The right to higher education: A political theory

Abstract

In The Right to Higher Education: A Political Theory, I argue that post-compulsory education should be an individual right in a liberal democratic society. Here, I respond to a series of criticisms of the right’s justification. I address objections relating to: the autonomy-based justification of the right and liberal neutrality, the right’s scope and limits, the fairness of full public funding for higher education, constraints on the right’s equality-promoting aims, and the meaning of the term ‘higher education’ under the right.

Paper

It’s an honor to see The Right to Higher Education receive such thoughtful critical attention. In the book, I argue that post-school education should aim to support the personal autonomy of all citizens of a liberal society and I develop and defend a conception of higher education consistent with this aim.

A distinguishing feature of this conception, as the title makes clear, is its rights-aspect. That is, I argue that all citizens have a legitimate claim to post-compulsory educational provision. However, it’s helpful to think of this claim as one part of a comprehensive social vision for higher education in a liberal democracy. That’s because the right’s justification is shaped by a number of considerations including the value of education for liberal citizens across the lifespan (Chapter 3), the role of formal institutions in promoting this value (Chapter 4), and the nature of liberal state authority over those same institutions (Chapter 5).

I am profoundly appreciative that my critics have pushed me to reexamine the argument under a stronger light. I could not ask for better, and I regret that I cannot respond in detail to each and every point. Many of their comments touch on potential burdens and harms that the recognition of a right to higher education might impose on citizens. My reply aims to demonstrate that these worries are unfounded.

Higher education and autonomy

The right to higher education draws on concepts in two different liberal philosophical traditions: Razian liberal perfectionism and Rawlsian political liberalism. David O’Brien wonders if this heterodox staging makes the right philosophically idiosyncratic. Philip Cook, meanwhile, argues that higher education may simply shore up existing injustices by stigmatizing those who do not value autonomy and are unable to claim the right on autonomy-advancing grounds. Finally, Andrew Pulvermacher thinks that my distinction between autonomy-promotion and autonomy-support institutionalizes the exclusion of some citizens from the right.

O’Brien claims that my justification of the right to higher education many be rejected under liberalisms that view a committment to autonomy as just one of many reasonable conceptions of a good life. Indeed, I take the view that liberalism generally recognizes a right to education because a political conception of the person entails a fundamental interest in personal autonomy. However, the Razian conception that underpins this view, as I interpret it, is not merely one among many possible approaches to the good. Personal autonomy refers to conditions that need to be satisfied given the demands that a liberal culture, labor mobility, and the general complexity of modern life impose on our decision-making about the good (RHE p. 72, pp. 80-82). ‘Demands’ refer to the many ways in which we are expected to make our own judgments about who we associate with, the relationships we enter into, the work we do, the contributions we make to our community, and so on. ‘Conditions’ refers to cognitive, affective, and other capacities that we require in order to meet these demands. These conditions are functionally neutral in the sense that our conception of the good does not determine them.

How does this bear on the acceptability of a right to higher education? Education has value for all citizens because it can help us do a better job of satisfying conditions of personal autonomy. Because personal autonomy is here derived from general features of liberal democratic societies, as opposed to a particular conception of liberalism, this account of educational value is compatible with the pluralism we should expect from a liberal society. The right to higher education is not grounded in the view that a committment to autonomy is the best way to live. Therefore, my justification of the right does not warrant rejection on the grounds that it endorses a particular conception of the good.

However, Cook raises the possibility that the right to higher education might not be claimable by religious citizens. Some of these citizens may see transcendent flourishing as something possible only through the abdication of authority over the ‘self’. Even so, I argue, these citizens rely on the same internal conditions to meet the same external demands. Consider that the state does not compel anyone to participate in religious social forms; many choose to participate, all the same. One can distinguish between the normative implications of the functional requirements of autonomy as they bear on our institutional arrangements and how different individuals (freely!) interpret the meaning and significance of those requirements in the context their lives. ¹

Cook would rightly press that, even so, religious citizens may still want to reject this picture of higher education and ‘if the devout are unwilling to accept autonomy as a goal of higher education, it follows . . . that they have no claim on the right to free higher education’ (p. XX). It makes sense to think that religious post-school institutions that explicitly reject autonomy should not be compelled by the state to recognize the right. It would also exempt them from the right’s institutional principles, including full state funding. But if what I say about the conditions of autonomy are on point they would do so needlessly. The devout rejection of conditions of autonomy as a goal of higher education presupposes these same conditions in order for its rejection to be possible. For example, rejecting this goal requires some other available option (i.e. accepting the goal) for rejection to be at all possible. And having available options is a condition of autonomy. My point is that the right to higher education is not the ‘right’ to be educated in autonomy as a personal ethic. It is a right to educational goods that support conditions unavoidably presupposed by any liberal citizen when they make judgments about the good life. All citizens should understand this distinction before declining to exercise this right.

