WASHINGTON -- Higher education hates the U.S. Education Department's recently enacted regulation requiring institutions to seek and gain approval from any state in which they operate, and has fought it on multiple fronts. Late Tuesday colleges and universities got at least a temporary reprieve from the part of the rule to which they most object -- its application to online programs in which even one student from a state enrolls.
In the 2006 federal budget he will release in early February, President Bush is expected to propose killing off two programs, Upward Bound and Talent Search, that have helped millions of disadvantaged students prepare for college. This makes no long-term economic sense.
More than 1,400 Upward Bound and Talent Search programs in communities and on college campuses across the country help about 450,000 middle and high school students from poor families set their sights on higher education. Upward Bound also serves about 5,000 veterans, supporting their needs for postsecondary education and retraining after military service.
These programs help at-risk participants become productive members of society. After all, education is the ticket to economic success in this country. Upward Bound and Talent Search alumni include members of Congress, judges, doctors, corporate leaders and college administrators. We measure our success student by student, taxpayer by taxpayer.
The administration says these programs have been ineffective, but its efforts to measure their value have been highly flawed. An Office of Management and Budget review of Upward Bound, for example, penalized the program because the U.S. Department of Education was and is behind schedule in analyzing the data submitted by Upward Bound programs. You need timely data to determine whether or not the students we serve went on to college. Without it, you have mush.
But the administration does not seem motivated to conduct or commission fair analyses of TRIO programs. Instead, the goal is to eliminate Upward Bound and Talent Search and redirect the funding to expand the President's No Child Left Behind initiative to high schools.
Of course we applaud the desire to improve high school education for all. But can we assume that instituting national standards and testing for every American high school will be an adequate substitute for one-on-one academic support and counseling for our most disadvantaged students? Not likely.
Is it rational or reasonable to fund a broad-based initiative to enhance high school teaching and learning on the backs of our neediest, least-prepared students? Absolutely not.
To eliminate two programs serving students from families with annual incomes of under $28,000 smacks of short-term political gain and long-term economic pain. It is our most fervent hope that Congressional Republicans and Democrats will see through this political sleight of hand.
Over the next few months, my organization, the Council for Opportunity In Education, and other advocates for the programs will take our case to Congress. Our political representatives in Washington will hear from students like Bani Pineda of East Los Angeles and Kiesha Shelton of Fort Worth, Tex. "Talent Search has given me the tools to realize my dream," says Bani. Upward Bound "helped me unquestionably defy the odds," says Keisha.
Upward Bound and Talent Search have helped generations of middle and high school students like Keisha and Bani prepare for, obtain admission to and enroll in college or other postsecondary education. I call on college and K-12 educational leaders across the country to acknowledge the contributions of these programs and to help us stave off their elimination.
Arnold L. Mitchem
Arnold L. Mitchem is president of the Council for Opportunity in Education, which lobbies on behalf of the TRIO programs for low-income students, including Upward Bound and Talent Search.
In the quest to measure university performance, both for valid or other reasons, we often latch on to statistics in ways that do more harm than good.
SAT scores, GPA's and graduation rates are all examples. Each of these data points provides some information about some characteristics of students and their universities, but none of them can serve as the ultimate test of institutional or individual worth. Universities and colleges are complicated places that serve widely varying individual students, each with a particular set of abilities, resources, preparation, background, attitudes, and goals. No single number captures this complexity, and when we extract simple numbers from this complicated mix and use them to compare colleges, we usually generate cynicism, misinformation, and, on occasion, misplaced remedies for inaccurately identified problems.
Let us take the graduation rate. What could be simpler or easier to understand? This rate measures the percentage of those students starting college in year one who graduate by the end of year four (or for some purposes year six). The four-year rate reflects the ideal model of the small liberal arts college where students attend full time for four years to complete a program that requires exactly eight semesters of academic work. Although we do not say so, we also have in the back of our minds that perhaps the very best college of all graduates 100 percent of its students within the four years. When a university graduates only 70 percent or 60 percent within the four-year period, we wonder why it fails to educate all of its students.
University people know better, but the answer, being complicated, fails the Lombardi 25 word test: "If you can't explain it in 25 words, most people won't listen."
