What Will We Lose if Public Schools Are Privatized?

In our gerrymandered statehouses, school voucher bills of various sorts are being fast tracked. Koch money, dark money, so-called think tanks in the State Policy Network, and big advocacy organizations like Bradley, Heritage and Goldwater are behind all this activity which we—mere parents and teachers, and citizens—can’t seem to beat.

It all feels pretty hopeless, even though researchers show us that kids don’t generally really thrive when they take a voucher to escape their public schools.  And it feels more hopeless because even the most rudimentary arithmetic tells us that if the legislature subtracts a whole lot of money for vouchers from the state education budget, there’s going to be a lot less money left for the public schools which serve 50 million of our children and adolescents.

Why, despite that the battle seems overwhelming, must we be relentless in our advocacy?  What do we have to lose if our states divert massive funds out of our public schools to new or expanded voucher programs?

Today, although much of our politics is driven by anger and language that divides us and pits us against one another, the principles of democracy itself require that we protect our public schools.  Here are philosophers, constitutional experts and historians who remind us why universally accessible and publicly accountable education is essential.

We can start with philosopher John Dewey, who defined public education not as a commodity to be chosen by each individual family or any particular faith community, but instead as the institution that defines our society’s obligation for the common good: “What the best and wisest parent wants for his own child, that must the community want for all of its children… Only by being true to the full growth of all the individuals who make it up, can society by any chance be true to itself.” (The School and Society, 1899, p. 1)

Political philosopher Benjamin Barber’s defines precisely how only the public schools can protect each child’s and each family’s rights: “Privatization is a kind of reverse social contract: it dissolves the bonds that tie us together into free communities and democratic republics. It puts us back in the state of nature where we possess a natural right to get whatever we can on our own, but at the same time lose any real ability to secure that to which we have a right. Private choices rest on individual power… personal skills… and personal luck.  Public choices rest on civic rights and common responsibilities, and presume equal rights for all. Public liberty is what the power of common endeavor establishes, and hence presupposes that we have constituted ourselves as public citizens by opting into the social contract. With privatization, we are seduced back into the state of nature by the lure of private liberty and particular interest; but what we experience in the end is an environment in which the strong dominate the weak… the very dilemma which the original social contract was intended to address.” (Consumed, pp. 143-144)

In The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind, constitutional scholar Justin Driver traces the centrality of public education as the site of more debate in the U.S. Supreme Court than any other institution. Why? Driver explains that conflicts about our society’s  most basic principles play out in the setting of our public schools: “The first reason that schools should be deemed our most significant theaters of constitutional conflict is owed to the sheer magnitude of public elementary and secondary education. Today more than fifty million students attend public schools in the United States, and in order to function they require a few million adults to serve as teachers, administrators, and support staff… Second, the school’s great significance in our constitutional order stems from the fact that cases arising in this setting offer an excellent prism for examining the preceding one hundred years of American history, as the cultural anxieties that pervade the larger society often flash where law and education converge… Third… cases arising from the schooling context involve many of the most doctrinally consequential, hotly contested constitutional questions that the Supreme Court has ever addressed—including lawsuits related to sex, race, crime, safety, liberty, equality, religion, and patriotism… The final reason that the public school should be viewed as the preeminent site of constitutional interpretation is that the Supreme Court itself has repeatedly, and convincingly highlighted the importance of that venue for shaping attitudes toward the nation’s governing documents. (The Schoolhouse Gate, pp. 9-12)

Walter Feinberg, a philosopher of education, reminds us that our pluralistic society requires students to understand and respect the rights of their peers who represent different cultures. The only schools that can foster such respect are schools that bring together students students from across the barriers posed by economics, race, ethnicity and religion: “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. The concept is really ‘Americans’ stories.’” (Common Schools: Uncommon Identities, p. 232) (emphasis in the original)

Constitutional historian and law professor, Derek Black further explicates the school privatization debate as a threat to a set of values historically embodied in public education, and he asks us to become more articulate in defining these principles: “Increasingly missing, if not entirely absent, is any discussion of education’s purpose and values—reinforcing democracy and preparing citizens to participate in it. What they (privatizers) miss is that charters and vouchers, for instance, involved an entirely different set of premises about education—and for that matter an entirely different set of premises about government… (A)t its core, the choice movement is not really about improved educational opportunity. It is about ideology—an ideology that is not about democracy and public education values as we know them…. So what is that ideology? First they think of education as a commodity…  Bad purchases, false advertising, and defective products are just part of the process of moving toward better results over time. The market, they say, will sort it all out in the end… Yet what those who push back against vouchers and charters have not fully articulated is that these measures also cross the Rubicon for our democracy. As new voucher and charter bills lock in the privatization of education, they lock in the underfunding of public education. As they do this, they begin to roll back the democratic gains Congress sought during Reconstruction and then recommitted to during the civil rights movement… The radical individualist-libertarian movement is stoking the dissatisfaction of a relatively diffuse and diverse group of individuals to push its own agenda… These fundamental challenges to public education force us to ask whether public education can survive once again, and if it does not, will democracy be irreparably damaged?”  (Schoolhouse Burning, pp. 233-244)

We can return briefly to Benjamin Barber, who punctures the ideologues’ argument that vouchers denote freedom for parents: “We are seduced into thinking that the right to choose from a menu is the essence of liberty, but with respect to relevant outcomes the real power, and hence the real freedom, is in the determination of what is on the menu. The powerful are those who set the agenda, not those who choose from the alternatives it offers. We select menu items privately, but we can assure meaningful menu choices only through public decision-making.” (Consumed, p. 139)

Like Derek Black, Bill Mathis, former managing director of the National Education Policy Center, considers the role of public schools through our nation’s history: “When the destruction of civil war had to be mended, they put down their weapons and built a school. When technological change made their jobs obsolete and they had to learn new skills, they went to their common school. When new sciences changed their knowledge of the universe, they taught them in their school. When the values of democracy required learning about the Constitution, laws, and humanity, they turned to the schools. Today the message remains clear and constant. If we are to fulfill and preserve the promises of our Constitution and our communities, we must ennoble our public schools. We must cherish them for all of our children, for the welfare of society and for the sustenance of democracy.” (“In Times of Crisis, Why We Need Public Schools,” in Public Education: Defending a Cornerstone of American Democracy, p. 9)

As we push back against the campaign to privatize our public schools, it is essential to consider and speak up about what’s important about our nation’s widespread system of schools—publicly funded, universally available, and accountable to the public. While we must work to keep improving our public schools to ensure greater equality of opportunity, they remain the optimal educational institution for the investment of our efforts and tax dollars.  Public schools can balance the needs of each particular student and family with the community’s obligation to create a system that, by law, protects the rights of all students.  School privatization cannot move our society closer to those goals.

Advertisement

The Three Most Serious Problems for U.S. Public Education in 2023

The new year is a good time to stop and consider where our society stands in terms of its public priorities. During the first week of 2023, this blog will consider three overall problems of federal public education policy that undermine our public schools, their teachers, and our children. On Thursday, the topic will be serious concerns at the state level, with a focus on my state, Ohio.

In a wonderful post last week at Curmuducation, Peter Greene examined 11 different conditions that imperil public schooling as we begin 2023. Two of the threats to public schooling he identifies in the past year rise to a level of importance above all the others: “the Don’t Trust the Schools Movement” and “High Stakes Testing.”

