How Not to Expand Access to College (or further the General Welfare)

Not a Federal Agency (Yet)

In a recent post on BloombergView, Professor Stephen Carter critiques plans by former Secretary of State Hillary Clinton and Vermont Senator Bernie Sanders to reduce the price that some citizens pay at some colleges and universities.  As Carter explains, both plans seek to reduce the costs of attending public colleges and universities, thereby increasing access to higher education and reducing the debt burdens of those who matriculate.  The more ambitious (and more expensive) Sanders plan would provide states with federal grants of $47 billion annually on the condition that such states: (1) increase their yearly spending on higher education by $23 billion and (2) reduce tuition and fees to zero for all students, including those from wealthy families. The more modest Clinton plan would cost a mere $350 Billion over ten years and provide additional aid, in the form of grants, to students who are unable to pay their own way, thereby reducing the costs that such individuals must incur to attend public colleges and universities.  The plan would couple such aid with a requirement that recipients work 10 hours per week.  While the Sanders plan focuses solely on public universities, the Clinton plan sets aside funds to support a small number of private institutions that serve numerous low-income students.  To adopt such plans, a future Congress would have to exercise the power "[t]o lay and collect taxes . . . . to pay the Debts and provide for the common Defense and general Welfare of the United States."  See U.S. Constitution, Article I, § 8.

Professor Carter begins his critique by questioning "the underlying assumption that college is too expensive."  Among other things he notes that a college education is an investment in human capital, and that, for those who complete college, the median return on such investments has "outstripped the rising cost." (See here for a prior elaboration of this point on this blog.) The real problem, Carter says, is that many students who pay such tuition, perhaps taking on debt to do so, never graduate and are thus unable to realize this return. Indeed, as previously explained on this blog, many state flagship universities have four year graduation rates of 25 percent or lower.    Even if college is too costly, Professor Carter says, both plans may well exacerbate the problem, by increasing the demand for such education and thus further increasing college costs.  Carter also suggests that, if enacted, either plan may include implicit price controls to combat increased costs, controls that Carter sagely considers counter-productive.  Indeed, a summary of the Sanders Plan expressly provides that state institutions would have to "meet a number of requirements designed to protect students, ensure quality and reduce ballooning costs," while simultaneously (and inconsistently) "reduc[ing] their reliance on low-paid adjunct faculty."  Secretary Clinton's plan is a little more vague, promising simply to require schools to "control costs" while simultaneously increasing spending on programs designed to increase graduation rates.

Professor Carter is right to be skeptical of these plans, particularly their motivating assumption that public colleges (the target of these proposals) are generally inaccessible to families of modest means. If anything, Carter is too kind to this assumption. After all, and as previously explained on this blog, many such institutions provide generous grant-based financial aid to low income students.  Indeed, some public colleges offer packages that are significantly more generous either the Sanders or Clinton plans, which focus on subsidizing tuition and fees while ignoring room and board.  That is, some public universities provide low income students free tuition, free fees and free room and board, allowing these students to graduate debt-free.  (See here, here, and here, for examples). Others heavily subsidize college costs, ensuring that students graduate with debt far below the actual cost and value of the education that such students receive.  (See here, here and here).   The University of Washington, for instance, has already replicated the result sought by the Sanders plan, providing low income students free tuition and fees, with the result that such students need only assume loans to cover room and board --- the type of expense students would incur whether or not they attended college.  Ditto for Arizona State, Texas A&M and Rutgers-Camden.  The University of Virginia caps student debt for in-state students at $14,000 over four years.    Some such schools also provide significant grant aid to students from middle class families.  Rutgers-Camden, for instance, provides grants equal to one half tuition and fees to students from families with incomes between $60,000 and $100,000 per year.  (See here).  Berkeley offers grant-based aid to students from families earning up to $140,000 annually.  (See here).  Various other institutions offer significant financial aid to middle class families as well.  (See here and here, for instance).

To be sure, students from wealthy families do not qualify for such aid because their families' income and/or assets exceed relevant thresholds.  Such students must pay full tuition and fees plus the cost of room and board.  The Clinton Plan would do nothing to help these individuals, and this omission from her plan is to be commended.  As W. Taylor Reveley III, President of the College of William and Mary recently put it, when speaking of tuition and fees at William and Mary (a public institution): "[I]f you come from a family who can afford to pay full freight, you are still getting excellent value for one of the best undergraduate educations in the world.”  Reveley of course is absolutely correct: tuition and fees at William and Mary, ranked 34th among national universities according to U.S. News, is $16,919, while tuition and fees at the University of Virginia, ranked 26th, is $14,526. By contrast, Tufts (27th), Boston College (30th) and Brandeis (34th) charge triple these amounts or more. Nonetheless, the Sanders plan would shift the cost of educating wealthy individuals at public universities entirely to taxpayers, while providing no additional assistance to students who attend more costly private institutions.  So far as this blogger is aware, Senator Sanders has not explained why American taxpayers must foot the bill so wealthy children can attend public universities for free.

In sum, the current landscape of higher education pricing for students of modest means hardly justifies centralized intervention and a resulting one-sized fits all solution that both candidates advocate to some degree.  Indeed, if enacted, the Sanders plan in particular risks preempting state institutions from offering free room and board and thus ensuring that students graduate debt free, as some schools currently do.  After all, schools generally rely upon tuition revenue to fund part of such aid, and the Sanders plan would eliminate this source of revenue.  Moreover, the Sanders Plan's ban on tuition and other forms of over-regulation that Professor Carter sagely predicts will place public institutions at a decided disadvantage vis a vis private institutions, who will be free of such federal micromanagement.   As previously explained on this blog, the decentralized nature of America's system of higher education, including competitive federalism, is its main strength.  Transforming America's public colleges and universities into quasi-federal agencies in furtherance of a new federal entitlement will undermine this strength.  If, as both candidates assume, the Nation can afford to spend many billions more each year on education, it would be far better to allocate such resources to K-12 education, preferably via a system of vouchers that would empower students and their families to exercise meaningful educational choice in a free market.  Such reform would help better prepare millions of students for college, enhance college graduation rates and do far more than either candidate's plan to advance the General Welfare.  

