Category Archives: Academic Papers

American Polarization

I have been attending a conference on American Political History, for which I prepared a paper. The following is my (abbreviated) presentation of that paper–still considerably longer than my daily posts, so be forewarned….

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America’s first motto was e pluribus unum, “out of the many, one.” That motto has always been more aspirational than descriptive, but thanks to a number of factors– from residential sorting to the hardening of racial and religious attitudes– America now faces fissures in the body politic that call even the aspiration into question.

Humans are hard-wired to be tribal—to prefer those we see as our “own kind” to members of groups that register as “other.” Recognition of this aspect of human nature is hardly new; multiple studies deal with aspects of human tribalism, and there’s an equally large number detailing the various mechanisms through which humans express, reinforce and justify tribal prejudices. History records the frequently horrifying consequences of dehumanizing people deemed to be “other” during wars and other conflicts, and the equally appalling behaviors that stem from the demonizing of targeted minority populations by dominant majorities within a single country.

The term tribalism is shorthand for this human predisposition to divide the world into in-groups and out-groups. There is considerable evidence that some degree of in-group favoritism is an inescapable attribute of group membership. It is the favoritism that is problematic; the human need to be part of a family, clan or tribe is not in itself a negative. Just as our families and more extended clans provide us with emotional and material support, membership in a larger group with which one identifies has its benefits. The presence of what sociologists call bonding social capital provides people within the relevant groups with cultural norms, and (at least within one’s group) supports increased levels of interpersonal trust and reciprocity, assets that facilitate collaborative action.

It’s when identification with a tribe operates to exclude and demean anyone who isn’t a member—when it creates a world peopled by “us” (good) and “them” (bad)—that it becomes destructive. It becomes especially dangerous when the definition of “us” is narrow, dependent upon immutable characteristics or upon rigid adherence to a particular ideology or religious belief that excludes and distrusts others. When negative stereotypes of an out-group are endorsed by celebrities or political authority figures, the damage can be substantial; for example,  researchers have linked Donald Trump’s anti-Muslim tweets to spikes in anti-Muslim hate crimes.

Identity
Although the terms “identity” or “identity politics” can mean different things depending on the context, for purposes of this analysis, the terms reference an individual’s group affiliation, or social identity. As noted, identification with others in a particular group or category can confer feelings of acceptance and provide role models: this is how “we” behave. When individuals conclude that “I am like the other people in this group” and I am unlike “those people in other groups,” that recognition can lead to a sense of belonging and a recognition of interdependence with others in the relevant “tribe.” That said, membership in a tribe is usually accompanied by some degree of suspicion of those who fall outside that tribe. Trouble starts when that suspicion is heightened, and members of other groups are seen as competitors, enemies, or threats that must be subdued or eliminated. When “we” are God’s chosen, and “they” are by definition abominations, tolerance of difference is simply not possible.

The United States has not been immune from tribal conflicts, and today’s citizens continue to struggle with their legacies. America may have abolished slavery, but racism has proved much harder to eradicate. Religious conflicts and anti-Semitism have been—and remain—a constant. Women continue to struggle against an attitudinal “glass ceiling” that works against genuine equality in both the home and workplace. It wasn’t until the 1960s that LGBTQ citizens began emerging from the closet in significant numbers, and homophobia, like racism, continues to characterize much of American culture. And the country is experiencing yet another eruption of the hostility with which we have repeatedly greeted successive waves of immigrants.

In much of America’s admittedly contentious past, except for individuals who were automatically categorized as “other” by virtue of an immutable characteristic like race or gender, American affiliations have tended to be cross-cutting, meaning that people often identified as a member of several different communities having limited overlap. Individuals with such heterogeneous affiliations are likely to interact on a regular basis with fellow citizens holding views contrary to their own, and less likely to stereotype and malign people with whom they disagree as a result. In his seminal study The Social Requisites of Democracy, Seymour Martin Lipset concluded that that democratic stability is enhanced when individuals and groups have a number of cross-cutting, politically relevant affiliations. As a 2018 article in The Guardian noted, “[R]esearch has lined cross-cutting cleavages with toleration, moderation and conflict prevention.”

For a number of reasons, America’s “tribes” have become far more overlapping, meaning that people’s various identities have coalesced in ways that reinforce each other. As a result, and thanks also to the residential “sorting” documented by Bill Bishop in The Big Sort, most Americans have much less interaction with people who have opinions different from those of their tribes, and are less likely to engage with ideas and beliefs different from their own.

Historically, American tribal conflicts have centered upon identities and affiliations that were difficult or impossible to change: the ethnic, racial and religious differences that have been a source of human conflict for centuries. Those differences remain potent today. Racism, in particular, has re-emerged with a vengeance, and it isn’t limited to the White Nationalist movements that have become active across much of Europe and the United States. Longstanding racial and religious fault-lines have been deepened by the emergence of newer ideological and cultural cleavages, many of which are exacerbated by geography: in today’s U.S., for example, the worldviews of urban and rural inhabitants are frequently incommensurate. Research has documented deep differences in values and outlook between Americans who are well-to-do (or at least economically comfortable) and the poor, and between white people with a college education and white people without. Americans’ affiliations have become increasingly reinforcing rather than cross-cutting, enabling the growth of a toxic partisanship that sees the world in stark terms of black and white and right versus wrong. These world-views demand winners and losers.

Thanks to a variety of factors, significant numbers of Americans currently occupy “bubbles” populated largely by people who share and fortify their preferred worldviews. Even a cursory examination of the 21st Century media and policy environment allows  identification of several of those worldviews, as well as the environments that created and nurture them.  A caveat: the following list is not exhaustive—and due to time constraints, the categories are described in far more depth in the paper.

  • Cosmopolitan and Parochial.  Cosmopolitanism challenges the primacy citizens place onattachments to the nation-state and other parochial shared cultures. The cosmopolitan/parochial divide shares many attributes with classism.
  • Richer and Poorer.The economic divide between America’s rich and poor is now as damaging as it was during the Gilded Age.  This dangerous and growing gap between struggling Americans and the well-to-do means they have increasingly disparate life experiences and live increasingly segregated lives.
  • College Educated and Not. In the 2016 election, white voters divided sharply based upon their levels of education. Clinton carried counties with high numbers of educated voters, and even high income low education counties voted for Trump.
  • Urban versus Rural.Urban Americans are more than three times more likely than their rural counterparts to say that religion isn’t particularly important to them, and attitudes on social issues reflect that difference. They are also far more likely to be Republican.
  • Republican versus Democrat, Liberal versus Conservative.An individual’s self-identification as Republican or Democrat has come to signify a wide range of attitudes and beliefs not necessarily limited to support for a political party. Lilliana Mason notes that “A single vote can now indicate a person’s partisan preferences as well as his or her religion, race, ethnicity, gender, neighborhood and favorite grocery store.”  Partisan identity has become a shorthand encompassing racial, professional and religious identities. Party identification now outweighs ideological commitments, as can be seen by the acquiescence of Republican lawmakers to Trump’s tariffs that are wildly at odds with longtime Republican positions.
  • Black, White, Brown. It is impossible to talk about tribalism, of course, without addressing the stubborn persistence of racism. Age-old racial hatreds have been fed by economic anxieties and by demographic changes that threaten white Christian Americans with loss of their long-time social dominance and privilege. The  election of America’s first African-American President exacerbated long-simmering racial resentments, giving rise to the so-called “birther” movement, while Donald Trump’s overt appeals to racist sentiments have unleashed a sharp increase in racist, anti-Semitic, anti-Muslim and anti-immigrant assaults.

America’s cultural and political polarization has been facilitated by the Internet and the reduced reach of so-called “legacy” media that previously provided the country with (relatively homogenized) information. The current media landscape allows Americans to consult a multitude of news and opinion sites of widely varying credibility and to choose the “news” that accords with their partisan preferences. Social media has encouraged the sharing of dubious assertions and unfounded accusations. One result has been a widespread loss of confidence in our ability to know what is factual and what is not—to distinguish between journalism and propaganda. The widespread availability of disinformation is especially troubling because the American public has abysmally low levels of civic literacy.

Economic insecurity, the threatened loss of jobs to global trade and especially automation, and the rapidity of social and technological change have contributed to widespread fear and uncertainty. Too many political figures have appealed to those fears rather than trying to ameliorate them. There is also the increasing complexity of the national and international issues we face, and the failure to reform antiquated government structures that are increasingly inadequate to meet the challenges posed by changes in where and how today’s Americans live.

All of these developments and many others have been consequential. That said, it is impossible to analyze the ways in which these changes have been experienced and various tribes have been formed without recognizing the degree to which America’s historic struggle with racism has exacerbated the salience of all of them.

Whatever our beliefs about “American exceptionalism” today, it behooves us to recognize that the founding of this country was genuinely exceptional—defined as dramatically different from what had gone before—in one incredibly important respect: for the first time, citizenship was made dependent upon behavior rather than identity. In the Old World, the rights of individuals were largely dependent upon their identities, the status of their particular “tribes” in the relevant political order. (Jews, for example, rarely enjoyed the same rights as Christians, even in countries that refrained from oppressing them.) Your rights vis a vis your government depended largely upon who you were—your religion, your race, your social class, your status as conqueror or conquered.

The new United States took a different approach to citizenship. Whatever the social realities, whatever the disabilities imposed by the laws of the various states, any white male born or naturalized here was equally a citizen. We look back now at the exclusion of blacks and women and our treatment of Native Americans as shameful departures from that approach, and they were, but we sometimes fail to appreciate how novel the approach itself was at that time in history. All of what we think of as core American values—individual rights, civic equality, due process of law—flow from the principle that government must not treat people differently based solely upon their identity. Eventually (and for many people, very reluctantly) America extended that founding principle to gender, skin color and sexual orientation. Racism is thus a rejection of a civic equality that is integral to genuinely American identity.

When the nation’s leaders have understood the foundations of American citizenship, when they have reminded us that what makes us Americans is allegiance to core American values—not the color of our skin, not the prayers we say, not who we love—we emerge stronger from these periods of unrest. The political divisions that are so stark in our polarized time represent, at least in part, a clash between those who fear we are departing from that essential (if imperfectly recognized) commitment to equality and those who want to “return” to an imagined White Christian America.

Religious Liberty?

As America becomes more diverse, and White Christians face the loss of cultural hegemony, they have increasingly turned to the First Amendment’s Free Exercise Clause to make arguments about their right to an expansive and ahistorical “religious liberty.”

A bit of history for this history conference: What the phrase “Religious liberty” meant to the Pilgrims who landed at Plymouth Rock was the “liberty” to impose the correct religion on their neighbors. The idea that Church and State could even be separated would have been incomprehensible to the Puritans; the liberty they wanted was freedom to “establish” the True Religion, and to live under a government that would impose that religion on their neighbors.

The Puritans defined liberty as “freedom to do the right thing,” to impose the correct religion.

