“I can; can something, hope, wish day come, not choose not to be.” – G.M. Hopkins, “Carrion Comfort”
The Duke Law Review of 2014 includes an essay by Harvard professor Cass Sunstein entitled “Choosing Not to Choose.” By example and analysis its author spells out the importance — for good or ill — of systems providing individual choice of various goods.
Among such systems are options for the chooser to forego making any specific choice thus, either keeping the status quo, assigning the decision to someone else or triggering some pre-fixed default outcome.
The essay is rich in hypotheticals of such devices. Sunstein, for example, analyzes the choice to let a bookseller who knows your tastes to send, and bill you each month, for a book of his selection (with and/or without the options to return the book and/or to bail out); he notes too the Affordable Care Act with its imposition of economic penalties upon those failing to choose among approved outcomes. He strives throughout to unsettle the apparent “opposition between paternalism and active choosing.” This supposed antinomy does not, for him, account for all the authentic stakes, economic and personal, in a variety of settings involving choice.
What Sunstein never touches in this tour of freedoms to choose or not is their role in the 50 American systems of public education — not even a footnote. This intellectual snub itself moves me to recommend this essay to all committed to universal parental empowerment in education.
Sunstein’s very avoidance of school choice as a subject invites us to ask: Just how would this taxonomy from so resourceful a mind help us to parse and predict the effects of empowering lower-income parents to choose or not to choose their child’s educators?
That liberation is plausibly within reach of the next generation.Schooling will remain compulsory, as it should. The well-off will continue to have their choice, as they should. The new choice offered to lower-income parents by charter schools will very probably grow — as surely it should. And the subsidy of the ordinary family to choose private school has already crept on stage in D.C. and a number of states for our common consideration.
How, precisely, will the notion of a “choice not to choose” become a reality — if at all — for these millions of newly empowered parents? The answer, for better or worse, fits into Sunstein’s architecture of choice in a manner that he himself might well confront and that the rest of us should consider. In any well-drafted legislative system the newly empowered parent will have the choice to choose or not to choose among the full cast of schools (or home schooling) that are recognized by the state as satisfying the legal duty to educate. This array will include the option to enroll at that local public school which would be assigned in the absence of any expressed parental choice.
Such silence by the now-empowered parent, however, will have become ambiguous respecting the intent and spirit of the choice; and this ambiguity will be well worth the attention of empirical analysts. Did the family actually prefer, and thus choose, the particular public school? Or did it carefully decide to have this decision made by what appear to the parents to be more sophisticated strangers who run the big system; the parents may have concluded that the state will be a much better decider for Alice than we two drop-outs! And, then, there is that third plausible category: Did the parents make no choice at all, either because indifferent to both child and society or too distracted or dim even to think about it? We could call these three modes of behavior explicit choice, conscious default and apathy.
These distinctions will have relevance for the future of the entire society. There is every reason to suppose that any family that actually chooses a particular school for its child learns by this act of personal responsibility. Clearly this already applies to most suburban families. In choosing the local public school they have freely considered and answered a question that has social as well as individual implication. This act of cautious selection keeps the parent, the child, the family, and the school all in the game of citizenship — of active life.
Sunstein, I take it, would accept this positive description of any parent — rich or poor — who, having options, conscientiously decides that the state knows which school is best for this particular child. Such mothers and fathers are being responsible precisely by this assessment of the limits of their own competence in comparison to the mind of strangers.
No doubt such modest, well-intending — and possibly realistic — folks are out there; we should inquire empirically. With the introduction of school choice we may be able to reach judgment about whether this new experience of “responsibility” for all parents will have the same enriching personal and social effects upon the poor that we have long recognized in those choosers who have been able to pay.
There seems no serious social science on the subject. One distinguished and politically liberal academic once responded to my inquiry about the social effects of choice with the refreshingly candid observation that it is politically inappropriate for the mass of American social scientists even to raise issues so threatening to the creed. But, this was a while ago; even minds like Sunstein might today safely apply their rich taxonomies, estimating empirically the social and civic consequences of the politically imposed impotence still reigning in most states for the mass of lower-income families.
Simultaneously, they would measure and compare the social effects of educational liberation upon those families living in reform states, those parents who, for the first time, can either choose their school; deliberately and responsibly allow the state to decide; or simply remain inert and let the world toss the child as it will. Critics for and against school choice could then more reasonably assess the impact of compulsion versus choice upon the social state of our commonwealth.
It is impossible to justify our traditional and enduring system as a form of paternalism of parents. The rationale, if there is one, must consist in a benefit to some third party or to the society. That it benefits the child is too difficult to believe. Could it in fact benefit society? Maybe, if our civic purpose is to maintain the class structure and keep the poor in their place. But pity the social scientist whose conscience drives him to say so.