The 239th Anniversary of the Battle of Trenton

Today is the 239th anniversary of the Battle of Trenton, a key American victory and a turning point of the Revolutionary War. Led by George Washington, the American army had retreated from New York, through New Jersey and into Philadelphia.  Hessian mercenaries were stationed across the Delaware River at Trenton, awaiting better weather before crossing the Delaware in pursuit. See Gary Hart, James Monroe: The Fifth President 1817-1825, 4-5 (2005). Outnumbered and with desertions mounting, Washington resolved to launch a preemptive assault against the Hessians. Inspired by Thomas Paine's December 23rd essay "The Crisis," Continental soldiers and troops from various state militias began crossing the Delaware late in the evening on Christmas Day, hoping to attack before dawn on December 26th.  Id.  The crossing took longer than expected, however, and hundreds of troops did not make it to Trenton. Many who did complete the crossing reported that their muskets and powder were wet and useless.  Despite these setbacks, Washington "resolved to push forward, and trust to Providence." See Washington Irving, 2 Life of George Washington, 417 (1856). Those without working muskets were ordered to "use the bayonet" instead.  Id.

Lt. James Monroe, recently an 18-year-old student at the College of William and Mary in Virginia, participated in the battle.  The young Monroe served in the Third Virginia Regiment, part of Brigadier General Alexander's Brigade, which in turn formed part of Nathaniel Greene's Division. (See here for the Order of Battle at Trenton) Early in the battle Monroe helped lead an assault on two Hessian cannons, taking a musket ball in the shoulder in the process. See Hart, James Monroe: Fifth President, at 6.  A statue of Monroe recently installed at William and Mary and pictured above memorializes the young Lieutenant's role in the battle.  One of eight friezes at the base of the statue depicts a scene from the battle, with Monroe, on the right, charging a Hessian gun emplacement.  The times, as Paine said, "tried men's souls" and caused "summer soldiers and sunshine patriots" to "shrink from the service of their country."  At Trenton, Monroe proved what his soul was made of. He was no "sunshine patriot." 

Portland Maine's 15th Annual Boat Parade of Lights

Portland, Maine has been staging a Christmas Boat Parade of Lights since 2001.  (For additional details on the history of the event, go here.)   Here is a video of this year's event, held earlier this month, from WPBN in Portland.  Others videos, some of greater length, can be found here, here and here. 

Happy Birthday to the 13th Amendment!

Dreamed of Abolition

Ditto

Made it Happen

Today is the 150th anniversary of the ratification of the 13th Amendment, which banned slavery and indentured servitude.  The Senate passed the Amendment on April 8, 1864, and the House of Representatives followed suit on January 31, 1865 after determined lobbying by President Lincoln and his administration.   Georgia ratified the Amendment on December 6, 1865, thereby providing the requisite three fourths of the states necessary to amend the Constitution.

Here is the text of the Amendment, in its entirety. 

Section 1

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in the United States, or any place subject to their jurisdiction.

Section 2

Congress shall have power to enforce this article by appropriate legislation.

The Amendment implemented the abolitionist vision that George Wythe and St. George Tucker, both pictured above, had articulated more than half a century earlier.    Wythe, of course, occupied the Chair of Law and Police at William and Mary beginning in 1779 and was thus the nation's first law professor.  Wythe endorsed abolition and freed his own slaves.  As a judge on Virginia's Chancery Court, he announced in Hudgins v. Wright (1806) that the Virginia Declaration of Rights provided that all persons are free, regardless of race.    Tucker, one of Wythe's students, succeeded his teacher as William and Mary's second Chair of Law and Police in 1790 and echoed Wythe opposition to human bondage.  In 1796, Tucker authored a 116 page pamphlet addressed to the state legislature and entitled "A Dissertation on Slavery, With a Proposal for the Gradual Abolition of It, in the State of Virginia."  

Unfortunately the Virginia Legislature did not embrace Tucker's proposal, and an appellate court reversed Wythe's decision in Hudgins.  Instead, and tragically, it took the Civil War to end slavery.  During that war, Abraham Lincoln explained what was at stake in an April, 1864 speech.

"The World has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We call declare for liberty; but in using the same word we do not all mean the same thing.  With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men's labor.  Here are two, not only different, but incompatible things, called by the same name --- liberty.  And it follows that each of the things is, by the respective parties, called by two different and incompatible names --- liberty and tyranny."

Lincoln, of course, embraced the first definition, namely that "liberty" includes the right of each person to do as he or she pleases with himself or herself and with the product of his or her labor.  The Thirteenth Amendment finally made this definition a reality, at least as a matter of Constitutional Law, for all Americans.  If Virginia and the rest of the Nation had listened to Tucker and/or Wythe in 1796, 1806 or some time in between, America could have extended the blessings of liberty to all persons much sooner, eradiacted the evil of human bondage and avoided the cataclysm of civil war.

Tribe Prevails over Duquesne in Williamsburg

William and Mary narrowly defeated the Duquesne Dukes on Saturday, 52-49 at Zable Stadium in Williamsburg.  The Tribe thus advances to the second round of the FCS playoffs.   Devonte Dedmon, shown above about to receive a 38 yard touchdown pass from Steve Cluley in the 1st quarter, caught three passes for 99 yards and 3 touchdowns.  Kendall Anderson, shown above heading for the Tribe's final touchdown late in the 4th quarter, ran for 137 yards and two touchdowns.  Go here for the ESPN game summary and box score.  The Bleacher Report provides a complete summary of Saturday's FCS playoff action.  Three different teams (Chattanooga, Northern Iowa and William and Mary), scored 50 points or more.  William and Mary and Duquesne combined for the most total points --- 101 --- of any game.

The Tribe takes on CAA rival Richmond in the second round of the playoffs this Saturday, December 5 at 12:00 PM at Robbins Stadium in Richmond.   This will be the 126th contest between the two teams, who first met on the gridiron in 1898.  Richmond defeated the Tribe 20-9 in the Capital Cup earlier this month.  The winner of the William and Mary versus Richmond clash will take on Illinois State or Western Illinois, who play at 2:00 PM on Saturday, December 5.

The William and Mary Sports Blog recaps the game here.

FCS Playoff Bracket Released

The NCAA has released the 2015 FCS Playoff Bracket.  Go here for an interactive version and here for a printable version.  The tournament includes 24 teams, 8 of which --- the top seeded teams --- have byes in the first round.   Here are the teams with the 8 highest seeds: (1) Jacksonville State, (2) Illinois State, (3) North Dakota State,   (4) McNeese State, (5) James Madison, (6) Portland State, (7) Richmond, and (8) Charleston Southern.  

William and Mary is one of four CAA teams (JMU, W&M, Richmond, and New Hampshire) making a tournament appearance.  The Tribe will host the Duquesne Dukes, from the Northeast Football Conference.  The Dukes, 5-1 in the conference and 8-3 overall solidified their conference title with a win over St. Francis yesterday.  This will be the first meeting between the two programs. 

