[Responding to Angus, Christian]
“The study of law consists of two branches, law public, and law private. The former relates to the welfare of the Roman State; the latter to the advantage of the individual citizen.”[1] The public-private distinction is foundational in Western law, but we need to be careful, when employing it, to recognize its limitations. I’ll discuss one context—education—in which the public/private distinction is actually less helpful than it initially appears, and in which we might instead turn to information policy to move beyond it.
Education is in some ways the classic public good. It is universal, compulsory, and probably represents the place where we as a society have agreed to spend the most time together regardless of our differences. Yet, as we all know, the image of diverse primary and secondary education is often pretense. Majority or well-off groups (usually whites) have found methods, though privatization, religious schools, or residential habits, to limit minority enrollment at their schools.[2] Efforts at combating these trends, mostly through busing, have either failed or dwindled.[3] Taking a step back, private parties are succeeding in excluding certain groups from a theoretically public good through the combined use of practical difficulties, vibes and amenities. Maybe that’s fine, but the public/private distinction is not very helpful if the government’s stated job is to facilitate the integration of schooling.
Affirmative action is an obviously hot topic, so excuse me in advance. If our goal is integrated high schools and colleges, then the plans affecting Asian-Americans and others in places like Florida, Texas, and California (where large state schools employ class rank cut-offs, often in lieu of technical affirmative action) might interest us for a reason not mentioned by my colleague and friend Angus.[4] In other words, one effect of the cut-off might be to incentivize relatively well-off groups, like whites and (maybe?) Asian-Americans, to avoid racially monochromatic high schools.[5] This may be unfair to students below the cut-offs, but it could be more successful in incentivizing integration of secondary education than was Brown or the busing movement.
I say all this to go back to the private/public distinction in Roman law. I think by concluding “education is public” it might immediately follow that these de facto affirmative action programs are for the good of the country, and by concluding “education can be private” we then allow for the advantage of the individual. But the public/private debate in education could go either way, so maybe we should look at the problem instead through the lens of information policy.
What information should the government organize and provide in the realm of education? Tentatively . . . most of it. Privacy and proxy concerns abound, but if we take the empirical evidence referenced last week (by Conor?) and in the book seriously (that employers with criminal record access actually hire more minority employees), and expand it hypothetically to college admissions, we might be much less worried about them. Ultimately, the government might not need to consider public/private distinctions as much when it is regulating through information policy as it does when it regulates bouncer’s exclusion and the like directly.
In summary I think professor Strahilevitz does a good job in limiting the public/private distinction in his book; whether the reasons above have anything to do with that, I am not sure. Hooray information.
[1] Justinian’s Institute, Book I Title I: “On Justice and Law”
[2] http://press.princeton.edu/titles/8043.html, for further reading
[3] Most interestingly, http://en.wikipedia.org/wiki/Swann_v._Charlotte-Mecklenburg_Board_of_Education and the history after Swann.
[4] http://www.browndailyherald.com/2.12237/without-affirmative-action-asian-admission-rates-rise-1.1671413#.TxRnqGNWoQ8, though the cut-off tactic is obviously not limited to big state schools. [Angus might or might not be comforted to know that Emory University, my own alma mater and a top 20 University, accepts 41% white students, 33% Asian-American students, and 9% black students... in a city that is over 50% black]
[5] Indeed this is happening, at least for Asian-Americans. http://www.americanthinker.com/2005/08/asian_americans_and_affirmativ.html. Also, disclaimer: I intend, when referring to "(maybe?) Asian-Americans" as well-off, to refer specifically to their apparently high academic qualifications for college admission. I mean in no way to say that Asian-Americans enjoy the same privileges or advantages as whites in America in any broad sense, and that discussion is not at all the target of my post.
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