A hundred and fifty years later, however, the men who crafted our Constitution had a very different understanding of liberty. The philosophical movement we call the Enlightenment had given birth to science and empiricism, privileged reason over superstition, and caused philosophers to reconsider the purpose and proper role of government.

Liberty had come to mean the individual’s right to self-government, the right to decide for oneself what beliefs to embrace. Liberty now meant the right of individuals to live their lives in accordance with their own consciences, free of both state coercion and what the founders called “the passions of the majority,” so long as they did not harm others, and the Bill of Rights limited what government could require even when a majority of citizens approved.

The problem is that, although America’s Constitution and legal framework were products of the Enlightenment, many American citizens remain philosophical Puritans.

Many of the fundamentalist Christians fearing loss of cultural hegemony are deeply Puritan: anti-science, anti-reason, anti-diversity. They are absolutely convinced of their own possession of the Truth, and like the original Puritans, absolutely convinced that a proper understanding of “religious liberty” should give them the right to make rules for everyone else.

Under the Constitution, Americans have the right to believe anything they want. They do not have an absolute right to act on those beliefs. (You can sincerely believe God wants you to sacrifice your first-born, but the law doesn’t let you do that.) Many people have trouble understanding that distinction.

Opponents of civil rights for LGBTQ citizens argue that rules preventing businesses from refusing to hire employees who offend their religious beliefs, or from firing or otherwise discriminating against such individuals, denies them religious liberty. (This is a variant of the argument that anti-bullying legislation infringes the “free speech rights” of those doing the bullying.) They argue that they should be able to discriminate against gay people—or black people, or women, or Muslims–if they claim a religious motivation. Of course, an exemption for discrimination based upon “religious motivation” would eviscerate civil rights laws.

This is the same argument that erupted when Congress enacted the 1964 Civil Rights Act. Opponents argued that being forced to hire or do business with women or people of color violated their liberty to act upon a “sincere religious belief” that God wanted women to be subordinate and the races to be separate. And it did limit their liberty. In a civilized society, the right to do whatever one wants is constrained in all sorts of ways: I don’t have the liberty to play loud music next to your house at 2:00 a.m., or drive my car 100 miles per hour down city streets. And so on.

Civil rights laws are an outgrowth of the social contract. The citizen who opens a bakery– or a shoe store or a bank or any other business–- expects local police and fire departments to protect her store, expects local government to maintain the streets and sidewalks that enable people to get there, expects state and federal agencies to protect the country, to issue and back the currency used to pay for his products, and to ensure that other businesses and institutions are playing by the rules and not engaging in predatory behaviors that would put him out of business. People of all races, religions, genders and sexualities pay the taxes that support those government responsibilities, and in return, have a right to expect those who are “open for business” to provide cakes or shoes or other goods to any member of the public willing and able to pay for them.

The religion clauses of the First Amendment give religious folks the right to exclude those they consider “sinners” from their churches, their private clubs and their living rooms. That right does not extend to their hardware stores.

Today’s Americans live with over 330 million others, many of whom have political opinions, backgrounds, holy books, and perspectives that differ significantly from their own. The only way such a society can work–the only “social contract” that allows diverse Americans to coexist in reasonable harmony–is within a legal system and culture that respects those differences to the greatest extent possible. That means laws that require treating everyone equally within the public/civic sphere, while respecting the right of individuals to embrace different values and pursue different ends in their private lives. Only a legal system that refuses to take sides in America’s ongoing religious wars is able to safeguard anyone’s religious liberty.

History teaches us that social change that threatens the privileged status of dominant groups will be ferociously opposed by those groups. Throughout American history, when previously subordinated populations have demanded a seat at the civic table, those whose hegemony was threatened have resisted. That resistance may not completely explain today’s polarization, but it has massively contributed to  it.

As Mark Twain is said to have observed, history may not repeat itself, but it does rhyme.

We live in rhyme time.

 

 

 

 

 

 

 

 

 

Pontificating About Civic Literacy

Friday, I participated in a conference titled “Democracy in America–Promises and Perils” at Loyola Law School in Chicago. My concerns will not come as a surprise to regular readers. Here’s what I said.

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For at least the past decade, political scientists have expressed growing concern over the inadequacies and outright corruption of America’s electoral processes and governance structures, and the erosion of the country’s democratic norms. Those expressions of concern accelerated in the wake of the 2016 election, which saw accusations of vote irregularities and various “dirty tricks” and the victory, compliments of the Electoral College, of a candidate who lost by a margin of nearly three million votes.

Undoubtedly, a number of factors have contributed to the current weaknesses of America’s democratic systems. It is the thesis of my paper, however, that the significance of one such contributing cause is routinely and dangerously underappreciated: the American public’s lack of civic literacy.

A large and growing body of data gives evidence that a majority of Americans know little or nothing about America’s Constitution and basic legal structures. In 2014 only 36% of the American public could name the three branches of government. Last year, that number was worse: 24%. In a recent survey by the Carnegie Foundation, just over a third of Americans thought the Founding Fathers gave the president “the final say” over the other branches; just 47% knew that a 5-4 decision by the Supreme Court carries the same legal weight as a 9-0 ruling. Almost a third believed that a U.S. Supreme Court ruling could be appealed, and one in four believed that when the Supreme Court divides 5-4, the decision is sent to Congress for resolution. (Sixteen percent thought it needed to be sent back to the lower courts.) The Center for Civic Literacy at IUPUI has been researching both the causes and consequences of that civic deficit since 2012, and has produced both a body of original research and an annotated bibliography detailing the copious amount of existing scholarship about what Americans know and don’t, and why that ignorance matters.
There is widespread agreement among scholars that the United States has experienced a significant erosion of democratic norms, and a corresponding loss of democratic legitimacy. As a result, voters exhibit high levels of distrust of the country’s political structures, and express considerable cynicism about the nation’s governance.

Analysis of the relevant literature suggests that the erosion of American democracy can be attributed to three interrelated causes: Ignorance (especially of politics and governance, and defined as a lack of essential information, not stupidity); the growth of Inequality (not just economic inequality, but also civic inequality, and power and informational asymmetries), and a resurgent Tribalism (racism and White Nationalism, sexism, homophobia, religious bigotry, the urban/rural divide, and political identity).

On a personal level, civic ignorance complicates the interactions between citizens and their government that are an almost daily part of American life in the 21stCentury. Ignorance also exacerbates inequality; citizens who understand how the political system works are advantaged in a number of ways over those who do not. Ignorance of the overarching national principles to which citizens are bound encourages political constituencies to work for passage of laws and policies advantageous to their specific interests (or consistent with their parochial worldviews) that often are in conflict with both the Constitution and the common good.

Americans’ cynicism about government and their fear and suspicion of those they see as “other” are constantly being exacerbated by a media environment through which large amounts of disinformation are disseminated. Spin, propaganda, “fake news,” and outright conspiracies thrive in the Wild West that is the Internet and social media, and civic ignorance facilitates their wide acceptance. According to American Intelligence agencies, Russian “bots” successfully exploited both that ignorance and America’s tribal differences during the 2016 election cycle.

In Diversity and Distrust,Stephen Macedo addressed the importance of civic education and the civic mission of the nation’s public schools. As he wrote, the project of creating citizens is one that every liberal democratic state must undertake, and that project requires what he called “a degree of moral convergence” in order to sustain a constitutional order. The most pluralist, diverse and tolerant polities still require substantial agreement on basic political values. Such agreement (or disagreement, for that matter) requires knowing what those values are–and the primary responsibility for transmitting that information lies with the public schools.

American public education has been severely criticized for years. Business organizations complain about inadequate workforce development; technology companies demand more STEM instruction; urban minority populations point to resource inequalities between schools attended primarily by poor children and those located in wealthier neighborhoods and suburbs. Popular magazines “rate” high schools and colleges by calculating the percentages of students who are gainfully employed upon graduation, and state-level legislators respond to all of it by requiring more high-stakes testing. Whatever its other benefits or flaws, that testing almost never includes evaluation of civic competence.

In many states, privatization advocates have established voucher programs that permit parents to remove their children from the public-school systems entirely, and send them to private (almost always religious) schools. A recent survey I conducted with a colleague found that none of those programs require participating schools to offer civics instruction. Although the outcomes of vouchers and other efforts to improve public education have so far ranged from distressing to debatable, the very different diagnoses of the systems’ problems and reformers’ very different prescriptions for improvement have highlighted what may be the most significant impediment to effective education reform: a lack of agreement about what education is, how success should be measured, and what the mission of public schools should encompass in a diverse and democratic nation. To say that people engaged in this public debate are continuing to talk past each other would be an understatement.

Education reform that neglects the civic mission of public schools would seem to be inadequate by definition, yet education reformers have only recently begun to focus on the importance of civic education. An added irony of that neglect is that schools are increasingly being tasked with helping students achieve “news literacy,” by equipping them with tools  to assess the credibility of the media sources they encounter. One of the most effective tools is civic knowledge: when a website, blog or other “news” source accuses a political figure of doing or failing to do something that falls outside her authority, or a claim is made that is otherwise inconsistent with American constitutional principles or governance structures, students who are civically-literate are far more likely to recognize those misstatements and to question the credibility of the sources providing them.

The contrast between students in states that have largely abandoned  teaching civics with students from the very few that offer and fund effective civic education is striking.  In the aftermath of the horrific shooting at Marjorie Stoneham Douglas school in Parkland, Florida, the activism and eloquence of the students who survived frequently raised the question “why are these kids so articulate and effective?”

According to the Christian Science Monitor,

Thanks to state law, they have benefited from a civic education that many Americans have gone without – one that has taught them how to politically mobilize, articulate their opinions, and understand complex legislative processes. Now they are using their education to lead their peers across the country.

Parkland really shows the potential of public civic education.

In 1996, Delli Carpini and Keeter published “What Americans Know About Politics and Why It Matters.” It remains one of the most important studies of America’s low levels of civic literacy.

As they wrote,

“Factual knowledge about politics is a critical component of citizenship, one that is essential if citizens are to discern their real interests and take effective advantage of the civic opportunities afforded them…. Knowledge is a keystone to other civic requisites.  In the absence of adequate information neither passion nor reason is likely to lead to decisions that reflect the real interests of the public. And democratic principles must be understood to be accepted and acted on in any meaningful way.”

When America’s schools ignore their responsibility to provide students with an adequate civic education, there are no other institutions able to fill the resulting vacuum.

As a purely practical matter, individuals who don’t know what officeholders do, who don’t understand the division of responsibility between federal, state and local government units, who don’t know who has authority to solve their problems with zoning or trash removal or missing social security payments or the myriad other issues that arise at the intersection of public services and individual needs, lack personal efficacy. At best, that lack of knowledge is a barrier to the prompt resolution of issues that most citizens have to deal with; at worst, it puts them at a considerable disadvantage in legal or political conflicts with more informed citizens.