The game will take place at Zable Stadium in Williamsburg on Saturday, November 28th.  Kickoff is at 3:30 PM.  (This post will be updated as additional information becomes available.)

The William and Mary Sports Blog has published a detailed preview of the game.   The Game Notes produced by the William and Mary Athletic Department are found here.

In other football-related news, the Tribe earned 18 CAA all conference selections this year.

Capital Cup in 12 Hours!

Tomorrow will mark the 125th gridiron clash between William and Mary and the University of Richmond.    The teams first played in 1898, and Richmond prevailed 15-0.  (The Tribe went 1-1 for the 1898 "season.")  Indeed, William and Mary lost the first four meetings between the two teams, before steadying itself with a 15-6 victory in 1904.  Overall William and Mary holds a slight edge in the series, with a 61-58-5 record, but Richmond has won 8 of the last 10 meetings between the two teams.   (For a collection of "All Time Game Results," updated in 2014, go here.)  Kickoff is at noon in Richmond.

As previously noted, the W&M v. Richmond rivalry is tied with the Minnesota/Wisconsin rivalry as the fourth most prolific college football rivalry and the most prolific in the South. Once known as the I-64 Bowl, in honor of the interstate highway that links the two cities, the game has been known as the "Capital Cup" since 2009. The name reflects the fact that Williamsburg preceded Richmond as the Commonwealth's capital. (See this post for a photo of the cup.) Since the schools renamed the series, Richmond leads 4-2.

The Capital Cup is not the only accolade at stake tomorrow.  If victorious, the Tribe, currently ranked 7th in FCS and 93rd overall in college football, will end the season with a 9-2 record, sole possession of the CAA title and presumably a spot in the FCS playoffs.  (The Tribe earned an exclusive conference title in 1996, winning the Yankee Conference after a 9-2 season.)     For a detailed preview of tomorrow's game, read this post on the William and Mary Sports Blog as well as the "game notes" prepared by the William and Mary Athletics Department.  (See here for notes prepared by the Richmond Athletics Department.)

Twenty games in this series have been decided by 3 or fewer points, and the William and Mary Sports Blog is predicting a 34-31 W&M victory.  Look for a close, exciting and high scoring game tomorrow.  Go Tribe!
 

Economic Science, The Fossil Fuel Divestment Movement and the Role of Universities in Political Debate

Students and Faculty at some universities are calling upon such institutions to sell investments in companies that extract or refine so-called "fossil fuels."  These advocates invoke scientific evidence purporting to establish that reliance on such fuels is causing "Global Climate Change," previously known as "Global Warming."  They also claim that, by investing in such companies, endowments are "funding climate change," and that divestment by various universities will visit economic harm on such firms, discouraging the production of such fuels.

Science is often a useful guide to Public Policy.  However, as previously explained on this blog (see here, here and here), so-called Progressives often reject the dictates of basic economic science when formulating policy recommendations or interpreting economic events. Unfortunately, proponents of such divestment have invoked science selectively.  The purchase of common stock traded on a national exchange does not "fund" that firm, which presumably issued the shares in question long ago in an initial public offering. Moreover, as Professor Todd Henderson at the University of Chicago Law School explains, divestment will not alter firms' stock prices and thus will not put financial pressure on publicly-traded firms.  Stock prices reflect "an estimate of the cash flow that ownership of the stock will produce in the future."  Moreover, sales by university endowments or other investors do not impact the demand or supply of coal or oil and thus have no impact on any firm's future cash flow.  Thus, as Henderson points out, after any divestment, the economic value of individual stocks will remain unchanged, and "others will stand ready to buy the shares at the current market price."

Henderson also explains how divestment will force schools "to accept lower returns than would otherwise be available" and thus deprive schools of much-needed endowment income.  As Henderson points out, Swathmore, with an endowment of $1.5 billion, estimates that such divestment would cost the school $20 million annually, or over $12,000 per student.  (See here for the size of Swathmore's student body.)  Thus, divestment would require schools to raise tuition significantly and/or substantially reduce the quality of their teaching and/or research.  So far as this author is aware, proponents of divestment have not identified alternate sources of revenue to replace that which would disappear following divestment.

It should go without saying that debates within the academy about institutional policies should consist of reasoned argument supported by evidence and logic. As the divestment movement spreads, Henderson has done Higher Education a useful service by reminding us that the economic logic behind much pro-divestment rhetoric does not withstand scrutiny.  Hopefully academic proponents of divestment will adhere to academic norms, heed the teachings of economic science, and develop alternative rationales to support their demands and/or channel their efforts to reduce carbon emissions in other directions.  Indeed, Henderson himself suggests that, in lieu of divestment, schools could "source their energy from more renewable sources[.]"  Presumably such re-sourcing would increase schools' energy costs --- otherwise schools would have already engaged in such re-sourcing simply to reduce costs.  In fact, many schools have already followed Henderson's advice, overtly investing resources in efforts to reduce carbon emissions for the sake of doing so, independent of whether such efforts reduce energy costs.

Should schools embrace Henderson suggestion and invest resources in reducing their carbon emissions?  This blogger respectfully disagrees with any suggestion that schools invest scarce resources in reducing their carbon emissions unless, of course, such investments produce net reductions in the school's energy costs.  Such investments necessarily divert resources from teaching and research, in service of ideological objectives entirely unrelated to the academic mission of a university.  As Henderson's colleague Geoffrey Stone recently explained "universities should not take ideological or political positions."  Moreover, as previously explained on this blog, a university that purports to provide a liberal education should not consider itself authorized to inculcate its students with the school's own version of moral or political virtue.  In the same way, such universities should not consider themselves authorized to expend scarce resources furthering ideological objectives unrelated to teaching and research.  Universities are not politically-oriented think tanks or service organizations. Instead, they exist to create and transmit knowledge, including knowledge about the existence, causes and possible cures for social problems like climate change.  Diversion of resources away from academic programs to unrelated projects hampers the achievement of this core mission and blurs the lines between research and education, on the one hand, and political activism, on the other.

Will Breaking Up Monopolists Help Low Income Consumers?

