Academic journal article Brigham Young University Law Review

Removing Classrooms from the Battlefield: Liberty, Paternalism, and the Redemptive Promise of Educational Choice*

Academic journal article Brigham Young University Law Review

Removing Classrooms from the Battlefield: Liberty, Paternalism, and the Redemptive Promise of Educational Choice*

Article excerpt


Utah's new school voucher law has meant many things to many people. For the thirty-seven percent of our Hispanic and African-American public-school1 students who do not graduate with a high-school diploma, Utah's voucher law represented a sense of hope and opportunity.2 For opponents of educational choice, the voucher law is un-American and a threat to democratic values.

This Article argues that opposition to vouchers is rooted in a disturbing paternalism.3 This sentiment is emphasized more than any other in opposition to the law-many anti-voucher arguments seem to gravitate to an idealized view of the common good-and, not coincidently, it has been a central historical theme in the relationships between the federal government and indigenous, immigrant, and religious minority groups. To understand perhaps the most beneficial impact of the new school-voucher law is to first recognize the existence of the philosophy of paternalism underlying the establishment and maintenance of our public education system.

Utah's new school voucher law, as it is written, is primarily4 about helping low-income minority students and others who are currently failing in our public schools.5 In their current socioeconomic circumstances, and unlike struggling students from wealthier families, these students are essentially segregated in their neighborhood schools and told by the keepers of the common good that their challenges do not warrant any intervention transcendent of the higher priority to maintain the alleged seedbed of democracy, our government public school system. Indeed, the sociodisadvantaged are told, the system was created for them-not for the rich and the influential who have far greater choices and opportunities6 and who are able to leverage their successes to benefit their struggling children, but for disadvantaged people who could not succeed without the beneficent (if coercive) hand of government.

If Utah's new school voucher law only does one thing-eradicate the concept of public school paternalism-it will have done more for the freedoms of all Utahns than any other single policy reform in the past century. But to appreciate the power of that statement, we must first uncover its historical narrative, and this narrative begins with the issue of black slavery. Part II discusses a few historical examples of coercion in our nation's history of minority education. Specifically, this section outlines General Richard Henry Pratt's astounding approach to educating minorities after the Civil War. Part III describes how current proponents of the government school system and opponents of education choice make arguments descended from those General Pratt espoused. This section concludes that Utahns and Americans should avoid this paternalistic approach to education by incorporating greater modes of parental choice in our education systems, such as school vouchers. Part IV offers a brief conclusion.


General Pratt's paternalistic approach to the education of minorities incorporated contemporary cultural influences and social class theory. Homebuilders, past and present, know that "mudsill" is a pounded earthen floor prevalent in most primitive homes. In the mid- to late-nineteenth century, the term mudsill was eventually ascribed derogatorily to poor people. A well-known "mudsill theory" held that poorer classes, especially black slaves, were natural and essential to human progress.

The chief proponent of mudsill theory in the Civil War era was a South Carolina planter and United States senator named James Henry Hammond. In a speech delivered on the Senate floor in 1858, Senator Hammond explained,

In all social systems there must be a class to do the mean duties, to perform the drudgery of life. . . . Such a class you must have, or you would not have that other class which leads progress, refinement, and civilization. …

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