I agree with Greene’s assessment, with one difference: He traces the “Don’t Trust the Schools Movement” in 2023 to the culture warriors who attack the teaching of so-called critical race theory, who won’t let teachers say “gay,” and who think teachers are somehow grooming children.  He’s right about that, but I think we should also remember that the culture war attacks are merely the most recent strand of a four-decades long attack that began in 1983 with the Ronald Reagan-era, A Nation at Risk report, which blamed the public schools for undermining America’s position in the world.

So… what do I believe are the three greatest perils facing public schooling as we begin 2023?

Peril #1: “High Stakes Testing” and the “Don’t Trust the Schools Movement ” are together being used to discredit America’s system of public education.

In 2001, Congress prescribed No Child Left Behind (NCLB) as the cure for A Nation at Risk‘s diagnosis of “failing” public schools. NCLB brought us high stakes school accountability as embodied in annual standardized testing along with punishments for the schools unable to raise test scores every year. The 2001, NCLB “solution” to our “failing” public schools was, of course, what Peter Greene calls this year’s second huge threat: “High Stakes Testing.” We need to remember that high states standardized testing is very much still with us. For decades now the press and the testing companies and the accountability hawks have bombarded society with the message that standardized test scores must stay on a perpetual upward trajectory. Even when a worldwide pandemic and consequent school closures temporarily disrupted the trajectory of ever rising scores, many people, therefore, came to fear that our children have “lost decades of improvement.”

But the damage of the annual high-stakes testing is deeper and more insidious in all the ways the testing undermines and discredits our public system of education.  Testing, with all of the drilling and narrowing what’s being taught, has undermined teaching. In NCLB, Congress also tied scores to teacher evaluation in a way that was shown to be unreliable. The federal government imposed sanctions like school reconstitution and mandatory charterization on public schools which struggled to raise scores. Thousands of students have been held back in third grade based on one test score even though there is evidence that being held back even once increases the probability that a student will drop out of school before graduating.  In the minds of the public, test scores now measure the quality of the school, the quality of the teachers, and the quality of each school district as the place to invest in a house. States are still required by the federal government to rank and rate the schools and to create school report cards that are published in the newspaper.

While some of the history of No Child Left Behind school accountability has faded in our memories, the “Don’t Trust the Schools Movement” is on a many levels still driven and entangled with “High Stakes Testing.”  And this year, as high stakes testing continues to undermine confidence in our schools and as the culture warriors and parents’ rights advocates clamor to discredit teachers, state legislators are feeling empowered to listen as EdChoice and the Heritage Foundation and the Goldwater Institute pressure them to redirect desperately needed tax dollars to privatized alternatives by growing voucher programs and expanding charter schools.

In the midst of all the controversy as we begin 2023, we’ve forgotten about a second peril.  This one is not part of Peter Greene’s list.

Peril #2:  Public Schools Across the United States remain alarmingly unequal.

First Focus on Children just released a new report: Big Ideas 2023, whose first chapter by constitutional scholar and author of Schoolhouse Burning, Derek Black proclaims the importance of Reclaiming the Federal Role in Education: educational equity. Black reminds us that much of today’s conversation about public schooling seems to have drifted away from the goals of the original Elementary and Secondary Education Act and one of the Department of Education’s primary programs, Title I:

“On most major measures, educational inequality is holding steady or on the rise. Achievement, segregation, and funding data all indicate that poor and minority students are receiving vastly unequal educational opportunities. For instance, predominantly minority schools receive about $2,000 less per student than predominantly white schools.  Even putting aside this inequality, overall government commitment to public education is receding. Since 2008, most states have substantially decreased school funding, some by more than 20%. The federal government has done little to stem the decline. Most disturbing, some states are currently taking steps to amend their state constitutions and make cuts to education even easier.”

Black explains that in 2015, Congress replaced the No Child Left Behind Act with the Every Student Succeeds Act, but he adds that in the 2015 version Congress did not improve the federal education law: “Congress simply stripped the federal government of regulatory power and vastly expanded state discretion. For the first time in 50 years, the federal government now lacks the ability to make prompt improvements in student achievement or to demand equal resources for low-income students… Congress can realign the Elementary and Secondary Education Act… with its historic mission of improving academic achievement and equity for low-income students, but it should also enact better mechanisms to achieve those goals. First, ESEA must increase federal investment in education. An increased federal investment is also necessary if states are to accept the second step: strict prohibitions on the unequal distribution of educational resources by states. The final step is to expand preschool education to all low-income students—a goal the Department of Education has pushed in recent years, but which states seemingly lack the capacity to reach alone.”

Derek Black reminds us that there is an urgent need for the federal government to reclaim and act on its traditional role as the guarantor of educational equity.  But equity cannot be achieved  by schools alone, which brings us to the third peril.

Peril #3: In 2022, Congress chose not to ameliorate child poverty.

Over a decade ago in a 2009 report, Lost Opportunity, the Schott Foundation for Public Education made a stunning effort to redefine what No Child Left Behind called “achievement gaps” and to shift our nation’s goal to closing children’s “opportunity gaps” not only at school but also in the whole of their lives.  What are all the factors that affect a child’s “Opportunity to Learn”?  Research demonstrates that child poverty itself creates perhaps the most serious of our society’s opportunity gaps.

Here is David Berliner, a retired professor of education and the former president of the American Educational Research Association: “(T)he big problems of American education are not in America’s schools. So, reforming the schools, as Jean Anyon once said, is like trying to clean the air on one side of a screen door. It cannot be done!  It’s neither this nation’s teachers nor its curriculum that impede the achievement of our children. The roots of America’s educational problems are in the numbers of Americans who live in poverty. America’s educational problems are predominantly in the numbers of kids and their families who are homeless; whose families have no access to Medicaid or other medical services.”

Professor of education at the University of Colorado and director of the National Education Policy Center, Kevin Welner adds: “Can schools balance our societal inequality? If that inequality is left unaddressed, along with the harm it does to children, can policymakers reasonably expect an outcome of rough equality through focusing instead on building a dazzling public school system…?” (Public Education, Defending a Cornerstone of American Democracy, p. 87)

While in 2021, as part of the American Rescue COVID relief bill, Congress temporarily expanded the Child Tax Credit, the expansion ended at the beginning of 2022. Then, last fall (2022) it appeared there was a chance that Congress would, as part of the year-end omnibus budget act, make the Child Tax Credit fully refundable, but the moment has now passed.

Writing for The New Republic, Grace Segers recounts what happened: “The implementation of the expanded child tax credit was akin to a social experiment in real time, with almost immediate results. During the six months it was in effect, the credit reached more than 60 million children in 36 million households. Due in large part to the expanded child tax credit, child poverty was cut nearly in half in 2021 compared to 2022, according to the Census Bureau. Food insufficiency also decreased significantly among families with children, dropping from a rate of 11 percent to 8.4 percent after the first monthly payment was distributed in July 2021.”

Segers continues: “The results of the credit’s expiration were as immediate as those of its implementation. January 2022 saw 3.7 million more children fall beneath the poverty line compared ‘to December 2021. That increase was particularly dramatic for Black and Latino children. Following the end of the expanded child tax credit, there was a 28 percent increase in the child poverty rate for Black children, and a 40 percent increase in the child poverty rate for Latino children from December 2021 to February 2022. The expiration of the expanded credit was also associated with a 25 percent increase in food insufficiency for families with children.”

Segers concludes that as the new Congress gets underway in January 2023 the chance for expanding the Child Tax Credit in the next couple of years is likely gone: “With Republicans taking control of the House in January, these final weeks of the year represented the last chance for the foreseeable future for the Democratic majority in both houses to reinstate the credit.”