Might Condemn Facebook

A recent article in the Wall Street Journal examines evidence that a new phenomenon is responsible for apparent income inequality, namely, inequality between firms.  To be precise, some evidence suggests that the gap between profits (measured by return on capital) earned by median firms and those earned by the most profitable firms has widened considerably over the past few decades.  As a result, it is said, some firms are able to pay their lowest paid employees far more than other, less profitable, firms pay individuals in the same occupation.  The article summarizes the findings of a study by Peter Orszag and Jason Furman as follows:

"A company at the 90th percentile—that is, more profitable than 90% of all other companies—saw its return on invested capital jump from 22% in 1982 to 99% in 2014. For the median company, the return climbed from 9% to just 16%, and for the company at the 25th percentile it stayed the same, at 6%."

The article attributes such high profits to excessive market power, gained by firms, particularly those in the technology industry, that dominate their respective markets.  Thus, the article reports that Apple recently announced a 25 raise for its shuttle bus drivers, Google's parent Alpha made its security guards full time employees with benefits, and Facebook has raised wages for its cafeteria staff and custodians to $15.00 per hour. 

If accurate (and there is no reason to believe that it is not), this evidence could have significant implications for public policy.  The article itself advocates more intrusive "competition policy," in the form of aggressive anti-merger policy and less robust patent protection for inventions.  The article concludes with the following claim: "[m]ore competition isn’t just good for customers; it’s good for workers, too."

The article and the academic it invokes are important contributions to the debate over the causes and possible cures for income inequality.  Too often policy makers assume that the source of income inequality is "occupational," e.g., that all fast food workers earn low wages compared to individuals in most occupations, with the result that society can fight inequality by increasing the wages of such such workers.  The data highlighted by this article suggest that the issue is far more complicated.

At the same time, policymakers should not embrace the article's conclusions without further inquiry and reflection. For instance, the article seems to mis-describe the harm that supposedly results from the conduct it documents.   To be sure, an exercise of market power, other things being equal, injures consumers in the market served by firms exercising such power.  Such an exercise of market power will to that extent alter the distribution of income compared to that which would obtain in a competitive market, as consumers pay higher prices and thus see real wages fall.  Eliminating such market power (again, other things being equal) would thus reduce prices and increase the welfare of consumers (including some workers) previously injured by exercises of such power.  However, the elimination of such power, while reducing the wages of individuals working for once-dominant firms, would not increase the wages of those working for firms in competitive markets.  Thus, such increased competition would only be "good for workers" qua worker if such workers feel better off because their fellow workers in other industries are now worse off.

More fundamentally, it seems unlikely that more intrusive competition policy would in fact increase the welfare of consumers apparently harmed by the exercise of market power by dominant firms.  Firms like Google, Facebook and Apple apparently did not obtain their dominant positions via horizontal mergers but instead through internal expansion that took advantage of so-called network effects.   Thus, more aggressive anti-merger policy likely will not prevent the next Apple or Facebook from dominating its market.  Only active deconcentration, that is, breaking up such firms into several rivals, could render such markets more competitive and thus reduce market power.  However, such a policy would not be without its costs.  Social media and other high technology markets are often characterized by network effects, whereby the value of the product to any given user increases as the number of users rises.  Such markets tend toward monopoly because a dominant firm can, other things being equal, provide a more valuable product to consumers than would, say, a firm with a ten percent share of the market.  (Imagine if there were ten different social media platforms like Facebook, none of which dominated the industry.  An individual who wished to reach "friends" on each such platform would have to post ten different times.)  Thus, while breaking such firms into constituent parts could appear to reduce consumer prices, quality, too, would suffer.  The new and smaller firms might also have to incur higher costs to replicate the quality once provided by the dominant firm.  As a result, society's given stock of resources would produce less value than before the break up.

There was a time, of course, when antitrust law appeared to condemn firms that achieved and/or maintained their dominant positions by producing a better product at a lower price.  Most famously, in United States v. Aluminum Company of America, 148 F.2d 416 (2d Cir. 1945), the Second Circuit Court of Appeals, in an opinion by judge Learned Hand (pictured above), found that ALCOA had violated Section 2 of the Sherman Act because it repeatedly expanded production to meet rising demand, thereby preempting possible entry by rivals.  The court did not assert that ALCOA had priced below cost or engaged in other predatory tactics.  It was enough that ALCOA was what antitrust scholars now call an "efficient monopolist," that is, a firm that acquired or maintained its market dominance by realizing efficiencies that actual or potential rivals could not replicate. Fortunately courts (including the Second Circuit itself) have since rejected Judge Hand's hostility toward efficient monopolies, holding that a firm may acquire and/or maintain a monopoly by realizing efficiencies that exclude or disadvantage rivals, even if such dominance results in higher prices.    In so doing, courts have implicitly recognized that such efficiencies likely outweigh the negative impact of dominance on the allocation of resources (the so-called "dead weight loss" effect), with the result that efficient monopolists likely improve society's welfare, including the welfare of poor consumers.  (See here, for a discussion of the development of Section 2 standards governing efficient monopolists and here for an analysis of the welfare implications of different standards governing conduct that creates both market power and efficiencies).

Similar logic likely compels rejection of any proposal to employ an anti-concentration program as a means of enhancing income equality.  There are, however, other mechanisms, such as the earned income tax credit previously discussed on this blog (see here and here), for reducing income inequality more directly. Hopefully the data surveyed in this article will advance public discussion about these and other possible remedies for income inequality.  

Tribe Still Climbing in the Polls

William and Mary has climbed again in the national FCS rankings, following its thrilling victory over James Madison last Saturday at Zable Stadium.  Running back Kendell Anderson, shown above hitting a gaping hole in the JMU defense, led the way with 138 rushing yards, while quarterback Steve Cluley contributed 235 yards passing. Mikal Abdul-Saboor added 68 yards rushing on a mere 12 carries. For a thorough account of the game, which some are calling a "classic shoot out," go here at the William and Mary Sports Blog. The Tribe now, 5-1 in the CAA and 6-2 overall, ranks 12th in both the STATS and the FCS Coaches Poll and stands second in the CAA standings behind the University of Richmond.   

The Tribe takes on CAA rival Elon today at noon.  The Phoenix, 3-5 overall and 2-3 in the CAA, are coming off an impressive 21-7 victory over Stonybrook and should be tough at home.  Hopefully the Tribe will emerge victorious and continue their march to the FCS playoffs!  Go Tribe! 

Yes, Free Speech Sometimes Costs Money

Agent of Plutocracy? 

In a recent blog post, one Jim Hightower claims that: "[b]izarrely the Supreme Court decreed in its Citizens United ruling that money is a form of free speech."  As a result, he says, people with more money can engage in more free speech, and speech is "no longer free," with the result that we live in a '"Plutocracy, not a Democracy." 