Universities and colleges do want their students to graduate, and to do so having taken a rigorous course of study that challenges them. The institutions want to accept some students whose academic promise may exceed their academic preparation for college, and to accommodate students whose financial circumstances require them to work and attend part time. So, they try to explain graduation rates with a few more than 25 words.
Most colleges and universities institutions do not fit the full-time, small residential liberal arts college model. Some have programs like engineering that require five years of full time study, or pharmacy programs that also require more than the standard four years. Many institutions specialize in high-risk students, and by definition, many of these students will not succeed. Many students register for only 12 credits a semester because that is how the federal government defines full time for financial aid, yet to graduate in four years, students must take 15 credits. The graduation rate includes students who register for 12 credits, so by definition many students will fail to meet the four-year goal.
In large complex university systems, students frequently start at one campus, then transfer and finish at another. These students may transfer because they choose to pursue a program the first institution doesn't have, or because they couldn't gain admission to a highly selective major in their first institution, or found they preferred a larger or a smaller institution, or wanted to be closer to home, or had financial difficulties at the first campus. None of these reasons necessarily provides cause for alarm, but students leaving for these reasons will lower the graduation rate.
Even so, some reasons for low graduation rates do require attention. Sometimes students drop out because they cannot find seats in required classes or because they fail classes. Students can become isolated and discouraged and drop out; they can find themselves distracted by social and other non-academic activities and neglect their class work. Sometimes these failures reflect weaknesses in campus support services, and with careful attention to academic advising along with effective student support programs, campuses can reduce the dropout rate and improve the graduation rate.
When we use graduation rates to compare campuses and infer from these comparisons that one campus is doing a better job of educating students than another, we exceed the value of the data point. It may be that the campus with a high grad rate is simply giving away its degrees (after all, a diploma mill has a 100 percent graduation rate). It may be that the campus with a low rate is working with high risk students. Or, it may be that the high rate campus is doing a superb job of advising and the low rate campus is ignoring its students.
The grad rate doesn't tell which answer is right. The right answer requires a detailed analysis of what happened to the students who dropped out, and that takes more than one data point. If the campus improves its own graduation rate, that is probably a good thing, but comparisons of grad rates among campuses usually produce more distortion and misunderstanding than progress.
State colleges with lower tuition usually have lower graduation rates than private colleges with high costs because they accept a wider variety of often less affluent students. Private college parents, who pay a lot of money for their children's education, expect the college to find a way to graduate those students, and paying parents encourage their students to finish in the minimum four years. Sometimes this produces grade inflation as eager institutions seek to meet the expectations of paying parents.
As most university administrators know, graduation rates are very different for different subsets of students within the same campus. Some groups will graduate at rates approaching 100 percent, others at rates well below 40 percent. Both sets of students attend the same institution, have access to the same classes and faculty and advisers, and experience the same intellectual, cultural, and social environment. They have remarkably different graduation rates because they are remarkably different students.
Some of those who succeed easily are smart and academically well prepared, others who fail are also smart and academically well prepared but perhaps not yet ready to live away from home or experience a large university. Some of those who fail are poorly prepared and economically challenged, but others in similar circumstances meet the challenge and succeed. Improving graduation rates requires attention to the specific needs of significantly different groups of students.
If we overemphasize graduation rates, colleges may suffer the temptation to do whatever it takes to get the high percentages celebrated by rating agencies and trustees. One way to help improve the rate, after all, is to inflate grades so that all students are above average, and water down the curriculum so everyone can get a degree -- not outcomes of much interest to the policy makers, board members, or politicians who tout graduation rates as the touchstone of college performance.
John V. Lombardi
John V. Lombardi, author of the Reality Check column, is chancellor and a professor of history at the University of Massachusetts-Amherst.
Submitted by Sandy Baum on January 18, 2005 - 4:00am
President Bush made headlines last week for proposing an increase in Pell Grants for low-income students. Urging students to "aim high in life," he announced that he would ask Congress to raise the maximum award by $100 each year for the next five years. Just three weeks ago, the Department of Education announced updates to the Pell Grant formula that will cause almost 90,000 students to lose their grants entirely, and another 1.3 million to see their awards decline by $100 to $300. The news is as confusing as the exchange on the subject in the final presidential debate, when Bush and Kerry differed on the question of whether Pell Grants were increasing or decreasing. What does all of this really mean for low-income students aspiring to earn college degrees?