With both chambers of Congress last year majority Democrat, 2022 was also probably the end of any chance in the immediate future to reduce reliance on mandated standardized testing accompanied by all of the high-stakes punishments for public schools or to shift attention back to the traditional role of the Department of Education—promoting educational equity at the federal level and incentivizing states to equalize their educational investment.

Like Peter Greene, I believe there are major threats to public schooling as we begin 2023. In this time when Congressional action is unlikely, the questions for those of us who support public education are:

• how to keep on pushing to clear out the awful lingering policy around test-based school accountability;
• how to keep on pushing back against widespread attacks on public education itself; and
• how to keep on speaking for the needs of our society’s poorest children as well as for the needs of their public schools.

We need to remember the importance of protecting public education—our nation’s system of publicly funded, universally available, and publicly accountable schools. Public schools are the optimal institution for balancing the needs of each particular student and family with the community’s obligation to create a system that, by law, protects the rights of all students.

What’s Happening Right Now at the Statehouse Epitomizes the Collapse of Democracy in Ohio

Today, Tuesday, December 13, 2022, the Ohio House Primary and Secondary Education Committee will consider and possibly pass and advance to the full Ohio House the more than 2,100 page, Substitute Senate Bill 178, introduced into the House committee just yesterday, December 12, 2022.  This bill, which guts the State Board of Education, came out of the Ohio Senate’s Primary and Secondary Education Committee only last Tuesday; it was passed on Wednesday by the full Ohio Senate during the 134th General Assembly’s lame-duck rush.

Substitute SB 178 would hollow out the State Board of Education and transfer most of its responsibilities to a new cabinet level Division of Education and the Workforce under the control of the Governor’s appointed deputy director.  A State Board of Education would continue to exist; it would appoint a state superintendent (but one whose responsibility would be severely reduced) and handle educator licensure and disciplinary actions.  Most of the power and responsibility of the current State Board and the State Superintendent would, however, be transferred to the new Division of Education and the Workforce. The bill also creates a new Division of Career-Technical Education, which would have its own deputy director.

Constitutional law professor and historian Derek Black provides some important historical background on the role of state boards of education and independently appointed superintendents of public instruction. All the states have education clauses in their state constitutions, many enacted in the period immediately following the Civil War: “Today all fifty state constitutions protect the right to education. All fifty states, through constitutional language, place that right on a pedestal. They also attempt something quite curious: they try to insulate public education from partisan politics.” (Schoolhouse Burning, p.15)

Black continues: “State constitutions long ago included any number of safeguards—from dedicated funding sources and uniform systems to statewide officials who aren’t under the thumb of politicians—to isolate education from… political manipulations and ensure education decisions are made in service of the common good. The larger point was to ensure that democracy’s foundation was not compromised. But the fact that politicians keep trying and sometimes succeed in their manipulations suggests these constitutional guardrails are not always enough to discourage or stop powerful leaders.” (Schoolhouse Burning, p. 232)

At the Ohio Statehouse today, we are watching politicians whose intent is precisely to insert politics into the governance, operation, and funding of public education. The Cleveland Plain Dealer‘s editorial last Friday perfectly captures this reality—explaining that Sub. SB 178, “will take key policymaking out of the hands of a state board subject to Sunshine Law rules and with required public input, and give it to a new Director of Education and the Workforce named by the governor with the advice and consent of the state Senate.”

The newspaper’s editors describe what happened after the November election:  “A curious thing happened on Nov. 8.  Amid a stampede of Republican victories in Ohio, voters in state education board districts ousted two GOP incumbents in favor of Democrats and elected another Democrat in a contested district previously held by a Republican. While the races were officially nonpartisan, the outcome gave board members who’d campaigned to take culture-war issues off the table at the State Board of Education a much larger voice… In response to this clear expression of voter concern that the State Board of Education needed to refocus on the nuts and bolts of educating Ohio children, a substitute bill gutting the board and transferring most of its key powers to an extensively revamped state education bureaucracy emerged in the Senate Primary and Secondary Education Committee.”

The Plain Dealer‘s editors continue: “Virtually overnight, one-page Senate Bill 178 suddenly became 2,144 page Substitute Senate Bill 178… Yet… just a day after hearing from the bill’s opponents, the committee voted 5-1 to push the bill out for a full floor vote, and the Senate immediately passed Sub. SB 178 on a lopsided 22-7 vote, sending it to the House.”

Yesterday (December 12), less than a week after the Ohio Senate passed Sub. SB 178, the bill was introduced in the Ohio House Primary and Secondary Education Committee, which heard sponsor testimony. The House education committee meets again today, and could potentially pass the bill and forward it to the full Ohio House of Representatives.

The Plain Dealer‘s editors acknowledge that there have been problems in Ohio’s State Board, especially in recent decades after the legislature granted the governor 8 appointed seats out of a state board of 19 members. Most of these problems are themselves the result of political meddling by powerful Ohio Republican leaders. After the State Board passed an anti-racism resolution in 2020, and then in 2021 rescinded it and substituted a bill to ban discussion of divisive topics, Governor DeWine subsequently forced the resignation of his appointed members who had voted for the original anti-racism resolution. Then, as the Plain Dealer‘s editors remind us, “Last January Gov. Mike DeWine redistricted State Board of Education districts in ways that appeared to target some of the elected board members who’d opposed him on last year’s repeal of the board’s anti-racism resolution. Voters then turned around and elected three new board members who campaigned on returning the board to educational policy pursuits. That expression of the voters’ will shouldn’t have prompted a frontal assault on the State Board of Education itself, supported by Gov. DeWine. But it appears it has.”

Although the Plain Dealer‘s editors acknowledge recent problems in the State Board, they believe a democratically responsive State Board is necessary: “It has to be said, in fairness that the State Board of Education has not covered itself in glory, bogging down in culture-war battles and failing to name a new superintendent of public instruction… But the State Board of Education provides Ohioans with benefits, too, including transparency in educational policy discussions and voter input into the choice of most board members. Successive governors have tried to squeeze the board’s powers and the voters’ voice on its members, but without being able to gain full control.”

The Plain Dealer challenges the Ohio House—led by Speaker Bob Cupp, who was one of the designers of the Cupp-Patterson Fair School Funding Plan and has been a strong supporter of Ohio’s public schools—to block Sub. SB 178: “Now it’s up to the Ohio House to shut the door on misguided Substitute Senate Bill 178.”

Democratically governed public schools remain the optimal institution for balancing the needs of each particular student and family with the public obligation to create a system that, by law, protects the rights of all students. I wish I were optimistic about what the Ohio House will do in the remaining weeks of the lame-duck session. I suspect instead that as we watch Ohio’s gerrymandered, supermajority Republican legislature eviscerate the State Board of Education, we are looking at a long and difficult battle to protect democratically governed public education in Ohio.

A Long History of Housing Redlining Has Shaped Today’s School Finance Inequity

In Schoolhouse Burning, a fascinating history of public education and racial injustice published in 2020, constitutional and civil rights scholar Derek Black describes school funding inequity based on studies by school finance expert, Bruce Baker: “(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)

In April of this year, 2022, the Albert Shanker Institute published a new study by Bruce Baker, Matthew Di Carlo and Preston C, Green III that digs deeper into the history of school finance inequity than earlier studies, which have documented inadequate school funding for students living in school districts with higher family poverty. The new study examines the long racist history of housing discrimination and its correlation with today’s school finance inequity across seven U.S. metropolitan areas—Baltimore, the Bay Area, Birmingham, Hartford, Kansas City, San Antonio, and the Twin Cities—during the past century:

“It is, perhaps, more palatable to view unequal educational opportunity as a side effect of income and wealth segregation than it is to see it as the end result of racism and discrimination. Yet the reality is that economic segregation, while interdependent with racial/ethnic segregation today, has its roots in generations of institutional policies and practices to keep people separate based solely on their race or ethnicity. Racism built the machine, even if economic inequality helps keep it running now.”