Citizens United did not equate the expenditure of money with speech.  Instead, the Court simply held that quintessential speech --- there a movie critical of a political candidate --- did not lose its status as free speech because production and distribution of the movie cost money.   This was not a novel conclusion.  In New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court, in an opinion by Justice William Brennan (pictured above) held that states cannot punish speech --- there a newspaper advertisement --- absent proof of "actual malice" by the speaker.  In so doing, the Court expressly rejected the claim that the speech in that case --- a full page statement in the New York Times by various civil rights leaders and their supporters --- lost First Amendment protection because it was a paid advertisement.  (The advertisement, placed in 1960, cost $4,830, over $38,000 in 2015 dollars.)  According to Justice Brennan's opinion, which was unanimous on this point:

"[The advertisement] communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are of the greatest public concern [citation omitted].  That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold..."

Far from "bizarre," this holding is unremarkable. The exercise of individual liberties often consumes scarce resources, and free societies rely upon the price mechanism to allocate such resources. In such a system, wealthy individuals will be able to exercise certain constitutional rights more often and or in different ways. For instance, as previously noted on this blog, the Constitution protects the right to travel, a bulwark of competitive federalism. Travel can be expensive, with the result that wealthy individuals can exercise this right more often than others, if they so choose. Moreover, the Bill of Rights protects the right to counsel, pursuant to which a criminal defendant can hire the best lawyer she can find. The framers and ratifiers of the Constitution would not have been surprised to learn that wealth individuals can hire more and better lawyers than the poor as a result.  Wealth individuals can also purchase more books, movies or art than the poor. As Eugene Volokh has pointed out, a law placing on ceiling on expenditures employed to exercise constitutional rights violates those rights in a straightforward way.  A ceiling on expenditures for movies, books, art, advertisements or handbills is no different. It is difficult to reconcile the views of those who disagree with the basic premises of a free society.

Will The Tribe Soar Into the Top 10 Today?

Moving Ahead

Ready to Soar!

William and Mary continues to climb in the national football polls, now ranking 15th and 16th in the FCS Coaches Poll and Stats Poll, respectively.  This latest jump follows the Tribe's 40-7 Homecoming victory over the Hampton University Pirates at Zable Stadium on October 24th.  (See this post on the William and Mary Sports Blog for a recap of the game.)  Halfback Kendell Anderson, pictured above, led the way with 195 rushing yards.

Later today the Tribe takes on number 9 James Madison at 4:00 PM at Zable Stadium.  The Tribe prevailed the last time the two teams met at Zable, 17-7 (see above).  A Tribe victory today could result in the Tribe soaring into the FCS top 10.  The Griffin, shown above at half time of the Hampton game, is apparently ready! 

Toward a New Conception of Diversity

Induced More Economic Diversity

The New York Times recently published a ranking of "Top Colleges Doing the Most for Low Income Students."  The ranking relies upon the Times' annual "College Access Index." This index, in turn, employs three factors: (1) the percentage of students receiving Pell grants, (2) the graduation rate of students receiving such grants and (3) the net price, after financial aid, that the school charges low and middle income students.  (See here for a description of the index's methodology.)   The article characterizes schools with high scores on the index as more "economically diverse" than those with lower scores.

The top 15 schools as measured by this index include eight public universities: six from California as well as the University of Washington and the University of Florida.   While disparate in many ways, these eight schools have one thing in common: all are in states that have banned race-based preferences (one form of "affirmative action") in college admissions.  For instance, the 1996 California Civil Rights Initiative, championed by Ward Connerly (pictured above) amended the state's Constitution to provide as follows:

"The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting."

Washington's Initiative 200, enacted in 1998, added the same language to state law.  Moreover, in 1999, Governor Jeb Bush issued an executive order that "prohibit[ed] racial discrimination in education because of race, gender, creed, color, or national origin" and requested the state's universities to eliminate "racial set asides, quotas or preferences in admissions."   Thus, state law in all three states requires schools to employ exclusively race-neutral criteria when making admissions decisions.   Several other states, including Michigan, Nebraska, New Hampshire, Nebraska, Arizona and Oklahoma, have also banned the consideration of race in admissions.  The Supreme Court properly upheld state initiatives that eliminate race-conscious admissions policies in Schutte v. Coalition to Defend Affirmative Action, 572 U.S. _____ (2014).

Of course, some states have declined to ban such discrimination, implicitly authorizing their colleges and universities to consider the race of applicants when making admission decisions.  Some universities have rejected this invitation, however.  For instance, in 2004 the Board of Regents of Texas A&M eliminated the consideration of race when evaluating applicants, after then-Chancellor Robert Gates recommended that "students at Texas A&M should be admitted as individuals, on personal merit --- and no other basis."  (Texas A&M, it should be noted, ranks 29th among the 179 schools ranked in the College Access Index.)

As Richard Kahlenberg and Halley Potter have explained, state bans on race-based preferences in admissions have encouraged colleges and universities to adopt more comprehensive definitions of diversity.  These definitions focus on class and economic disadvantage instead of race and ethnicity. By re-conceiving the definition of diversity, enhancing efforts at outreach and recruitment, and increasing need-based financial aid, these schools have all increased significantly the economic diversity of their student bodies.  In so doing these schools have better fulfilled their intended roles as engines of upward mobility and equal economic opportunity. Moreover, several such schools have seen the racial and ethnic diversity of their student bodies increase or remain the same after replacing race conscious admissions policies with class and/or income based policies.  (See also here.)

The experience of the schools highlighted above provides valuable lessons to other institutions that wish to enhance the economic diversity of their student bodies.  This experience may also have ramifications for the constitutionality of race-conscious admissions policies. To be sure, the Supreme Court has, in Grutter v. Bollinger, 539 U.S. 306 (2003) narrowly upheld the consideration of race by state officials making admissions decisions.  At the same time, the Court held that such preferences are invalid if race-neutral measures will achieve the same objective.  Indeed, the Grutter Court held that schools that employ race in admissions must engage in "periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity."  The Court also observed that "25 years from now, the use of racial preferences will no longer be necessary[.]"  If, in fact, admissions policies based on class and/or income can generate a "critical mass" of diverse students, it would appear that race-conscious admissions policies constitute unconstitutional racial discrimination.

There are, however, two possible caveats to this line of argument.  First, admissions strategies that focus on applicants' class and income may stretch institutions' financial aid budgets and thus be significantly more expensive than policies that emphasize race instead.  If so, schools could argue that a class and income based approach is not a valid alternative.  Second, admissions policies that rely upon class and income may be ill-suited for graduate and professional schools, given that many applicants to such program have been in the workforce for years, thereby blurring the lines between students who are economically diverse and those who are not.