The Pell program is the cornerstone of aid for low-income students. Unlike the federal education tax credits and a growing proportion of the state grants for college students, Pell dollars are effectively targeted at low-income students, whose college participation frequently depends on financial aid. In 2003-4, $12.7 billion in Pell Grants helped 5.1 million students with average grants of $2,466 and a maximum grant of $4,050. The number of students participating in the program had increased by 37 percent over the preceding decade. At the same time, the increase in the maximum award amount from $2,300 in 1993-4 constituted a 38 percent increase in the inflation-adjusted value of the grant provided to the lowest-income students. This was an important development, but only partially compensated for the decline in the grant value since its peak in 1976-7. The maximum Pell Grant suffered a particularly severe decline in the late 1980s and early 1990s, before beginning its recovery.
If Congress had continued to increase the Pell Grant maximum as it did from 1996 through 2002, real progress might have been made. However, a $50 increase in 2000 has been followed by two years with no increase at all. The $100 annual increase Bush is proposing is about equal to the average dollar increase over the past 20 years -- a period over which the general purchasing power of $100 has declined quite a bit, and over which the average level of tuition and fees at public four-year colleges and universities has increased by almost $200 per year. Over the past 10 years, the maximum grant has increased by about $170 per year on average, even accounting for the zero increases in 2004 and 2005.
In other words, Bush's announcement does not represent a windfall for students. In fact, between the 2003-4 and 2004-5 academic years alone, the average tuition and fees at public four-year colleges and universities increased by almost $500 -- the amount the president hopes to increase the grant over the next five years. The president's proposals for moving in the direction of treating Pell as an entitlement and eliminating the persistent "shortfall" in the program that has resulted from underestimates of the number of eligible students, as well as his idea of writing future increases in the maximum grant into law, represent significant improvements. But without a greater commitment of funds for every eligible student, educational opportunities will not be secure.
The fact that the president's promise follows so closely the announcement of an adjustment to the formula that will cut grants to many students makes it particularly difficult to be optimistic about the prospects facing low-income students. Reports of the revision relating to the allowance for state and local tax payments have been difficult to follow. The basic issue is that in an attempt to approximate family and student ability to pay for college, the formula subtracts from income allowances for funds not available for educational expenses. Federal income taxes are based on actual amounts paid, but the allowance for state and local taxes is based on state-by-state estimates. Because adequate data have not been available, the allowance has not been updated for over a decade. The recently announced revision reduces the estimates of state and local taxes for most states, and because it views most students as having higher levels of available income, reduces or eliminates their grant eligibility.
It is certainly appropriate to use the most current estimates available, but unfortunately, the new formula will misrepresent the amount of state and local taxes paid by many aid applicants. There are a variety of reasons for this. The formula relies on federal income tax deductions in 2002. Some states have increased their tax rates in the intervening years. Moreover, the estimates are based only on filers who itemize their deductions and do not appropriately account either for all forms of state taxes or for differences in tax burdens across income levels. In other words, a detailed and complex formula results in a gross approximation of the appropriate measure.
Opponents of the formula change argue that it takes money out of the pockets of needy students and make the important point that these same students are likely to lose additional dollars from states and institutions that rely on the federal formula to allocate their own funds. Supporters argue that the revision improves the accuracy of the formula, redirecting funds at those who need them most. Neither of these arguments actually captures the essence of the issue.
In order to maintain the most equitable allocation of funds, the formula should certainly be frequently updated to reflect changing realities, but any dollars saved through such updates should be used to raise the maximum award level. Moreover, the formula should rely on data that allow accurate estimates of family and student financial circumstances. Provisions of the formula for which no such data are available should be altered with an eye to simplification.
The real issue is that the Pell program is not funded generously enough to assure that all low-income students will have enough grant aid to allow them to enroll and succeed in the institutions of their choice. Moreover, both the formula and the application process are too complicated and confusing to provide reasonable assurance to young people that when the time comes, if they are academically qualified, adequate financing will be available to allow them to enroll in college.
It is time for Congress to recognize the importance of the Pell Grant for providing low-income students the opportunity to continue their education after high school. Rather than devoting significant resources to tweaking a complex formula that creates only the illusion of an equitable allocation, both the formula and the application process should be simplified. In addition to replacing the inaccurate and inequitable estimates of state and local tax payments -- probably with a generous across-the-board allowance -- the formula should be modified to eliminate the work penalty paid by students from low-income families. A higher and more predictable amount of aid should be provided to low-income students, with resources devoted to improving college access rather than to a process that intimidates prospective students.
