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Published online by Cambridge University Press: 27 December 2018
This essay was written while Professor Rosen was a Fellow in the Program in Ethics and the Professions at Harvard University. It greatly benefited from the editing of Howard Erlanger and the reactions of Patrick O. Gudridge.Google Scholar
1 Wilson, , “The Study of Administration,” 2 Pol. Sci. Q. 200 (June 1887), quoted in Yates, Douglas, Bureaucratic Democracy: The Search for Democracy and Efficiency in American Government 31 (1982) (“Yates, Bureaucratic Democracy”).Google Scholar
2 See, e. g., Breyer, S., Regulation and Its Reform 341–42 (1982); Mashaw, J., Bureaucratic Jutice 11–20 (1983); Gelhorn, Book Review, 93 Harv. L Rev. 1384 (1980); Rabin, , “Administrative Law in Transition: A Discipline in Search of an Organizing Principle,” 72 Nw. U. L. Rev. 120 (1977).Google Scholar
3 See, e. g., American Bar Association Commission on Law and Economy, Federal Regulation: Roads to Reform (1978).Google Scholar
4 Economic Opportunity Act of 1964 § 202(a)(3).Google Scholar
5 Cahn, & Cahn, , “The New Sovereign Immunity,” 31 Harv. L. Rev. 929 (1968). Handler's description is comparable; he emphasizes the virtues that derive from participation. He supports his proposals by arguing that they result in administration that better allows us to “preserve and enhance our core ideals of autonomy, responsibility, humanness, and progress” (at 2).Google Scholar
6 Visionary crystallizations like Handler's are praiseworthy. They force us to defend our conventions and justify our commitments. Instead of vision, all too often law professors supply restraint, offering only qualifying phrases and circumspect footnotes. But in both law and scholarship, restraint is a (passive) virtue of the enterprise, not of individual efforts. Like zeal in the defense of clients, zeal in scholarly criticism is valuable. I hope to show through my criticisms what can be learned from Handler's zealous defense of a participatory future.Google Scholar
7 Cf. Philippe Nonet & Philip Selznick, Law and Society in Transition ch. 4 (1978) (“Nonet & Selznick, Law and Society”) (responsive law depends on the capacity of administration to sustain value).Google Scholar
8 ”The conclusion of virtually all the research is that whereas P. L. 94–142 seems to have resulted in more parental contact with the school authorities, there has not been much change in parental involvement in the actual decisionmaking processes” (at 86; emphasis in original).Google Scholar
9 Handler does accord due process the status of a “grand achievement” both for its development and concretizing of important social values and for its being a technology through which “many have won important substantial rights” (at 19). “P. L. 94–142 can be claimed a success in terms of money now being spent on special education, the number of children in programs, and what is happening today as compared to ten years ago” (at 6).Google Scholar
10 A system that “assumes that regulation is satisfactory unless there are complaints” will not curtail all injustice (at 22).Google Scholar
11 Handler notes that the principal mechanism of accountability under P. L. 94–142, individual educational plans, will not function properly when they “are kept as general as possible to avoid accountability” (at 67). The legal system also is plagued by the ability of the school, when it can “touch the procedural bases,” to immunize its decisions from being overturned in a hearing (at 71). Furthermore, parent incentives to participate in legal procedures are weak under P. L. 94–142 because they “can win only if the agency does not follow the procedures or makes an obvious substantive mistake” (at 72).Google Scholar
12 At 171, 43 (citing Michelman, “Formal and Associational Aims in Procedural Due Process,”in J. Pennock & J. Chapman, eds., Due Process (1977).Google Scholar
13 When there is a possibility of learning and continuing relations, informed consent “works badly” if there is an “imbalance of power” (at 5, examining medicine).Google Scholar
14 The design of the correct decision technology requires understanding “fully both the substantive questions at issue and the context within which these issues arise” (at 43). The context must be understood because it in some cases “fatally undermines the procedure” (at 43) (arguing that the context in which it was applied undermined the due process revolution).Google Scholar
15 At 51. Handler notes that the “qualifying labels” that determine special education placement “are incoherent, vague, and subject to changing standards and administrative expediency. They mask a heterogeneous population. Thus, the available programs suit some and not others” (at 51). In the special education context, providing quality education requires the answer to two questions: “(1) What is the nature of the problem with the child; and (2) What should be done?” Handler answers, “Both of these questions are complicated, and the existing state of knowledge is uncertain” (at 44). “[W] really do not know why… [children] are not performing well in school or what to do about it” (at 3).Google Scholar
