Derek Black’s Fine New Book Explores the History of America’s Idea of Public Education — Part 2

On Monday, this blog examined Derek Black’s important new book, Schoolhouse Burning: Public Education and the Assault on American Democracy. Black, a professor of constitutional law at the University of South Carolina, threads together 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: that our system of public schools, where all children are welcome and where their fundamental right to education is protected by law, is the one institution most essential for preserving our democratic society.

Monday’s post explored  Black’s history of that idea which has animated our society’s durable support for public education for more than 200 years. Today’s post will examine challenges in today’s ideological and political climate which Black believes threaten the very idea of public schooling. His book is a history of the constitutional protection of public schools—federally throughout our nation’s history and over time embedded in every one of the state constitutions. Can these laws and the principles they articulate protect public schools today?  Black explains:

“The question today is whether constitutions are enough, whether courts can… protect and save that right for the rest of us. Might it be, as it has always been, that constitutions are just ideas, the force of which ultimately depends on how deeply they penetrate our cultural psyches and how faithfully we pass those ideas along? How strong is the commitment to the right to education and a system of public schools for all in the public’s mind today? There are now forces afoot, like there were during Reconstruction and the civil rights movement, aiming to overwhelm public education.” (Schoolhouse Burning, p. 224)

“Education reformers,” Black writes, “do not state their agenda as an attack on public education or students’ rights. Their pitch is gentler. They say public schools already have enough resources; they just need to spend what they have more wisely.  Or the problem is not low teacher salaries but tenure and ineffective teaching. They say charter schools and vouchers offer the common man the chance to escape a flawed public education system and trade it for something else… Those who would deprive individuals of that choice are the ones who are antidemocratic and elitist, they say.” (Schoolhouse Burning, p. 18)

Derek Black names several problems at the heart of today’s threat to public education: the expansion of school privatization via charters and vouchers, massive fortunes invested by far-right libertarians to attack so-called ‘government schools,’ attacks on school teachers and their unions, and persistent tax cutting by state legislatures and the consequent ratcheting down of state funding for public education:  “Before the recession of 2008, the trend in public school funding remained generally positive… Then the recession hit. Nearly every state in the country made large cuts to public education. Annual cuts of more than $1,000 per student were routine.”  But the recession wasn’t the only cause of money troubles for public schools: “(I)n retrospect…. the recession offered a convenient excuse for states to redefine their commitment to public education… By 2012, state revenues rebounded to pre-recession levels, and a few years later, the economy was in the midst of its longest winning streak in history. Yet during this period of rising wealth, states refused to give back what they took from education. In 2014, for instance, more than thirty states still funded education at a lower level than they did before the recession—some funded education 20 percent to 30 percent below pre-recession levels.”  (Schoolhouse Burning, pp. 31-33)  Black cites research demonstrating that states have reneged on their public education promise particularly in areas where the public schools serve poor children: “(W)hen it comes to districts serving primarily middle-income students, most states provide those districts with the resources they need to achieve average outcomes… But only a couple states provide districts serving predominantly poor students what they need. The average state provides districts serving predominantly poor students $6,239 less per pupil than they need.” (Schoolhouse Burning, p. 241)

Black explains that over the same decade: “While states were reducing their financial commitment to public schools, they were pumping enormous new resources into charters and vouchers—and making the policy environment for these alternatives more favorable. Charter schools, unlike traditional public schools, did not struggle during the recession. Their state and federal funding skyrocketed. Too often, financial shortfalls in public school districts were the direct result of pro-charter school policies… In Ohio, charter school incentives fueled so much growth so quickly that fraud and corruption took hold… Ohio charter schools received substantial funding increases every year between 2008 and 2015.  While public schools received increases in a few of those years, they were modest at best—in one instance just one-tenth the size of the charter school increase… In 2013-3014, Ohio school districts, on average, went $256 in the hole for every student who went to a charter… Nine districts sent charters between 20 percent and 65 percent more money than they received from the state—a  hard reality to justify when Ohio was already sending charters other funding on the side.” (Schoolhouse Burning, pp. 34-36)

Again, equity and racial justice were compromised: “The Northeast, Upper Midwest, and Northwest—the parts of America with the fewest racial minorities—have suffered only modest privatization. Their public school systems, for the most part, do not face major privatization threats… But the Southeast—the Confederacy’s old stronghold—tells the exact opposite story: large percentages of African American students and, save one state, their public schools are facing deep privatization forces.” (Schoolhouse Burning, p. 239)