The multiple implications for democratic governance, however, are far more serious than the personal disadvantages. For one thing, voters who have only the haziest notion of the tasks for which their elected officials are responsible have no way of evaluating the performance of those officials for purposes of casting informed votes. Voters who don’t understand checks and balances or the functions of the judiciary are more easily persuaded that “imperial” courts have acted illegitimately when they issue a decision with which they disagree, and to believe that the courts should reflect public opinion rather than uphold the rule of law. Voters who don’t know their rights are more easily deprived of those rights by state actors who are acting illegitimately, as various examples of vote suppression illustrate.  Citizens intimidated by authority are unlikely to petition local or state government agencies for redress of grievances, whether those grievances are streets and sidewalks in disrepair or partisan gerrymandering, and research confirms that less knowledgeable citizens are less likely to engage with the democratic system, and much less likely to vote.

Even more troubling is the fact that people who have never encountered, and thus don’t understand, the basic philosophy of the U.S. Constitution can neither form an allegiance to its principles nor articulate reasons for rejecting such an allegiance. Lack of knowledge of the structures of governance, and the lack of personal and democratic efficacy that results, breeds suspicion and cynicism about “the powers that be,” attitudes that not only discourage civic participation, but have a detrimental effect upon the individual’s identification with other American citizens. As a result, rather than seeing themselves as part of the American mosaic, rather than seeing American diversity through the lens of e pluribus unum, the loyalties of the uninformed tend to default to their tribal affiliations.

Unlike citizens of countries characterized by racial or ethnic homogeneity, American identity is rooted in allegiance to a particular worldview; it is based upon an understanding of government and citizenship originating with the Enlightenment and subsequently enshrined in the U.S. Constitution and Bill of Rights. When a country is as diverse as the United States, it’s especially important that citizens know the history and philosophy of their governing institutions. In the absence of other ties, a common devotion to constitutional principles and democratic norms is critical to the formation of national identity. That devotion, obviously, requires knowing what those principles and norms are. If American diversity means that our national ideals must constitute our “civic religion” and act as our social glue, ignorance of those ideals becomes far more consequential than is commonly understood.

The United States’ national motto, e pluribus unum, translates into “out of the many, one,” and political theorists have long argued that a common belief structure, or “civil religion,” is required in order to turn the many into the one. Traditional religions cannot serve that purpose in America; adherents of virtually every religion on the globe live in the U.S., and recent polls show considerable growth in the numbers of Americans who consider all religion irrelevant to their lives and value structures. Americans don’t share races or ethnicities or countries of origin, and those who live in different parts of the United States occupy different political and social cultures. These extensive differences raise a profoundly important question: what common ties are available to enable and define the collective civic enterprise? What makes one an American?

The term “civil religion” was first coined in 1967 by Robert N. Bellah, in an article that remains the standard reference for the concept. The proper content of such a civil religion, however, has been the subject of pretty constant debate, and as the nation’s diversity has dramatically increased, that debate has taken on added urgency. A “civil religion” or common value structure provides citizens with a sense of common purpose and identity. Despite the claims of some conservative Christians, Christianity does not provide that social glue; the United States is not and has never been an officially Christian nation, although it has historically been culturally Protestant. Furthermore, the U.S. Constitution contains no reference to deity, and specifically rejects the use of any religious test for citizenship or public office. In order to be consistent with the Constitution, any civil religion must respect the nation’s commitment to individual autonomy in matters of belief, while still providing an overarching value structure to which most, if not all, citizens can subscribe. This is no small task in a nation founded upon the principle that government must be neutral among belief systems. Americans’ dramatically different approaches to traditional religion and spirituality means that religious theologies cannot serve as the country’s civil religion.

However, most Americans do claim to endorse an overarching ideology, a/k/a civil religion: a belief system based upon the values of individual liberty and equal rights enshrined in the U.S. Constitution and Bill of Rights. If those claims are to have actual content, if allegiance to the Constitution is to function as an “umbrella” belief system that supersedes tribalism, citizens need to be familiar with its basic principles and their application. Currently, they aren’t.

Significantly improving citizens’ levels of civic literacy will not magically repair America’s currently broken governance, but we will not be able to fix what is broken without such improvement. Widespread, basic civic literacy isn’t sufficient, but it is essential.

Vouchers, Education and Democracy

I was recently asked to write the entry on school vouchers for publication in the upcoming Encyclopedia of Public Administration. Here it is.  (Warning: it’s longer than my usual posts.)

Introduction. School voucher proposals gained traction in the late 1980s as part of a broader movement to privatize services previously delivered by government through its employees. Unlike the privatization program undertaken by Margaret Thatcher in England, in which public enterprises were sold off to the private sector, relieving government of further responsibility for their operation, in the United States privatization referred to the practice of contracting out delivery of government’s programmatic responsibilities to for-profit or non-profit third-party surrogates. Enthusiasm for this method of public service delivery led to a significant expansion of such practices, generating mixed results depending upon the service involved and the adequacy of government oversight. Voucher programs allowing parents to enroll their children in participating private schools of their choice, and to pay the tuition in full or in part with a government-issued voucher, have become one of the more contentious elements of the larger privatization agenda.

Enthusiasm for a market-based approach to schooling received impetus from a 1990 study by John Chubb and Terry Moe, Politics, Markets and America’s Schools.  Although several researchers subsequently challenged the data and methodology used in that study, which painted a grim picture of America’s schools, fewer critics initially took issue with their definition of “effective schooling,” which was to be measured against academic criteria only. For Chubb and Moe and those who agreed with their prescription for school privatization, the mission of the schools was limited to imparting competency in the math, science and language skills deemed crucial to economic self-sufficiency and America’s ability to succeed in the global marketplace. Only later did criticism of that premise become a major point of controversy between proponents and opponents of school vouchers.

Philosophy and Partisanship. At its intractable extremes, the school voucher debate is a conflict between two long-standing elements of the American political tradition: the commitment to personal choice and individual freedom, on the one hand, and an equally compelling belief in the importance of a common civic infrastructure and collective interests on the other. Debate over vouchers has become so contentious in large measure because it reflects the tension between these largely incompatible political priorities.

Rather than debating whether public schools are as deficient as some have portrayed them, and if so, in what respects, or debating the merits of one reform measure over another, the policy issue has become whether America should continue to support a system of free, publicly-controlled schools or whether government’s educational role should be reduced to that of funder, enabling families to use a specified number of taxpayer dollars to buy educational services in the marketplace.

Initial support for school vouchers came from several interest groups: Catholics desiring financial support for their parochial schools; political libertarians opposed to government control of education on ideological grounds; business interests concerned about public schools’ ability to produce a skilled workforce; and the Christian Right, which had advocated for Protestant prayer and religious instruction in the public schools and had been rebuffed by the Supreme Court in a series of cases begining in 1962, when Engel v. Vitale struck down the practice of official prayer in public school classrooms. These constituencies were, and are, largely aligned with the Republican Party, while the most reliably anti-voucher interest groups— public educators, especially teachers’ unions; the African-American community; and civil libertarians—represent important Democratic constituencies. Voucher programs have thus become a partisan issue. (Kennedy 2001) The political dimension of the voucher debate has been underscored by the very active role taken by the American Legislative Exchange Council (ALEC), a corporate lobbying organization that supports voucher programs. ALEC’s education task forces are funded primarily by libertarian interests, including the Charles Koch Foundation, the DeVos Foundation, and the Friedman Foundation. (Shaffer, Ellis & Swensson 2018)

Voucher proponents argue that competition in education leads to better schools at less cost. They point to test results showing that student achievement in private schools has historically been superior to the performance of students attending public schools. Opponents respond that much of the research purporting to compare public and private school outcomes fails to control for major differences in student body composition, including but not limited to parental socio-economic status and educational motivation.

Opponents and even supportive academics also warn of potentially damaging social consequences. John Witte, an educational researcher who evaluated and supported one of the earliest voucher programs, a 1990 experiment in Milwaukee, nevertheless noted that the program led to more segregation in the schools than otherwise would have been the case. (Witte 2000) Other researchers have worried about religious balkanization, since an estimated 80% of the private schools participating in voucher programs are religious. Still others have expressed concern that voucher programs largely abandon the civic mission of the schools. (Covaleskie 2007)

Legal issues. As voucher programs grew, opponents raised both First Amendment and state constitutional concerns, arguing that the use of public funds to pay tuition at religious schools violated both the First Amendment’s Establishment Clause and state-level prohibitions known as “Blaine Amendments.” The Supreme Court considered the First Amendment arguments in 2002, in Zelman v. Simmons-Harris. That case challenged an Ohio voucher program that affected only the Cleveland City School District. In 1999 and 2000, 82% of the schools participating in the Cleveland program were religiously affiliated, and 96% of the students using the vouchers were enrolled in one of those religious schools. Both the District Court and the Court of Appeals ruled for the parents who were challenging the program; however, the Supreme Court reversed. The Court accepted the defense’s argument that the vouchers were payments to the parents, whose choice of religious schools was made freely and voluntarily, and that as a result, the vouchers could not properly be characterized as tax support for the religious schools. Since the choice of school was made by the parents, and the program’s goal of allowing low-income children to escape a failing school system was secular, the Court held that the voucher program did not run afoul of the Establishment Clause.

State courts have largely adopted the logic of the Zelman decision, allowing voucher programs to operate despite state constitutional provisions forbidding the payment of state tax dollars to religious institutions. These provisions, commonly called “Blaine Amendments,” were named for Congressman James Blaine, who sponsored a federal constitutional amendment in 1875 that would have forbidden public funding of religious schools. Blaine’s amendment was seen as an effort to prevent government from supporting the Catholic schools that had originally been established in response to Protestant bible-reading in public school classrooms.  Blaine’s effort at a federal amendment failed, but thirty-eight states subsequently added such provisions to their state constitutions. In sixteen states where Blaine Amendments seemed likely to preclude judicial approval of voucher programs, so-called “neo-vouchers” have used tax credits to circumvent the problem; the subsidies have been deemed “tax reductions” rather than direct spending. Arizona is the most prominent state employing this tactic; its Supreme Court upheld the state’s “tax credit scholarships” in 1998. In two states, Massachusetts and Michigan, both vouchers and neo-vouchers have been held to violate those states’ constitutions. (Davis 2016)

Performance. Recent research on statewide voucher programs in Louisiana and Indiana has cast doubt on the educational benefits promised by voucher proponents. (Dynarski & Nichols 2017) Public school students who received vouchers to attend private schools subsequently scored more poorly on reading and math tests when compared to similar students who remained in public schools. The magnitudes of the negative impacts were large, and the results could not be explained by the particular tests that were used or the possibility that students receiving vouchers had transferred out of above-average public schools. According to a Brookings Institute overview of available research, a Louisiana public school student who was average in math (at the 50th percentile) and began attending a private school using a voucher declined to the 34th percentile after one year. Students in third, fourth, or fifth grades had a steeper decline, to the 26th percentile. A student at the 50th percentile in reading declined to about the 46th percentile. In Indiana, a student who had entered a private school with a math score at the 50th percentile declined to the 44th percentile after one year. Earlier studies of voucher programs had shown more mixed results when measured by test scores, with scores improving for some students in some places, and failing to improve for other students in other places.