Cook also argues that declining to take advantage of the right to higher education in order to care for a loved one entails a loss of income and standing that leaves a just and fair higher education to upwardly mobile ‘egoists’. The problem is a kind of unjust distribution of moral concern arising from the right’s recognition. Self-regarding citizens have an entire educational institution designed to protect their ‘right’ to autonomy-support and benefit-maximizing choices; other-regarding carers are left morally responsible for their autonomously-informed but benefit-detracting care. Where’s the justice in that?

The prominence of professions like early childhood education and nursing demonstrates that knowing how to care for others can be key to certain worthwhile social forms. Therefore, I see no reason why citizens cannot make a legitimate claim on educational resources that provide them with the knowledge, understanding, and skills that can help them care for a loved one. Community health check-ins, for example, that also include time for instruction in supportive care seem fully within the right’s scope. If anything, the right to education warrants a much-needed redistribution away from the self-regarding ‘ready and willing’ to those that are ready and willing just because their reasons for learning are unassuming and altruistic.

Pulvermacher sees problems arising from my distinction between education for personal autonomy in childhood and adulthood (RHE, 83-89), arguing that higher education can only support the autonomy of those who have had is successfully instilled through schooling. Pulvermacher anticipates I would insist that the right to higher education includes adult basic education. He would be right. But he objects that many citizens enrolling in adult basic education have been poorly served by their schooling can only claim the right if they make the ‘respect-diminishing’ admission that they are not autonomous. ²

People must have a right to freedom for the very idea of a right to make sense (Hart, 2017). It is hard to see how an institution can demand that a person successfully demonstrate their unfreedom as a condition for their rights-claim to be recognized without that demand collapsing into a practical contradiction.

One way around the contradiction is to treat conditions of autonomy as a basic credential. This would enable a distinction between those that are certifiably autonomous (e.g., a high school diploma) and those that are not. The latter have a claim to adult basic education on the grounds that they are ‘unqualified’ for autonomous living. This is surely respect-diminishing. It would also be wrong for reasons having to do with the civic autonomy we accord to each and every adult citizen. This standing explains why we do not require competence testing for political liberties such as the vote. It also explains why adult basic education is more limited than basic schooling: it offers knowledge, understanding, and skills that certify a person is ready for more complex learning. It should not impose paternalistic aims like emotional self-control, mastery of basic moral rules, and so on. The latter would involve a respect-diminishing assumption about the general competence of these students. In no instance does claiming a right to adult education depend on establishing that the claimant is ‘unqualified’ for autonomous living.

Higher education and the right’s scope

A personally autonomous state makes the achievement of self-determined goals possible. Higher education is a right, in part, because it supports our pursuit of these goals. But there are arguably many goods that support our goals. O’Brien and Cook worry that recognizing the right to higher education would therefore entail an unsustainable right to all these goods.

The right to higher education is checked by (at least) two constraints. These constraints set a high bar for autonomy-based rights. In order for a good to qualify as an entitlement on autonomy grounds it must first (i) be produced by an institution that takes responsibility for these goods, where this responsibility is significant enough for autonomous flourishing to warrant inclusion in a basic structure subject to political justice. The threshold for inclusion within this basic structure is high on any account, and rules out many mundane autonomy-friendly goods. Second, it (ii) must be allocated by that institution as an entitlement in order to prevent an unjust restriction on citizen’s opportunities for autonomous wellbeing (RHE, p.103-106).

I claim that both criteria are satisfied in the case of educational goods (see Chapter 4 for the full argument). Generalizing the right to other goods means walking the same path. I do not see many goods making the full journey.

To see how the criteria apply, consider O’Brien’s example of housing. Housing has great importance but satisfies neither criterion. Justifying the provision of shelter to the worst off by demonstrating that their autonomous flourishing is at stake would be beside the moral point. If basic housing is a right, it is not for autonomy reasons.

What about a case where an important good impacts on my options in a way that’s autonomy-undermining? Imagine that everyone has basic shelter, but basic shelter is so expensive that it requires all but the wealthiest to devote most of their time and resources to covering payments. One would think that this autonomy-harm is more morally urgent than post-school education. Does it yield a right?