16 In a social welfare program, knowledge is found in many quarters. Many who can assist the exercise of discretion in special education are located in government or in professional, charitable, research, and delivery organizations. Handler chooses to focus on the actors with knowledge who are relatively unorganized-the recipients themselves and their communities. Other actors can be involved as well in the search for practical reason.Google Scholar
17 Such organizations “are not hierarchical, formalized, rational, efficient collectivities; rather, they are loose collections of multiple centers of power, shifting coalitions, adapting and readapting to environmental influences” (at 195).Google Scholar
18 Handler discusses one set of bargaining relations: between the state and citizens, supported by citizen groups. Bargaining between the professions and professional bureaucracies (What control should the education profession seek over what occurs in schools?), restructuring the political conflicts affecting delivery organizations (How should pressures from funding sources be managed?), or managerial techniques (Should sunshine laws or ombudsmen be utilized?) are not discussed. Handler correctly notes that organizations can learn from their environments. His focus on bringing citizen influence to bear on school decisions should not obscure possibilities for improving administration by responding to other parts of the environment. Handler explains his focus by arguing that in special education, although the “environment includes local, state, federal, and private influences… the most important sources of influence operate at the local level” (at 182).Google Scholar
19 “The best that we can hope for, given the present state of our knowledge, is to try to create the incentives that will foster the kinds of results that we want” (at 148).Google Scholar
20 Cf. Mayo, “Community Development: A Radical Alternative?”in R. Bailey & M. Brake, eds., Radical Social Work 137 (1975) (“Mayo, ‘Community Development’”) (conservatives support participatory technologies that reduce the level of conflict and adversarialism).Google Scholar
21 Special education is chosen because Handler understands it as an example where trust and community can begin to be built (at 302–3). For the proper introduction of participatory administration “there has to be a certain level of trust and good faith before one would start dealing” (at 116).Google Scholar
22 Although Handler recognizes the possibility of divisive conflict and coopration, the situation in the Madison school district and his theory of practical reason apparently allow him to deny the dictum that “[w]riting about cooperation and solidarity means writing at the same time about rejection and mistrust.” Mary Douglas, How Institutions Think I (1986).Google Scholar
23 Quotes are attributed to parents, but only three parents are described in The Conditions of Discretion (at 95–98). I find these descriptions, especially in relation to the described parent/staff bargaining, to be quite abstract. In fact, they support a reading, I believe, that participatory administration often works just like Handler's castigating description of due process: “In certain cases, the system responds to the squeaky wheel” (at 76). Maybe the Madison system produces more squeaky wheels, but this does not guarantee the quality of decisions that grease them.Google Scholar
24 In Handler's account, autarkic processes are at work: Through a self-generated process, parents and staff discover reason and justice. They are helped in this process because “the boundaries of discretion (for example, discrimination)” have been charted. Within these boundaries, Handler claims there is only “humane, practical, liberal discretion” (at 297). Reaching agreement poses no problem even though parents may be less progressive than the school staff and may object to the school's mission of integrating their children to a “normal” life style. Revelatory communicative participation apparently resolves resulting differences. Autarkic processes are subject to at least two objections. First, there is the possibility of cooptation. Agreement may be reached because participation renders parents “like domesticated animals… with no real conception any longer of the wild life.” Gunnar Myrdal, Beyond the Welfare State 73 (1967). Second, there is the possibility that whatever agreement is reached reflects a mystifying ideology, and reason and justice are not generated by participation: “When we believe… that we are the first generation… to come face to face with one another as real individuals, and that in consequence we are the first to achieve full selfconsciousness, there is incontestably a collective representation.” Douglas, How Institutions Think 99 (1986).Google Scholar
25 A “veil of ignorance,” and “ideal speech situation,” or a system of rights, as examples, must be in place so that discourse between equals leads to justice. Cf. Benjamin Barber, Strong Democracy: Participatory Politics for a New Age 139–73 (1984) (“independent ground” or proper “epistemology” needed to justify pluralistic, juridical, or political decisions).Google Scholar