In January, 2018, The Wall Street Journal analyzed data on Milwaukee’s program, the nation’s oldest, and found that the city’s 29,000 voucher students, “on average, have performed about the same as their peers in public schools on state exams.”

A variety of explanations have been offered for the continued lack of evidence that vouchers improve student performance. Among the theories: Public schools have improved more than private ones since the early 1990s; business interests, often lacking background in education, have established schools they are ill-equipped to run; before vouchers, private school classrooms were occupied by children from more privileged backgrounds, and test scores tend to correlate highly with parental income. To date, no consensus has formed around any of these explanations.

Indiana’s results are particularly concerning, because the state has the nation’s largest, and arguably least restrictive, voucher program. Initial enrollment caps have been abandoned, as has the rule that children would not be eligible for a voucher unless they’d attended a public school for at least one year. (The initial justification for vouchers was to allow poor children to leave failing public schools.) The program is no longer limited to poor children; recent research suggests that nearly a third of Indiana’s voucher families could afford private school tuition without state subsidies. (Shaffer, Ellis & Swensson 2018)

Civic Dimension. If communities are created and sustained by the things we have in common, by mutual engagements that build social capital, it is particularly important to consider how overarching values and civic commitments are transmitted, supported and reinforced in a society as heterodox as that of the United States. The public schools have traditionally been seen as important to the forging of social solidarity, and have long been regarded as a public good. The public schools play a major role in introducing students who come from increasingly diverse backgrounds to each other and to America’s civic aspirations. To date, there are no research studies comparing public and private school performance in transmitting civic knowledge or success in encouraging civic behaviors.

Voucher proponents will generally not dispute the classification of education as a public good and except for the most ideological libertarians among them, do support a role for the state: the role of funder. Where they differ from proponents of a strong public education system is on the identity of the provider of educational services. Privatization proponents argue that the market can and should provide the education services and that government should enable individual families to purchase them. On the theoretical level, the voucher debate is one more instance of the tension between the libertarian belief in the efficacy of markets and the primacy of individual choice, and the more communitarian preference for mechanisms that encourage social cohesion.

Funding and Oversight. Education in the United States is a function specifically assigned to the states, and funding for public education has consistently been a major state-level budget item. Given state educational systems’ dependence upon the fiscal health and tax revenues of their home states, school funding and institutional quality across the country has been uneven. Voucher programs must be funded out of those same state budgets, and opponents of those programs charge that they are siphoning off funds desperately needed by the public schools. In Indiana, the state with the country’s largest voucher program, state support for vouchers in 2016-17 totaled 146.1 million dollars; between 2011 and 2017, the state spent 520 million dollars. Public school administrators assert that these are funds that would otherwise have gone to the state’s public schools, while advocates for voucher programs insist that the programs actually save the state money.

The fiscal impact of vouchers, and the veracity of the dueling claims, is difficult to assess for several reasons. Differences in the way in which states construct their programs means that impacts vary from state to state. Voucher proponents’ claim that vouchers save taxpayers money is based upon the fact that most vouchers are issued for amounts that are less than the per pupil cost of educating a child in the state’s public schools. Since the money that follows the child is less than the cost incurred by the public system to educate that child, the public school retains the difference. That claim, however, overlooks two reasons why such savings are more theoretical than real: first, a growing number of students enrolled in voucher programs were never in the public system. Second, there is not a one-to-one reduction of public school expense when a student leaves. For example, if one or two students leave a class of 25, the school system must still provide a teacher, a classroom and supplies for the 23 who remain. The school system must continue to maintain its facilities and pay sufficient personnel to conduct necessary administrative functions. It is only when large numbers of children take vouchers and depart that school districts can realize savings by closing buildings, consolidating classes and firing teachers. Thus far, there has been little to no credible research on the actual fiscal effects of the various iterations of voucher and neo-voucher programs on public school systems.

This lack of research is at least partially due to a lack of data. Oversight of voucher programs by most states has been minimal. Despite the large amounts of money involved, private schools accepting vouchers have not generally been subject to reporting requirements, either curricular or fiscal. In Louisiana, independent reporting found many religious schools teaching creationism in science class and using grossly inaccurate, religiously proselytizing texts in history. In Ohio, a 1999 investigation by the Akron Beacon Journal found school choice legislation had been developed as a quid pro quo for campaign contributions and documented improper political behavior by a local businessman who then established private schools specifically to take advantage of the opportunity created by the legislation. His schools generated 16 million dollars from vouchers in the 1999-2000 academic year; the students who attended his schools were subsequently found to perform more poorly than those in the public schools. In Florida, the Miami News Times won an award for its expose of a voucher program for children with physical and learning disabilities; the paper reported safety violations, physical abuse, frequent relocations, a lack of curriculum, and virtually no state oversight.

Conclusion. The combination of cutbacks to public schools, reports of malfeasance by voucher schools, and the emergence of data undercutting the claim that privatization would improve student performance has dampened much of the initial enthusiasm for school vouchers; however, the programs still have substantial political support. It remains to be seen whether that support can be maintained, and whether private schools accepting vouchers can improve their results sufficiently to justify continuation of these educational experiments.

 

References

 Covaleskie, J.F. 2007. “What Public? Whose Schools?” Educational Studies. Vol.42, #1.

Davis, Carl. 2016. “State Tax Subsidies for Private K-12 Education.” Institute on Taxation & Economic Policy. October.

Dynarski, Mark and Austin Nichols. 2017. “More findings about school vouchers and test scores, and they are still negative.” Economic Studies at Brookings: Evidence Speaks Reports. Vol. 2, #18, July 13.

Kennedy, Sheila Suess. 2001. “Privatizing Education: The Politics of Vouchers.” Phi Delta Kappan. Vol. 82, Number 6. February.

Shaffer, Michael B., John G. Ellis and Jeff Swensson. 2018. “Hoosier Lawmaker? Vouchers, ALEC Legislative Puppets, and Indiana’s Abdication of Democracy”  AASA Journal of Scholarship and Practice. Vol. 14, No. 4 Winter

 

 

 

 

 

 

 

 

 

 

Voucher Programs and the Constitutional Ethic

with Cullen Merritt

ABSTRACT

America’s public schools have not been exempt from the enthusiasm for “privatization” and contracting-out that has characterized government innovations over at least the past quarter century. A number of the issues raised by school voucher programs and to a lesser extent charter schools mirror the management and efficacy questions raised by privatization generally; however, because public education is often said to be “constitutive of the public,” using tax dollars to send the nation’s children to private schools implicates the distinctive role of public education in a democratic society in ways that more traditional contracting arrangements do not. We explore the unique role of primary and secondary public schools in forging a broad consensus about the nature and importance of America’s constitutional ethic, and growing concerns that vouchers, in particular, are failing to address, let alone facilitate, an ethic of citizenship.

INTRODUCTION

Concerns about failing schools, especially in America’s poor urban neighborhoods, have triggered a number of reform efforts, including voucher programs in which government agencies issue certificates to parents who use them to enroll their children in a participating school of the parent’s choice. Schools are paid a predetermined amount for each voucher received (Levin 2001). The vouchers are used at private schools, the majority of which are religiously affiliated. In most programs, vouchers are awarded through a lottery system, in which eligible students—usually but not always determined on the basis of socioeconomic status—are pooled and recipients are chosen at random (Peterson et al. 1998).

Proponents argue that vouchers create a market-based educational system in which schools must compete for students, a process they believe incentivizes innovation and positive academic outcomes. (Levin and Belfield 2005). That belief is based upon economic models of supply and demand in which markets have been shown to benefit consumers; it ignores, however, both the civic mission of public education and the other ways in which education differs from ordinary consumer goods.

Voucher programs have generated acrimonious policy debates as well as a number of lawsuits. The debates are largely between those who believe that education is basically another variety of consumer good, in this case a set of skills preparing young people to enter the job market, and those who argue that education is also an important public good (Carnoy et al. 2003), and that private schools, particularly religious ones, are ill-equipped to fulfill education’s public mission.

TRANSMITTING THE CONSTITUTIONAL ETHIC

The civic mission of public schools includes, at a minimum, the teaching of America’s history and the transmittal of the country’s core constitutional values. Those values guide appropriate individual participation in a democratic polity; even more importantly, a sound and accurate civics education provides students with an understanding of the genesis and evolution of the rules that shape and constrain public service in the United States, and provide a standard against which to measure the performance of public officials and the bona fides of those who ask for their votes.  At its best, civics education transmits the philosophical premises which undergird the Constitution and the Bill of Rights, premises which require allegiance to a particular code of conduct for citizens and public servants alike. That code defines the public good as essentially secular and rights-driven, and situates public service in a world that is increasingly multi-sectoral, multi-cultural, and international in scope.  (Kennedy & Schultz, 2010) The public mission of the schools thus requires them to teach students about this country’s approach to and experience with the principles of democratic self-governance–what Kennedy and Schultz have called the Constitutional Ethic.

The politics of liberal democracies is the politics of faction, as Madison clearly understood. Individuals have economic interests, social goals, and political and religious beliefs that are affected by public policies and that motivate political behavior. When they lack a common understanding of the philosophical underpinnings of America’s approach to governance and fail to form an ethical commitment to those common undertakings, a diverse polity inevitably fragments into tribal components contending for power and influence.  One of the concerns voiced by voucher program opponents is the participation in such programs of religious schools grounded in a wide variety of beliefs that conflict with important constitutional principles. Many of these schools teach students that the First Amendment does not require separation of church and state, and that biblical commands (for example, that women should be submissive and homosexual citizens shunned) take precedence in the public arena over jurisprudence confirming the constitutionality of very different civic imperatives. Opponents of voucher programs also point out that the racial segregation that has re-emerged as a result of some voucher programs (Witte 2000) is both socially undesirable and violative of America’s Constitutional Ethic.

During the 2013-14 academic year, ten percent of students in grades K-12 attended private schools, and those private schools comprised twenty-five percent of all schools within the United States (U.S. Dept. of Education). Just under eleven percent of these private schools, however, are nonsectarian; the remainder are religious. Catholic schools account for just over fifty-four percent of the nation’s parochial schools (U.S. Dep’t of Education). A growing but indeterminate number are fundamentalist Protestant schools that are reportedly teaching creationism, asserting a Christian biblical foundation for the U.S. Constitution, portraying evolution as an evil doctrine and using textbooks published by religious organizations that scholars criticize as wildly inaccurate. (https://www.sheilakennedy.net/2017/10/footing-the-bill-for-proselytizing/) In most voucher programs, parents can choose to enroll their children in any of them.