As Brighouse and Mullane point out in their response, background economic conditions bear on autonomy. Its plausible to think that the housing situation bears on personal autonomy unjustly and that the state should do something about it. In order to get (i) we must to identify the relevant social institution(s) through which the state can act. ‘Housing’ isn’t an institution. But the good in question isn’t really housing. It’s the economy and, more specifically, the housing market. This does not get us to (ii). There are many stops between ‘housing costs unjustly restrict autonomy’ and ‘affordable housing is an autonomy-based right’. For example, it’s possible that the state can use legal means to intervene in the market and improve demand/supply.

Higher education and institutional responsibility

Lauren Bialystok and David O’Brien see tensions in the relationship between the right to higher education and institutional responsibility. I suspect that this might be due to the fact that constraints on autonomy, such as political authority, need to be justified at a fairly high threshold. If education is so fundamental to our autonomy that it is a right one might go on to assume that post-educational institutions, whose very point and purpose is to support autonomy, cannot justify any such constraints.

O’Brien argues that the observance of a right to higher education would lead to ‘objectionable’ unfairness. He gives the example of a citizen, P, who has opted for ‘a life plan that centrally involves supercomputing design’ (p. XX). P makes a claim to the costly educational resources that will open up this social practice to him, but it will mean taxing those who are less well-off or have less expensive ambitions. He suggests that capping the entitlement could solve both problems. It would make the right to higher education similar to a right to ‘a fair set of healthcare treatments but not rights to just any treatment, no matter what the cost’ (p. XX). This is precisely how we should think about higher education (RHE, p. 20). Here is why:

First, the right to higher education justifies claims to educational resources in terms of our autonomy interests. But P’s autonomy interest does not stand or fall with quantum supercomputing design or any other singular activity. To be sure, P reflectively endorsed quantum computing as a self-directed goal. But P’s claim is limited to what is necessary for an adequate range of options given what P has actually reflectively endorsed (RHE, 145–149). I do not think it likely that P is endorsing a specific social form so much as what they believe it is about the practice that will contribute to their autonomous flourishing: its technical features, its mathematical nature. This endorsement is more wide-reaching than quantum computing and contains many valuable options within it. It is therefore more accurate to say that P has reflectively endorsed a life (partly) defined by participation in social forms and practices that include quantum supercomputing. They have a right to educational resources that will open up those social forms, not a program in supercomputing. Note the similarity to healthcare: medical patients sometimes make demands for specific treatments that are rejected because that what they believe will help them (e.g., immunotherapy) is not what will help them (e.g., chemotherapy). This involves no violation of their right to healthcare. O’Brien might reply that I’ve glossed on the ‘no matter the cost’ part of his formulation. This leads to my next point.

Second, the right to higher education motivates three principles that capture what is institutionally necessary for the right to be claimable. One of these principles is about adequate options: the system should support an adequate range of self-directed goals suitable for citizens in a plural society with diverse talents and interests (RHE, 175). That citizens have a right to an education that supports access to a range of adequate options does not entail that the basic structure must cater to every self-determined goal that could be supported through an education. This gives the state a good bit of discretion in meeting its obligation. Imagine that the state must include one more option for a range to be adequate. This option must be either of the following: resource heavy A and resource light B. Can we opt for B? The answer is ‘yes’ insofar as B is functionally the same e.g., it is not central to the good lives of many citizens (RHE p. 100).

To be sure, it’s possible that there are highly resource intensive goals that are (a) the target of an accurate reflective endorsement by many citizens and (b) essential to a higher education-supported range of options. In these cases, some citizens will be subsidizing the goals of others. But the constraints that I have specifed, above, mean that the subsidy will be both compelling and unobjectionable.

In a similar vein, Lauren Bialystok argues that right to higher education might successfully flatten gate-keeping and other barriers to access, but only by minimizing the reasons why educational institutions need to put justifiable ‘barriers’ in place to begin with. Consider: I claim that higher education systems that conform to the conception’s institutional principles will make that right claimable by any citizen. But Bialystok gives the example of Kevin, who also has ambitious goals but falls well below the reasonable academic standards for admission into any kind of higher education. It’s counter-intuitive to think that accepting his claim is the right thing to do. But denying his claim seems unjust, on my own account.

