appeal to individual rights to limit democraticauthority. But this response is difficult to justify if it means that rights proponentshave to demonstrate that the principles they invoke to limit democratic authorityare more important than democracy itself, when democracy is understood as amajoritarian process (DR, 18–19). To be sure, many (and, I would argue, trulydefensible) conceptions of democracy do not reduce democracy to majoritarianrule and do incorporate a more substantive view of justice. Nonetheless, theview that democracy centers on majoritarian rule and thus is distinct from andin tension with rights is widespread in political theory. This is because manytheorists understand democracy only in terms of procedures for collective decisionmaking, while rights are viewed as rooted in principles of justice that are procedure-independent (DR, 7–8). On this view, then, rights theorists face the challenge ofdemonstrating that their claims should trump democratic procedures.

In recognition of this challenge, some political theorists have been keento demonstrate that the rights they advocate cohere with rather than oppose

6. For a classic (though extreme) statement of the procedural view of democracy, see Joseph Schumpeter,Capitalism, Socialism, and Democracy (New York: Harper, 1947). For an example of the outcome-oriented (or epistemic) view, see David Estlund, Democratic Authority: A Philosophical Framework(Princeton, New Jersey: Princeton University Press, 2008).

7. For critical analysis of the ballot initiative process in this context, see Michele S. Moses andLauren P. Saenz, ‘‘Hijacking Education Policy Decisions: The Case of Affirmative Action,’’ HarvardEducational Review 78, no. 2 (2008): 289–310. For a study of the impact of California Proposition 209on the applicant pool and student body in the University of California system, see Frances E. Contreras,‘‘The Reconstruction of Merit Post-Proposition 209,’’ Educational Policy 19, no. 2 (2005): 371–395.

8. See Michael B. Berkman and Eric Plutzer, ‘‘Gray Peril or Loyal Support? The Effects of the Elderly onEducational Expenditures,’’ Social Science Quarterly 85, no. 5 (2004): 1178–1192.


core democratic principles. If such arguments go through, then the tensionbetween democracy and particular rights is substantially mitigated. In this vein,Corey Brettschneider advances his ‘‘value theory of democracy,’’ which recastscertain rights as internal to democracy rather than as external constraints on it(see DR).

In the next section, I consider in greater detail the contours of such argumentsand how they can be extended to educational entitlements. What I want tohighlight about these arguments for now is that when political theorists considerthe scope of democratic rights, they typically do not say much, if anything, abouteducation. Brettschneider focuses on other welfare rights, including the right toa job and to basic income. Despite his concern for equal citizenship, he does notaddress education as a right that can be squared with democratic rule. Withinacademic philosophy, the literature on welfare rights also says very little abouteducation compared to its focus on how goods such as income and health care cancontribute to citizens’ equal status and well-being.9

Significant work by political theorists to reconcile rights with democraticrule, then, has largely sidelined concern for education. Educational theorists have,of course, been more attentive to educational entitlements, but they have oftenignored or underestimated the gravity of the rights-democracy tension.

The Gap in Educational Theory

As noted in the introduction, normative claims about educational rights areprevalent in analysis of what educational justice entails and who should haveauthority over children’s education. Conceptions of students’ entitlements areunderdetermined in a critical way, however, when they ignore or underestimatethe tension between such claims and democratic decision making. There is boundto be deep and persistent disagreement about the scope and content of educationalrights. This disagreement is endemic to any liberal democracy that does not imposea comprehensive view of the good, and it is evident in ongoing political debatesabout what students should learn (for example, evolution, or creationism, or both)and how to allocate scarce resources. Conceptions of educational rights that donot adequately account for this disagreement provide an incomplete view of theforce of rights in democratic settings, and therefore leave those rights vulnerableto the sway of majoritarian politics.