Challenges to the constitutionality of providing government funding to religious schools were resolved, albeit not without criticism from legal scholars, when the Supreme Court decided Zellman v. Simmons-Harris in 2002. Then- Chief Justice Rehnquist wrote that financial assistance via vouchers should not be considered a subsidy to religious schools, because the voucher is provided to individuals, allowing them to “exercise genuine choice among options public and private, secular and religious,” (Zelman v. Simmons-Harris, 536 U.S. 639 (2002), 663). According to Rehnquist, the fiction that the vouchers go to the parents (in most states, the parent chooses the school to which the voucher is sent, but is never actually given possession of the voucher) “the circuit between government and religion was broken, and the Establishment clause was not implicated.” Similar reasoning has doomed challenges brought under state laws prohibiting the use of public funds for parochial or other religious institutions. See e.g., Anderson v. Town of Durham, 2006; Meredith v. Pence, 984 N.E.2d 1213 (Ind. 2013), 1217).

Research studies evaluating outcomes of the various voucher programs now in effect have focused upon academic achievement, the consequences of diverting education funds from public schools in order to support private and religious ones, and a variety of social equity issues including the racial and socio-economic identitites of voucher recipients. (CITATIONS) There has been little to no research investigating the impact of voucher programs on civic knowledge and cohesion, or any effort to measure their effect on the transmittal of the constitutional ethic.

 

A MODEST PROPOSAL

Given existing case law, it is unlikely that voucher programs will be ruled unconstitutional or otherwise illegal, and despite the growing number of negative evaluations of their academic outcomes, such programs continue to enjoy considerable political support. Assuming that private and religious schools will continue educating approximately ten percent of the American school-age population for the foreseeable future, lawmakers should, at a minimum, condition receipt of government funding on the schools’ obligation to fulfill the civic mission we expect public schools to fulfill. At present, however, there is no generally accepted understanding of the nature or importance of that civic mission, and no standards or procedures for assessing whether individual schools are creating knowledgable, responsible American citizens familiar with and prepared to observe the constitutional ethic.

In the following two sections, we supplement our definition of the Constitutional Ethic and suggest how government might ensure compliance with a requirement that it be taught.

The Constitutional Ethic

The U.S. Constitution is the basis of America’s legal system and civic culture; as it has operated over the years, it has shaped a distinctive value system, a framework within which Americans make public policy and operate our common institutions. Elected and appointed officials take an oath to uphold that constitutional system, an oath that implicitly obliges them to understand its most basic and important characteristics. Both citizens and policymakers need to know not just that the U.S. has a government of checks and balances, but why the system was constructed that way.

At its most basic, adherence to the Constitutional Ethic requires that American citizens, especially but not exclusively public officials and others in positions of authority, act in ways that are consistent with the basic premises of the country’s governing systems, and avoid acting in ways that would undermine them. For example, respect for due process   guarantees would seem to rule out drone strikes on persons–especially but not exclusively Americans–who have not been afforded legal process to determine guilt or innocence. Respect for government’s obligation to treat citizens equally would seem to rule out efforts to marginalize members of minorities, or refuse them access to the institutional benefits enjoyed by other citizens. Respect for the right to vote, one of American citizens’ most fundamental rights, imposes an ethical obligation to refrain from vote suppression tactics or other partisan “dirty tricks.” Respect for the principle of free speech, protected by the First Amendment, imposes an ethical obligation to refrain from attempts to censor ideas of which some people disapprove.

Maintaining the integrity of a constitutional system requires broad citizenship education and civic participation consistent with the values of that system. As Keith Whittington has argued, leaving constitutional compliance to the courts is both empirically and normatively problematic. (Whittington, The Good Society pg. 60) Constitutional rules give rise to conventions, norms and customs that should guide American political behavior. As Vartan Gregorian, President of the Carnegie Foundation has written, increasing young people’s “informed engagement” in our national life requires school-based civic education. “After all, understanding and actively participating in our civic life was one of the principal missions given to American schools from the very beginning.” (https://www.carnegie.org/media/filer_public/85/8b/858b7e5d-c538-42e2-ae78-24471dce73d7/ccny_creview_2011_civic.pdf )

Regulatory and Monitoring Proposals

The nature and extent of state oversight is a key, and often contentious, consideration when states enact voucher programs.  Typically, private schools participating in voucher programs must comply with regulations regarding health and safety, but requirements for compliance with other standards, such as teaching certification, curriculum, accreditation, anti-discrimination and civil rights laws, number of school days, and recordkeeping and reporting vary by state.  No voucher program of which we are aware imposes standards for civics education on participating schools. Because the civic mission of the nation’s schools is so fundamental to the continued operation of American democratic institutions, we propose that inclusion of a robust civics education curriculum be a condition of voucher program participation.

Ideally, private schools accepting vouchers would integrate curriculum content from the We the People: The Citizen and the Constitution Program within their curricula.  Developed in 1987, the We the People education program is administered by the Center for Civic Education, a nonprofit, nonpartisan education program; it was adopted by the Commission on the Bicentennial of the United States Constitution as the principal education program of the federal Constitution’s bicentennial.  The curriculum promotes civic competence and responsibility among elementary, middle, and high school students through “an innovative course of instruction in the history and principles of the U.S. constitutional democracy.”  Through the curriculum, students gain insight into (1) the philosophical and historical foundation of the American political system, (2) how the framers created the Constitution, (3) how the Constitution has evolved to further the ideals contained in the Declaration of Independence, (4) how the values and principles embodied in the Constitution shaped American institutions and practices, (5) the rights protected by the Bill of Rights, and (6) the challenges the American constitutional democracy may face in the twenty-first century.

Multiple studies have found that students who have participated in the We the People program score significantly higher on tests of civic knowledge compared to their peers, especially in the areas of understanding and respect for the rule of law, political attentiveness, civic duty, community involvement, and commitment to government service, among others (e.g., Leming 1996; Owen and Schroeder 2017; Owen Schroeder, and Riddle 2016; Owen 2015a; Owen 2015b).  Participating voucher schools in states electing not to adopt the We the People curriculum would be allowed to develop their own civics education curricula, or to select another existing program, subject to evaluation and approval by the state’s board of education.

It is one thing to require that schools participating in state voucher programs provide adequate and accurate civics education, assuming that such a requirement is  politically feasible. Ensuring that the schools comply with that requirement is another, especially since many states have exhibited a startling laxity in monitoring compliance even with basic health and safety requirements. http://www.orlandosentinel.com/features/education/os-florida-school-voucher-investigation-1018-htmlstory.html

At a minimum, private schools participating in voucher programs should be required to demonstrate compliance with applicable civics education regulations by maintaining  records documenting class participation in the civics curriculum in applicable grade levels on a yearly basis.  Schools should also report student performance in civics-related courses.

CONCLUSION

Acceptance of a voucher by a private school should be subject to that school’s compliance with certain basic requirements. At a minimum, school buildings should meet relevant code requirements and fire safety standards; teachers should be able to offer evidence that they are equipped to teach their subject matter; and the school should both teach and model foundational constitutional values and behaviors. Ideally, schools receiving public funds should not be permitted to discriminate on the basis of race,  disability or sexual orientation (religious schools have a constitutional right to discriminate on the basis of religion in certain situations, although they do not have a right to do so on the taxpayer’s dime) and should be required to afford both students and staff at least a minimum of due process. At present, we are unaware of any voucher program that requires these commitments.

A long line of political theorists have described citizenship as a process of sharing, of forming community around basic values and ethical principles held in common. There are few public issues that do not presuppose a civic understanding of, and broad agreement with, a common purpose, a shared vision of the public good. A constant tension between the public or common good and a commitment to individual rights is a truism of Constitutional law and political debate, and an exploration of that tension should be an explicit part of any civics curriculum.

A quotation from Stephen Macedo is relevant to this issue of teaching the Constitutional Ethic:

Talk of diversity and difference too often proceeds without taking adequate account of the degree of moral convergence it takes to sustain a constitutional order that is liberal, democratic, and characterized by widespread bonds of civic friendship and cooperation.” (Macedo, 2000, 2)

Voucher proponents define the public purpose to be served by education solely as the achievement of a level of academic competence sufficient to sustain economic growth and make America competitive in the global marketplace. We quarrel with this definition. We argue that schools funded by tax dollars, whether public or private, should be contractually obligated to foster the Constitutional Ethic, and that the public good requires more than the transmittal of literacy and technical knowledge sufficient to support economic growth and individual self-sufficiency. It also requires the creation and perpetuation of a political community steeped in the Constitutional Ethic and prepared to contribute to the process of creating unum from our pluribus.

 

 

 

What Is Public? A Clash of Legal and Policy Paradigms

Cullen Merritt, Assistant Professor, SPEA, IUPUI

Julia Carboni, Associate Professor, Syracuse University

Deana Malatesta, Associate Professor, SPEA Bloomington

Sheila Suess Kennedy, Professor, SPEA, IUPUI

 

abstract

Deciding whether to advance public policy goals through government’s own employees or a third-party surrogate can be a complex undertaking largely because legal and policy actors will ask two very different questions: lawyers will ask “did government or someone who can be considered a ‘state actor’ do this?” Policy analysts will ask “Who should do this, government or a private party or a third-party surrogate?” Notably absent from prior scholarship is consideration of how the concept of “public” has evolved in administrative and legal practice. We analyze the evolution of “public” as defined by the Executive branch in OMB Circular A-76 and the parallel evolution of the judiciary’s “public function” test in state action cases.  Comparison of the administrative and legal frameworks in this area offers important insights into the tension between the two.  Conceptual knowledge in this area is especially salient given the increasing reliance on contractors and private funders to perform what public administration scholars have long assumed to be exclusively public functions.

 

INTRODUCTION

Public administration scholars have long sought to develop the concept of “public” (e.g., Bozeman 1987; Moulton 2009; Perry and Rainey 1988; Rainey, Backoff, and Levine 1976). Past efforts have focused on legal ownership (i.e., government versus private), modes of governance, and sources of authority (e.g., government regulation) as ways to distinguish between public and private actors. More recent efforts attempt to reconcile the judiciary’s understanding of state action with public administration scholars’ conceptions of public (Malatesta & Carboni 2014). This task is complicated by the fact that legal and policy actors are asking two very different questions: lawyers will ask “did government or a ‘state actor’ do this?” Policy analysts will ask “Who should do this, government or a private party or a third-party surrogate?” Notably absent from prior scholarship is consideration of the differences between legal and policy concepts of “public” and how those concepts have developed over time.

We analyze the evolution of public as defined by the Executive branch in OMB Circular A-76, and the evolution of the judiciary’s application of the “public function” test for purposes of the state action doctrine. OMB Circular A-76, “Performance of Commercial Activities”, is a federal document that provides guidance to those charged with determining how government will deliver and oversee “commercial” activities; the emphasis is on enhancing productivity and efficiency.  The Circular also provides guidance on distinguishing between commercial activities and “inherently governmental functions” that should be performed by government employees because they are “so intimately related to the public interest as to mandate performance by government employees.”