One thing does seem certain, however.  Bans on race-conscious admissions policies have caused many schools to modify their admissions and recruitment strategies, thereby creating institutions characterized by greater economic diversity.  

Tribe Defeats New Hamphsire in Williamsburg

William and Mary posted a convincing win against No. 19/20 New Hampshire today, prevailing 34-18 at Zable Stadium in Williamsburg. The Tribe rushed for an impressive 324 yards, including 174 yards and two touchdowns by running back Kendell Anderson.  Anderson's first touchdown came on a 69 yard run off right tackle at the 9:18 mark in the second quarter.  (The third and fourth photos above depict the beginning and end of the run, respectively.)  Quarterback Steve Cluley rushed for 48 yards and two touchdowns on five carries.  (The first  photo above depicts the beginning of Cluley's first quarter touchdown run, and the second depicts the end of his third quarter touchdown run.) 

Go here for the game's box score.

The Concord Monitor called today's game a "critical midseason showdown" for the Wildcats.  Look for the Tribe, ranked 24 earlier this week, to climb in the FCS rankings ahead of next Saturday's Homecoming game against local rival Hampton University.  

The Tribe is now 4-2 on the year and 3-1 in the CAA.  Go here for the Tribe's 2015 Football schedule.

Should Colleges Encourage Students to "Give Back?"

Said Americans Should Give Back

Disagreed

The September/October edition of Washington Monthly Magazine includes the publication's annual rankings of the nation's colleges and universities.  As the magazine's editors explain, these rankings self-consciously eschew some of the metrics ordinarily employed to assess the quality of institutions of higher education.  For instance, the rankings include no data on the academic quality of incoming students, instructional quality, breadth of course offerings, or whether graduates succeed at obtaining remunerative employment or admission to professional schools.   Under this system, then, a school with mediocre students, horrible teachers, a small number of over-subscribed course offerings, and armies of unemployed graduates could outrank schools that excel on all of these metrics.  

Instead, the Washington Monthly rankings purport to measure each institution's "contributions to the public good," as measured by performance in three broad categories: "(1) Social mobility (recruiting and graduating low income students); (2) Research (cutting edge scholarship and PhDs granted and (3) Service (encouraging students to give something back to their country)."  Washington Monthly asserts that these "three measures would make the whole system [of higher education] better, if only schools would compete on them."  The issue employs these measures to rank universities in four different categories: (1) national universities; (2) liberal arts colleges; (3) master's universities and (4) baccalaureate colleges.

Hopefully colleges and universities will reject Washington Monthly's invitation to compete on these three metrics to the exclusion of others.  In particular, liberal arts colleges should categorically reject calls to "encourage students to give something back to their country." Ditto for national universities that purport to offer a liberal arts education, as many do.  Free societies allow individuals to select and pursue their own vision of the good life, or, as Jefferson put it, to "pursue happiness," so long as that pursuit does not injure others.  A sound liberal arts education in a free society should provide individuals with the intellectual tools and inclination to examine their own lives and determine for themselves what obligations they have to others and society at large and how to discharge such obligations. Schools that purport to provide such an education should not, therefore, consider themselves authorized to select their own version of the good and "encourage" students to embrace and pursue that particular normative vision.  Such an approach hijacks institutions that provide a liberal education and employs them to inculcate students with a particular and controversial vision of moral virtue that reflects the political preferences of each school's leadership.

Proponents of Washington Monthly's vision would no doubt claim that it is "obvious" that individuals who attend the nation's colleges and universities have an obligation to "give back" to the larger society. Think, for instance, of John F. Kennedy's inaugural address, which challenged each American to "ask what you can do for your country[.]"  Many treat this admonition as a fundamental part of the American Creed --- as fundamental as Jefferson's right to "pursue happiness."  Some might even contend that college students have a heightened duty to "give back," in so far as they are fortunate to have received educations not always available to their fellow citizens.

If the existence and content of the duty "to give back" is so obvious, then one might ask why universities must expend scarce resources to propagate this view to their students and tout the fact that they are doing so.  Of course, the existence of such a duty is not obvious. While certainly eloquent, President's Kennedy dictum and the philosophy it expressed are not without equally powerful detractors. Indeed, just one year after President Kennedy's address, Milton Friedman, who would later receive the Nobel Prize for Economic Science, rejected Kennedy's dictum because it "implies that government is the master or the deity, the citizen the servant or the votary."  "To the free man," Friedman continued, "the country is the collection of individuals who compose it, not something over and above them."  See Milton Friedman, Capitalism and Freedom (1962).  Consistent with Friedman's views regarding the appropriate relationship between the citizen and the state, this blogger has previously argued that even billionaires have no generalized duty to "give back" over and above the hundreds of millions of dollars in taxes the State extracts from such individuals and redistributes to others. Government exists to serve the people --- to facilitate individual efforts to pursue happiness. Governments that do so are simply discharging their pre-existing obligation under the social contract; performance of such obligations does not imply that citizens must serve the State.

One need not believe that Friedman was correct and President Kennedy was wrong to reject Washington Monthly's advice to the nation's universities.  One must instead merely understand that there are competing philosophies regarding the appropriate relationship between the citizen and the rest of society, some quite inconsistent with that espoused by Washington Monthly.  Some reject altogether any duty "to give back."  Others derive such a duty from particular religious commitments, while still others invoke a purely secular basis for such a duty.  Some emphasize one's duty to other individuals, while others emphasize a duty to the State or some other manifestation of the community as a whole.  A sound liberal education equips individuals to evaluate these competing accounts and to choose properly between them.  A University whose leadership selects a particular vision and seeks to inculcate its students with it short circuits the educational process and reveals a lack of confidence in the quality of the education it provides.

Should the ABA Mandate The LSAT?

Did Not Take LSAT

Ditto

For years, the American Bar Association has mandated that accredited American Law Schools require applicants for admission to take the so-called "Law School Aptitude Test" ("LSAT") or some other "valid and reliable admissions test."  The ABA also mandates that each school consider the results of such tests when making admissions decisions. Failure to comply with these requirements can result in the loss of a school's accreditation, in which case the school's graduates may not practice law in the vast majority of American states.  (Three states, California, Alaska and Tennessee allow students who have attended unaccredited law schools to practice law.)