Consider normative claims about what constitutes educational justice.Educational theorists advance different ideas about the requirements of justice, in-cluding whether it demands an equal or adequate level of resources for students,whether merit should have a role in the distribution of educational opportunity,

9. On basic income, see Carole Pateman, ‘‘Freedom and Democratization: Why Basic Income Is to BePreferred to Basic Capital,’’ in The Ethics of Stakeholding, ed. Keith Dowding, Jurgen De Wispelaere,and Stuart White (New York: Palgrave Macmillan, 2003); and Philippe Van Parijs, ‘‘Why Surfers ShouldBe Fed: The Liberal Case for an Unconditional Basic Income,’’ Philosophy and Public Affairs 20, no. 2(1991): 101–103. For entitlements to health care, see Norman Daniels, Just Health Care (Cambridge:Cambridge University Press, 1985).


and whether private schools and other types of parental partiality are justified.10

Yet when theorists make claims about the scope of students’ entitlements, theytend not to say much about the strength of those claims against majoritarianopposition. For example, take the debate about whether students are entitledto an adequate or an equal education. Theorists typically side with one or theother view but do so without considering the influence that popular opinionshould or should not have in settling this debate. Harry Brighouse and AdamSwift, among others, compellingly argue that adequacy provides too thin a view ofwhat educational justice entails.11 Yet their defense of equity does not explicitlyprotect their view from majoritarian opposition on behalf of adequacy. Conversely,proponents of adequacy, such as Elizabeth Anderson and Debra Satz, who findfault in the equity framework (for example, that it is rooted in the politics of envy,encourages leveling down, and curtails parental liberty) do not offer a response tothe (admittedly improbable) possibility that a democratic majority might chooseequity over adequacy.12

Presumably advocates on both sides of the equity-adequacy debate wouldnot yield to majoritarian opposition simply because most citizens oppose theirposition. After all, they advance their preferred conception of educational justiceas a normative requirement. But without a defense of the priority of their viewagainst democratic preferences to the contrary, we are left without a clear rationalefor why their view should trump popular opinion. It could be argued that such arationale is implicit in accounts of what educational justice requires. But defendingequity against adequacy (or vice versa) is not the same as defending one’s viewagainst majoritarian dissent. Different reasons — democratic reasons — should bemarshaled to square students’ entitlements with democratic rule. Without suchreasons, conceptions of educational justice fail to give citizens their due as authorsof law. This is not to deny the indefeasibility of educational rights and howwrongheaded majoritarian decisions may be. There are certainly sound reasons forinsisting upon the priority of these rights against majoritarian dissent, as I describein the next section. But these reasons should be offered in democratic terms ifrights claims are to have the most traction against majoritarian dissent, which isarguably the greatest political obstacle they face.

Theorists who take up questions about educational authority are more likelyto attend to the rights-democracy tension. But in doing so, they often seemoverly sanguine about the inclination of democratic majorities to do justice byall students. This optimism then leads them to dismiss too quickly the tension

10. For analysis of the multiple and competing interpretations of equality of educational opportunity,see Christopher Jencks, ‘‘Whom Must We Treat Equally for Educational Opportunity to Be Equal?’’Ethics 98, no. 3 (1988): 518–533.

11. Harry Brighouse and Adam Swift, ‘‘Educational Equality versus Educational Adequacy: A Critiqueof Anderson and Satz,’’ Journal of Applied Philosophy 26, no. 2 (2009): 117–127.

12. See Elizabeth Anderson, ‘‘Rethinking Equality of Opportunity: Comment on Adam Swift’s HowNot to Be a Hypocrite,’’ Theory and Research in Education 2, no. 2 (2004): 99–110; and Debra Satz,‘‘Equality, Adequacy and Education for Citizenship,’’ Ethics 117, no. 4 (2007): 623–648.


between rights and democratic rule. This is particularly evident in some scholars’great enthusiasm about deliberative democracy, which seems to rest on theassumption that public deliberations will yield educational policy that advancesthe common good.13 It is also reflected in parts of Amy Gutmann’s influentialbook, Democratic Education. Gutmann argues that all students are entitled toan education that adequately prepares them for political participation, and sherightly insists that this entitlement cannot be usurped by democratic bodies. Her‘‘democratic threshold principle’’ seems to protect firmly students’ right to anadequate education. But Gutmann’s proposal for how this adequacy thresholdshould be established potentially weakens the force of students’ entitlements.This is because she looks to democratic bodies to set this threshold: ‘‘Sinceeducational adequacy is relative and dependent on the particular social context,the best way of determining what adequacy practically entails may be a democraticdecision-making process that follows upon public debate and deliberation.’’14