We should acknowledge that the formula does not provide a precise measure of ability to pay and stop subjecting students to arbitrary and unanticipated changes in their awards as a result of technical updating procedures. The program should be funded generously and predictably enough to provide timely assurance to students that if they can meet the academic requirements for college enrollment, they will be able to pay the tuition and fees, regardless of their personal financial circumstances.
Sandy Baum is a professor of economics at Skidmore College. She is also a senior policy analyst for the College Board.
Sandy Baum is a professor of economics at Skidmore College. She is also a senior policy analyst for the College Board.
Like ancient Rome in its waning days, American higher education is corrupted by excess. According to a now infamous 2003 New York Times article, for instance, Ohio State University boasts a massive facility its peers call the "Taj Mahal," which features kayaking, canoeing, a ropes course and massages. Washington State University possesses the largest Jacuzzi on the West Coast, a tub that can accommodate up to 53 people. And that just scratches the surface. One reads regularly about tens of millions spent to install new football stadium skyboxes; about gourmet cafeteria cuisine; and even about student rioting to celebrate athletic success.
Examine for-profit colleges, however, and one observes quite the opposite. There are no water parks, skyboxes or Jacuzzis. Typical is a campus of DeVry University, as described by the Berkeley professor David Kirp in Shakespeare, Einstein, and the Bottom Line: The "campus off Highway 88 in Fremont, California ... looks like one of the high-tech companies in the area. It's low-slung and functional, built with an eye to use, not aesthetics. With its long corridors of classrooms and labs ... it could be a community college, though without the gym or student center."
"Market forces" are often blamed for indulgences at traditional universities, as they are in the recent Futures Project report "Correcting Course," and for exploitation of students at for-profit colleges. But how can the market produce such contrasting corruptions: excessive opulence in presumably well-intentioned nonprofit universities, and dirty dealings at essentially amenity-free for-profit institutions? Moreover, how can for-profit schools' opponents continue to smear for-profit institutions as threats to students, as Rep. Maxine Waters (D-CA) did in recent Congressional testimony, while traditional colleges are typically portrayed as ivy-walled treasures dedicated only to seeking truth?
To a large extent, the answer, at least to the second question, is a failure to understand the practical difference between "for-profit" and "nonprofit."
First, look at nonprofit institutions. "Universities share one characteristic with compulsive gamblers and exiled royalty," writes the former Harvard University president Derek Bok in Universities in the Marketplace, "there is never enough money to satisfy their desires." Bok's point is unmistakable: Universities always work to maximize their revenue. Why? Because, like most of us, they always have things they'd do if only they had more money. William F. Massy, a former Stanford vice president, calls it a drive for "value fulfillment" in his book Honoring the Trust, further explaining that "because value fulfillment is open ended, no respectable university will run out of worthwhile things to do."
That makes sense. The term "value fulfillment," however, suggests that universities use additional money only for altruistic ends, while the reality is that nonprofit universities can be driven as much by greed as anyone else. For instance, as the Ohio University economist Richard Vedder explains in Going Broke by Degree: Why College Costs Too Much, university presidents often indulgently use new revenue "to fund large salary increases, add staff members ... build more luxurious facilities, and expand research projects."
For-profit institutions also try to maximize their revenue. But in addition to maximizing revenue, for-profit schools want to minimize their expenses. That's why they don't have any football stadiums or massage therapists. Simply, maximum revenue and minimum expenses yield maximum profit.
That does not mean, as their critics suggest, that they will necessarily exploit their students. The only way for-profit schools can maximize their revenue, after all, is by bringing in as many students as possible. They can't, therefore, reduce expenses to any point below which they can provide the education students are willing to pay for. Kirp's discussion of DeVry helps confirm this. "Instruction is more intense than in most community colleges and regional universities ... and it is often better as well." Moreover, "graduates do get hired ... DeVry's proudest boast has been that within six months of graduation, 95 percent of graduates are working, and not behind the McDonald's counter but at jobs with a future."