As we will see, later, Kevin has another role to play in Bialystok’s broader criticism. But assuming, for the moment, that his situation has nothing to do with non-ideal conditions or unfairness I do not think that we must accept Kevin’s claim. If it is obvious that his goals are completely unrealistic his endorsement is unreflective and therefore self-deluded, not self-determined. Or he could be more like P, where there is a gap between what Kevin believes his reflective ambitions track and what he actually aspires to. In either case, Kevin may be entitled to educational resources that can help him sort through his confusion. He is also entitled to educational resources that can challenge and develop his current abilities. But he is not entitled to educational resources that support his ambitions just because they are his ambitions. Institutions must take moral responsibility for the vulnerable position that citizens put themselves in when they rely on institutions for important goods and services. To continue the comparison, hospitals have to make authoritative judgments about the healthcare that will actually benefit the patient, and these judgments can override the patient’s preferences. Educational institutions focused on autonomy-promotion are far less authoritative (RHE, Chapter 2) but it does not follow that they do not have the same moral responsibility. ‘Ready and willing to learn’ is not only state of mind, rather, it points an inextinguishable strain of legitimate paternalism in an autonomy-supporting higher education.

Ideal theoretical limits and non-ideal constraints in higher education

Brighouse and Mullane, as well as Pulvermacher, identify different respects in which my conception of higher education might fail to move the needle on injustice, or is itself unjust.

I’m reluctant to meet their objections by forecasting what the recognition of the right would or would not bring about. One reason is that it risks making the right’s justification seem ad hoc. The recognition of new rights introduces new social problems that policies can solve; rights are not solutions to specific policy problems. Another reason is that even the weakest interpretation of the right by the liberal state would be likely to disrupt many social facts including, but not limited to, how schools value educational attainment, the importance of universities in upward mobility, the relationship between educational justice and merit, the signaling value of educational credentials, and the meaning and significance of post-school education in civic life. I wager that some of these disruptions would vindicate the right, but I don’t want to walk the argument too far into speculative territory. With these considerations in view we can move on to addressing their specific criticisms.

Pulvermacher agrees that the institutional principles that follow from the right to higher education are individually necessary and jointly sufficient. But his experience at the government table suggests that institutional leaders don’t have the political capital to fully honor these principles. If anything, he reports, these efforts may paradoxically set-back progress on the right. He concludes that the only remedy is a radical reboot of the system.

This suggests that the gap between ideal and non-ideal is too wide for my conception of higher education to guide actual civic reasoning. Yet, it might be that the best way to close this gap is for reformers not interpret the argument as an ‘ideal theory’ at all. As I say in the introduction, the book has the modest aim of broadening the public debate over higher education reform to include its basic aims and place within civic society. If the book facilitates any ‘non-ideal’ action, then, it’s of a communicative variety (a la Jurgen Habermas). Consider the events leading up to the establishment of Medicare and, eventually, the Canada Health Act. Powerful interests, especially the medical establishment, were quick out of the gate to object that it was unfair and infeasible and ‘socialist’. Too ‘ideal’. The debated slowly shifted until a tipping point in the Saskatchewan legislative assembly set in motion the spread of fully funded healthcare across the country. As a famous writer might put it, reform comes in two ways: gradually, then suddenly. My point is a procedural one: we need arguments that can persuade our fellow citizens of the merits of a different social vision for higher education before implementing specific policies grounded in that vision. When abstracted from their broader justificatory context such reforms risk getting ‘re-packaged’ in counter-productive ways.

Brighouse and Mullane target one of the institutional conditions attached to the right to higher education: full public funding. They object that the concept of personal autonomy cannot be separated from the broader socioeconomic conditions that determine the value that a person can derive from that autonomy. This makes the problem of unequal benefits, which I fully agree is a major stumbling block to the right (see Chapter 6), intractable.

However, there is a solution that I believe would obtain under ideal conditions and warrant action-guiding measures under non-ideal circumstances. I argue that full funding is necessary for citizens to claim the right because upfront costs and loans unjustly constrain autonomy in terms of fair opportunity and adequate options (again, see Chapter 6). They counter that the connection between autonomy and status/wealth cannot be fully separated, meaning that full public funding will always leave the least well-off with an unfair deal. This dialectic depends on the assumption that the only way to mitigate the problem of unequal benefits is for the well-off to pay more, and pay directly. But there is nothing in my institutional conditions that rules against full public funding backed by a broadly progressive tax regime where the wealthy make a larger contibution to the general pool of resources that the state uses to fund education and other welfare-promoting institutions.