To be sure, what counts as an adequate education must vary with one’s socialand political context. But Gutmann’s assumption that democratic bodies are, onbalance, well-suited to set a fair adequacy threshold seems to underestimatethe tension between democratic decision making and just, or even merelyacceptable, outcomes in actual political settings. Randall Curren’s objectionto Gutmann’s position underscores the potential problem here, theoreticallyspeaking: ‘‘Majoritarian deliberations about the setting of this threshold would besuspect in the same way that such deliberations regarding encumbrance of minorityvoting rights would be.’’15 Ian Shapiro additionally calls attention to how theinterests of less powerful citizens are likely to be neglected in collective decisionmaking with the example of how citizens in Connecticut defeated a statewide planthat would have reduced segregation in public schools.16 Gutmann’s optimismthat democratic bodies are well-suited to determine the adequacy threshold foreducation does not dispel the possibility — arguably, the empirical reality — thatmajorities can and do inflict grave injustices upon certain students. As a resultof this optimism about the beneficence of democratic bodies, Gutmann does notaddress in sufficient detail the rights-democracy tension as it bears on decidingwhat educational adequacy entails.

I have highlighted how political theorists have neglected educationalentitlements in their analysis of the rights-democracy tension, and proposedthat educational theorists have not given this tension enough consideration in

13. I elaborate upon this point in Anne Newman, ‘‘All Together Now? Some Egalitarian Concerns aboutDeliberation and Education Policy-Making,’’ Theory and Research in Education 7, no. 1 (2009): 65–87.

14. Amy Gutmann, Democratic Education (Princeton, New Jersey: Princeton University Press,1999), 137.

15. Randall Curren, Aristotle on the Necessity of Public Education (Lanham, Maryland: Rowman andLittlefield, 2000), 191.

16. Ian Shapiro, ‘‘Enough of Deliberation: Politics Is about Interests and Power,’’ in Deliberative Politics:Essays on Democracy and Disagreement, ed. Stephen Macedo (New York: Oxford University Press,1999), 34.


their analysis of educational justice. As a result, neither line of analysis provides asufficiently robust defense of educational rights in a democratic context. But whydoes this gap in thinking about educational rights matter? After all, some politicaltheorists argue that theories of justice should be developed apart from theoriesof democracy.17 Why not be content with this division of labor in educationalphilosophy, whereby one line of analysis takes up the requirements of educationaljustice while another focuses on how educational authority should be divided?

There are sound reasons to resist this division of labor in political theory. AsAmy Gutmann and Dennis Thompson argue, since democratic politics entailsdisagreements about substantive and procedural principles, we are likely toend up with a distorted view of both democracy and justice if we insist upontheir separate treatment.18 Moreover, this division of labor seems especiallyunpromising in the educational arena. The task of determining what educationaljustice requires cannot be neatly separated from deciding who has a say inhow these determinations are made because conceptions of educational justiceare deeply informed by whose voices they represent (or exclude). In addition,educational authority is itself a good to be allocated as a matter of justice, giventhe high stakes involved for students, parents, and the democratic state.

A more complete picture of educational rights, then, should account for thetension between rights and democratic authority and be clear about whether andwhy rights claims should trump or defer to that authority. To this end, I nextconsider how educational rights can be framed as democratic entitlements.

A Democratic Framework for Educational Rights

To advance a democratic rationale for educational rights, I bring togetherinsights from political and educational theory. I begin by looking to how politicaltheorists have reconciled rights claims with democratic authority. Recall that thechallenge here is to upend the view that rights and democracy are fundamentally atodds by demonstrating that particular rights are central or internal to democraticrule. To this end, Brettschneider’s recent work on this problem advances a novelview of the link between democracy and rights. I focus on his theory to see howit might be extended to educational entitlements. My discussion of his importantwork is necessarily limited to serving the instrumental purpose of framing educa-tional rights in democratic terms. I therefore set aside certain details of his analysis,as well as competing conceptions of how democracy and rights can be reconciled, inorder to concentrate on the implications of his framework for educational rights.19

17. Amy Gutmann and Dennis Thompson discuss this view and offer a compelling rebuttal to it.See Amy Gutmann and Dennis Thompson, Why Deliberative Democracy? (Princeton, New Jersey:Princeton University Press, 2004), 108 and 192n22.

18. Ibid., 108.

19. Thomas Christiano’s The Constitution of Equality offers a different view of the common groundbetween rights and democratic rule. For a discussion of the differences between Brettschneider’s andChristiano’s views, see the recent book review exchange between them in Journal of Politics 71, no. 4(2009): 1593–1597.