Though the courts do not have a singular definition of “public,” a subset of state action doctrine cases focus on the discharge of what the Supreme Court designates as public functions.  The state action doctrine is a legal principle used by the courts to distinguish between public and private actors for the purpose of assessing constitutional compliance.  Courts must decide whether conduct at issue is attributable to the state, making defendants potentially accountable to constitutional restrictions that apply only to state actors.  The jurisprudence of state action lacks clarity and consistency, and has been the subject of considerable legal scholarship and debate (Barak-Erez 1994; Carboni and Malatesta, 2014), but that debate has occurred with little or no cross-fertilization with either the policy literature or varying Executive branch directives.

This paper contributes to the growing literature on public-private distinctions.  Our contribution is unique, however, in that it traces the parallel historical evolution of “inherently governmental functions” and “public functions” as defined in administrative and legal contexts, respectively. Public administration scholars should be aware of both concepts, recognize the differences between them, and understand the implications of those differences for policy implementation. This issue is especially salient given the increasing reliance on contractors and private funders to perform what public administration scholars have long assumed to be exclusively public functions (e.g., operation of jails, state parks, and delivery of certain social services). We end the paper with a discussion of the implications resulting from the tension between inherently governmental functions and public functions for public administrators, with special emphasis on challenges in the contracting environment.

 

INHERENTLY GOVERNMENTAL FUNCTIONS ACCORDING TO THE A-76 CIRCULAR

Inherently governmental functions are those activities that federal law and policy have required to be performed by government employees, rather than by contractors or other non-governmental actors.  Though public administration literature has addressed the definition of inherently governmental functions to a limited extent, it has neglected documentation of the gradual but significant changes in the federal definition over the years. Instead, the literature has focused upon issues of accountability (Gilmour and Jensen 1998; Kettl 1997), the ethical/moral nature of outsourcing (Verkuil 2007), outsourcing and discretion in implementation of inherently governmental functions (Rosenbloom and Piotrowski 2005), and methods of managing contracts for complex products and services that involve contractor discretion (Brown, Potoski and Van Slyke 2009).

The definition of an inherently governmental function was originally designed for the purpose of distinguishing between commercial functions, defined as those that could properly be outsourced to non-governmental employees, and functions that should continue to be performed by government’s own employees. Criteria for identifying inherently governmental tasks have undergone changes as public administration distinctions between what is public and what is private have evolved.  The resulting definitions are broad and vague, providing general parameters to assess whether a function should be considered inherently governmental or commercial.

Although the literature has not been focused upon the nature of inherently governmental functions, its treatment of those functions has evolved along with general trends in public administration research. Beginning with Wilson’s politics-administration dichotomy, traditional public administration has been concerned with issues of leadership and executive action in the public sector; the scholarship advocated a separation between politics and administration, improved efficiency in the public sector, and improved service production through better management (Wilson 1887).  Later work emphasized application of general management principles to the public sector in order to improve the efficiency and professionalism of public administration (Gulick, 1937, Urwick 1945). In the 1960s, public administration shifted from an emphasis upon rational actor models and began to consider the human aspects of decision making.  The New Public Administration that emerged during this period was largely a rejection of the traditional approach to public administration and, instead, prized social equity, citizenship, and the provision of services to citizens (Waldo 1968).  Beginning in the 1980s, scholars in the field embraced New Public Management, a model that advocated a return to general management theory and private sector approaches to service delivery.  Contracting out was seen as a way to cut red tape and make government more efficient (Osborne and Gaebler 1993).  More recently, there has been a shift back to consideration of democratic values, responsiveness to citizens, and effectiveness, and an emerging emphasis on governance by complex arrangements of actors rather than by public agencies (Bryson et al. 2014; Denhardt and Denhardt 2000; Stoker 2006).

Confounding administrators’ decisions about what may be properly contracted out are two interrelated definitions of inherently governmental functions in US federal law. Those definitions are detailed below.  Both begin with the same assumption: certain activities are the domain of government only, and others, considered commercial, can properly be outsourced. A detailed account of the changing understanding of “inherently governmental” from the executive branch perspective can be seen through examination of OMB Circular A-76 and policy letters meant to clarify and expand upon that Circular, namely the Federal Activities Inventory Reform (FAIR) Act of 1998.  The FAIR Act of 1998 defines an inherently governmental function as “a function so intimately related to the public interest as to require performance by Federal Government employees.”  The FAIR Act requires executive agency compliance with the longstanding OMB Circular A-76 approach to the definition of inherently governmental functions.  Its primary focus is on requiring executive agencies to use competitive contracting processes in order to produce the most efficient and cost effective result, particularly in areas where functions were previously discharged by government employees.  It also requires executive agencies to report on their commercial activities to both Congress and the public.

The FAIR Act does not specify an exhaustive list of functions that are to be considered inherently governmental; rather, it identifies inherently governmental functions as those that will “require either the exercise of discretion in applying Federal Government authority or the making of value judgments in making decisions for the Federal Government, including judgements relating to monetary transactions and entitlements.” (31 U.S.C, Section 501).  The Act recites that inherently governmental functions are those that: bind the United States federal government by contract, policy, or regulative activities; determine, protect, and advance US property and interests by military or diplomatic action or judicial proceedings; affect the life, liberty, or property of private individuals; control federal employees; or control federal property, including acquisition, use, or disposition. These broad parameters provide a framework for determining what is inherently governmental rather than specifying activities that must be considered inherently governmental.  This broad approach is consistent with the OMB Circular A-76 definition.

OMB Circular A-76, “Performance of Commercial Activities”, is a federal document intended to provide guidance on government delivery of activities deemed to be commercial. It is focused upon enhancing productivity and efficiency, and it offers guidance on making a determination of whether it will or will not be appropriate to rely on the commercial sector.  OMB Circular A-76 defines an inherently governmental function as “an activity that is so intimately related to the public interest as to mandate performance by government personnel.”  Notably, in A-76, inherently governmental functions are defined in contrast to commercial activities.  Like the FAIR Act, Circular A-76 does not provide a list identifying inherently governmental functions; it defines inherently governmental functions as those that require discretion in applying government authority or functions which require value judgments in making decisions on behalf of government, and leaves the task of specifying those functions to the agencies, requiring the creation of agency inventories: “An agency shall prepare two annual inventories that categorize all activities performed by government personnel as either commercial or inherently governmental.”

The Executive Branch’s definition of what should be considered inherently governmental has changed over time, as the following timeline illustrates.

1955                The Eisenhower Administration’s Bureau of the Budget (predecessor of OMB) establishes federal policy to obtain goods and services from the private sector.  This policy, Bulletin No. 55-4, was the first version of the Circular A-76 and states that the government would depend on the private sector for the performance of commercial activities.

1966                Bulletin 55-4 was developed into formal policy under the new name, Circular A-76, by the OMB. The document restated the policy and reiterated the principle that the government should not compete with its citizens.

1967                OMB Circular A-76 was revised under the Eisenhower Administration to provide formal guidelines for cost comparison procedures.

1970                Reorganization Plan No. 2 of 1970 and Executive Order 11541.

1979                Circular A-76 was revised to recognize that some functions must be performed by government personnel, but recognized that in other cases contractor performance may be cheaper and more effective. It considered whether an agency had a requirement to contract out non-inherently governmental functions.

1983                OMB A-76 was reissued to simplify the cost comparison process under the Reagan Administration.  Procedures were also set in place to reestablish the initial objective of the Eisenhower administration so that commercial activities previously performed by the government could be outsourced to private companies.

1990                Chief Financial Officers Act of 1990 (CFO Act) was signed by the George H.W. Bush Administration to improve financial management by calling for the development and reporting of cost information and systematic measurement of performance.

1992                Office of Federal Procurement Policy Letter 92-1.

1993                Government Performance and Results Act (GPRA) mandated performance measurement by Federal Agencies.

Statement of Federal Financial Accounting Concepts No. 1, “Objectives of Federal Financial Reporting”, stated that Federal financial reporting should provide useful information to assess the budget integrity, operating performance, stewardship, and control of the Federal Government.

1995                Federal Accounting Standards Advisory Board (FASAB) recommended standards which produce the Statement of Federal Financial Accounting Concepts No. 4.  Concept No. 4 provides standards for managerial cost accounting.

1996                Circular No. A-76 Revised Supplemental Handbook was produced, replacing the supplement issued with the 1983 Circular.  The handbook provided updated guidance and procedures for determining whether reoccurring activities should be contracted with commercial sources, kept in-house using Government facilities and personnel, or advanced through inter-service support agreements (ISSAs).  The revision added: (1) balance the interests of parties to make or buy cost comparisons, (2) provide a level playing field between public and private offerors, and (3) encourage competition and choice in management and performance of commercial activity.

1998                Federal Activities Inventory Reform (FAIR) Act of 1998 was introduced.  The FAIR Act required the head of each executive agency to submit a list of activities performed by federal government sources to the Director of OMB and Congress.  This helped prepare executive agencies to evaluate cost efficiencies using the A-76 strategy.

1999                OMB updated the Revised Supplemental Handbook.  Revisions outlined that the government can engage in inherently commercial activities if the function is critical to combat effectiveness, if mission effectiveness will suffer because of outsourcing, if a commercial source is not available or does not meet government requirements in a timely manner, if another Federal agency can provide the goods/services, if outsourcing would result in a higher cost to the government, or if items were inherently governmental in nature.

2001                Competitive sourcing through A-76 was identified as a major initiative by the George W. Bush Administration’s Presidential Management Agenda (this initiative was defined by debate/criticism over A-76 competitions; the private sector maintained that the public sector and its employees had the greater advantage under A-76). This included a goal of controlling 50% of the commercial activities operated by federal agencies completed via the competitive sourcing process.

2003                OMB issued the current version of A-76, superseding the prior Circular and any related guidance.  Revisions to OMB Circular A-76 made it friendlier to the federal worker by getting rid of presumption that all commercial activities in government belong in the private sector.  The goal was to get the best value for the citizen irrespective of who performs the work.  Revisions were intended to simplify, clarify, and standardize the execution of the A-76 process.

A significant amount of Circular A-76 competitions occurred between 2003 and 2008 in most Federal agencies.

2007                Public debate ensued over the Walter Reed Army Medical Center in Washington, DC in which living conditions and frustrations of soldiers were reported by the Washington Post.  Both administration and bureaucratic failures were concluded to be factors contributing to poor conditions.  The public debate led to the prohibition of the conduct of A-76 competitions at military medical facilities, which ultimately led to a moratorium on the conduct of A-76 competitions government-wide.  There was concern that some A-76 activities should be considered inherently governmental and should only be performed by federal employees in the DOD.

2008                Congress passed legislation that suspended ongoing public-private competitions for DOD (Section 325 of the National Defense Authorization Act [NDAA] for FY2008) until September 30, 2008.