Baker, Di Carlo, and Green examine, “the association between modern school funding adequacy (and demographics) and ‘redlining’ maps drawn up during the late 1930s. These maps , which were commissioned by the Home Owners’ Loan Corporation (HOLC), assigned A-D grades to neighborhood across the United States. The grades ostensibly assessed home lending risk, but they were based in no small part on the race of neighborhoods’ residents. The distribution of grades, therefore, roughly reflects both the segregation situation at the time and general (racialized) risk assessments that directly or indirectly influenced not only HOLC aid but also other federal (e.g., Federal Housing Administration, Veterans Administration) loan insurance decisions going forward, a practice known today as redlining…. The vast majority of neighborhoods that received lower (C or D) HOLC grades between 1935-40 are today located in school districts serving larger shares of Black and Hispanic students… Schools located in previously C-/D- graded zones are also typically those serving lower-income neighborhoods today…. Virtually all (school) districts that contain a large area of C-/D- graded HOLC zones are today funded below estimated adequacy levels.”

Here is how housing redlining across metropolitan areas of our nation has affected school funding over the past century: The ‘first order’ effects of segregation on wealth and income inevitably play out in ‘second order’ effects on local property tax revenue for K-12 schools. Most notably within most of our metro areas, the typical Black or Hispanic student’s district receives less local property tax revenue than does the typical white student’s district. State general aid in most areas closes at least part of the gaps, but, in any case, these resource disparities must be evaluated with an eye on a ‘third order’ effect of segregation on funding: The concentration of poverty in racially isolated areas not only depresses revenue, but also increases educational costs. That is, districts serving larger shares of high-needs students must invest more to achieve the same outcomes. This creates (and sustains) unequal educational opportunity—i.e., large gaps in the adequacy of school funding between students of different races and ethnicities living in the same metro area.”

Baker, Di Carlo, and Green conclude: “We establish… that, both nationally and in all seven metro areas upon which we focus in this report, Black and Hispanic homeowners, relative to their white counterparts, own homes of lower value and pay higher effective property tax rates. We then show… how these discrepancies—due to interdependent economic and racial/ethnic segregation—translate into not only lower local revenue for the typical Black and Hispanic student compared with their white peers, but also higher costs. The end result is severely unequal educational opportunity, which at each juncture is created and perpetrated by racial discrimination.”

School Funding Inequity and Overreliance on Local Property Taxes Have Their Roots in the Jim Crow South

In a powerful new article, Legacy of Jim Crow Still Affects Funding for Public Schools, constitutional law professor, Derek Black and Axton Crolley expose the largely unexamined racist past of the kind of school funding inequity we observe today across many of the fifty states.

Derek Black’s Schoolhouse Burning is the best and most complex history of American public education I know.  While the history of our public schools is generally traced back to New England and Horace Mann, Derek Black’s book examines progress toward equity in the South during Reconstruction, its reversal in the Jim Crow era, the corrections attempted during the Civil Rights Movement, and a period of reaction against the Brown v. Board of Education decision.

A year ago, a local school advocacy group here Cleveland, Ohio sponsored a three part ZOOM discussion of the book. The first discussion attracted over a hundred participants from across our state, and most of them came back for the final two evenings. Again and again people commented on how fascinated they were to explore a history they had never fully understood and how poignantly relevant this history is to the problems our schools face today.

In their new article Black and Crolley describe how, after the collapse of Reconstruction, Southern states devised policies to perpetuate inequality: “Some… used ‘racially distinct tax’ policies that reserved separate funds for white and Black schools. Other states… moved school funding responsibility and control from state officials to local communities. Local officials could then ensure inequality without any specific law mandating it… (D)uring the Jim Crow era, localism became the tool to reverse… progress and equality.  States increased reliance on local taxation, gave local white officials discretion over state funds, and constitutionally secured segregation. Some went so far as to craft color-coded funding systems where white taxes funded white schools exclusively… The development of Northern local school systems was historically distinct. Yet even in some Northern states, racial antagonism and concerns over segregation prompted pushes for local decision-making.”

The U.S. Supreme Court’s decision in Brown v. Board of Education was intended to address this long history of inequality, but there was a serious omission: “Nearly 70 years ago—in its Brown v. Board decision—the Supreme Court framed racial segregation as the cause of educational inequality… That framing rightly focused on segregation’s immediate horror—excluding students from schools based on the color of their skin—but obscured an important fact.  In addition to requiring school segregation, many states also had long segregated school funding. Some had used ‘racially distinct tax’ policies that reserved separate funds for white and Black schools. Other states had moved school funding responsibility and control from state officials to local communities. Local officials could then ensure inequality without any specific law mandating it. Brown’s focus on physical segregation inadvertently left important and less obvious aspects of local funding inequality unchecked.”

Following Brown, subsequent important U.S. Supreme Court decisions perpetuated the problem by emphasizing local control: “Later court decisions did not even recognize that a problem with local funding might exist. To the contrary, they put a preference on local funding over remedying inequality… In the 1973 case of San Antonio Independent School District v. Rodriguez, the court rejected a challenge to the inequality local school funding causes, reasoning that ‘local control’ over school funding was ‘vital to continued public support of the schools’… A year later, in Milliken v. Bradley, the Supreme Court blocked a desegregation remedy that would have spanned multiple districts…. ‘No single tradition in public education is more deeply rooted than local control over the operation of schools.'”

But school funding matters and unequal funding from school district to school district privileges some children and diminishes opportunity for other children: “A large body of evidence shows ‘money matters.’ Increased spending improves college attendance rates, graduation rates and test scores. But, as a 2018 report revealed, school districts enrolling ‘the most students of color receive about $1,800 or 13% less per student’ than districts serving the fewest students of color… Most school funding gaps have a simple explanation: Public school budgets rely heavily on local property taxes. Communities with low property values can tax themselves at much higher rates than others but still fail to generate anywhere near the same level of resources as other communities.  In fact, in 46 of 50 states, local school funding schemes drive more resources to middle-income students than poor students.”

Black and Crolley conclude: “(D)uring the South’s Reconstruction, Black people and progressive whites saw state control as the solution to inadequate and unequal education. They adopted policies to that effect, many of which were enshrined in state constitutions rather than laws reversible by the legislature… An important step in remedying entrenched school funding inequalities is to first recognize that they are rooted in the history of Jim Crow segregation.  Another potential step is to return to the more centralized approach of Reconstruction—an approach that states during their progressive eras have long recognized. And this step makes good constitutional sense, too. After all, every state constitution places the ultimate obligation to fund and deliver public education on states, not local governments.”

Pandemic Only Reteaches America What We Should Have Learned Already about Public School Inequality and Child Poverty

What we expect public schools to accomplish has a lot to do with how much we take the institution of universal public schooling for granted. For a long time, we haven’t really been seriously considering the collective needs of our children and their public schools. And when children and their public schools struggle, we elect people with other priorities to represent us in the state legislature and Congress.