Are for-profit schools perfect? Hardly. As their critics regularly point out, for-profit education's past is checkered by scams and frauds. And it still has troublemakers. In January, "60 Minutes" aired an expose on questionable practices at Career Education Corporation, which runs 82 for-profit campuses. But general hostility to for-profit education, its past, and the ongoing scrutiny it receives as a result force for-profit schools to police themselves.
As Nicholas J. Glakas, president of the Career College Association, told members of the U.S. House Committee on Education and the Workforce last week, his association's members are "committed to and focused on compliance" with the law. "We have to be because of our past." He also explained, though, that accusations against for-profit schools are often sensationalized, noting that the "60 Minutes" piece focused on only "three students out of 100,000" at "2 of 82 branch campuses" of just "one publicly traded company."
So when scams occur in for-profit schools, or traditional colleges purchase ever-grander amenities, has the market failed? No, because a truly free market hasn't even been allowed to exist.
According to the College Board, almost 60 percent of students in both nonprofit and for-profit colleges receive financial aid, primarily from the federal government. In addition, according to the U.S. Department of Education, more than a third of public universities' revenue comes from state governments rather than consumers. Supply and demand have been crippled. Because a large percentage of their funds come from state governments, public schools aren't bound by students' demands. Moreover, most students use other people's money -- in the form of taxpayer-funded grants and loans -- when deciding what they are willing to pay for at any school.
The solution to the problem is to let the market work, and with the federal Higher Education Act due to be reauthorized this year, a window of opportunity is starting to open.
Ideally, the federal government should cease providing grants and subsidized loans to students, and states should no longer furnish block appropriations for their colleges. Such solutions, though, are likely politically impossible.
What would be politically feasible, however, would be for states to do something like what Colorado will begin doing next fall. Rather than sending funds directly to its colleges and universities, the state will send money to students, who can either take it to the state school of their choice, or use half of it at one of three approved private schools.
The federal government, for its part, should phase out all grant and loan programs for wealthy and middle-class students. For the poor, it could offer loans that students wouldn't have to start paying back until after they graduate and begin earning a college graduate's salary, making them ultimately responsible for paying for their own education, but allowing them to do so when they've begun to reap its benefits.
Making all consumers pay their own way through college would infuse effective demand into college financing. Suddenly, the frills of traditional higher education, or taking a chance on potentially shady for-profit schools, would look a lot less enticing. The market would finally get to work.
Neal McCluskey is an education policy analyst at the Cato Institute's Center for Educational Freedom.
Two weeks ago, the referee in an ongoing contest between girls and boys made the game much more fair. But the U.S. Department of Education’s new guidelines for Title IX of the Education Amendments of 1972, which requires colleges to offer gender equity in intercollegiate athletics, has met with nothing but jeers from fans of the old rules.
At least on paper, the guidelines for complying with the student participation element of Title IX are pretty clear. Universities need to meet one of three prongs to be in compliance: They must either (1) ensure women are represented in athletics in numbers proportionate to their presence in the student body; (2) demonstrate continued efforts to expand athletic opportunities for the underrepresented sex; or (3) show they are fully accommodating women’s athletic interests.
The third prong is at the center of the current debate. How does a school show it is providing intercollegiate athletic opportunity on par with women’s interest?
The answer, one would think, is obvious: You ask them. In practice, though, it has been far from that simple. Guidance from the Department of Education over the years has been unclear, and colleges have faced a constant threat of litigation for falling short of anything less than "proportionality."
With its new guidance, the Department of Education is finally trying to let schools to use the common sense solution, enabling them to comply with Title IX by e-mailing a survey to all students asking them about their interest in participating in intercollegiate athletics, and judging schools by how closely what they offer matches what women want. It makes sense. So what’s the problem?
Like a home crowd whose team just had a touchdown called back, Title IX’s proponents pounced on the department’s new rules. In an Inside Higher Ed commentary last week, for instance, Nancy Hogshead-Makar, an Olympic gold-medal swimmer and an assistant professor at Florida Coastal School of Law, and Donna Lopiano, executive director of the Women’s Sports Foundation, ripped into the new guidance, saying the department is “thumbing its nose at the law and the female athletes it is charged with protecting.”