Just last year, the ABA relaxed this requirement, allowing a school to waive the test for up to ten percent of its entering class for: "(1) students in an undergraduate program of the same institution as the J.D. program; and/or (2) students seeking the J.D. degree in combination with a degree in a different discipline."   Some law schools immediately took advantage of this exemption, and others followed suit.  St. John's, for instance, created a "Red Storm Scholars" program, whereby undergraduates at St. John's could  apply without first taking the LSAT.

Unfortunately the ABA has pulled the plug on what many viewed as a promising relaxation of the LSAT mandate, reimposing the requirement that each and every accredited law school require and consider this standardized test.  (There is no other "valid and reliable admissions test" on which a school could rely.)  Among other things, the ABA claimed that the new exemption was unfair to so-called "stand-alone" law schools, that is, schools with no connection to a larger university with undergraduate students.  The ABA also claimed that the rule was confusing and that regulated institutions were asking "so many questions" about how to implement the rule that "it was putting a lot of stress on the [ABA] staff."  (See this story, also linked above, quoting an ABA representative to this effect.)

Neither of these rationales for withdrawing the exemption withstands scrutiny.  For instance, one could deal with the unfairness concern by allowing stand-alone schools to accept students from one or more nearby undergraduate institutions.  (For instance, Hastings, a public stand-alone law school in San Francisco, could accept students from the nearby University of California at Berkeley.)  Or, one could simply open such programs to all applicants, and not just those who are undergraduates at the same institution as the JD program or seeking a J.D. degree in combination with with another advanced degree.  Moreover, one could deal with the purported confusion by crafting less confusing regulations!  The fact that a regulation is confusing, too stringent or stressful for the regulator does not ipso facto justify defaulting to an even more stringent regime, particularly when the rationale for the underlying regime is dubious at best (see below).

More fundamentally, the ABA's herky jerky approach to this issue should highlight a more fundamental question.  That is, should the ABA and 47 states consider themselves authorized to impose centralized Procrustean diktats such as the LSAT requirement on American law schools?  Yale Law Professor and author Stephen Carter answers this question with a resounding "no," chiding the ABA for "continu[ing] its ridiculous insistence that accredited Law Schools use the LSAT as an admissions criterion."

Professor Carter is absolutely correct.  Long before the ABA mandated the use of standardized tests, American law schools were selecting students for admission and providing such students with a legal education.  Neither John Marshall nor Thurgood Marshall, both pictured above, took the LSAT or, so far as this blogger is aware, any other standardized admissions test.  Neither did their classmates. More to the point, both matriculated at their respective Almae Matres before any centralized organization required the administration and consideration of standardized tests.  This blogger knows of no showing that American law schools are now producing better lawyers because of the ABA's LSAT mandate.

Of course, individual institutions should be free to require and consider standardized tests if they so choose.  However, as is often the case with the mandates imposed on Law Schools, there is no apparent rationale supporting a coercive one-size-fits all approach to this question. Instead, each institution should be free to experiment with its own methodology of evaluating applications for admission.  Law Schools are repeat players in the marketplace.   Simply put, law schools operate in a highly competitive market for students. Each school has every incentive to select the student body that will exhibit the best chance of academic and professional success, as such success will redound to the benefit of the school in question in various ways. There is no apparent market failure that conceivably justifies mandating that each such school employ a standardized admissions test.  Hopefully the ABA and the states that enforce its requirements will see the error of their ways and abolish this unjustified interference with the institutional prerogatives of the nation's law schools.

Are Ivy League Institutions Playing Politics With Honorary Degrees?

LL.D. The University of Pennsylvania 

LL.D. The College of William and Mary in Virginia 

In a post on the Library of Law and Liberty blog, Professor John McGinnis calls out seven universities in the Ivy League for ideological discrimination in the distribution of honorary degrees. (One Ivy League institution, Cornell, does not award such degrees.)  Professor McGinnis points out that: "of the fourteen honorary degrees bestowed by Ivy League institutions to living Supreme Court justices, twelve went to those on the left of the Court."   Justice Ginsburg, he continues, "is the champ," having received "an honorary degree from every Ivy League university except Cornell[.]" In addition to the twelve degrees conferred on those on the left, he says, Brown and Yale have each conferred honorary degrees on retired Justice Sandra Day O'Connor, whom Professor McGinnis characterizes as "a moderate conservative."

According to Professor McGinnis, no Ivy League university has conferred an honorary degree on any of the sitting Justices that he characterizes as "on the right of the Court."  Presumably Professor McGinnis is referring to Chief Justice Roberts and Associate Justices Scalia, Kennedy, Thomas and Alito. 

Professor McGinnis has certainly identified a curious pattern. Additional research reveals that these schools have had ample opportunity to honor Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito.  (Justice Scalia joined the Court in 1986, Justice Kennedy in 1988, and Justice Thomas in 1991.)  These jurists have served on the Supreme Court for a combined 90 years and performed over 125 years of public service in various positions with the national government. Over the past 25 years, Yale has awarded 241 such degrees, the University of Pennsylvania  has awarded 170, Harvard has awarded 234 (see here and here), and Princeton has awarded 156.  Penn, it should be noted, has awarded the "Doctor of Laws" (LL.D.) degree to such noted jurists as Bono (pictured above), Billie Jean King, Candice Bergen, and Ted Koppel.  Harvard has awarded the LL.D. degree to Bill Russell and Oprah Winfrey, and Princeton to Harry Belafonte.  Moreover, the published criteria for the award of such degrees seem tailor-made for these five justices. Yale, for instance, awards such degrees "to signal pioneering achievement in a field or conspicuous and exemplary contribution to the common weal." Penn states that "candidates should exemplify the highest ideals of the University, which seeks to educate those who will change the world through innovative scholarship, scientific discovery, artistic creativity, and/or societal leadership."  Nonetheless, these seven institutions, which purport to value public service and inclusion, have excluded each of these distinguished public servants from the highest honors they confer.

Fortunately, some colleges and universities are more inclusive when it comes to awarding such degrees, perhaps on the theory that individuals perceived as "conservative" sometimes make positive contributions to the common weal.   Way back in 1991, for instance, the College of William and Mary in Virginia, conferred an honorary LL.D. upon Justice Scalia.  Previously the College had conferred such degrees on Chief Justice Warren Burger (1973) and (then) Associate Justice William H. Rehnquist (1977). (For a list of past recipients of such degrees, go here.)  William and Mary is not the only institution with such good judgment.  Justice Scalia has also received honorary degrees from the University of Notre Dame, Rensselaer Polytechnic Institute, and Marymount University.  He received the Marshall-Wythe Medallion from the nation's first Law School in 2013, and the Thomas Jefferson Foundation Medal in Law from the University of Virginia, which does not confer honorary degrees, in 2008.   Moreover, one or more of the remaining four jurists that Professor McGinnis characterizes as "on the right" have received honorary degrees from New York University, the College of the Holy Cross, the University of the Pacific, and St, Mary's College.  (See here).