Borrowing from Political Theory on Welfare Rights

Brettschneider’s central goal is to forge a link between rights and democracy,which he accomplishes by reframing certain individual entitlements as internalto democratic norms. As he puts it, ‘‘As an alternative to the notion that rights areconceptually distinct from democracy, I attempt to recast the idea of substantiverights as an aspect of the democratic ideal’’ (DR, 9). To this end, Brettschneiderargues that democracy centers on three core values: equality of interests, politicalautonomy, and reciprocity. These values not only define democracy but also giverise to substantive rights that prevent undemocratic outcomes. By reframing therights that flow from democracy’s core values as part of democracy instead of asconstraints on it, Brettschneider can defend particular rights without having todemonstrate that they are more important than democracy itself. His account ofdemocracy is therefore neither wholly procedural nor focused only on outcomes.It aims to balance concern for just policies with respect for democratic authority,and this balance pivots on the rights that Brettschneider advances to ensure thatcollective decisions do not undermine citizens’ equal status (DR, 19–22). Sincethese rights are grounded in values that are internal to democracy, they legitimaterather than undercut democratic authority.

Brettschneider extends this model beyond negative rights to the case of welfarerights to a job, to in-kind resources, and to basic income. His argument challengesthe libertarian view that negative rights to be free from state interference withrespect to property ownership are fundamentally at odds with positive rights towelfare goods. He reconciles these two types of rights by arguing that if the statesupports private property, then it must provide basic welfare goods to all citizens.This is because property rights require state coercion to enforce; if this coercion isto be democratically legitimate, he argues, then it must be publicly justified. Andthe best way to justify private property to the least well-off citizens is to ensure thattheir basic material needs are met (DR, 119–135). Without welfare entitlements,the least well-off citizens would have little reason to condone the state coercionthat protects private property for exclusive use. Nor would they be able to partic-ipate in democratic decision making on equal footing since ‘‘rights fulfilling thevalues of autonomy and equality are worthless for the starving and homeless’’ (DR,128). Welfare entitlements ensure that the symptoms of poverty do not underminecitizens’ meaningful exercise of liberal and democratic rights, and they can justifyprivate property to nonowners. In sum, welfare rights, according to Brettschneider,help realize the three core values of democracy in a property-owning society.

What I want to draw out from this brief review of Brettschneider’s analysis arethe types of reasons he offers to square welfare rights with democratic authority.These reasons have important implications for thinking about educational rights,whether or not one accepts Brettschneider’s arguments about justifying privateproperty by means of welfare entitlements. Most importantly, the reasons heoffers are not rooted in values that are external to democracy, such as a compre-hensive view of justice or equality. Instead he focuses on how the same valuesthat undergird democratic authority underwrite substantive rights as well. This


theoretical move enables him to strike an important balance between compet-ing conceptions of democracy and rights. By rooting rights in democratic values,Brettschneider can defend them without relying upon contested conceptions ofjustice. This gives rights more solid footing in a pluralistic society. At the sametime, by advocating certain rights Brettschneider also rejects an ‘‘anything goes’’majoritarian approach to collective decision making. This ensures that the out-comes of collective decision making will not undermine citizens’ equal status. AsBrettschneider puts it, this view of democracy and rights best respects citizens’status as self-rulers ‘‘by honoring the right of citizens to participate in democraticprocedures and by limiting those policy outcomes that would fail to respectcitizens as rulers’’ (DR, 27).

Yet as I noted earlier, this account of democratic rights gives little attentionto education and thus largely ignores the developmental and educational demandsof citizenship. The democratic case for educational rights, however, clearly flowsfrom the reasons that Brettschneider offers on behalf of other welfare rights. In thefinal part of this section, I draw upon accounts of civic education from educationaltheory to highlight how educational entitlements cohere with Brettschneider’sjustification for welfare rights. My main purpose in bringing together thesetwo strands of theory — democratic and educational theory — is to provide aframework for educational rights that has traction in pluralistic, democraticsettings, where disagreement is inevitable.

Extending the Model to Education

Educational theorists have focused a great deal of attention on articulatingthe proper scope and content of civic education in a liberal democracy. I drawupon a small part of this literature to show how the democratic case for rightshighlighted in the preceding section also justifies educational entitlements. Iextend Brettschneider’s framework by focusing on how his core democraticprinciples of equality of interests, political autonomy, and reciprocity underwriteeducational rights in addition to the welfare rights he explicitly endorses.