Of course, home crowds are typically biased -- they want their team to win, after all -- so it’s little surprise that Title IX’s fans are raising questionable objections to the new guidance. Among the weakest, but most important, is the assertion that surveys can’t gauge women’s interest in athletics relative to men because, according to Hogshead-Makar and Lopiano, "culturally, men are simply more likely than women to profess interest in a sport ... women are less likely to profess an interest in sports, even if they are interested!"
Apparently, we’re supposed to give activists like Hogshead-Makar and Lopiano the policies they demand because they say women want to play sports at the same rate as men, but just won’t admit it. Were such logic applied on the playing field rather than in the policy world, it would be like awarding a team points for invisible shots they say only they can see go in the goal.
But let’s suppose women really are unwilling to state their true interest in athletics. Let’s believe Hogshead-Makar and Lopiano when they write that “professing interest in a sport does not predict behavior...." If that’s true, we should find that while lower percentages of women than men profess an interest in putting on their cleats, when it actually comes time to play, women are just as likely to lace ‘em up.
It turns out that contrary to what Title IX activists tell us, what women say does indeed translate into what they do. For instance, according to the Higher Education Research Institute’s report "The American Freshman: National Norms for Fall 2004," between 2.7 and 5 percent of men (depending on the type of college in which they were enrolled) participated in no exercise or sports in a typical week of their senior year in high school.
In contrast, between 4.7 and 16.1 percent of women participated in no sports or exercise.On the high end, between 11.6 and 17 percent of men reported having spent more than 20 hours participating in exercise or sports as high schools seniors, while only between 5.5 and 7.6 percent of females spent that much time.
The findings of "The American Freshman" are corroborated in Taking Sex Differences Seriously, by the University of Virginia’s Steven Rhoads. Rhoads reports that despite the fact that anyone who wants to can play on college intramural teams, typically three to four times more men participate than women.
Surprisingly, the “women want to play as much as men, they just won’t say it” argument might not be the weakest objection to surveys. In a recent Inside Higher Ed article, Neena Chaudhry, senior counsel at the National Women’s Law Center, argued that sending e-mail surveys to students, in which a non-response indicates no interest in sports, is unfair because "a lot of those e-mails won’t even be opened."
Apparently, the women who are supposedly dying to play sports aren’t even sufficiently motivated to keep an eye out for an interest survey, or to open it when it comes. What coach would even want players with so little enthusiasm for their sport on their team?
Perhaps the one argument with which Title IX defenders score a legitimate point is that a survey will fail to capture the athletic interest of incoming students. Hogshead-Makar and Lopiano argue, for instance, that colleges need to examine the interests not only of current students, but of prospective students, who are often recruited by schools based on their athletic abilities.
It’s a decent argument, but it’s ultimately a losing proposition for Title IX supporters. Because women’s interest in athletics really isn’t proportionate to that of men, sooner or later women’s athletic slots might be offered, but no one will be there to fill them. It's one of the reasons colleges have been forced to cut men’s sports, rather than increase women’s sports, to achieve proportionality.
Unfortunately, as long as government is involved, college sports will continue to revolve around political, rather than athletic, contests, and only the most politically skilled will win. Until now, that’s been supporters of Title IX, who have succeeded in persuading policymakers to require that colleges accommodate a demand for women’s athletics opportunities that can’t even be shown to exist. It’s a game Title IX supporters have liked because the referee -- the government -- has usually been on their side.
But real fairness requires a neutral referee, which political solutions simply can’t provide. Take the government out of the game, though, and colleges and students -- not politicians -- will decide the winner. In other words, abolish Title IX, and let supply and demand take over the referee job.
Importantly, in such a system women will almost always control the ball. They can choose the schools that offer what they want -- athletic opportunities, artistic outlets, good academics, or anything else -- and can run past those that don’t.
Schools that discriminate will be penalized not by the government, but by prospective students who choose to enroll in competing institutions. It’s a competition that will be stacked against sexist institutions: According to the National Center for Education Statistics, 56 percent of college students are women, and their majority status has been growing. Women are a powerful market force.
Unless they really are as incapable of acting on their desires as supporters of the status quo seem to suggest, women will get what they want out of their colleges. But if they continue to cede power to special interests and government, while some women will still win, most everyone else will lose.
Neal McCluskey is an education policy analyst at the Cato Institute’s Center for Educational Freedom.
On Tuesday -- as the republic awaited the formal launch of the latest Supreme Court nomination death-match -- Stanley Fish appeared in The New York Times with a short article titled "Intentional Neglect." Its thesis is sharp, bold, and deceptively straightforward.