Back in 1998 in a book called A Passion for Democracy, the late political philosopher, Benjamin Barber pointed out what a lot of people still fail to notice: “In many municipalities, schools have become the sole surviving public institutions and consequently have been burdened with responsibilities far beyond traditional schooling. Schools are now medical clinics, counseling centers, vocational training institutes, police/security outposts, drug rehabilitation clinics, (and) special education centers… Among the costs of public schools that are most burdensome are those that go for special education, discipline, and special services to children who would simply be expelled from (or never admitted into) private and parochial schools or would be turned over to the appropriate social service agencies (which themselves are no longer funded in many cities.)  It is the glory and the burden of public schools that they cater to all of our children, whether delinquent or obedient, drug damaged or clean, brilliant or handicapped, privileged or scarred. That is what makes them public schools.” (“Education for Democracy,” in A Passion for Democracy: American Essays, pp. 226-227) (emphasis in the original)

Last week in a powerful Washington Post column, Valerie Strauss revisits the same theme in a very different context.  She has noticed a thread that runs through two years of press coverage about public schools during the pandemic: “If you Google ‘lessons learned about schools during the pandemic,’ you will see a long list of articles that purport to tell us about all the things we learned about teaching and learning in the two years since the coronavirus crisis began in March 2020. Many of the pieces highlight similar ‘lessons’—on inequity, technology, in-school learning, funding mechanisms and other issues—that seemingly hadn’t been thought of before.”

Strauss believes we ought to have learned all of these “pandemic” lessons over the decades that preceded the onset of COVID-19. Here are some of the themes she observes in recent COVID press coverage: “We learned… that… in person school… is much better for most students…. Millions of students go to school without working HVAC systems…. Millions of students would go hungry if they didn’t get meals at school…. Millions of America’s young people go to school with significant mental health issues and that schools did not have the capacity to deal with them…. Technology in schools… has significant limits and is not the heart of great teaching…. Teachers don’t just teach subject matter but are asked to be counselors, role models, mentors, identifiers and reporters of child abuse, testing administrators, disciplinarians, child advocates, parents communicators, hall and lunch monitors…. School districts were largely not ready for a crisis of this magnitude and need to become more flexible to accommodate changes in routine and student needs.”

Strauss concludes: “(F)or anybody paying the slightest bit of attention there is nothing on the list of pandemic school ‘lessons’ that we didn’t already know before COVID-19—and for a long, long time.”

Among the biggest lessons we learned again during COVID is about inadequate school funding and inequity across districts and states. Strauss explains that federal Title I funding to support schools serving concentrations of the nation’s poorest children, is inadequate and not targeted enough to the nation’s very poorest schools.  Further, “At the state and local levels, where most of education funding emanates, we’ve read report after report over decades about the persistent differences in funding per student from district to district, state to state, suburb vs. urban, urban vs. rural. States have different ways they allocate K-12 and special funding—and the amounts vary widely; in fiscal year 2020, according to the Census Bureau, New York State spent $25,520 per student while Idaho spent $8,272 per student and Florida spent $9,937 per student.  There are vast differences within states as well; reports released periodically show wide differences across school district boundary lines. For example, a 2019 report by EdBuild found that ‘almost 9 million students in America—one in five public schoolchildren—live virtually across the street from a significantly whiter and richer school district.'”

In Schoolhouse Burning, published in 2020, constitutional scholar, Derek Black summarized the fiscal condition of school districts in the decade between the 2008 Great Recession and the onset of COVID-19: “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.” “(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)

During COVID-19 we learned again about unequal access to computers and broadband.  Strauss writes: “The digital divide? The term emerged in the mid-1990s to describe the gap between families with access to computers and those who don’t. The definition broadened to include access to the Internet, and, later, to inequity in usage and skills… In April, 2020, according to the Pew Research Center, 59 percent of parents with lower incomes who had children in school that were remote due to the pandemic said their children would likely face at least one of three digital obstacles to their schooling, such as a lack of reliable internet at home, no computer at home, or needing to use a smartphone to complete schoolwork.'”

Another thing we learned about again during COVID is America’s outrageous rate of child poverty. UNICEF statistics show that in 2018, 35 OECD nations had a child poverty rate lower than the rate in the United States.  Strauss reports on one of the many ways we relearned this lesson during COVID: “That children would go hungry without free and reduced-price meals at schools is, again, hardly news. The School Lunch act of 1946—repeat, 1946, was set up to help students from low-income schools get free or reduced-price lunches. The need was obvious then, and neither the awareness of that need nor the program ever disappeared. In 1966, the School Breakfast Program began a two-year pilot and that was extended a number of times. By 1975, the program received permanent authorization… According to the Children’s Defense Fund, in 2019, more than 1 in 7 children—nearly 11 million—lived in households considered ‘food insecure,’ meaning there isn’t enough to eat and families skip meals, eat low-cost food or go hungry.”

And during COVID we again learned about American students’ need for counseling and mental health support at school. Strauss writes: “There is a lot of attention now being placed on the mental health stresses on students during the pandemic…. But let’s be clear: Children have been in crisis in this country for years.” Strauss cites a declaration of the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, and the Children’s Hospital Association. The declaration says: “Rates of childhood mental health concerns and suicide rose steadily between 2010 and 2020… and by 2018 suicide was the second leading cause of death for youth ages 10-24.”

Again and again, staff shortages in underfunded schools have left many students needing far more support. Strauss writes, “In U.S. public schools today, it’s estimated there is one school psychologist for every 1,381 students… According to the latest available information from the American School Counselor Association, there was one counselor for every 482 students in 2014-2015.  It’s nearly twice what the association recommends….”

Congress and the state legislatures could have taken extensive steps to reduce these challenges facing our children and their schools year after year, but such investments have been sporadic at best, and at the federal level during COVID, funding increases have been temporary. The allocation of temporary COVID relief from the federal government has not significantly alleviated the intersection of inadequate school funding and the unmet needs of children in school. Temporary COVID relief is a one-time investment, and public schools cannot hire salaried permanent staff with the dollars. Certainly COVID relief dollars were spent to alleviate the digital divide among children, but we know that lack of access to remote schooling during the pandemic still affected many children.

Long term solutions continue to be delayed.  While the Biden administration and many Congressional Democrats tried hard to pass Build Back Better—with permanent expansion of the Child Tax Credit to help the poorest American families with children, more dollars for childcare support, and other supports for the well being and health of poor children—the bill has languished in Congress with an uncertain future.

Another example is the fate of full-service wraparound Community Schools. The Children’s Aid Society began opening full-service Community Schools in New York City in 1992 and 1993 as a model for programming in schools where child poverty is concentrated. These are schools with family medical and social services located right in the school building. But in this year’s FY 2022 federal budget passed finally last month, after President Biden proposed spending $430 million for full-service Community Schools, Congress allocated only $75 million, an increase from the previous year’s investment of only $30 million, but not enough to make a dent in the meeting the need.

Valerie Strauss concludes her recent column: “So much for the ‘lessons’ we learned about our schools during the pandemic. The problems rooted in these lessons have long existed. Americans and the people they elect to make policy have known about them for decades. They have simply chosen to do other things rather than make serious attempts to fix them.”

Strauss adds one other thing that happened again during the pandemic: our tendency to blame teachers when things don’t go smoothly at school instead of looking at our own responsibility for resourcing schools adequately: “(T)here was a brief moment at the start of the pandemic that (teachers) were hailed as heroes…. But it didn’t take long for that narrative to… revert to the teacher-bashing of old as educators became villains for demanding vaccine mandates and safety precautions in schools…. (V)itriol about teachers and public schools became common again.” (Emphasis is mine.)

