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This is a response to an article by former Alliance president Clint Bolick. -ed.

You’ve been a persuasive advocate for educational liberty, and we’ll miss your full time focus on that front. It’s great to know, though, that you’ll be defending liberty and the Constitution more broadly by a return to litigation.

One comment in your “closing arguments” caught my attention, and I wanted to respond — your plan to pursue new “voucher remedy lawsuits.”

Last year, we talked about the rationale behind these suits, in which the creation of a voucher program is sought as restitution by plaintiff families in response to a state’s failure to deliver on its constitutional promise to provide an effective public education system.

I suggested that this was legislating from the bench – an improper means of pursuing our common end of universal access to high quality education. As I recall, you countered that it was analogous to the broad restitution routinely provided under a class-action lawsuit against a defective product. It seems to me there are problems with that analogy.

First, isn’t it the case that court-ordered restitution is only granted to people who have been shown to have already suffered as a result of the defective product? Having a court create a school choice program seems to me to go far beyond that kind of remedy, because the program would presumably be accessible to all families whether or not they had been shown to have received an inadequate public education — whether or not they even had children in school at the time of the ruling.

This is not like forcing the producer of a bad batch of aspirin to compensate all those harmed by it, but like forcing that producer to distribute Tylenol to everyone in the whole state, in perpetuity, whether or not they had ever used aspirin.

And isn’t it unnecessary as well? It seems to me that it would be sufficient to get a narrower court ruling requiring states to pay restitution to any specific group that can be shown in the record to have received an inadequate public education in contravention of state constitutional guarantees. If legislatures have to start paying out money to families who actually suffer defective government schooling, wouldn’t that be sufficient inducement for them to create school choice programs to end such lawsuits and settlement payments?

Andrew J. Coulson is director of the Cato Institute’s Center for Educational Freedom, and author of Market Education: The Unknown History. He blogs at Cato at Liberty.