26 These conflicts emerge from administration and are not generated either by modernity or modernization. See, e. g., Lloyd Fallers, Bantu Bureaucracy 225–49 (1965).Google Scholar
27 Schools, for example, might seek to advance educational goals by distancing themselves from their local environment and stating (implicitly and explicitly): “Listen to your parents, but do what you were taught to do.” Participatory administration suggests that students with special education needs do not benefit from such structured ambivalence. A high standard of proof should be imposed on a claim that moral conflict, the need for doubt, or the advantages of plural normative systems are the product of intellectual or motor skills.Google Scholar
28 See, e. g., Teubner, , “After Legal Instrumentalism? Strategic Models of Postregulatory Law,” 12 Int'l J. Soc. L. 375, 386–87 (1984) (pervasive conflicts in administration about the autonomy of the regulated field and the steering rights of administration). See also David, , “Mental Health and the Class Structure,” 1 Psychiatry 55 (1938); Szasz, “Mental Health Services in the School,” in Thomas Szasz, Ideology and Insanity 140 (1970) (the colonization of citizen values by “mental health” education).Google Scholar
29 Handler at 117 (discussing minority parents).Google Scholar
30 The Conditions of Discretion” is not based on a systematic, scientific examination of the Madison system” (at 9). Yet, Handler wants to argue that Madison's participatory administration encapsulates the conditions for “a normatively appropriate discretionary decision” (at 7). He is certainly correct that idiosyncratic features of Madison that prevent the realization of its commitments are properly “beyond the scope of this book” (at 9). But qualitative data on the negotiations, exploring, for example, responses where administrators and parents perceived strongly held differences, is the evidence that best demonstrates Handler's claim. As a consequence of Handlier's choice of evidence, The Conditions of Discretion all too easily can be read as having simply translated just exercises of discretion into decisions made with autonomous participation and that into reports of parent satisfaction. Parent satisfaction, however, is too pliable evidence to establish a normative standard.Google Scholar
31 Handler emphasizes that “self-determination is an ideal; as such, it is unattainable in ordinary affairs. We are never wholly free of the influence of others. The issue is the point on the continuum between self-determination at the end and… paternalism at the other” (at 266). He is certainly correct that the power to control decisions is never absolute. But we must also ask what decisions are offered for parent determination and what powers parents assume: “[A] critical analysis cannot overlook that pattern which simply transforms an unoraanized citizency into a reliable instrument for the achievement of administrative goals, and calls it ‘democracy.’” Philip Selznick, TVA and the Grass Roots: A Study in the Sociology of Formal Organizations 265 (1949, 1966) (“Selznick, TVA”).Google Scholar
32 In clientelism, as Judith Gruber explains, “consultation lof citizens] differs from that sought by advocates of participatory control in that the latter value involvement for its own sake, whereas clientele-oriented strategists seek more limited agency-citizen contacts to transmit information about the needs and values of client groups.” Judith Gruber, Controlling Bureaucracies: Dilemmas in Democratic Governance 20 (1987) (“Gruber, Controlling Bureaucracies”). Handler (at 277) disapproves of clientelism in medicine.Google Scholar
33 The phrase is from Chester Barnard, The Function of the Executive 167 (1938, 1968), cited inGruber, Controlling Bureaunacies 93–94.Google Scholar
34 In some special education systems, according to Handler, administrators control parent dissatisfaction by “withholding information, increasing barriers of professionalism and expertise, increasing threats of retaliation, obtaining consent forms in advance, delaying parents who want services, and informal and ad hoc placements for troublesome students” (at 110).Google Scholar
35 Selznick, TVA 7 (cited in note 31).Google Scholar
36 Gruber, Controlling Bureaucracies 98 (cited in note 32).Google Scholar
37 Joel Aberbach et al., Bureaucrats and Politicians in Western Democractes 188 (1981) (“Aberbach, Bureaucrats”) (survey finding that administrators are committed to “populism, political equality and participation,” rather than “pluralism, political liberty and contestation”).Google Scholar
38 Gruber, Controlling Burearacies 100ff.Google Scholar
39 Handler admits that in Madison “[i]t could be that the school authorities permit conflict only for certain issues but not for others” (at 146–47). But assessing whether this is the situation would require “a reconstruction of the actual decisions” (at 147). His claim is only that “[i]n theory, the Madison model does meet the objections of cooptation and controlled conflict” (at 147). In this section, I present the evidence The Conditions of Discretion provides that suggests that the theory is not being implemented. In the next section, I describe an empirical prerequisite to this theory: the reality of a responsive and purposive bureaucracy.Google Scholar