Perhaps the seven Ivy League institutions will catch up with institutions such as William and Mary and correct the oversights that Professor McGinnis has identified.  If so, these five jurists will proudly join the ranks of Bono, Oprah, Ted Koppel, Billie Jean King and other recipients of Ivy League LL.D. degrees.   

A Victory for Choice and Competition in North Carolina

Pro-Choice

Anti-Choice

Earlier this week the North Carolina Supreme Court struck a blow for choice and competition in K-12 Education. In Hart et al. v. State of North Carolina and Richardson et al. v. North Carolina,  the Court rejected challenges to the state's Opportunity Scholarship Program in a well-reasoned opinion by Chief Justice Martin.  Like a similar program in Washington D.C. previously discussed on this blog, the program provides financial assistance --- $4,200 per student --- to low income families who choose to enroll their children in certain private schools.  Sometimes called "vouchers," such scholarships implement  the vision of Nobel Laureate Milton Friedman, who articulated the powerful case for educational choice in his now-famous essay "The Role of Government in Education," reproduced here at the website of the Friedman Foundation for Educational Choice.

North Carolina imposes various regulatory requirements on its non-public schools.  (See here).  In addition, schools that enroll students who receive such assistance must employ nationally-recognized standardized tests annually in the third grade and afterwards to evaluate the progress of students in "grammar, reading, spelling and mathematics" and submit the results of such tests to the State's Educational Assistance Authority. ("Authority")  Such schools must also provide the parents or guardians of such students with annual progress reports, including the results of standardized tests and inform the Authority of the graduation rates of such students.  A school that enrolls 25 or more such students must report the aggregate standardized test scores of such students to the Authority, and such aggregate scores are available to the public.     Schools that enroll such students cannot discriminate based on race, color or national origin.  Moreover, the Authority must annually retain an independent research organization to assess the "learning gains or losses" of students who receive such grants as well as the "competitive effects" of the program upon the learning outcomes of students who remain in public schools.  (See N.C.G.S. Section 115C-562.1-7, found here).  

The Authority selected about 2,300 students from more than 5,500 applicants to participate in the program in its first year, at a total cost to the state of $10.8 million.

Plaintiffs, backed by the North Carolina ACLU, raised numerous objections to program.  Most notably, the plaintiffs claimed that the spending authorized by the program did not serve a "public purpose" because some of the schools in which beneficiaries enrolled are not accredited by one or more accrediting agencies and/or employed some teachers that are not certified.  See North Carolina Constitution Article V, Section 2(1) ("The power of taxation shall be exercised in a just and equitable manner, for public purposes only, and shall never be surrendered, suspended, or contracted away.") Plaintiffs also made a related claim that the program failed to "guard and maintain" the privilege of education guaranteed by Article I, Section 15 of the state constitution.  Indeed, a lower court had ruled that the "General Assembly fails the children of North Carolina when they are sent with taxpayer money to private schools that have no legal obligation to teach them anything." (Emphasis added).

The North Carolina Supreme Court properly rejected these and other claims.  As explained above, the Opportunity Scholarship Program contains numerous features, including annual testing, reports of the results to the state, and annual progress reports to parents and reports on graduation rates that enhance the accountability of private schools to families and the public.  The most important such mechanism, however, is market competition, the institution on which free societies ordinarily rely to ensure the production of high quality products and services.  Such competition, bolstered by background rules of contract and tort law, includes rivalry among various private schools as well as rivalry between private schools and their public counterparts, including the State's 147 Public Charter Schools.  Contrary to the implication of the district court's reasoning quoted above, no North Carolina children "are sent" by the state to a private school. Instead, parents or guardians voluntarily choose such schools over the free public school, and any public charter school, the child is entitled to attend.  Many middle class families already have sufficient financial resources to choose private schools for their children, and the U.S. Constitution guarantees them that right.  The Opportunity Scholarship Program increases the number of competitive options available to low income families, thereby facilitating their participation in the same educational markets, and attendance at the same schools, that middle class families have enjoyed for decades. Absent some substantial market failure, and none is apparent, there is no reason to believe that educational outcomes will suffer.  Organizations such as the ACLU, which purports to stand for "choice" and even invokes the Statue of Liberty on its logo, would do well to reconsider prior opposition to such programs, opposition that, when successful, entrenches anti-liberty state monopolies subsidized by the taxpayers, many of whom would prefer to send their children to private schools.

To be sure, accreditation and professional certification can sometimes improve the quality of products offered by some market actors.  Any such improvements come with countervailing costs, however. Such costs include the out-of-pocket cost of compliance, the cost of monitoring such compliance, the reduction in innovation resulting from regulatory mandates, and the exclusion of otherwise qualified individuals from the occupation in question.  See generally Milton Friedman, Capitalism and Freedom, Ch. 9 (1962).  At the same time, many markets for complex products function quite well without such governmental intrusion.   No certification agency decides what apps Apple will include on its latest I-Phone or whether and how Amazon will attempt to compete with Wal-Mart.  Indeed, Wake Forest University, founded in 1834, was first accredited in 1921. Davidson, founded in 1837, was first accredited in 1917.  So far as this blogger is aware, faculty who have taught at such institutions were never "certified" by any independent body.  It's hard to imagine that these institutions did not serve "public purposes" until 1921 and 1917, respectively.

Presumably the North Carolina Legislature understood the role that markets play in ensuring educational quality and took account of the costs and benefits of additional regulatory intrusion.   The legislature obviously decided that, on balance, the Opportunity Scholarship Program enhanced the public welfare by facilitating individual choice, bolstering educational competition and enhancing educational outcomes. Indeed, the State has long declined to impose stringent regulatory oversight on its private schools, trusting market competition to assure quality, and the Opportunity Scholarship Program imposes additional regulatory requirements on those schools that accept scholarship recipients.  As Chief Justice Martin eloquently explained for the Court, this determination was a quintessentially legislative judgment and, of course, subject to legislative revision as new facts about the operation of the program become available.  Hopefully the Court's decision will clear the way for an expansion of the program and thus additional reliance upon choice and competition in the provision of education in the Tar Heel State.