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Abstract
Over the past two decades, social programs have become "legalized", that is, clients have been given legal rights that limit the discretion of these programs to protect important interests of clients. However, rights can also make it more difficult and more expensive for programs to carry out the responsibilities owed all clients. Programs seek to limit the rights' interference with their existing operation. The conflict of rights and programs' purposes raises double-edged questions about whether rights effectively protect clients' interests and whether rights are counter-productive because the benefits to individuals are outweighed by added costs and difficulties in the provision of services to other clients.
A study of parents' rights of school choice in Britain provides the empirical basis of the thesis. Education authorities' decisions about parents' choices depend on the relative importance of parents' interests and choices as against the responsibility of education authorities to provide education to all children in a time of limited resources for education. Education authorities have interpreted parents' rights narrowly and put obstacles in the way of parents making choices to protect their ability to manage school numbers to maintain efficient education. However, judges in Scotland and England have read the authorities' grounds for refusing parents' requests very narrowly, focusing on the individual child and disregarding the effects that many similar decisions might have on the schools. Explaining the differences between these approaches requires an examination of the different perspectives of program officials (the collective welfare orientation) and judges (the individual client orientation) and explanations of how these perspectives affect their decisionmaking. These explanations draw on empirical studies of discretion in social programs and legal and professional decisionmaking.
The study of parental choice reveals that rights can force social programs to respect particular interests of clients but only by imposing practical restrictions on case-level decisionmaking that can frustrate programs' efforts to serve public purposes. This dilemma of rights in social programs raises difficult questions about the use of legal rights in protecting individuals' interests in social programs.