40 At 112. “The Director of the Wisconsin Coalition for Advocacy put it colorfully: ‘the parents are blown away by the coherence of the system.’ By this he meant that the parents confront a highly professional, concerned staff. They are shown and asked to read a thick file of professional opinions, evaluations, and test results, and what looks like a thoroughly considered, worked out program for their child, including yearly goals” (at 113).Google Scholar
41 Unfortunately, this will mean that “the non-generalisable case study… [is] the only method available to collect knowledge about causal relations in the implementation fields.” Teubner, 12 Int'l J. Soc. L. 388 (cited in note 28).Google Scholar
42 Yates, Bureaumatic Democracy 125 (cited in note 1).Google Scholar
43 Id. at 124. There is some indication that Madison suffers from this problem. Parents there have come to accept that schools do not (cannot?) prepare “its special education students for young adult life in the community…. Therefore, the parents must be involved in developing nonschool skills” (Handler at 101). Is this “Join the team; relieve us of responsibility”?Google Scholar
44 Gartner, & Lipsky, , “Beyond Special Education: Toward a Quality System for All Students,” 57 Harv. Educ. Rev. 367, 378 (1987)Google Scholar
45 Gruber, Controlling Bureaucracies 95 (cited in note 32).Google Scholar
46 Aberbach's survey also found that administrators professed a “realism” that resulted in the implementation of clientelism: “Full political equality is a commendable ideal, most of the leaders seem to be saying, but let's be realistic. People are not equally competent to deal with the complexities of public issues. Modest efforts to increase public access to government may be useful, but firm leadership from the top will always be necessary. In stating this modal view, bureaucrats emphasized the ‘realistic’ need for competence and leadership.” Aberbach, Bureaunuts 185 (cited in note 37).Google Scholar
47 Handler at 106. Handler notes that parent advocates “will not argue for a parental position that they think unreasonable” (at 107).Google Scholar
48 Of course, parent advocates may increase the bargaining power of individual parents. Speaking as if there were zones of indifference in Madison, one parent advocate explained: “I tell parents which cage to rattle” (at 106). Handler, not examining negotiations, does not establish that the rattling of these cages leads to better education for children and improvements in the school's definition of the situation.Google Scholar
49 If Handler's overriding value is participatory autonomy, why does he not support envisioning a voucher system?“[T]he ultimate (and one may say, proper) extension of the idea of power equalizing was not merely to the district level but to the family level, to give ‘family power equalizing.’ And this is precisely what a voucher system does.” John Coons & Stephen Sugarman, Education by Choice: The Case for Family Control xiii (1978). Handler does not explain why parents should organize groups to press their claims on the school system, rather than creating their own schools. Why is the voice option preferable to an exitone?Google Scholar
50 Participatory technologies can lead to a “system impervious to direction and leadership, incapable of setting priorities; of a fragmented and impotent polity in which the very idea of public interest is emptied of meaning.” Nonet & Selznick, Law and Society 8 (cited in note 7).Google Scholar
51 For example, Handler reports (at'91) that the parent handbook “urges parents to get help.” This leads Professor Minow to wonder why the parent is the party seen as needing help. Minow, , “Patt of the Solution, Part of the Problem,” 34 UCLA L. Rev. 981, 985 n.24 (1987).Google Scholar
52 Gruber, Controlling Bureaucracies 97, 99 (cited in note 32)Google Scholar
53 Id. at 99.Google Scholar
54 Board of Educ. v. Rowley, 102 S. Ct. 3034, 3038 n.6 (1982) (Rehnquist, J.).Google Scholar
55 Id. Google Scholar
56 For example, Handler explains that “the extent of discretionary authority at the lowest levels… has both positive and negative causes. The negative causes stem from the fact that for many issues, the top-level policymakers do not want to deal with the issue and delegate the problem back down. The positive causes lie in the nature of the substantive decision-it may be inherently discretionary, that is, not suitable for solution by a clear rule; it may be technically uncertain; it may require professional expertise” (at 168). According to Handler, reaffirming the importance of the positive causes and including parents and parent groups will eliminate the negative causes. But isn't it just as likely that the top-level policymakers will feel more inclined to delegate problems down, passing the buck to parents and service providers?.Google Scholar