As we enter the inescapable squall of debate over who shall take the place of Sandra Day O'Connor, announces Fish, we need to be clear on some basic things. Interpreting the Constitution is a matter of determining its authors' intent. Talk of "a living constitution" that must remain open to the changing times -- that, in short, is not interpretation, but a roundabout means of rewriting the Constitution.
The response in some quarters has involved gestures of shock -- and from one or two conservatives, anyway, of gratified astonishment. How sensible the man is! What a voice for sweet reason! Is this Stanley Fish not the same man who turned the English department at Duke into a training camp for left-wing theoretical guerillas? Has he perhaps had a change of heart?
Fish is widely recognized, even outside academe, as a celebrity and a power broker. He is the one person at the annual convention of the Modern Language Association who does not wear a name tag. And he has a well-established profile as the champion of the anti-foundationalism that non-academic civilians understand to be the, well, foundation of contemporary academic radicalism.
So when he goes on "The O'Reilly Show" -- or weighs in with an op-ed in the Times -- many people naturally assume that Fish is speaking as some kind of leftist. Hence the surprise at his latest article, which at least some readers might take as an application to join the Federalist Society.
All of which underscores the difference between being well-known and being well-understood.
There is nothing in Tuesday's op-ed that Fish hasn't argued many times over the years. Many, many times, over many, many years. (Whatever debate may exist over his other virtues, the man is a stickler for consistency.) But he is so famous that his ideas have long since been dwarfed by his reputation.
His current stress on the framers' intent as the necessary focus of interpreting the Constitution sound paradoxical, coming from a literary theorist who came into prominence, in the 1970s, as the most dogged champion of reader-response criticism. Actually, there is a pretty direct line of march from one position to the next.
One modest claim in favor of the reader-response school might be that its very name was a case of truth in advertising. (I speak of it in the past tense because it's been some while since the movement was at its peak. No doubt there are still a few partisans still fighting for the cause, like those stray Japanese soldiers from World War Two who used to turn up on islands in the Pacific.) Reader-response analysis involved looking at how the audience of a literary work interacted with it -- how, in a sense, the meaning of a text was produced at the moment the reader was consuming it.
That sounds like a recipe for, well, just making stuff up. Mix one part epistemological relativism and one part narcissism, and you get the sophomore's hermeneutic: "That's what the book means to me." Add a dash of paranoia, and you get: "I think Shakespeare was a Freemason, and my reading is as good as any other."
But you can't judge a method by its most inane or implausible applications. In the case of Fish's version of reader-response analysis, there was a sort of hermeneutic shock-absorber built right in. He called it "the interpretive community." An individual reader might come up with some bizarre personal meaning for a work. For the most part, however, reading is conditioned by one's membership in groups, and those groups tend to create something like a consensus about what counts as the range of sound understanding. There are rules for what counts as good evidence, or a well-made argument.
Normally those rules aren't written down someplace. They exist at the level of tacit knowledge; you either absorb them and read accordingly, or you aren't really part of that particular community. And the rules can change over time. A work's meaning isn't fixed for all time, like a face sculpted in marble. Nor does it change at random, like a kaleidoscope image. It's more like the various productions of a play -- varying over time depending on who's directing, who's acting, and how big the stage is.
Fish's later writings on law and on current issues are, in effect, an expansion of the idea of the interpretive community to the world beyond the printed page. We participate in institutions and in civic life in the same sense that we read and understand a work of literature -- as people who always find ourselves embedded in a structure of rules, assumptions, traditions, etc., that implicitly govern what counts as acceptable.
From Fish's perspective, it is the mistake of a certain kind of fundamentalism (religious or secular) to think that we can get to the level of bedrock truths that aren't so conditioned. Or to think that, by reasoning, we can ascend to lofty heights of abstraction, far above all the diverse and squabbling micro-communities. You never get outside of some kind of interpretive community, following rules that are socially constructed.
But that doesn't mean they are imaginary -- that anything goes.