Brettschneider’s view of equality of interests requires that ‘‘all reasonableinterests of citizens be respected as having equal weight.’’20 This bears on both theprocess and outcomes of democratic decision making. It means that citizens mustbe treated equally in the democratic process and that the outcomes of that processmust reflect the equal consideration that citizens’ interests deserve. To be sure, theright to welfare that Brettschneider defends in terms of basic income, employment,and in-kind resources goes some distance toward ensuring that no one is shut outfrom the democratic process by material deprivation. But the cognitive demandsof participatory citizenship additionally necessitate educational entitlements in

20. It is worth noting that Brettschneider acknowledges that the principles that constitute his valuetheory of democracy, including equality of interests, could be supported by other political ideals that arenot necessarily democratic (DR, 23). For example, John Rawls’s political conception of justice safeguardsthe interests of reasonable citizens and their entitlements to certain primary goods from a nondemocraticperspective. My thanks to Lucas Swaine for calling my attention to the connection to Rawls’s view here.


order to ensure equality in collective decision making — especially in conditionsof deep diversity. And ensuring that individuals have an equal opportunity toadvance their interests in a pluralistic state is principally an educational task,even though Brettschneider does not present it as such.

Educational theorists attend to this task in part by promoting a civic educationthat cultivates mutual understanding among individuals. The political functionof this understanding, Amy Gutmann underscores, is to ensure toleration ofdissenting viewpoints and respect for different ways of life.21 Meira Levinsonsimilarly advocates a civic education that, among other goals, reduces prejudiceand fosters toleration.22 Indeed, the central motivation behind the vast literatureon civic education is that civic skills and virtues such as toleration requirecultivation. As Eamonn Callan emphasizes,

virtues and skills in their most refined forms are the fruit of an educational process in whichwe exercise them as more primitive habits, becoming ever more adept and discerning as wepractise, reflect, and practise again. . . . Call this the dialogical task of common education. Thecommon school is an obvious way of creating the necessary context for this task prior toassuming the duties of citizenship.23

Without such an education, citizens’ bias or outright prejudice can quickly andcompletely undermine the ideal that all reasonable interests should be given equalconsideration in the democratic process. Although Brettschneider does not takeup the issue of toleration and respect directly in his account of what equalityof interests entails, it follows from his view that ‘‘in a legitimate democracy . . .

all citizens are treated as having equal interests’’ (DR, 24). Brettschneider brieflynotes that the principle of equality of interests clearly rules out John StuartMill’s proposal to give those with more education more voting power (DR, 23).24

But Brettschneider does not explore the important corollary here — that is, howeducation can help ensure that all individuals’ interests do get equal considerationin the democratic process by cultivating citizens’ disposition to treat each otheras civic equals in the give-and-take of collective decision making. As educationaltheorists rightly emphasize, individuals need to be taught democratic skills sincewe cannot ‘‘assume that children are born ready for rational deliberation’’ thatfosters mutual understanding and enables citizens to manage their differences.25

Educational entitlements, then, can be seen as democratic rights since they bothfacilitate equal access to the democratic process and improve the quality of thatprocess and its outcomes.26

21. Gutmann, Democratic Education, 50–51.

22. Meira Levinson, The Demands of Liberal Education (Oxford: Oxford University Press, 1999), 102.

23. Eamonn Callan, Creating Citizens: Political Education and Liberal Democracy (Oxford: OxfordUniversity Press, 1997), 177 (emphasis added).

24. Here Brettschneider cites John Stuart Mill, ‘‘Considerations on Representative Government,’’http://www.gutenberg.org/etext/5669.

25. Gutmann, Democratic Education, 50.

26. A reviewer helpfully pointed out that my argument that educational rights are internal to democracycould also be understood as suggesting that such rights are instrumental to democracy. There may


Brettschneider’s view of political autonomy as a democratic value can also beextended to justify educational rights. Recall that Brettschneider defends welfareentitlements as compensation to the least well-off for the right to private property.Economic resources of the sort Brettschneider highlights (that is, the right to a job,to basic income, and to in-kind resources) go some distance toward ensuring thatthose who do not own private property can exercise their political autonomy. Yetthese welfare entitlements may be necessary but are not sufficient to honor coredemocratic values. Just as realizing the ideal of equality of interests requires a civiceducation that is attentive to its cognitive demands, so too does the meaningfulexercise of political autonomy require cultivation.