This solution seems to satisfy my reasons for full public funding and their reasons against it. Of course, Brighouse and Mullane might say that progressive taxation has no logical relationship to the right and that I’m backfilling the argument. However, the right to higher education falls comfortably with the welfare state tradition (RHE, fn4, p. 172), and progressive taxation is part of that tradition for good reasons. They might also press that relying on progressive taxation takes my theory even further from specifically American non-ideal realities. I think it provides a standard that can guide decisions about how a non-ideal right to higher education should be funded, who should be first in line to pay, and why. For example, liberal states that do not have sufficently progressive taxation could establish higher education pricing that mirrors what one would pay ‘as if’. The result would be a means-tested funding policy close to what Brighouse (2004) has defended, but justified in terms of an ‘ideal’ rights-based conception.

Brighouse and Mullane also argue that even if full funding cound be justified on ideal grounds, when we turn to the non-ideal side of the equation we have good autonomy-reasons to put our scarce educational resources in K-12 schooling, as opposed to higher education. I agree that autonomy generates good reasons for making K-12 education a distributive priority. But I also think that the non-ideality of schooling isn’t strictly about resourcing, and there are moral and prudential limits to how far we can go in making school funding a priority over and against post-school education (RHE, p. 213-214).

Furthermore, the recognition of a right to higher education generates additional reasons to reform K-12 schooling that can do more for justice in schools, all things considered, than resourcing alone. Here is why:

Imagine that the right to higher education were recognized by actual citizens, but only in an ideal sense, because inequalities in basic schooling proved too weak a foundation to implement that right justly. It would follow that one further institutional condition for the right to higher education to be claimable is a reasonably just school system. If this institutional principle applies to schooling, so should the others. Consider the adequate options principle. An autonomy-promoting basic education would have to enable students to seriously consider the significance of different educational pathways for their life on the grounds that this is necessary for the right to be claimable. It would mean a school system that values a diverse conception of educational success that reflect standards appropriate to these different institutional pathways. And it would almost certainly require pedagogical approaches that better fit with the interests and preferences of students from different walks of life and allow for a dialing back of the emphasis on college entry as the only institutional path to upward social mobility. My sense is that many public-school educators would prefer to approach things this way, but existing post-school incentives work against its approach.

Higher education: What’s in the name?

This last point cuts to Bialystok’s core insight. I stated that anticipating the large-scale consequences of the right is too speculative. She shows that a reasonable assessment is possible. How Bialystok arrives at this conclusion is instructive. Here is a brief reconstruction.

The first step is to point out that my argument aims to move higher education in a more egalitarian direction. The second step is to identify a variable (in this case, the number and composition of higher education enrollment under the right’s observance) that we can make reasonable predictions about and that can serve as a proxy measure of egalitarian improvements. Finally, we can track the trajectory of these people (e.g., counter-factual ‘Kevins’) in relation to the higher education system, given the observance of the right, versus where they would otherwise be. She concludes that one can reasonably foresee that the right to higher education could turn out to be a dark mirror to the book’s social vision, replicating the stratification and inequality of modern higher education systems but also legitimizing them under a so-called ‘right’.

How so? Key to Bialystok’s objection are durable constraints that limit how far the higher education system can go in ensuring that everyone can claim that right and it still be higher education. She refers variously to academic standards, university preparedness, and the implausibility of ‘a higher education worthy of the name. . .that meets the abilities of everyone’ (p. XX). Lowering necessary and legitimate educational standards in the name of accessibility, which seems to follow from the right, risks subjecting disadvantaged students to a condescending pantomime of university learning. However, she proposes that erasing the ‘bright line’ between higher education and the rest of the system would loosen these constraints by making the move from compulsory to post-compulsory less of an institutionally defined all or nothing proposition.

I fully agree, and if anything this objection pins down the argument’s fundamental lesson. My view is that our intuitions about the justice, fairness, and value of post-compulsory education are far too conditioned by their association with the term ‘higher education’. It is a baseless distinction and is, on the view I maintain, a conceptual injustice (RHE, p. 17).

‘Why cling to the label at all?’, Bialystok rightly asks. The book is called The Right to Higher Education. It asks the question: if higher education really was a right, how would it be justified and what would it look like? The investigation concludes with a surprising answer. The right to higher education can be justified, but only if we broaden and diversify our conception of post-schoool learning so that it can support the aspirations of all citizens. The term ‘higher education’ turns out to have been a stalking horse for tracking down the intuition that education has much more to offer citzens than our current institutional arrangements lead us to assume. Therefore, those who judge that ‘higher education’ marks an important distinction are warmly welcome to fix a different label to the right. However, reasons of justice and fairness nonetheless require that whatever we mean by ‘higher education’ must conform to that revised conception as a matter of right.