A Climate of Fear Makes It Harder for Children and Their Teachers to Consider Our History

We have all seen pictures in the news and listened on television to parents shouting at the members of their local school boards. The parents have been inflamed by a well coordinated campaign to infuriate parents about the teaching of so-called “divisive” concepts. I am alarmed when I watch this sort of thing. But I think being horrified by the theater and screaming at school board meetings or the laws being considered in more than half the statehouses to ban so-called Critical Race Theory misses something important.

It is essential to clarify exactly who are the extremists stirring up the controversy and how they are misrepresenting the American history curriculum in public schools.  But another perspective on the controversy has too often been missing.  What is our experience and our children’s experience when we learn accurately and honestly about the injustices that are part of the nation’s history?  Does it feel dangerous? Does it hurt us psychologically?

The National Education Policy Center does a great job of explaining how right-wing ideologues are actively sowing discord in our communities by stealing and changing the meaning of an old graduate school and law school concept—Critical Race Theory—which, in higher education, has been used to describe systemic, structural racial bias: “Well-established and powerful far Right organizations are driving the current effort to prevent schools from providing historically accurate information about slavery and racist policies and practices, or from examining systemic racism and its manifold impacts. These organizations include the American Legislative Exchange Council (ALEC), Goldwater Institute, Heritage Foundation, Koch family foundations, and Manhattan Institute…. The work and social media posts of Manhattan Institute senior fellow Christopher Rufo offer a good example of how far Right ideologues push the anti-CRT narrative… On Twitter, Rufo states his objective and brags about his success: ‘We have successfully frozen their brand—critical race theory—-into the public conversation and are steadily driving up negative perceptions. We will eventually turn it toxic, as we put all of the various cultural insanities under that brand category… The goal is to have the public read something crazy in the newspaper and immediately think ‘critical race theory.’ We have decodified the term and will recodify it to annex the entire race of cultural constructions that are unpopular with Americans.”

It is important for us to understand the role of the Manhattan Institute and Christopher Rufo and others who seek to distort our politics for their own political purposes.  I worry, however, that we are not paying enough attention to the educational consequences for our children, although several organizations have warned us.

In conceptual terms, the National Education Policy Center summarizes the educational impact of the far-right when they stoke the current controversy about the teaching of American history: “The anti-CRT narrative is thus used to accomplish three goals: to thwart efforts to provide an accurate and complete picture of American history; to prevent analysis and discussion of the role that race and racism have played in our history; and to blunt the momentum of efforts to increase democratic participation by  members of marginalized groups.”

In a similarly abstract definition, the American Historical Society and the Organization of American Historians summarize the controversy and condemn a bill passed last June in Texas: “Texas House Bill 3979—‘relating to the social studies curriculum in public schools’ and signed into law on June 15, 2021—prohibits slavery and racism from being taught as ‘anything other than deviations from, betrayals of, or failures to live up to, the authentic founding principles of the United States, which include liberty and equality.’ Such laws… risk infringing on the right of faculty to teach and of students to learn and seek to substitute political mandates for the considered judgment of professional educators, hindering students’ ability to learn and engage in critical thinking across differences and disagreements.”

These formal explanations are essential, but something is missing. The goal of ideological, far-right political operatives is to ignite a visceral emotional response. The goal is to terrify white parents and make them believe their white children will feel uncomfortable or guilty or sad if they learn about racial oppression in American history.  Many of these parents have been able to insulate themselves in mostly white communities and largely avoid considering people whose culture and life experience might bring different perspectives on our history. By creating an atmosphere of fear, the far-right seeks to further sow anxiety and division.

By contrast, in a thoughtful Washington Post column, Michael Gerson considers how studying history is intended to challenge our various parochialisms and, within the relative safety of the classroom, to show us, if we are willing to see and hear, the complexity of our society: “‘The attempted declawing of historical studies may be politically useful for Republicans in some places. But it bears little relationship to the way history is actually learned. All good history teaching involves layering the perspectives of a period’s participants. For this reason, the great debates of U.S. history cannot be held within polite, nonoffensive boundaries… Struggling to understand these layered perspectives is practice in critical thinking and mature citizenship. The discipline of history teaches us to engage with discomforting, distressing ideas without fearing them.”

Gerson also points to the new Texas law, but he examines precisely how the law functions psychologically to freeze teachers’ capacity to help children consider other perspectives: “The state of Texas—confirming its status as the laboratory of idiocracy—did the most damage. It has forbidden the teaching of any ‘concept’ that causes an individual to ‘feel discomfort, guilt, anguish, or any other form of psychological distress on account of the individual’s race or sex.’  The consequences for violating this law are unspecified. But the vagueness is the point. White children—really the White parents of White children—have been given an open invitation to protest any teaching on U.S. racial history that triggers their ‘discomfort.’ Which for some parents will mean any teaching on racism at all. This will inevitably lead to self-censorship by teachers who want to avoid trouble.”

Reading Gerson’s column caused me to think back to a community-wide discussion last winter (on ZOOM, of course) of Derek Black’s new book, Schoolhouse Burning.  Black’s immediate topic is the danger of the widespread collapse of public school funding over the recent decade and today’s politically conservative (Betsy DeVos pushing vouchers) and neoliberal (Arne Duncan pushing charter schools) attempt to privatize the public schools. I was part of two small group conversations about this book, but on neither evening did participants find the greatest interest in the chapters on the current wave of vouchers and charter schools. Instead people wanted to talk about the chapters in the middle of the book that trace the development of the institution of public schooling during and after the Civil War—the demand for schooling by freed slaves, the expansion of public schooling during Reconstruction, and the convulsive aftermath in the years after Reconstruction ended n 1876.  Derek Black explores this post-Reconstruction  period when the formerly Confederate states segregated schools racially and imposed extremely localized school funding to avoid undertaking the education of Black children. Our discussion last year included African American and white participants; in almost every case, people were fascinated by the details in the chapters which covered what for most of us, at least, was a hidden history we had never been taught at school. Everybody talked and talked about what they learned from the historical chapters in this book. Learning this history just seemed important; it didn’t feel threatening to anybody.

We were appalled by much of this history, but it was also layered with something positive: “All fifty state constitutions include an education clause or other language that requires the state to provide public education.  Most of these clauses were first enacted or substantially amended in the immediate aftermath of the Civil War. By law, Congress explicitly conditioned Virginia’s, Mississippi’s and Texas’s readmission to the Union based on the education rights and obligations they had just put into their constitutions… (A)fter the Civil War, no state would ever again enter the Union without an education clause in its constitution.” (Schoolhouse Burning p. 53)

There is a lesson from these history chapters in Derek Black’s book. What happened in history does, in fact, speak directly to our problems today. In Ohio we have been caught for decades in debates about the school finance provisions in our state constitution, and we now anticipate a lawsuit over the constitutionality of private school vouchers. Our community conversation last year made us more appreciative of the role of our state constitution and for the strengthening by Congress in the context of the Civil War of the protection provided by government for the rights of our nation’s most vulnerable children.

In his recent column, Michael Gerson observes: “A history curriculum designed to ensure the comfort of White people would have more than a few gaps. And teaching down to such a standard undermines one of the main purposes of historical education, which is to foster a useful discomfort with injustice.”

Education Secretary Miguel Cardona Begins to Take Action Against Governors Blocking School Mask Mandates

On September 20, 2021, the U.S. Department of Education published a notice in the Federal Register of a new Project SAFE Grant Program to “provide grants to eligible LEAs (Local Education Agencies, which is the Department’s name for local school districts) to improve student safety and well-being by advancing strategies consistent with CDC guidelines to reduce transmission of COVID-19 in schools… The priority is: Supporting LEAs’ and local education leaders’ efforts to improve student safety and well-being in LEAs that have been financially penalized by their State Education Agency or other State entity for adopting and implementing strategies consistent with CDC guidance to prevent the spread of COVID-19.”

