Derek Black’s Fine New Book Explores the History of America’s Idea of Public Education — Part I

Derek Black’s stunning new book, School House Burning: Public Education and the Assault on American Democracy, threads together a history that has rarely been collected in one volume. Black, a professor of constitutional law at the University of South Carolina, presents the history of an idea first articulated in the Northwest Ordinances of 1785 and 1787, threatened again and again throughout our nation’s history but persistently revived and reanimated: that a system of public education is the one institution most essential for our democratic society. And, while the specific language defining a public education as each child’s fundamental right is absent from the U.S. Constitution, the guarantee of that right is embedded in the nation’s other founding documents, in the history of Reconstruction that followed the Civil War, in the second Reconstruction during the Civil Rights Movement, and in every one of the state constitutions.

Today’s post will skim the history as Derek Black presents it; on Wednesday, this blog will explore how Black believes both public education and democracy are threatened today.

While the U.S. Constitution never formally names public education as the nation’s fundamental and necessary institution, the provision for public education is the centerpiece of the Northwest Ordinances of 1785 and 1787: “The Ordinances, and education’s role in them, however, cannot be so easily dismissed. The Northwest Ordinance of 1787 is one of the most significant legal documents in our nation’s history and the current United States Code treats it as such… In many important ways, the history and effect of the Constitution and the Ordinances are inseparable.  First, the documents were passed by many of the same people… Second, the Northwest Ordinance’s substance is a constitutional charter of sorts. Practically speaking, it established the foundational structure for the nation to grow and organize itself for the next two centuries. Precise rules for dividing up the land, developing the nation’s vast territories, and detailing the path that these territories would follow to become states are not the work of everyday legislation. They are the work of a national charter.”  (Schoolhouse Burning, pp. 64-65).  “The 1785 Ordinance specified how every square inch of the territories would be divided into counties and towns. Every new town had to set aside one-ninth of its land and one-third of its natural resources for the financial support of education. And every town had to reserve one of its lots for the operation of a public school.” (Schoolhouse Burning, p. 62)  The Northwest Ordinances named the urgent purpose of public education and prescribed a means of funding the schools.

Jumping way ahead to the early 1970s, after President Richard Nixon replaced Chief Justice Earl Warren with Chief Justice Warren Burger and the U.S. Supreme Court moved away from the principles embodied in Brown v. Board of Education, Black describes the significance of San Antonio v. Rodriguez, the U.S. Supreme Court case which declared that because the U.S. Constitution itself does not explicitly protect the right to public education, public schooling is not a fundamental right. Black believes the founding documents should be read to include the Northwest Ordinances and that the fundamental role of education is further affirmed through our nation’s troubled history: “(I)f you asked modern legal scholars whether education is a fundamental right protected by the federal Constitution, they would tell you no, and they would be correct in one sense. The United States Supreme Court (in a 5-4 decision) refused to recognize education as a fundamental right in 1972, reasoning that the Constitution neither explicitly nor implicitly protects education. The Court feared that nothing distinguished education from the various other things that are important in life, like food and shelter. The foregoing history, however, reveals that education is far different than anything else government might offer its citizens (other than the right to vote). The nation’s very concept of government is premised on an educated citizenry. From its infancy, the United States has sought to distinguish itself with education. More particularly, education has been the tool though which the nation has sought to perfect its democratic ideas.” (Schoolhouse Burning, p. 133)

In Black’s chapter on the state constitutional conventions during Reconstruction in the Southern states after the Civil War, we read about thousands of freed slaves desperate to learn in whatever setting where they could locate a teacher. We also learn that, by the era of the Civil War, even in the North few of the states had managed to set up the kind of schooling described in the ideals of the Northwest Ordinances. The Reconstruction Acts made the provision of universal education one of the conditions for Confederate states to gain readmission to the Union, and Southern states which had been dominated by aristocratic planters and which had never established systemic public schools even for poor whites were now forced to create widespread public schooling. The meaning of Reconstruction extended beyond the Southern states: “Once the South acted—as a whole by 1868—the education revolution had the clarity and strength to solidify expectations for the rest of the nation moving forward. The history of the right to education, quite simply, divides into the world before and after 1868. Uncertainty pervaded the preceding years and nothing would ever be the same again in the subsequent years… Several Northern states revised their constitutions following the war. Congress had no leverage over them, but the recommitment to a republican form of government swept over them too.  As they revised their constitutions, they included education clauses, and by 1875, every state except one had an education clause.” (Schoolhouse Burning, pp, 126-129)