Educational theorists have debated at length how to square education forautonomy with liberal neutrality, given that the cultivation of autonomy maylead individuals to choose some ways of life over others. Since Brettschneider isonly concerned with autonomy in the public sphere, I set aside debates aboutthe legitimacy of educating for personal autonomy to focus on the educationalimplications of political autonomy, understood as that which is required tobe a free and equal citizen (in Rawlsian terms, political rather than ethicalautonomy).27 Clearly, the ability to exercise autonomy in the public sphere entailssignificant educational demands. If individuals are to make uncoerced decisionsabout politics that align with their values, then they must have the capacity toendorse reflectively their interests. As Harry Brighouse emphasizes, education forautonomy enables individuals not only to live well in an objective sense but tolive well ‘‘from the inside,’’ meaning in a way that coheres with beliefs they havefreely chosen.28 Material well-being secured through welfare entitlements suchas basic income enables individuals to pursue their interests and life plans, asBrettschneider emphasizes (DR, 129–130). But as educational theorists highlight,individuals must be taught to exercise this autonomy: ‘‘to hold one’s moralcommitments autonomously requires the use of skills and knowledge which, formost people, must be taught explicitly in a controlled environment.’’29

At bottom, education for political autonomy protects individuals fromcoercion by the state and by their compatriots by enabling citizens to reflectcritically upon their values and to advance their interests. It is important toemphasize, following Brettschneider, that this justification for positive rights (such

indeed be overlap here. But not all rights that are instrumental to democracy are necessarily internalto the democratic principles that Brettschneider highlights. For example, we could say that the right tohealth care has instrumental value to democracy but does not flow as directly from the principles ofdemocracy as does a right to education.

27. Rawls insisted on the distinction between political and ethical autonomy and only endorsed theformer as a civic educational goal, so as not to encroach upon the private sphere. See John Rawls,Political Liberalism (New York: Columbia University Press, 1997), esp. 77–81 and 199–200. Whetheror not this distinction holds up is much debated; for a criticism of Rawls’s view on this matter, seeCallan, Creating Citizens, 39–42.

28. Harry Brighouse, ‘‘Civic Education and Liberal Legitimacy,’’ Ethics 108, no. 4 (1998): 729–730. AsBrighouse notes, the concept of living from the inside comes from Will Kymlicka (see n18).

29. Ibid., 731.


as education) is not cast in instrumental terms. That is to say, Brettschneider doesnot support certain rights only because they enable a fair democratic process. Heresists this instrumental understanding of democratic rights since it may turnout that a particular right does not in fact enhance democratic participation, andbecause it leaves open the possibility that democratic majorities could decide tocast aside the very rights that are supposed to be preconditions to democraticlegitimacy (DR, 13–15). Since political autonomy is a core value of democracy,the rights that it requires — which I have extended to include education — arenot vulnerable in these ways. The requisite rights cannot be cast aside evenif majorities might choose to dispense with them or if these rights prove notto facilitate the democratic process. Although education would seemingly beinvulnerable to the charge that it is not centrally important to the democraticprocess, this charge has in fact been made. This objection to educational rightsis present in the Supreme Court’s decision in San Antonio Independent SchoolDistrict v. Rodriguez, which denied recognition of a federal right to educationin part because the Court was not convinced that education is uniquely tied toindividuals’ ability to exercise political liberties.30 Brettschneider’s insistence thatrights are rooted in core democratic values provides an answer to such oppositionto educational rights. Even if individuals choose to never participate in democraticpolitics, their educational rights remain because of their equal status as addresseesof law.31

Finally, entitlements to education also flow from Brettschneider’s viewof reciprocity. Brettschneider understands reciprocity as ‘‘a commitment toreason giving as a central obligation and entitlement of citizens in a legitimatedemocracy’’ (DR, 25). Just as citizens must learn the skills and virtues associatedwith political autonomy and equality of interests, so too must they be taught howto justify their views in terms that their fellow citizens can reasonably accept (DR,25). What counts as reasonable for the purpose of political justification is a deeplycontested matter that I cannot engage with here. Suffice it to say that whateverconception of ‘‘reasonable’’ one endorses, it carries educational implications sinceindividuals must come to understand these norms and how to evaluate policyoptions in relation to them. There is another aspect of the principle of reciprocitythat also underwrites educational entitlements. Beyond specifying the types ofjustifications that citizens should offer in democratic deliberations, reciprocityprovides a standard for the types of policies that can be justified to citizens giventheir equal status (DR, 35). Brettschneider thus invokes the principle of reciprocityin support of the right to a job because employment gives citizens the opportunityto acquire resources in a property-owning society. This right would be defensibleto all reasonable citizens, he emphasizes, because it gives owners and nonowners‘‘parallel opportunities’’ (DR, 128). Reciprocal reasoning requires that nonowners

30. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), at 37.