All during the recent decade, the federal government’s education policy has also promoted school privatization. During the Trump administration, Betsy DeVos’s efforts to promote vouchers, her lifelong cause, have been well known. But the effort has been bipartisan: “Obama… tapped Arne Duncan… someone whose track record in Chicago involved substantially expanding charters… For the next several years, the federal government promoted and sometimes forced charter school expansion… The Obama administration basically condoned everything states were doing with school funding and made it a little worse. Federal funding for public schools remained flat while the federal budget for charter schools increased by nearly 20 percent between 2008 and 2013.  President Obama called for another 50 percent increase for charters on top of that in 2016 (though he didn’t get it).  The real surprise, though, is how much Duncan managed to accomplish through administrative action… His biggest coup was the process he set up for doling out innovation funds during the recession. As part of the economic recovery legislation, Congress had set aside a substantial chunk of money for education innovation but didn’t specify exactly what schools could spend it on. Duncan, however, told states that if they wanted access to the money, charter schools had to be part of the mix. States that ‘put artificial caps on the growth of charter schools,’ he said, ‘will jeopardize their grant applications.’… The overall result of these state and federal actions was stark—nearly 40 percent growth in the number of charter schools and 200 percent growth in their enrollment.”  (Schoolhouse Burning, pp. 36-37)

Derek Black identifies the Red4Ed teacher walkouts across the states in 2018 and 2019 as the greatest symbol of hope that the idea of American public schooling can survive: “In 2018, teachers finally reached their breaking point and started talking about strikes and walkouts. Media attention then helped educate the general public about what had happened to public education funding and the teaching profession over the past decade… And it happened in the most unlikely of places—in deep Republican country, in nonunion states, and in the South, not in bastions of liberalism or pro-labor sentiment… The first teacher strike was in West Virginia in 2018… The second teacher walkout was in Kentucky… After that, the protests and walkouts jumped westward to Oklahoma and Arizona… From there, major protests seemed to pop up every month in every place imaginable… Colorado, California, South Carolina, North Carolina, Georgia, Virginia, Oregon, and Washington.” Schoolhouse Burning, pp. 244-245)

Derek Black concludes his new book positively by reminding readers of America’s education idea, which has survived since 1787: “Public education represents a commitment to a nation in which a day laborer’s son can go to college, own a business, maybe even become president. It represents a nation in which every person has a stake in setting the rules by which society will govern itself…. Public education represents a nation where people from many different countries, religions and ethnic backgrounds come together as one for a common purpose around common values. We know that the idea has never been fully true in our schools, but we need to believe in that idea… The pursuit of that idea, both in fact and in mind, has long set us apart from the world….” (Schoolhouse Burning, p 250)

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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.

School Segregation in America 65 Years after “Brown v. Board of Education”

Today, May 17, 2019 is the 65th birthday of the U.S. Supreme Court decision in Brown v. Board of Education. Marking the anniversary is the publication of a new report from the Civil Rights Project at UCLA on the state of racial integration in the public schools. Rucker C. Johnson at the University of California at Berkley has also published a new book: Children of the Dream: Why School Integration Works.

Johnson, an economist, examined massive data sets as the basis of his unequivocal support for racially integrated schools: “What follows is not an impassioned argument about diversity and integration…. Instead, this book uses data to show the power of integration and related efforts. Contrary to popular wisdom, integration has benefited—and continues to benefit—African Americans, whether that benefit is translated into educational attainment, earnings, social stability, or incarceration rates. Whites, meanwhile, lose nothing from opening their classrooms to others. And overall, society benefits from a decrease in the kind of prejudice that, in the past several years, has threatened to tear us apart.”

The Washington Post‘s Valerie Strauss summarizes concisely an update on our nation’s changing demographics in the Civil Rights Project’s report: “Public school enrollment stands at nearly 50 million. White students are less than half of the student population: 48.4 percent in 2016. Latinos are 26.3 percent of the student population; blacks 15.2 percent; Asians, 5.5 percent; multiracial, 3.6 percent; and American Indians, 1 percent.  Despite the increase in diversity, segregation has intensified and expanded. Over the last three decades, black students have been increasingly segregated in intensely segregated schools (which are defined as being 90 to 100 percent nonwhite). By 2016, 40 percent of all black students were in schools with 90 percent or more students of color. New York, California, Illinois, and Maryland are the four states in which a majority of black students attend intensely segregated schools. New York remains the most segregated state for African American students, with 65 percent of African American students in intensely segregated schools. California is the most segregated for Latinos, with 58 percent of those students attending intensely segregated schools… White students continue to attend schools in which nearly seven out of 10 are also white, a much higher percentage than their overall share of the enrollment.”

In the report itself, the Civil Rights Project highlights an important overall change in the population of our nation’s public schools during the 65 years since the Brown decision: “When the nation last focused seriously on racial segregation of our schools, we were a country largely white with about an eighth black students and were at a historic low point in immigration. As we have become a country without a majority population, an absolutely central question for our future is how well are we managing our diversity?… The driving force of our social change since 1970 has been an enormous increase in the Latino population… We have few tools for bringing people together across racial and ethnic lines—basically the laws and court decisions of the civil rights era—but some of those have been reversed and others are under attack. These policies were designed for what was basically a two-race society with a substantial white middle class majority, and did not take into account what have become very large Latino populations and rapidly growing Asian numbers.  We now have a four-race society and a much higher share of families who are poor enough to be eligible for free school lunches.”