The first federal SAFE Grant to a school district harmed by a state ban on a school district’s mandatory mask mandate was awarded on September 23rd.  NPR‘s Cory Turner reports: “The U. S. Department of Education announced Thursday that it would send roughly $148,000 to one Florida school district, Alachua County Public Schools, reimbursing it for money that has been withheld by the state. The award is the first under the department’s new… Project SAFE grant program and the latest salvo in an escalating fight over masking in schools between Florida’s Republican governor, Ron DeSantis, and President Biden’s secretary of education, Miguel Cardona.”

CNN‘s Chandelis Duster quotes Secretary Cardona justifying the need to confront governors who are blocking school districts’ requirements that their students wear masks to prevent the spread of the Delta Variant of COVID-19: “We should be thanking districts for using proven strategies that will keep schools open and safe, not punishing them. We stand with the dedicated educators in Alachua and across the country doing the right thing to protect their school communities… We’re making sure schools and communities across the country that are committed to safely returning to in-person learning know that we have their backs.”

Meanwhile, the Department of Education seems to be moving forward to investigate Civil Rights Violations in states where governors have banned mask mandates, with the possibility of withholding of federal funding as a penalty. Last Thursday evening, the Washington Post‘s Laura Meckler reported that Education Secretary Miguel Cardona has stated he is willing, by withholding federal funding if necessary, to punish states whose governors have banned mask mandates in public schools. The federal government is investigating whether the governors’ bans on mask mandates are violating the federal rights of students with disabilities.

Meckler describes Secretary Cardona’s remarks: “Cardona’s department continues to wage a battle with a half dozen Republican governors who have barred their school districts from requiring masks. This week, the department’s Office for Civil Rights added Texas to the list of states being investigated for these policies. The department argues these states may have violated the rights of students with disabilities…. The agency typically comes to settlement agreements with states and school districts under investigation, but it has the power to withhold federal funds from them. Cardona declared in an interview that he is willing to hold back funding if necessary. ‘I am prepared to do it. I don’t want to do it, but I am prepared to do it… The last thing I want to do to the students in Texas and Florida is to withhold resources that support them. That’s not something that I would do lightly.’ He added he would prefer to work with the governors, but also acknowledged that the governors do not appear interested in working with him.”

Late last month Meckler reported that letters had been sent to warn the governors of Iowa, Florida, Oklahoma, South Carolina, Tennessee and Utah that their states were under federal investigation: “(T)he Education Department’s Office for Civil Rights ‘will focus on whether… students with disabilities who are at heightened risk for severe illness from COVID-19 are prevented from safely returning to in-person education, in violation of federal law.'”

Then last Tuesday, the Washington Post‘s Valerie Strauss reported that the federal Department of Education has also notified Texas that it is being similarly investigated: “The letter sent to Texas, like the ones to the other states, said the bans on mask mandates ‘may be preventing schools in Texas from meeting their legal obligations not to discriminate based on disability and from providing an equal educational opportunity to students with disabilities….'”

Last week in a moving profile of several disabled Tennessee students, the NY Times‘ Erica Green described legal challenges which have also been filed locally on behalf of disabled students whose conditions make COVID-19 especially dangerous for them:

“Tennessee is one of seven states that the federal Education Department is investigating to determine whether governors’ orders allowing families to flout school mask mandates discriminate against students with disabilities by restricting their access to education. Even though many local school boards, including Williamson County’s, have voted to require universal masking, an executive order issued by Gov. Bill Lee, a Republican, allows parents to send their children to school maskless, no questions asked… Parents of special education students in two Tennessee counties covering the eastern and western parents of the state have sued to block the governor’s order; one lawsuit has succeeded. A third, covering Williamson County, had a hearing before a judge this week. In the most recent complaint, three lawyers argued that the governor, the Williamson County school board and a carve-out district within the county called the Franklin Special School District, are violating the rights of special education students by allowing parents to opt their children out of the mandate.  The suit was filed on behalf of a student with Down syndrome and another with Type I diabetes, but seeks protections for all ‘similarly situated’ students. ‘Defendants’ actions have pitted children against children, while placing the health and safety of medically vulnerable children with disabilities in danger,” the complaint said.”

On September 15, two of the nation’s prominent experts in education law challenged Secretary Cardona to use the power of the Department’s Office for Civil Rights to withhold federal funding in states where students’ rights are clearly being violated by governors banning masks at school.  David Sciarra, executive director of the Education Law Center, and Derek Black, the Ernest F. Hollings Chair in Constitutional Law at the University of South Carolina, explain several ways governors are violating federal law by banning masks at school: “No policy that ignores CDC guidance and deprives schools of the most important tool available to protect the health, safety, and lives of students under the age of twelve can be said to conform to Congress’s express direction to reopen schools safely. No policy that substantially increases the risk that schools will again be forced to go virtual can be said to carry out the Congressional mandate to ensure the continuity of in-person instruction. And no policy that denies students with health-related disabilities the reasonable accommodations necessary to receive equal educational access can be said to comply with the Americans with Disabilities Act.”

Sciarra and Black charge Secretary Cardona: “When states act willfully under color of law to put their children in harm’s way, the Secretary has no other choice. Federal funds should only flow to states that follow the law and actively provide students a safe place to learn.”

Legal Experts Challenge Secretary Cardona to Withhold COVID Relief Dollars from States Blocking Mask Mandates

On Wednesday I noticed a stunning new proposal for confronting the governors who are blocking uniform mask mandates in their states’ public schools. The authors of the proposal are shocked that “governors and legislators in eight states—the very states with the lowest vaccination rates and highest number of COVID infections—have taken the audacious step of blocking uniform mask mandates on schools.”

Here is the proposal: “The time for pleading with politicians to reverse course has run short. The Biden Administration has a tried and tested tool for protecting the nation’s children from politicians who persist in elevating ideology above the interests of their citizens—the power of the purse. The Administration also has a duty to use that power… When states knowingly put children in harm’s way and openly defy federal law, the federal government has no alternative but to use all available authority to protect them. This means withholding federal COVID relief money from states until they lift or rescind anti-mask policies and allow local districts to comply with the CDC’s universal mask guidance.”

The proposal’s authors are David Sciarra, a nationally known authority on school law and Executive Director of the Education Law Center, and Derek Black, the Ernest F. Hollings Chair in Constitutional Law at the University of South Carolina. These are legal experts who know federal education law and who believe it is time for Miguel Cardona, the U.S. Secretary of Education to do what he must.

Here is their charge to Secretary Cardona: “No one should envy Secretary of Education Miguel Cardona for the situation he faces. He can count on one hand the number of times prior administrations have held back federal funds owed to states. But when states act willfully under color of law to put their children in harm’s way, the Secretary has no other choice. Federal funds should only flow to states that follow the law and actively provide students a safe place to learn.”

How are governors violating federal law when they refuse to follow CDC guidance requiring that children wear masks at school?  Sciarra and Black explain: “These actions directly violate the letter of the law on multiple levels. No policy that ignores CDC guidance and deprives schools of the most important tool available to protect the health, safety, and lives of students under the age of twelve can be said to conform to Congress’s express direction to reopen schools safely. No policy that substantially increases the risk that schools will again be forced to go virtual can be said to carry out the Congressional mandate to ensure the continuity of in-person instruction. And no policy that denies students with health-related disabilities the reasonable accommodations necessary to receive equal educational access can be said to comply with the Americans with Disabilities Act.”