57 See generally Marver Bernstein, Regulating Business by Independent Commissions (1955); Theodore Lowi, The End of Liberalism (1969) (administrative capture). Handler indicts P. L. 94–142 for not addressing “[t]he availability of programs, the backlogs in the referral procedures, and the relationships between the special education staff and the regular teachers” which “set the parameters for the selection, assessment, and placement of handicapped students” (at 62). According to him, parent organizations can address these problems. But isn't it likely that these efforts will be divisive, undermining administration's public commitments? At least, this has been true for other administrations: [A] bureaucracy may have numerous interest groups involved in a tug-of-war over its policymaking…. Such competition supports the values of pluralist democracy, but the efficiency model's values of centralized control and rational decisionmaking may be undermined when policymakers are pulled in many different and conflicting directions. An institution like HHS has often been viewed as unmanageable in part because of the range and intensity of the demands its constituents place upon it…. If groups of constituents act as cautious minimaxers, they will stake out some relatively narrow segment of policy and then work to protect that turf from the advances of other groups. To the extent that this kind of segmentation does exist among constituent groups, the policymaking process will be too fragmented to please advocates of the administrative efficiency model. It will also be too competitive from the point of view of the pluralist democracy model…. [T]he result would be a micro version of the pattern of singlegroup dominance…. When Connecticut decided to create a consolidated Department of Social Services, it ran into strong opposition from narrowly defined constituent groups wanting to retain the independence of the agency or subunit that directly served their particular interests. Yates, Bureaucratic Democracy 129 (cited in note 1).Google Scholar
58 “[W]hen we look at the implementation system, we do not see a pyramidal structure…. Instead, we see arenas of competing jurisdictions… multiple layers of agencies and organizations, with their own perceptions, values, and traditions” (Handler at 178).Google Scholar
59 Nonet & Selznick, Law and Society 7 (cited in note 7). Nonet and Selznick, like Handler, favor developments where “[I]egal institutions… give up the insular safety of autonomous law and become more dynamic instruments of social ordering and social change.”Id. at 74. Unlike Handler, they remain concerned with the need for autonomy, both to provide a steering mechanism for decision making and to decide between the claims of citizens and those of professions, the bureaucracy, or the law.Google Scholar
60 At 219. The decisions in which parents participate are “loosely coupled” to the rest of the organization. “Loosely coupled means that the parts of the organization are only slightly related to each other and are capable of fairly autonomous action” (at 201).Google Scholar
61 For responsive administrators, “[I]istening may… result in changed behavior. Having listened, administrators may have new sensitivity to certain problems, enhanced appreciation of parent competence, or simply the desire to keep the parents coming back. Furthermore, to the extent that bureaucrats are controlled by a process of anticipating what citizens will accept and trying to stay within those bounds, listening should improve control by clarifying just where those bounds really are.” Gruber, Controlling Bureaucracies 208 (cited in note 32).Google Scholar
62 Michael Lipsky, Street-Level Bureaucrucy: Dilemmas of the Individual in Public Services 162 (1980), quoted in Gruber, Controlling Bureaucracies 146. See also Weatherly, & Lipsky, , “Street-Level Bureaucrats and Institutional Innovation: Implementing Special Education Reform in Massachusetts,” 47 Harv. Educ. Rev. 171 (1977). Cf. Handler at 58 (quoting Lipsky to describe problems in administering P. L. 94–142). To the extent that the school system attempts to institute accountability mechanisms into participatory administration, the cooperation Handler lauds will be placed in question. Administrators will face citizens not as partners but as adversaries because they will be sanctioned for failing to meet performance goals. Gruber, Controlling Bureaucracies 66–67.Google Scholar
63 Nonet & Selznick, Law and Society 97 (cited in note 7).Google Scholar
64 Handler recognizes that “[t]here can also be systems or policy failures when, for example, groups and agencies together refuse to follow public values” (at 197). But he does not recognize that” [t]o place bureaucrats without formal guidance into a political context where they are expected to act like representatives overburdens an understanding of responsibility that gives other political processes and institutions the primary responsibility for determining the scope and content of public policy.” John Burke, Bureaucratic Responsibility 201 (1986) (“Burke, Bureaucratic Responsibility”).Google Scholar