The Civil Rights Project’s report adds: “Researchers in several disciplines, including massive analysis by economists, are showing us the cost of double segregation by race and poverty, which is now the typical experience of African American and Latino students.”

Neither Johnson’s book nor the UCLA Civil Rights Project’s report envisions a clear or easy path to addressing school segregation. Both make suggestions. Nobody wants to go back to forced busing, which produced an intense backlash, resulted in the massive elimination across the South of black teachers, and placed the biggest burden for integration on the vulnerable African American children who did the most traveling to sometimes unfriendly places. Johnson describes what happened: “School busing failed in the 1970s because it brought children across the border without confronting the existence of that border in a way that was honest, explicit, and in the end, conciliatory.” (Children of the Dream, p. 256)

Johnson describes positive strategies used in some of the school districts that were integrated back in the 1970s. For example, in Jefferson County, Kentucky—metropolitan Louisville—the countywide plan heavily enriched the very poorest neighborhood schools and turned them into magnets. The Civil Rights Project also attributes success to district-wide as well as interdistrict public magnet schools with enrollment plans designed to promote integration: “Schools of choice have played a greatly increased role in public education. There was a huge growth of intentionally integrated magnet schools in the 1970s.”

The UCLA report continues: “Since the early 1980s, few federal funds were available to support voluntary integration and even those voluntary local efforts were undermined by the Supreme Court’s decision in the 2007 Parents Involved case.” Johnson describes the impact of this decision written by Justice John Roberts, a decision which declared: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  Johnson explains: “It is not hyperbole to say that Parents Involved is the greatest legal barrier to integration in the modern era. The decision rendered all race-based admissions policies the same, equating racism (segregation) with attempts to end racism (integration).” (Children of the Dream, p. 188)

Unlike the magnet programs designed to promote racial integration, charter schools have promoted racial and economic segregation. The location of these privately managed and publicly funded schools is too often chosen by the sponsor without any control by the school district. Neither does the public school district control charter school enrollment policies, transportation policies, curriculum or discipline policies—all of which can affect the eventual choices parents make. The Civil Rights Project bluntly describes the resulting enrollment patterns: “Since 1990, most of the desegregation requirements in choice plans have been dropped, and there has been a vast expansion of charter schools, which are schools of choice. Typically they have no integration policies and are even more segregated than regular public schools….” “School choice plans without equity policies and strategies often end up with the best-educated and connected families getting the best choices, actually increasing inequality. All school choice programs need voluntary goals, policies, and practices that foster diversity and integration… Particularly in larger districts or inter-district choice, the provision of transportation is essential for choice to be a reality for many families, not just available to those who can transport their child to their desired school.”

Neither Rucker Johnson nor the authors of the Civil Rights Project report believe that public schools by themselves can equalize opportunity for children or serve as the sole institution expected to integrate our society. Johnson stresses the need for accompanying school funding reform to reduce tragic opportunity gaps among public schools, where today the poorest children attend the least resourced public schools.  Based on his previous research he is also an emphatic supporter of Head Start and universal pre-Kindergarten programs like the one recently introduced by Mayor Bill de Blasio in New York City.  He also advocates for wraparound health and social service to support the poorest families and thereby support their children.

Johnson emphasizes the inherent connection of segregated schools to segregated housing policy: “As we’ve seen, housing segregation did not happen by accident; nor did it only happen in those parts of the country where racism was openly celebrated.  Instead, housing segregation was a strategic means to ensure segregation in every other part of American civic life. It was rooted in the devastatingly prescient insight that if people did not live together, and raise their children together, they would have little incentive to cross the color line in any other aspect of life, whether in the schoolhouse or the workplace.. .Any solution that attempts to address schooling without addressing housing is bound to fail.” (Children of the Dream, pp. 256-257) The Civil Rights Project’s report concludes: “Implementing the Affirmatively Furthering Fair Housing rule, and partnering housing and school integration efforts are essential.”

As we mark the anniversary of the 1954 Supreme Court decision in Brown v. Board of Education, I want to add my own concern about state policies driving school segregation today in Ohio and other states. Neither Johnson’s book nor the Civil Rights Project’s report describes the racial and economic injustice being driven today by No Child Left Behind-style, test-and-punish school accountability.  For over 60 years, research has documented that neighborhood and family poverty correlates with low school achievement as measured by scores on standardized tests. Today, Ohio and many other states rank their schools and school districts; based on schools’ aggregate test scores the states award letter grades—“A” through “F.” In the public mind, the state’s school rankings merely brand the poorest school districts. These policies encourage families not to seek a diverse,  mixed income community but instead to find the wealthiest school district the family can afford. After all, the districts earning “A” grades are all homogeneous wealthy outer suburbs while the districts with “F” grades are urban or inner-ring suburban school districts. Currently, my state also seizes those “F” school districts, declares them as places in academic emergency, and takes them over. My state and many others redline particular communities by branding their schools as “failing.” It is an appalling practice which blatantly drives racial and economic segregation.