31. Brettschneider emphasizes the importance of protecting citizens’ rights as addressees of law even ifthey do not participate in democracy as authors of law, as is the case for resident aliens and minors (DR,32–33).


should have the right to work in order to acquire property, but it does not justifygiving nonowners who exert no effort the resources that others typically acquirethrough labor. One could replace the right to a job with the right to an educationand reach the same conclusions, given the tight connection between educationalattainment, employment opportunities, and economic well-being.32 If educationis a pathway to economic opportunity, then it follows that individuals have a rightto education in a property-owning society.

My purpose in bringing together arguments by democratic and educationaltheorists in this section has been to show how educational rights can be defendedon democratic grounds, just as Brettschneider has defended other positive rights. Iwant to reiterate that the main virtue of this framework, following Brettschneider,is that it situates educational rights as internal to or part of democracy. This standsin contrast to alternative defenses of rights that regard them as external constraintson democracy and that are grounded in contested conceptions of justice. Of course,one’s acceptance of the educational rights that I argue flow from Brettschneider’sview of democracy depends upon agreeing with his conception of democracy. It isbeyond the scope of my purpose here to offer a general defense of his view. Rather,my aim has been to demonstrate how educational rights can be seen as internalto democracy — a point that arguably holds for any conception of democracy thatgives citizens more than a nominal role in policymaking.

But how does a democratic framing help overcome the opposition thateducational rights claims face from those who invoke local, democratic controlto oppose such rights? In the concluding section, I briefly consider how thisframework can help defeat such objections.

Concluding Thoughts: Putting the Democratic Framework to Use

There are two areas of educational policy in the United States where reformis especially frustrated by the perceived tension between rights claims anddemocratic rule: school finance reform and curricular standards. In both cases,proposals for reform that entail more state or federal control of policy face staunchopposition from individuals who champion the virtues of local, democratic controland are leery of top-down ‘‘rights talk.’’ To be sure, in many instances thesearguments may be less about democracy and more about leveraging local controlas the ‘‘ideal guise for the defense of privilege.’’33 Even so, there is a genuinedemocratic case against rights that constrain local control. Here I briefly explorehow a democratic rationale for educational rights can help answer objections toschool finance litigation and national curriculum standards — two policy issues

32. Interestingly, in 1791 Robert Coram, a newspaper editor in Delaware, argued that if the right toprivate property is to be valid, then individuals must also have a right to an education that facilitatestheir economic well-being by enabling them to secure a job or property. See Lorraine Smith Pangleand Thomas L. Pangle, The Learning of Liberty: The Educational Ideals of the American Founders(Lawrence, Kansas: University Press of Kansas, 1993), 99–100.

33. Peter Enrich, ‘‘Leaving Equality Behind: New Directions in School Finance Reform,’’ VanderbiltLaw Review 48, no. 101 (1995): 160.


that are gaining ground but face significant opposition expressed (ostensibly) indemocratic terms.

Objections to school finance reform cast in terms of local control invokelongstanding debates about the legitimacy of judicial review. This is not theplace for a detailed discussion of this debate, but I do want to note its generalcontours as applied to educational policy. Courts, critics argue, should notintervene in the educational arena because judicial involvement is fundamentallycountermajoritarian and undemocratic, because judges are too distant from localneeds to interpret and protect them, and because educational policy has beenand should continue to be within the purview of local communities. Individualsalso invoke democratic arguments of this nature to oppose national curricularguidelines because, as they see it, localities know best and have a democratic rightto exercise their authority over what children learn.

How can such arguments be countered on their own democratic terms?Legal scholar Goodwin Liu’s work on the legal and historical rationale forexpanding federal educational entitlements helps illustrate the democraticdefense that could be offered. Liu advances an innovative interpretation of theFourteenth Amendment that supports a national rather than state or local view ofcitizenship.34 Setting aside the legal nuances of his argument, the merits of thisperspective can be seen in view of the fact that citizens vote in national elections,conduct business across state lines, and frequently live, work, and vote outside ofthe state in which they happened to be born or educated. As Liu highlights, theabsence of a national policy on education with respect to funding and curricularstandards subjects students to significant interstate inequalities that impact theirstatus as national citizens.35