65 “Purposes set standards for criticizing established practice, thereby opening ways to change. At the same time, taken seriously, they can control administrative discretion and thus mitigate the risk of institutional surrender. Conversely, a lack of purpose lies at the root of both rigidity and opportunism…. Hence, responsive law presumes that purpose can be made objective enough and authoritative enough to control adaptive rule making.” Nonet & Selznick, Law and Society 77 (cited in note 7).Google Scholar
66 Participatory intentions may produce clientelism not only because of the values of bureaucrats but because of a lack of concrete guidance to administrators on how to balance a commitment to participation with their other demands, See Gruber, Controlling Bureaucracies 25.Google Scholar
67 In a characteristically unsociological statement of invariance, Handler criticizes P. L. 94–142's technology because “[n]o matter what the rhetoric, a due process hearing is a challenge to the decision maker…. Therefore… there is resistance and evasion” (at 62). But administrator-parent negotiation can produce similar results. Doesn't participatory administration, like the legal system, require “explaining, sharing, persuading and limiting one's discretionary authority”? (At 62) I do not deny that “a formalized confrontation can be ‘traumatic’” (at 111). But resistances to challenges to authority can also appear in informal settings. For example, teachers facing challenging students can respond in a number of ways that betray their commitments to purpose or to openness.Google Scholar
68 “People need some shared sense of direction for their efforts which must be built and reaffirmed in loosely coupled systems…. People need to be part of sensible projects. Their action becomes richer, more confident, and more satisfying when it is linked with important underlying themes, values and movements” (at 216, quoting Wieck, , “Administering Education in Loosely-Coupled Schools,” 63 Phi Delta Kappa 673, 675 (1982)).Google Scholar
69 Bardach & Kagan, “Conclusion: Responsibility and Accountability” in Eugene Bardach & Robert Kagan, eds., Social Regulation: Strategies for Reform 343, 349 (1982). See also Fine, “Just Schools,” in David Kirp & Donald Jensen, School Days, Rule Days: The Legalization and Regulation of Education 302 (1986) (Doris Fine concludes that “[s]chool capacities and commitments” are “the decision factors” in reforming education. Id. at 321).Google Scholar
70 Compare Handler at 190 (“In the final analysis, the local climate has to be right”) with Teubner, 12 Int'l J. Soc. L. 387 (cited in note 28) (surrender production or reproduction of life spheres), and Nonet & Selznick, Law and Society 76 (cited in note 7) (tension between openness and fidelity to law, institutional integrity and openness; adaptiveness and opportunism).Google Scholar
71 These reasons are not idiosyncratic ones. As Yates explains, seeking friends to support their calls on the general budget and guard their priorities, “[p]ublic bureaucracies will work to mobilize their constituencies and clients in support of their policies.” Yates, Bureaucratic Democracy 67 (cited in note 1). This fact is especially true for programs like special education: “[W]hen bureaucracies impose either concentrated benefits or concentrated costs they are drawn into interest-group politics. Whether they are seeking to build their constituencies among interest groups or trying to fend off attacks from interest groups… they will become deeply involved in the political arts of coalition-building, bargaining, and negotiation with interest groups.”Id. at 68. The school system and parents' groups is only one example. Wilson notes: “Programs of this kind facilitate the emergence of voluntary associations that enter into a symbiotic relationship with the agency administering the program. There are any number of familiar examples-the National Rivers and Harbors Congress and the Army Corps of Engineers, the American Farm Bureau Federation and the Department of Agriculture and veterans' organizations and the Veterans Administration.” James Q. Wilson, Political Organizations 334 (1973), quoted in Yates, Bureaucratic Democracy 55. Cf. Selznick, TVA 55 (cited in note 31): “[T]he grass-roots approach simply verbalizes an administrative approach which any agency would follow of necessity.”Google Scholar
72 “P. L. 94–142 and similar state statutes were reforms imposed [on the educational bureaucracy] from the outside… [by] parents, advocacy groups, lawyers, and politicians” (Handler at 56).Google Scholar
73 The ability of educational administrations to distort reforms imposed from outside should not be underestimated. See, e. g., Derrick Bell, And We Are Not Saved: The Elusive Search for Racial Justice ch. 4 (1987) (“Bell, And We Are Not Saved”) (desegregation reforms turned to benefit of administration).Google Scholar
74 Parents can be “an important source of political support” (Handler at 100) and can help the school district negotiate with other public agencies (at 109–10).Google Scholar
