For Defining the Right to Public Education, Constitutional Originalism Doesn’t Work

For a couple of weeks now, since the publication of Derek Black’s history of the constitutional basis for American public education, this blog has been reflecting on the meaning of constitutional principles in our nation’s founding documents and the 50 state constitutions for defining the role and meaning of our nation’s system of public schools.  (See here, here, and here.)

But this week, Judge Amy Coney Barrett, who defines herself as a constitutional originalist, went through hours of Senate confirmation hearings leading to a Senate vote on her confirmation in the next week or two as President Trump’s latest appointment to the U.S. Supreme Court. All week we have been considering what it means for our society today when members of the U.S. Supreme Court define themselves as originalists who are bound to interpret the constitutionality of today’s laws according to the precise wording of the U.S. Constitution of 1787.

The other day when Chicago Mayor Lori Lightfoot, trained in the law and formerly a federal prosecutor, was asked whether she is an originalist, Mayor Lightfood replied: “You ask a gay, black woman if she is an originalist? No, ma’am, I am not. The Constitution didn’t consider me a person… because I’m a woman, because I’m black, because I’m gay.  I am not an originalist. I believe in the Constitution. I believe that it is a document that the founders intended to evolve and what they did was set the framework for how our country was going to be different from any other. But originalists say that, ‘Let’s go back to 1776 and whatever was there in the original language, that’s it.’ That language excluded, now, over 50 percent of the country. So, no I’m not an originalist.”

Like Mayor Lightfoot, many people today worry about originalist legal interpretation.  In Linguistics 101, students learn that language changes and evolves over time as particular words become archaic, fall out of common usage, or evolve to mean something different. Dictionaries are descriptive, not prescriptive. We cannot know precisely what the founders intended, but we can be sure that the words they used in 1787 may connote something much broader or narrower today.

Schoolhouse Burning, Derek Black’s new book is, in essence, the history of how the meaning of the guarantee of public education as a right for every child has changed and become more inclusive in the over two hundred years since our nation’s founding. Some people say that because the Constitution itself does not mention public education, public education is not a fundamental right, but Black disagrees because public education is so carefully planned in the Northwest Ordinance, passed as a sort of companion document in the same year as the Constitution.  As Black traces the history of our understanding of the right to public education, it’s clear that Derek Black is certainly not an originalist.  His book is the story of how our history—the civil war, the development of the constitutional principles of the 50 states, Jim Crow, the Civil Rights Movement—has informed and further defined the meaning of the founding principles: “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)

“Originalist” legal interpretation doesn’t pay much heed to how we have lived into the goals and principles declared all those generations ago. How has the meaning of the constitutional protection of equal education evolved over the history of our country?

On Wednesday this blog quoted, Walter Feinberg, professor emeritus of education philosophy at the University of Illinois at Champaign-Urbana, describing how our understanding of concepts of freedom and equality and the rights of citizenship have been redefined by democracy itself on occasions when our society has authentically incorporated the participation of all of its members. While the U.S. Constitution was written by white male land owners and reflected their point of view, Feinberg explains how the democratic process itself redefines the words in the Constitution: “To be an American, that is, to submit to the nation’s laws, is different than to identify oneself as an American and to participate in the public will formations that determine the direction of national action and inaction. This identification is active and requires an engagement with interpretations of events that comprise the American story. That there is an ‘American story’ means not that there is one official understanding of the American experience but, rather, that those who are telling their versions of the story are doing so in order to contribute to better decision making on the part of the American nation and that they understand that they are part of those decisions.” Feinberg believes public schools are a primary site where democracy must be enacted: “The concept is really ‘Americans’ stories’…  (T)he common school must be involved in teaching students both to speak from the knowledge that their cultural identity provides and, as audience, to hear the voices of others… It is within and across this medley of difference that the common school continues the dialogue begun during the American Revolution about the nature of national unity and the character of national identity.” (Common Schools: Uncommon Identities, pp. 232-245) (emphasis in the original)

How has the meaning of equality and equal education evolved since the late eighteenth century when the Declaration of Independence declared that, “all men are created equal, that they are endowed by their Creator with certain unalienable rights”?  In his profound book, The Education of Blacks in the South, 1860-1935, James D. Anderson begins by acknowledging the blindness, bias, and misunderstandings that have defined the project of expanding the meaning of equal education for our nation’s children: “The history of American education abounds with themes that represent the inextricable ties between citizenship in a democratic society and popular education.  It is crucial for an understanding of American educational history, however, to recognize that within American democracy there have been classes of oppressed people and that there have been essential relationships between popular education and the politics of oppression.  Both schooling for democratic citizenship and schooling for second-class citizenship have been basic traditions in American education. These opposing traditions were not, as some would explain, the difference between the mainstream of American education and some aberrations or isolated alternatives.  Rather, both were fundamental American conceptions of society and progress, occupied the same time and space, were fostered by the same governments, and usually were embraced by the same leaders.”(The Education of Blacks in the South, 1860-1935, p. 1)

Justice has always required a fight. Since the early nineteenth century the history of U.S. public education has been the story of the struggle—justified by the promise of equality in the founding documents—to expand the definition of the right to public education to include students who were previously discounted and excluded—to girls and women—to African Americans during and after the Civil war, freed slaves who had been intentionally excluded from literacy—to American Indians—to immigrants—to the disabled. The battle to expand the meaning of equality extended to trying to ensure that African Americans would not be segregated into inferior and separate schools and once able to enter a city’s public schools, would not be pushed into manual training classes and excluded from the academic track.  Women, African Americans, and immigrants finally have increased the possibility of pursuing all kinds of professions that once excluded them. American Indians, once shunted into boarding schools for forced assimilation into the dominant culture, have fought for the right to attend public schools in their communities, schools which incorporate heritage languages and indigenous culture. Disabled students, formerly locked in institutions, have finally earned the right to attend public schools in the most inclusive settings possible and to not be excluded into sheltered classes. Immigrant students have fought for and won, in some states at least, the right to bilingual education. Undocumented students won the right to a public education only in a 1982 Supreme Court decision, but they are too often still denied financial assistance through in-state college tuition. The fight for justice and equality in our nation’s public schools is the history of citizens trying to win for their children the very equality promised in the founding documents. And of course, none of this is guaranteed, which means that the struggle to make equality mean something real for all students is a work in progress and a battle that is too frequently interrupted.

The full meaning of the right to public education cannot be understood through originalist thinking. In last Sunday’ NY Times, the novelist Marilynne Robinson traced the evolving meaning of equality since the nation’s founding: “The country was, from the outset, a tremendous leap of faith. We tend not to ponder the brutality of the European world at the time our colonies formed… so we have little or no idea of the radicalism not only of stating that ‘men,’ as creatures of God, were equal, but of giving the idea profound political consequences by asserting for them unalienable rights, which were defined and elaborated in the Constitution. Our history to the present day is proof… that where justice is defined as equality, a thing never to be assumed, justice enlarges its own definition, pushing its margins in light of a better understanding of what equality should mean.”