2009                President Obama signed into law the FY2009 Omnibus Appropriations Act (Sections 212 and 737) which suspended all new, government-wide OMB Circular A-76 studies through FY2009. DOD can use only competitive sourcing to determine how to best accomplish work that is not currently performed by federal employees. The Omnibus Appropriations Act directs OMB to “clarify when governmental outsourcing of services is, and is not, appropriate, consistent with section 321 of the 2009 NDAA.”

 

2009                “Managing the Multi-Sector Workforce” Memorandum.  This memorandum “provides initial guidance to help agencies improve their management of the federal government’s multi-sector workforce” by requiring agencies to:

  • Adopt a framework for planning and managing the multi-sector workforce that is built on strong strategic human capital planning.
  • Conduct a pilot human capital analysis of at least one program, project, or activity, where the agency has concerns about the extent of reliance on contractors.
  • Use guidelines that facilitate consistent and sound application of statutory requirements when considering in-sourcing.

 

2010                Section 735 of Consolidated Appropriations Act FY2010 imposed a moratorium prohibiting certain federal agencies from initiating or announcing a new public-private competition under OMB Circular A-76 through Sept. 30, 2010.

 

Section 325 of the NDAA for FY2010 established a review and approval process from recommencing DOD private-public competitions.  Section 322 and 325 of NDAA FY2010 required GAO to assess DOD’s report on public-private competitions and its use of authority to extend the 24-month time limit on the conduct of A-76 competitions.

In Section 8117 of Department of Defense Appropriations Act of FY2010, Congress prohibited any spending of FY2010 funds to conduct public-private competitions under A-76.

2011                In Section 323 of Ike Skeleton National Defense Authorization Act for FY2011, Congress prohibited the Secretary of Defense from establishing quotas or goals for converting functions performed by DOD civilian employees to contractors unless based on research and analysis required by title 10 United States Code.

In the Consolidated Appropriations Act FY2011, federal agencies cannot initiate or announce new public-private competitions (Section 8103 of P.L. 112-10).

2011                Policy Letter 11-01, “Performance of Inherently Governmental and Critical Functions”, prohibited outsourcing “inherently governmental functions” and cautions against outsourcing functions “closely associated with inherently governmental.”

2012                Technical correction to Policy Letter 11-01 made “to clarify that the Policy Letter applies to both Civilian and Defense Executive Branch Departments and Agencies.”

In Section 733 of P.L. 112-74, The Consolidated Appropriations Act for FY2012 prohibited funds from being used to begin/announce a study of public-private competition.

Obama Administration FY2013 Budget Request sought to prohibit conduct of future public-private competitions under circular A-76.

2013                Prohibition is continued.

2015                Prohibition is continued.

 

THE STATE ACTION DOCTRINE AND THE DEFINITION OF PUBLIC FUNCTION

In the United States, the legal system draws a constitutionally significant distinction between the public sector, defined as government and its agencies and officials, and the private sector, including civil society, defined as the multitude of nongovernmental, voluntary communal and religious associations through which individuals may act and connect. That distinction is a crucial, if unarticulated, element of most U.S. policy decisions, because only government actors can violate the American Bill of Rights, which limits government actions but not private behaviors. Based upon this particular understanding of the relationship of public and private behaviors, the American Constitution does not grant affirmative rights; it limits the power of the state to infringe private ones. This is not the case in many other Western democratic states, where it is common to have a constitutional system that both restrains and empowers government, and where social entitlements frequently are embedded in the constitution.

As a result of the United States’ approach, sometimes called “negative liberty”, a transfer of authority to nongovernmental agents is more than merely a management problem, as it is in many other countries, because constraints on the use of governmental authority are fundamental to the United States’ political and constitutional order (Kennedy 2012). “The Bill of Rights restrains only government action, making it essential that citizens and public managers alike be able to identify when government has acted” (Kennedy 2012, 1). The growth of contracting arrangements has made that identification increasingly problematic, blurring the boundaries between private and public action and making it difficult in many situations to determine whether a particular action or decision can fairly be categorized as governmental (Kennedy 2012). The result, in the opinion of many scholars, has been a loss of essential governmental accountability and thus legitimacy (Brown 2008; Metzger 2003; Kennedy 2001; Gilmour and Jensen 1998).

In making a determination whether state action is present, the courts will consider a number of elements, including but not limited to whether the function in question has traditionally been performed exclusively by government. As the practice of contracting out has grown, courts have increasingly been faced with cases in which the presence of state action sufficient to impose legal liability is less than clear-cut; accordingly, the question of what constitutes a public function for purposes of constitutional jurisprudence has changed over time. The inconsistencies of those changes have prompted calls for clarity from lawyers and legal scholars alike.

Current Status of the Relationship between State Action and Public Function

The Supreme Court has not discarded the idea that some governmental activities are in fact inherently “public functions.” It has, however, over time changed its approach to defining what those activities are, and not in a coherent fashion. In 1992, Justice Scalia began his state action analysis in the case of Lebron v. National Railroad Passenger Corporation with an observation that “It is fair to say that our cases deciding when private action might be deemed that of the state have not been a model of consistency.”  It is hard to disagree, and subsequent jurisprudence has not remedied the problem.

In the early 1940s, “the Court first expanded the meaning of state action to include private actors performing a government function (Smith v. Allwright 1944) and private action in which the state is significantly involved” (Peretti 2010, 273).  Since Marsh v. Alabama in 1946, however, the Court has been wary of too expansive an application of the state action doctrine in public function cases (Wirth 2014).  The evolution of legal doctrine defining what the courts will consider to be a public function can be seen not only when the Court finds a particular defendant a state actor, but also when it declines to do so.  For example, despite the common assertion that state action will be found when government exercises its coercive power or has provided significant encouragement of the decision at issue, in Blum v. Yaretsky, the Supreme Court declined to find state action even though the private nursing home’s medical personnel were obeying specific government regulations.  The ruling in Blum v. Yaretsky, among other cases, highlights the reluctance of the courts to deem private parties state actors.  Today, courts will typically find state action under the public function test when three conditions are present: (1) the activities have traditionally been performed only by government; (2) the private actor’s undertaking of the activity substantially replaces the government’s traditional performance of the function; and (3) the private activity is substantially aided by the state.

The Evolution of Public Function Application in State Action Cases

In a number of rulings, the Supreme Court has found private actors’ performance of governmental functions sufficient to make these parties agents of the state.  Judicial decisions focused upon state action and public function have centered on the First, Eighth, Fourteenth, and Fifteenth Amendments to the United States Constitution although, theoretically, state action may be found when any constitutional provision is at issue.  The rather limited set of issues on which the Court has based its rulings in this area suggests that the Court is more likely to find state action when the liberty interest involves freedom of speech, cruel and unusual punishment, equal protection and due process, and the right to vote, as Table 1 illustrates.

Cases implicating civil rights, especially the right to vote, led to the birth of state action doctrine and the legal interpretation of public function.  In two foundational cases, the court held that conducting elections is “exclusively a state function and invalidated racial discrimination by non-governmental groups (political organizations or parties) who exercised effective control over the selection process of candidates in a primary or pre-primary process” (Hunter, Shannon, McCarthy 2013, 67).  In Smith v. Allwright (1944), the Democratic Party of Texas, a voluntary organization, was held to be a state actor when Smith, a black man, was denied the right to vote on the basis of his race.  Because the state of Texas governed the selection of party leaders at the county level, the practice of racial discrimination in elections was considered a violation of constitutional rights by the state.  In Terry v. Adams (1953), a private association denied a citizen the right to vote on the basis of race.  The Supreme Court upheld the precedent in Smith: if a private political party is authorized to influence the outcome of an election, which is a function of government, the private actor will be found to be an agent of the state subject to the Fifteenth Amendment.  Smith v. Allwright and Terry v. Adams established that most, albeit not all, election functions traditionally performed by government will be deemed to be public functions.

Court rulings grounded in the First and Fourteenth Amendments (and on two occasions the simultaneous violation of both) (Marsh v. Alabama 1946 and Amalgamated Food Employees v. Logan Valley Plaza 1968), further developed the state action doctrine following the early civil rights cases.  In multiple cases, court rulings extended the doctrine beyond government actions to encompass functions that the Court deemed “governmental in nature”.  In Marsh v. Alabama, a Jehovah’s Witness disseminated religious literature near a post office in Chickasaw, Alabama, a company town, without obtaining permission from the Gulf Shipping Corporation, the owner and operator of the town.  The question before the court was whether the State of Alabama violated Marsh’s constitutional rights under the First and Fourteenth amendments when she was arrested for distributing religious material.  In a 5-3 ruling, Justice Hugo Black emphasized that owners of privately held bridges, ferries, turnpikes, and the like may not operate them as exclusively private entities. Rather, because these facilities are built and operated primarily for the benefit of the public and are governmental in nature, they will be subject to state regulation and required to operate in a constitutionally appropriate manner. Even though Chickasaw, Alabama was a “company town”  owned and operated by a private corporation, the court emphasized the town’s numerous public attributes, including the fact that the town’s policeman was a deputy from the Mobile County Sheriff’s Department. In Evans v. Newton (1966), the Court built upon the precedent set in Marsh and held that prior governmental involvement in the operation of the public space compelled a finding of state action; the case revolved around the use and maintenance of a tract of land which had been willed to the City of Macon, Georgia in 1911, to be used as a park for white people only.

Freedom of speech was the central constitutional issue in Amalgamated Food Employees v. Logan Valley Plaza (1968).  The Court was faced with a case concerning a protest occurring at a shopping center that maintained common areas, including parking lots and driveways; the question was whether the premises were public or private for purposes of evaluating protestors’ Free Speech rights.  The Court concluded that individuals may peacefully protest based on their First Amendment rights, since the shopping center was the “functional equivalent” of the business district of a town.  Citing Marsh, the Court used the case to further clarify its application of the state action doctrine and the degree to which it will consider common areas sufficiently public to justify constitutional analysis.  The more an owner opens private property to public use, the more the owner’s private rights become limited by the rights of the individuals who use it (Amalgamated Food Employees v. Logan Valley Plaza).  Legal scholars consider the precedent set in Amalgamate Food Employees v. Logan Valley Plaza the high-water mark of the public function theory (Huss & Simmons, 1976); the difficulty of balancing the competing public and private rights involved becomes apparent in subsequent litigation. The Court would revisit the issue four years later in Lloyd Corp. v. Tanner (1972), and would reverse course in Hudgens v. NLRB (1976).

The court held in Lloyd Corp v. Tanner (1972) and Hudgens v. NLRB (1976) that exclusively private property is not public property just because the public is invited to use the property for its intended purpose. In addition, due process guarantees will not apply to a plaintiff in situations where the state merely acquiesces to private actions (Flagg Bros v. Brooks 1974); when an action is not traditionally or exclusively reserved to the state (Jackson v. Metro Edison 1974); and when no symbiotic relationship exists between the state and private party (NCAA v. Tarkanian 1988; Baker v. Kohn 1982; San Francisco Arts & Athletics v. US Olympic Commission 1987).