Although Liu does not frame his objection to these inequalities strictly thisway, these inequalities clearly pose a democratic problem. If the exercise ofdemocratic citizenship takes place in the context of national and not just localpolitics, and if we understand democracy in terms similar to Brettschneider(specifically, that it centers on equality of interests, political autonomy, andreciprocity), then we have good reason to worry about interstate inequalitiesfor democratic reasons. The strength of this framing of the problem can beseen through the types of counterarguments that local control advocates wouldhave to advance to defeat rights claims that are pressed in democratic terms.Such advocates would have to argue that inequalities across states do notmatter to citizens’ civic standing — that is, that they do not violate equalityof interests, political autonomy, or reciprocity. When educational requirementsfor Mississippi’s students fall well short of the requirements demanded of studentsin Massachusetts, such arguments seem hard to make in good faith. These

34. Goodwin Liu, ‘‘Education, Equality, and National Citizenship,’’ Yale Law Journal 116, no. 2 (2006):330–411.

35. Ibid., 397–399. See also Goodwin Liu, ‘‘Interstate Inequality in Educational Opportunity,’’ New YorkUniversity Law Review 81, no. 6 (2006): 2044–2128.


inequalities might be less worrisome if democratic citizenship were primarily alocal endeavor today, but this is clearly not the case.

Advocates of local control who oppose school finance litigation or nationalcurricular standards might also defend their position by arguing that the valueof local democracy trumps students’ rights to better resources or more rigorousand uniform academic expectations. But such claims are ultimately self-defeatingif we take seriously the democratic values that Brettschneider emphasizes, andthe substantive link between these values and welfare rights. If some citizensdo not receive an education that prepares them to exercise their political rights,then the legitimacy of local decision making is substantially undermined. This isbecause without a quality education, citizens cannot exercise fully their politicalautonomy to advance their interests equally, nor can they participate as readilyin the reason-giving of democratic deliberation that reciprocity entails. In short,their equal civic standing would be undercut — which is the point at which thedemocratic process is no longer democratic in any meaningful sense.

The educational inequalities and inadequacies tolerated today clearly cannotbe squared with the core values of democracy. And this provides a compellingargument for why attending to these inequalities is part and parcel of democracy.There are other normative arguments that could be leveraged against theseinequalities to support students’ rights at the state or federal level. As notedearlier, one could draw upon a comprehensive conception of justice, or a particularunderstanding of egalitarianism, to reach similar conclusions. But in a pluralisticliberal democracy, such comprehensive views of justice and equality are bound tobe contested, and may ultimately remain contestable by reasonable people. For thepurposes of my arguments here, I remain agnostic on whether these are equally(or more) compelling reasons with which to assert and defend students’ rights,taken on their own. The point of the democratic framework that I have advancedfor educational rights is that we do not have to resort to these controversialconceptions to press the indefeasibility of educational entitlements.

That is not to say that there is no loss to democracy when courts are involved inschool finance policy, and when committees of experts devise curricular standards.As Brettschneider notes with respect to judicial review, ‘‘such overrides are alwaysinferior ways of defending [democratic] values . . .; courts only have a role indefending democratic rights when democratic procedure has gone astray.’’36 Thereis surely a loss to democracy in such instances. But intervention is warrantedon democratic grounds to restore the core values of democracy when democraticprocedures fail to uphold them. This still leaves room for debate about whetherwe have strayed from these values, by how much, and why.37 I leave it to othersto make such arguments about the state of educational policy today measured

36. Brettschneider, response to Christiano’s review of his book Democratic Rights (see Journal of Politics71, no. 4 [2009]: 1597).

37. Christiano presses these points in his critical review of Brettschneider’s Democratic Rights (seeJournal of Politics 71, no. 4 [2009]: 1596).


against these democratic ideals. What I have advanced is a democratic frameworkfor defending interventions on behalf of students’ right to a quality educationwhen democratic bodies fail to protect that right. This framework is likely tobe controversial, but it importantly narrows the scope of what is contested bytethering educational rights to democratic rather than comprehensive values. Andthat is a critically important advantage when making rights arguments in a diverse,liberal democracy.

I AM THANKFUL for the insightful feedback I received on earlier versions of this article from SarahStitzlein, Lucas Swaine, and David Waddington. I am also grateful for support provided by the NationalAcademy of Education/Spencer Postdoctoral Fellowship Program during the writing of this article.

a democratic framework for educational rights

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