75 Cf. Jeffrey Galper, The Politics of Social Services 56 ff. (1975) (citizen participation to counter provider proletarianization); Mayo, “Community Development” 129, 138 (cited in note 20) (citizen participation improves job satisfaction and increases power of street-level bureaucrats).Google Scholar
76 Wegner, , “Variations on a Theme-The Concept of Equal Educational Opportunity and Programming Decisions Under the Education for All Handicapped Children Act of 1975,” 48 Law & Contemp. Probs. 171 (1985). Cf. Clune, & Van Pelt, , “A Political Method of Evaluating the Education for All Handicapped Children Act of 1975 and the Several Gaps of Gap Analysis,” 48 Law & Contemp. Probs. 7, 13 (1985) (due process explanation of procedures implemented).Google Scholar
77 Minow, , “Learning to Live with the Dilemma of Difference: Bilingual and Special Education,” 48 Law & Contemp. Probs. 157 (1985).Google Scholar
78 It appears to indicate that while P. L. 94–142 has not succeeded in affording adequate process for parents seeking to secure their entitlements, it has succeeded in distributing more of the school's resources to special education. Clune & Van Pelt, 48 Law & Contemp. Probs. at 54–55.Google Scholar
79 Like Handler's analysis, Gruber's depiction of clientelism also centers on bargaining between parents and administrators: “By emphasizing the creation of resources and the development of arena for their strategic use, I have moved from traditional conceptions of control as based in an authority relationship toward an understanding of control based more on a model of exchange.” Gruber, Controlling Bureaucracies 210 (cited in note 32). Determining the correct exchange rate is the problem. In Madison, parents do not imbalance the exchange rate. Their responsibility for the exchange rate, however, is not determined. And consequently, it is difficult to distinguish Madison from clientelism.Google Scholar
80 This improvement need not stem from a sharing of power or autonomous participation. There are many ways in which participation can keep administrators on their toes: “Successful controls are often those that can ride piggyback on the bureaucrats conception of their self-interest…. Controllers do possess an array of resources potentially useful to bureaucrats. Funding, access to political leaders, information, and cooperation are all things bureaucrats value.”Id. at 205. Participation promises improved service delivery because parents “act as a counterweight to those bureaucratic tendencies of self- and organizational interest.” Burke, Bureaucratic Responsibility 198 (cited in note 64). In particular, as Gruber notes, “school councils are important not only because of their official powers but also because they provide a forum for bringing parents and school administrators together…. Because the resources are useful to administrators, they may be willing to listen.” Gruber, Controlling Bureaunacies 207.Google Scholar
81 For a definition of “democratic character,” see Burke, Democratic Responsibility 198.Google Scholar
82 The Federal Advisory Committee Act ensures the continuing democratic character of these groups by requiring that they expire or be rechartered every two years. This requirement has limited the numbers of such groups. Cardozo, , “The Federal Advisory Committee Act,” 33 Ad. L. Rev. 1, 5 (1981). A preferable, alternative strategy would ensure their continuing democratic character by attending to their internal procedures. Of course, this would require legislation specific to particular agencies and groups.Google Scholar
83 Under current law, the actions of these groups, although involved in administration, even when the groups are developed and funded by administrative agencies, may not constitute state action, and thereby become subject to constitutional requirements. “That a private entity performs a function which serves the public does not make its acts state action.” Rendell-Baker v. Kohn, 457 U. S. 830, 842 (1982) (private special education program). For example, even though the United States Olympic Committee was federally chartered, federally subsidized, and federally monitored, the Supreme Court held that the committec was not a governmental actor. San Francisco Arts & Athletics v. Olympic Comm., 107 S. Ct. 2971 (1987). The Supreme Court has enunciated three tests for state action. First, the action must be a “public function,” limiting this to traditional state prerogatives. See, e. g., id. (Olympic committee coordinates activities usually performed by private entities). Second, the action must have been performed by one subject to “state compulsion.” See, e. g., National Collegiate Athletic Ass'n v. Tarkanian, 109 S. Ct. 454 (1988) (although NCAA influences state action, it does not compel it). Third, a “nexus”must be shown between the action and a rule of conduct imposed by the state. See, e. g., Blum v. Yaretsky, 457 U. S. 991 (1984) (extensive Medicaid regulations did not dictate patient transfers); Gilmore v. Salt Lake Community Action Program, 710 F.2d 632 (10th Cir. 1983) (termination of employment by community action agency does not constitute state action).Google Scholar