In West v. Atkins (1988), a Fifth Amendment case in which a private contractor provided health care services to prisoners for a state hospital, the contractor was operating under state authority and was found to be a state actor performing a public function. In Edmonson v. Leesville (1991), the Court held that the right to trial by a fair and impartial jury is a guarantee issued by government, and the fact that private litigants dictated race-based exclusions during jury selection process would not deprive the litigant of a that constitutional guarantee.  When private actors participate in the selection of jurors, they serve a vital function within the government and are agents acting under its authority.

Careful consideration of the issue of state action should be a critical component of decisions by government agencies to contract out. Both the government and the contractor need to understand whether and under what circumstances the contractor’s actions will be legally attributable to the government, and where the ultimate liability will lie in the event of a successful lawsuit by a third party.

 

[Table 1 about here]

 

DISCUSSION AND CONCLUSIONS

“The development of a coherent and comprehensive understanding of state action begins with a multi-issue inquiry (ideally by all branches at all levels of government) into the nature of every transfer of government authority.” (Gilmour and Jensen 1998, 25).  Inquiry is necessary at three points—when the decision to delegate authority is made, during administrative oversight, and during judicial review. OMB Circular A-76 is concerned with the first point, the initial decision to contract out. It outlines a broad set of criteria to determine whether or not a function is appropriate for outsourcing or should be discharged by government through its own employees.  A-76 approaches that inquiry based on issues involving discretion and authority, rather than history.   In contrast, the courts’ “public function” test is applied to a situation in which that initial determination has already been made. Courts must determine whether the private entity employed by government was functioning as a state actor, justifying a finding of state action for the purpose of settling claims arising out of action that has already occurred.  In the process of assessing the public function test in order to determine the presence of state action, the courts look at several factors, including whether the activity in question has traditionally been performed exclusively by government.

These two approaches, the administrative and the legal, can complement each other, with A-76 providing guidance to public administrators as to whether or not something is a government function – even if it has been contracted out (state action can be attributable to private actors). Even if the Executive Branch approach to defining public function differs from the more limited instances in which the courts will find state action, recognizing the circumstances within which the courts will assess liability will inform contract negotiations and drafting, and avoid inadvertent assumptions of liability.  The courts have established a high bar for determining which functions are “public functions” and for determining when a contractor will be found to be a “state actor.” Understanding this jurisprudence may help both government and those with whom they contract to insulate private actors from constitutional claims that would apply if government performed the same functions (Buchanan et al. 1997), without inadvertently depriving citizens of constitutional protection.

Furthermore, encouraging those acting on behalf of the Executive Branch to familiarize themselves with what the courts have held in order to rationalize their respective definitions of public function is also important; when government is engaging in outsourcing, those responsible need to understand how their administrative decisions will be reviewed and interpreted in the event of litigation.  What makes this particular inquiry difficult, and may account for what seems to be an existing disconnect between the Executive Branch definition and the legal doctrine, is the lack of specificity of the former and the lack of clarity of the latter. The legal scholarship critiquing the Court’s state action jurisprudence and pointing to the practical problems raised by the incoherence of that jurisprudence is copious. When we counsel public administrators to follow the guidance of the courts, we assume that the courts are actually offering that guidance. When the various tests applied by different Circuit Courts differ from each other and from cases decided by the Supreme Court, guidance is hard to come by.

As Brown’s (2008) law review article concluded, “Balancing the United States Supreme Court’s tests with individual circuits’ applications of these tests, all while carefully excluding inapplicable precedents” (581) is a difficult analytical task facing courts in modern state action cases.

Losing the court’s favorability in recent decades, due in part to the judiciary’s utter confusion with this area of the law, modern courts are hesitant to authoritatively find state action. The state action doctrine is slowly descending into utter confusion, where private parties remain unaware of what conduct subjects them to Constitutional restrictions, and courts are unclear as to the appropriate state action standard. The time has come for the United States Supreme Court to declutter the state action doctrine by combining tests, shedding unnecessary terminology, demystifying the state action doctrine, and giving the lower courts a tangible standard with which to work (581)

The lower courts would not be the only beneficiaries of such clarification. Public administrators and private contractors could base contracting decisions on accessible and consistent guidelines, and (in an ideal world) citizens could be confident that protection of their constitutional liberties was an important and conscious element of governmental contracting decisions.

Clearly, the advancement of public policy objectives is “not the exclusive province of government, nor is government the only institution having public obligations, [though clearly] government has a special role as a guarantor of public value” (Jorgensen and Bozeman 2007, 373-374).  As a guarantor of inherently governmental functions and public functions and primary contributor to the public value that emerges from these activities, government will benefit from resolving the tension between administrative and legal conceptions of public.

 

Cases cited

 

Smith v. Allwright, 321 U.S. 649 (1944).

Marsh v. State of Alabama, 326 U.S. 501 (1946).

Terry v. Adams, 345 U.S. 461 (1953).

Evans v. Newton, 382 U.S. 296 (1966).

Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978).

Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).

Blum v. Yaretsky, 457 U.S. 991 (1982).

Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

San Francisco Arts & Athletics v. United States Olympic Committee, 483 U.S. 522 (1987).

 

Hudgens v. NLRB, 424 U.S. 507 (1766.)

National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179 (1988).

 

West v. Atkins, 487 U.S. 42 (1988).

Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).

Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968)

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)

 

REFERENCES

 

Barak-Erez, Daphne. 1994. A State Action Doctrine for an Age of Privitization. Syracuse L. Rev. 45:1169.

 

Bozeman, Barry. 1987. All organizations are public: Bridging public and private organizational theories. San Francisco: Jossey-Bass.

 

Brown, Julie K. 2008. Less is More: Decluttering the State Action Doctrine” Mo.L.Rev., 73:561.

 

Brown, Trevor L., Matthew Potoski, and David M. Van Slyke. 2009. Contracting for complex products. Journal of Public Administration Research and Theory 20:i41-i58

 

Bryson, J. Crosby, B, and Bloomberg, L. 2014. Public Value Governance: Moving Beyond Traditional Public Administration and the New Public Management. Public Administration Review 74:445-456.

 

Bryson, John M., Barbara C. Crosby, and Laura Bloomberg. 2014. Public value governance: Moving beyond traditional public administration and the new public management. Public Administration Review 74: 445-456.

 

Buchanan, G. Sidney, Charles L. Black Jr, William J. Novak, and Gillian E. Metzger. 1997. State Action and the Public/Private Distinction. HOUS. L. REV. 1367:1248

 

Denhardt, Robert B., and Janet Vinzant Denhardt. 2000. The new public service: Serving rather than steering. Public administration review 60: 549-559.

 

Gilmour, Robert S., and Laura S. Jensen. 1998. Reinventing government accountability: public functions, privatization, and the meaning of “state action”. Public Administration Review 247-258.

 

Gulick, Luther. 1937. Notes on the theory of organization, In Luther Gulick & Lyndall Urwick  (Eds.),  Papers on the science of administration, 3-13. New York: Institute of Public Administration.

 

Hunter Jr, Richard J., John H. Shannon, and Laurence McCarthy. 2013. Fairness, Due Process and NCAA: Time to Dismiss the Fiction of the NCAA as a Private Actor. J. Pol. & L. 6:63.

 

Huss, Richard B. and Richard J. Simmons. 1976. Hudgens v. NLRB: Protection of Shopping Center Picketing under the Constitution or NLRA? , Industrial Relations Law Journal (1976): 632-655.

 

Jørgensen, Torben Beck, and Barry Bozeman. 2007. Public values: An inventory. Administration & Society 39:354-381.

 

Kennedy, Sheila S. 2001. Privatizing education: The politics of vouchers. Phi Delta Kappan, 82:450-456.

 

Kettl, Donald F. 1997. The global revolution in public management: Driving themes, missing links. Journal of Policy Analysis and management 446-462.

 

Malatesta, Deanna, and Julia L. Carboni. 2015. The public–private distinction: Insights for public administration from the state action doctrine. Public Administration Review 75:63-74.

 

Metzger, Gillian E. 2003. Privatization as delegation. Columbia Law Review 1367-1502.

 

Moulton, Stephanie. 2009. Putting together the publicness puzzle: A framework for realized publicness.” Public Administration Review 69:889-900.

 

Osborne, David and Ted Gaebler. 1993. Reinventing Government; How the Entrepreneurial Spirit is Transforming the Public Sector. New York: Plue.

 

Peretti, Terri. 2010. Constructing the State Action Doctrine, 1940–1990. Law & Social Inquiry, 35:273-310.

 

Perry, James L., and Hal G. Rainey 1988. The public-private distinction in organization theory: A critique and research strategy. Academy of management review 13:182-201.

 

Rainey, Hal G., Robert W. Backoff, and Charles H. Levine. 1976. Comparing public and private organizations. Public administration review 36:233-244.

 

Rosenbloom, David H., and Suzanne J. Piotrowski. 2005. Outsourcing the constitution and administrative law norms. The American Review of Public Administration 35:103-121.

 

Stoker, Gerry. 2006. Public value management: a new narrative for networked governance? The American review of public administration 36:41-57

 

Sullivan, Harold J. 1987. Privatization of public services: A growing threat to constitutional rights. Public Administration Review 461-467.

 

Urwick, Lyndall. 1945. The Elements of Administration. New York: Harper and Brothers.

 

Verkuil, Paul R. 2007. Outsourcing sovereignty: Why privatization of government functions threatens democracy and what we can do about it. New York: Cambridge University Press.

 

Waldo, Dwight. 1948. The Administrative State. New York: The Ronald Press Company.

 

Wilson, Woodrow. 1887. The study of administration. Political science quarterly 2:197-222.

 

Wirth, Stephen K. 2013. State Action, Government Speech, and the Narrowing Spectrum of Private, Protected Speech. Cornell L. Rev., 99, 485.

 

 

 

 

 

 

 

 

 

 

 


 

 

Table 1

 

Supreme Court Rulings on State Action Cases involving Public Functions

 

Year Case Finding of state action? Public Function
1944 Smith v. Allwright yes elections
1946 Marsh v. State of Alabama yes public space (in company-owned town)
1953 Terry v. Adams yes elections
1966 Evans v. Newton yes public space (desegregation of park)
1968 Amalgated Food Employees v. Logan Valley Plaza yes public space (trespass on private property)
1972 Lloyd Corp. v. Tanner no public space (trespass on private property)
1974 Flagg Bros., Inc. v. Brooks no public space (trespass on private property)
1974 Jackson v. Metropolitan Edison Co. no utility
1976 Hudgens v. NLRB no public space (trespass on private property)
1982 Blum v. Yaretsky no state subsidized healthcare
1982 Rendell-Baker v. Kohn no education
1987 San Francisco Arts & Athletics v. United States Olympic Committee no national interests
1988 National Collegiate Athletic Association v. Tarkanian no due process
1988 West v. Atkins yes state subsidized healthcare
1991 Edmonson v. Leesville Concrete Co. yes civil trial jury selection