Sciarra and Black compare today’s federal responsibility to protect children’s health to steps the federal government took during the Civil Rights Movement to protect children from state imposed racial segregation: “These anti-mask policies parallel southern states’ response to Brown v. Board of Education…. Like politicians decades ago, today’s governors and legislators insist that individual rights somehow trump the law of the land. When the federal government hit schools where it hurts—their pocketbooks—they begrudgingly began to heed Brown‘s command to dismantle segregation.”

Sciarra and Black conclude by challenging Secretary Cardona: “Everything now rests on the Secretary. He must act to protect our school children.” Surely Secretary Cardona will feel called to fulfill what these experts define as his obligation under federal law.

Why We Need to Remember to Name the PUBLIC in Public Education

Derek Black’s book, Schoolhouse Burning, published in the autumn of 2020, is essential reading for all of us who care about public schooling. Beginning with the educational vision of the founders of our nation who understood public education as the center of the social contract, the book is a history of the institution that epitomizes our mutual responsibility to form citizens who will actively participate in our democratic experiment. Black’s book is hopeful about our history; he traces how the meaning of the guarantee of public education as a right for every child has become more inclusive in the over two hundred years since our nation’s founding—for the children of former slaves, for disabled children, for American Indians, and for immigrants. Those who conceptualized a system of public schools did not view education as part of a marketplace where individual parent consumers seek the perfect educational choice for each individual child. Why does it matter that our system of education in the United States is public—publicly owned, publicly governed and operated, publicly funded, and protected by law?

As Derek Black winds down his history of the impact of Reconstruction on the states’ constitutional promise of public schooling, the threats to equal access for all during Jim Crow, the long fight for civil rights protections against racial segregation, and decades of lawsuits brought to demand that state supreme courts protect adequate and equitable public school funding, he muses about today’s threats to our public system of schooling:

“The question today is whether constitutions are enough, whether courts can, in effect 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 right movement, aiming to overwhelm public education.  If it comes down to it, can public education persevere once again, or is it something different this time?” (Schoolhouse Burning, p. 224)

The threat today is widespread school privatization—the transformation of public schooling in many places into a school choice marketplace at public expense. As we watch this scenario play out, it is clear that meager state budgets cannot sustain three education sectors: a public sector, a charter school sector, and widespread public funding for vouchers to pay private school tuition.

Black writes: “(W)hat those who push back against vouchers and charters have not fully articulated is that these measures… cross the Rubicon for our democracy.  As new voucher and charter bills lock in the privatization of education, they lock in the underfunding of public education.  As they do this, they begin to roll back the democratic gains Congress sought during Reconstruction and then recommitted to during the civil rights movement… (S)tates with the highest percentages of minorities have twice the level of privatization as predominantly white states.  Public school funding, or the lack thereof, is the flipside of this privatization movement.” (Schoolhouse Burning, pp. 238-240)

I thought about Black’s concerns on Friday as I read a briefing fact sheet released by the White House: How the Biden-Harris Administration Is Advancing Educational Equity.  This is, I think, intended as the framing document many have been waiting for.  President Biden and his Education Secretary Miguel Cardona filled the American Rescue COVID relief bill passed by Congress in March with funding to support our public schools, and the President’s proposed FY22 budget would, if successfully negotiated through Congress, significantly increase funding.  The briefing fact sheet frames all this as an equity agenda:

“For too many Americans—including students of color, children with disabilities, English learners, LGBTQ+ students, students from low-income families, and other underserved students—the promise of a high-quality education has gone unfulfilled for generations… Dramatically unequal funding between school districts means some children learn in gleaming new classrooms, while students just down the road navigate unsafe and rundown facilities. Amid a nationwide teacher shortage, high-poverty school districts struggle to attract certified staff and experienced educators.  And students of color and children with disabilities face disproportionately high rates of school discipline that removes them from the classroom, with lasting consequences. With 53 percent of our public school students now students of color, addressing these disparities is critical for not only all our children, but for our nation’s collective health, happiness, and economic security.  Consistent with the President’s Executive Order, the Administration is committed to advancing educational equity for every child—so that schools and students not only recover from the pandemic, but Build Back Better.”

In Friday’s fact sheet, the Biden White House names many of its progressive and worthy proposals to fund education reform—providing high-quality universal early childhood education and pre-school, increasing access to affordable child care, addressing the current shortage of well-prepared teachers, upgrading school facilities long deemed deteriorating in too many communities, investing $20 billion in Title I schools and incentivizing states to improve school funding equity, radically expanding the number of Full Service Community Schools, increasing access to broadband in underserved communities, and increasing funding for programs under the Individuals with Disabilities Education Act by $2.6 billion.

Of course, Congress will have to agree to fund this needed investment.  It is definitely not a sure thing, but Biden and Cardona’s proposal deserves credit for going to the heart of the gaping inequality across America’s public schools.  The document does speak directly to issues in America’s public schools, the institutions that continue to serve around 90 percent of our nation’s children and adolescents.

There is something not quite right, however, in the narrative frame of the document, which consistently addresses equity in “education,” but not equity in “public education.” In what I compressed into four single-spaced pages, I find the word “public” only a handful of times. Perhaps this is mere carelessness, but I don’t think so. The Biden Administration has chosen not to address what public school parents are watching all over the country as their public schools run short of money for the basics, and what we all watched during the recent state budget debates when legislatures slipped more and more public dollars to charter schools and vouchers.

The framing of this document is consistent with another of the administration’s recent choices. While, in its FY 22 budget resolution, the U.S. House of Representatives proposes to ban funding from the federal Charter Schools Program for charter schools operated by the huge, for-profit Charter Management Organizations, the President’s FY 22 budget proposal is silent on this much needed reform at the same time the U.S. Senate is receiving massive pressure from the National Alliance for Public Charter Schools and others in the well-funded charter school lobby.  (It is worth noting here that charter school supporters always do remember to frame their schools as “public” even though charter schools are always privately operated). President Biden and Secretary Cardona need to weigh in on behalf of the public schools against any form of for-private educational contracting.

By failing to confront the impact of ever expanding school privatization at public expense, the Biden White House and Department of Education have, perhaps understandably, chosen to avoid controversy. But by neglecting to name and confront the impact of the enormous problem of school privatization, the administration is tacitly supporting what is happening across the states.

Here is Derek Black’s response: “State constitutions long ago included any number of safeguards—from dedicated funding sources and uniform systems to statewide officials who aren’t under the thumb of politicians—to isolate education from… political manipulations and ensure education decisions are made in service of the common good. The larger point was to ensure that democracy’s foundation was not compromised.  But the fact that politicians keep trying and sometimes succeed in their manipulations suggests these constitutional guardrails are not always enough to discourage or stop powerful leaders. This also reveals something deeper: modern-day incursions into public education are so unusual that our framers did not imagine them. They anticipated that legislatures might favor schools in their home communities at the expense of a statewide system of public education. They anticipated that public education might suffer from benign neglect when legislatures, from time to time, became preoccupied with other issues. But they did not anticipate that legislatures would go after public education itself, treating it as a bad idea.”  (Schoolhouse Burning, pp. 232-233)

Black continues: “But it is not just what today’s leaders have said and done. Also telling is what they haven’t said. Increasingly missing, if not entirely absent, is any discussion of education’s purpose and values—reinforcing democracy and preparing citizens to participate in it. What they miss is that charters and vouchers… involve an entirely different set of premises about education—and for that matter an entirely different set of premises about government.”  (Schoolhouse Burning, p. 233)