Fish's often uses the game of baseball as his example of something that is both socially constructed and real. Does a baseball or bat exist in nature? Does "three strikes and you're out" follow from any law known to the sciences? The answer, in each case, is "no." Are baseballs and bats real? Does the three-strikes rule have predictable effects on the course of the game? Likewise, the answer is "yes." So the game of baseball is both socially constructed and real. It is the product of human activity, but not subject to anybody's whim. (The umpire's eyesight, yes. But that doesn't gainsay Fish's basic point.)
Now, talk of social construction always sounds like it might have a radical agenda. To anyone who thinks in terms of natural law, it reeks of Jacobinism. After all, if something is socially constructed, that means that it might be re-constructed, right? And that means it probably should be, at some point.... The next thing you know, there are guillotines.
But actually, if you look at them closely, Fish's ideas seem a bit closer to the counter-Enlightenment doctrines that emerged following the French revolution. The binding force of community, the subordination of reason to the implicit code of tradition, the sense that our freedom is limited (or at least conditioned) by rules that can't be redrawn all at once ... this sounds a little bit like something from Edmund Burke, or at least from Russell Kirk's The Conservative Mind.
Not to go overboard with this. When he gives voice to political opinions (in favor of affirmative action, say, or in defense of speech codes) he tends to sound like a garden-variety liberal. But Fish has been very skeptical of the academic left, on the grounds that radical professors tend to blur the distinction between scholarship and political activity. As he argued in Professional Correctness, published 10 years ago by Harvard University Press, "queering Shakespeare" isn't political in the same sense as mobilizing to increase AIDS funding; rather, it's a matter of making certain moves in the interpretive community that is interested in Elizabethan literature.
In Fish's own words: "There are no regular routes by which the accomplishments of academics in general and literary academics in particular can be transformed into the currency of politics." And the effort to bring his ideas to bear on legal theory, over the years, have not really disproved that point.
In effect, Fish's writings have been a way of minimizing the possible interaction between law and literature. He has argued -- with exhausting, even wearying consistency -- that the conduct of legal affairs is ultimately a matter of the legal interpretive community following its own codes, traditions, and methods.
A case in point is Fish's seemingly straightforward claim that "interpreting the Constitution" means "trying to figure out what the framers had in mind." That sounds like a directive -- as if Fish is saying that we'd just need to find the right quotation from The Federalist Paper, perhaps, to understand how to apply the Constitution to legislation regarding stem-cell research. And there is, then, a strong tendency to assume that such an interpretation would then tilt toward the conservative side.
But not so fast. As Fish noted in a discussion of the Bork nomination, it is a mistake to cede "original intent" arguments to the right, just because some conservative jurists frame their arguments in those terms.
"It is perfectly possible," wrote Fish, "to be in favor of abortion rights and also to label oneself as an originalist, as someone who hews to the intention of the framers. It would just be a matter of characterizing those intentions so that the right to abortion would seem obviously to follow from them.
One might, for example, argue (as many have) that even though the Fourteenth Amendment nowhere mentions abortion rights, a correct understanding of its authors' more general intention requires that such rights be protected." Likewise, one could argue against abortion rights on grounds that aren't anchored in claims about original intent.
"In short, there is no necessary relationship between declaring oneself an originalist and coming out on one side or the other of a particular issue."
Putting it another way, the effort to define "original intent" is both a basic part of the work of the legal interpretive community and a product of rules specific to that community. Some sharp-eyed person may well put my head on a platter for saying this, but what the hell: It sure looks as if Stanley Fish has reinvented legal positivism by way of a kind of roll-with-the-punches pragmatism.
Speaking of punches ... they should start flying any minute now. What does Fish have to say about the debates that are about to ensue? How should the issues of the nomination fight be understood by those of us who are mere citizens of the Republic, rather than members of the legal interpretive community? His advice, in short, is to recognize that it's not a question of whether or not the nominee is an originalist, but rather, of what kind.
"So," as he put it on Tuesday, " if you want to know how someone is likely to act on the bench, you will have to set all the labels aside and pay attention to the nominee's reasoning in response to the posing of hypothetical situations.... Does he or she construe intention narrowly and limit it to possibilities the framers could have foreseen, or is intention considered more broadly and extended to the positions the framers would likely have taken if they knew then what we know now? ... And then, if after having made that calculation you decide you are for this person, you can hope that the performance you see today predicts the performances of years to come. But don't bet on it."
There may be a certain amount of insight in Fish's thoughts. Still, it seems like the kind of wisdom that doesn't really do anybody much good.