After Reconstruction ended, after Plessy V. Ferguson established the doctrine of “separate but equal,” and after Jim Crow segregated schools across the South, states reneged on funding schools for black students and left poor, black communities to scrape together inadequate revenue on their own.  Derek Black reports, however, that the idea of public education as the centerpiece of democratic governance still survived: “Yet for all the terrible moments and trends, one very important silver lining runs through this dark period that almost no one has ever stopped to consider: whereas attacks on public education were a centerpiece of the assault on black citizenship, the right to education (first vested in the immediate aftermath of the Civil War) nonetheless lived on… The idea of public education had taken hold in a region where it was previously foreign…. That silver lining… became the foundation for a second reconstruction—the civil rights movement in the mid-twentieth century—and the rebirth of the constitutional right to education in the 1970s and 1980s.” (pp, 150-155)

Derek Black traces two decades of history from the mid 1930s until 1954 as the NAACP’s Charles Hamilton Houston, Thurgood Marshall and other attorneys mounted a calculated series of lawsuits first to ensure that black students could be admitted to state institutions of higher education and, once admitted not be segregated in inferior programs provided only for blacks.  Finally, after inching toward justice for years, the NAACP launched lawsuits in several locations to challenge explicit de jure racial segregation of K-12 public schools. The NAACP’s long efforts culminated, after these cases had been combined together, in the principles declared in the unanimous 1954 opinion, written by Chief Justice Earl Warren, in Brown v. Board of Education—principles that embody the very idea Derek Black has traced from the days of the Northwest Ordinances:

“Today, education is perhaps the most important function of state and local governments.  Compulsory school attendance laws and the great expenditure for education both dominate our recognition of the importance of education to our democratic society.  It is required in the performance of our most basic public responsibilities even service in the armed forces.  It is the very foundation of good citizenship. Today it is a principal instrumental in awakening the child to cultural values, in preparing him for later professional training and in helping him to adjust normally to his environment.  In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” (Schoolhouse Burning, quoting the 1954 Decision in Brown v. Board of Education, p. 174)

What followed, of course, was another backlash, the Southern Manifesto, signed by 19 U.S. Senators and 82 members of the U.S. House of Representatives.  The Manifesto “charged that the court in Brown had abused its power.” (Schoolhouse Burning, p. 179)  Protests against the Brown decision happened in the streets and in the school boards and legislatures.  Prince Edward County, Virginia launched the first publicly funded private school tuition voucher program—for white students only—along with the shutdown, from 1959 to 1963, of the public schools which were the only local schools serving black students, who then went without education during those years.

Derek Black leads us through three crucial U.S. Supreme Court Decisions during the early 1970s which reestablished segregated schools and rejected the principles embodied in the Brown decision: Keyes v. School District No 1,  which declared that discriminatory acts must be proven to have been intentional; Milliken v. Bradley, which banned busing for school integration across school district jurisdictional lines; and San Antonio v. Rodriguez, which declared that “a right cannot be fundamental if it isn’t explicitly spelled out in the Constitution.” (Schoolhouse Burning, p. 189) “Over the next twenty years, the Burger Court and then the Rehnquist Court further chipped away at desegregation, regularly issuing decisions that curtailed lower courts’ desegregation orders and powers, even it it did not entirely foreclose them.” (Schoolhouse Burning, p. 197)

And yet, after San Antonio v. Rodriguez blocked federal school equity cases, Derek Black describes a wave of advocates pursuing the idea of each child’s right to an equal education under the provisions of the state constitutions.  While myriad cases have been filed from state to state over the decades since the early 1970s, and while most of them focused on adequate and equitable school funding. Black believes more was at stake: “State supreme courts once again were intervening to enforce the constitutional right to education…. Money is certainly relevant, but the real issues in these cases had always been students’ access to quality teachers, safe school facilities, small class sizes, modern curricula, and support services.” (Schoolhouse Burning, p. 211)

I hope you will read Derek Black’s new book, for these comments merely skim the surface of his fascinating history of the American idea of public education. As he concludes his history, Black summarizes the book’s thesis: “The foregoing principles—the right to an adequate and equal education, making education the state’s absolute and foremost duty, requiring states to exert the necessary effort (financial or otherwise) to provide quality educational access, placing education above normal politics, and expecting courts to serve as a check—are all in the service of something larger: the original idea that education is the foundation of our constitutional democracy.  Education is the means by which citizens preserve their other rights. Education gives citizens the tools they need to hold their political leaders accountable…  Democracy simply does not work well without educated citizens.” (Schoolhouse Burning, p. 224)  Black reminds us, however: “The founders articulated educational goals not with any certainty that they would spring into reality simply by writing them down, but in the hope that we might one day live into them.” (Schoolhouse Burning, p 71)

Derek Black’s new book also explores how the idea of public education is faring right now a decade after the collapse of public school funding during the Great Recession and after years of growing school privatization. Wednesday’s post will explore how recent events threaten not only our public schools but also our democracy.