84 For a discussion of the benefits of requiring informal procedures, see Kenneth Culp Davis, Administrative Law Text§§ 4.07-4.09 (1972).Google Scholar
85 For a discussion of criteria to be used for both objectives and evaluation, see Cahn & Cahn, 81 Harv. L. Rev. at 982–86 (cited in note 6).Google Scholar
86 See Burke, Democratic Responsibility 207–14 (cited in note 64) (limiting duty of democratic officials to encourage participation, suggesting criteria for the superogatory). Cf. Handler at 149 (“the burden must be placed on the professional or the agency to pursue understanding and cooperation on the part of the client”), 240 (“more active support should be given to the formation and maintenance of the [parent] groups”).Google Scholar
87 Handler argues that parent groups are “consistent with democratic theory” because of “a broad delegation to administering units” (at 257, 256). Contra Burke, Bureaucratic Responsibility 204 (groups must be recognized by legislative or judicial bodies). Handler recognizes that parent groups “become partners with the school district, resulting in corpcratism, or, to use Lowi's phrase, institutionalized pluralism” (at 222). Does Handler also argue that the participation of groups like the National Rivers and Harbors Congress, the American Farm Bureau Federation, or other groups of interests affected by regulation are consistent with democratic theory and their participation justly conditions discretion? Except for the absence of conflict in special education decisions, Handler offers no distinguishing criteria.Google Scholar
88 Although Handler emphasizes that parents volunteer, he also emphasizes that in the Madison system parents “are expected to be knowledgeable and supportive of public education” and “are supposed to take an interest in and provide support for their children's schooling both in school and at home” (at 92). These expectations are placed on parents, even though they, especially as parents of children with special needs, may face overwhelming demands and have strapped resources.Google Scholar
89 Handler is certainly correct that disempowering others or preventing their participation can support injustice. But he does not address the immiseration that participation can cause. Although it may be difficult to sympathize with parents who do not want to be involved in their children's education, the low rates of participation in Madison suggest that there may be costs Handler does not address. Consider how a worker might respond to a system that required his participation in management: “Not only do they want me to build this car, now I've got to also attend meetings and teach them how to do it.”Google Scholar
90 For a discussion of different approaches to citizen participation in administration through judicial processes, see Stewart, & Sunstein, , “Public Programs and Private Rights,” 95 Harv. L. Rev. 1193 (1982).Google Scholar
91 Handler is certainly correct to use consent as one test. Versed as we are in the varied mechanisms of social control, from hegemony to reeducation camps, appeals to citizen satisfaction, citizen education, or conflict reduction are suspect as indicators of valid consent.Google Scholar
92 Handler at 111. Handler introduces this assessment to discuss what ought to be our attitude toward the failure in Madison to use the avenues provided by the legal system.Google Scholar
93 Lazerson, quoted in Erlanger, et al., “Participation and Flexibility in Informal Processes: Cautions from the Divorce Context,” 21 Law & Soc'y Rev. 585, 603 (1987).Google Scholar
94 Id. at 596.Google Scholar
95 Handler might have made a more limited claim; just education need not be quality education. Handler understands that the moral worth of administration depends on whether it offers greater possibilities than now exist for the realization of a variety of goods. Consequently, to make his exemplary case, Handler seeks to demonstrate that participatory administration does not compromise significant values and delivers not only justice but also the other goods we desire from education.Google Scholar
96 Cf. Bell, And We Are Not Saved (cited in note 73) (progress has its victims; “victimless” progress doesn't realize its promises).Google Scholar
97 “If the law is relieved from its regulatory function… [i]t suffices to develop a very general and rather vague understanding of self-regulatory processes in the social areas concerned. Since its function is the enablement of freedom within delimited autonomous areas no knowledge is needed about their internal processes.” Teubner, 12 Int'l J. Soc. L. 391 (cited in note 28).Google Scholar
98 Paul Ricoeur, Symbolism of Evil 351–53 (1967) (distinguishing a “first naivete” generated in ignorance from a “second naivete” generated by moral choice). I am indebted to Gertrude Jaeger for teaching me to value the second naivete.Google Scholar
99 Gouldner, , “Metaphysical Pathos and the Theory of Bureaucracy,” 49 Am. Pol. Sci. Rev. 496, 505 (1955) (criticizing Selznick, TVA (cited in nore 31)).Google Scholar
100 Selznick, TVA 265.Google Scholar
101 Id. Google Scholar
102 Selznick, TVA xi.Google Scholar