Widespread Attacks on Voting Rights and Attempts to Privatize Public Schools Together Threaten Democracy

In Friday’s NY Times, columnist Jamelle Bouie reflected on Georgia Senator Raphael Warnock’s first speech on the Senate floor:

“Warnock is the first African-American to represent Georgia in the Senate and only the second elected from the South since Reconstruction. His presence on the Senate floor is historic just on its own.  It represents progress—and yet it is also evocative of the past. A Black lawmaker from the South, urging his mostly white colleagues to defend the voting rights of millions of Americans is, to my mind, an occasion to revisit one particular episode in the history of American democracy: the fight in Congress over the Civil Rights Act of 1875.”

Bouie summarizes what was in this bill, proposed by Massachusetts Senator Charles Sumner in a Reconstruction Congress right after the Civil War: “As originally written, Sumner’s bill would, ‘Secure equal rights in railroads, steamboats, public conveyances, hotels, licensed theaters, houses of public entertainment, common schools, and institutions of learning authorized by law, church institutions, and cemetery associations incorporated by national or State authority; also on juries in courts, national and State.'” In 1871, the bill was repeatedly blocked in committee, but Senator Sumner reintroduced it in modified form in 1873: “This revised bill added a clause that stated that ‘no citizen of the United States shall, by reason of race, color, or previous condition of servitude, be excepted or excluded from full and equal enjoyment’ of ‘common schools and public institutions of learning, the same being supported by moneys derived from general taxation or authorized by law.'”

School integration held up the bill’s passage, however, and when it finally passed in 1875, “It did so without the schools clause.” “It was the schools clause that proved especially controversial… (O)pponents saw school desegregation as collapsing a distinction between public rights that would allow the government to invade all provinces of an individual’s life.”

Senator Raphael Warnock addressed his colleagues last week not about the denial of educational rights but about the attack on voting rights during the recent election and in a rash of new attempts to block legislation which would guarantee access to the ballot box: “We are witnessing right now a massive and unabashed assault on voting rights unlike anything we have seen since the Jim Crow era… This is Jim Crow in new clothes.”

Here in Ohio right now, we are in the midst of a three part discussion of Derek Black’s book, Schoolhouse Burning. Black, a professor of constitutional law, views denial of the protection of each citizen’s right to vote and the denial of the protection of each child’s right to education as tightly woven threats to our democracy: “Two hundred years ago our founding fathers gave us two gifts. Both were relatively unknown to the world at the time. The first was democracy—what they called a republican form of government. The second was public education. These gifts were inextricably intertwined… Our founding ideas, though flawed in their initial implementation, were compelling enough to take root and bear fruit for generations to come. The contradiction between our democratic ideas and practical reality was also strong enough to spark a Civil War and then constitutional change. The post-war Constitution prohibited racial voting restrictions, and then later gender and wealth restrictions. Another century later, the nation doubled down on those ideas through the Voting Rights Act…. The story of public education goes hand in hand with democracy and voting. That story, however, is not as well told… This book mines that history to help us better see who we are and have been—for better and for worse.” (Schoolhouse Burning, pp. 10-11)

Black devotes two chapters to the urgent demand for public schools from freed slaves and a few years later during Reconstruction constitutional conventions when African Americans represented their constituents across the South.  He quotes a resolution passed by an African American Freedman’s convention in Arkansas in 1865: “Clothe us with the power of self-protection, by giving us our equality before the law and the right of suffrage, so we may become bona fide citizens of the state…. That we are… the foundation on which the future power and wealth of the State of Arkansas must be built… we respectfully ask the Legislature to provide for the education of our children.” (Schoolhouse Burning, p. 99)

Just as Senator Warnick worries that attacks on voting rights in 2021 are reminiscent of the years after the collapse of Reconstruction as Jim Crow state legislatures undermined voting rights, Derek Black worries that today’s trends in public education threaten protection of the public educational system that has been central to preparing citizens for the responsibilities of democracy.  Black explains: “The last decade aligns better with the darker periods of our history than the brighter ones.  The trend is alarming not just for public education. It is alarming for democracy itself.”(Schoolhouse Burning, p.12)

Black examines what has happened to public schools across the states during the Great Recession which began in 2008 and in the years since: “The setbacks of the last decade are, in many respects, attempts to go straight at public education itself as the problem. Jim Crow and the civil rights backlash saw attacks on public education, too. But those attacking public education did not claim public education was the problem. Rather, black people and the cost and inconvenience of extending equality to black people were the problem. Many of today’s education policies and fads are premised on—and sometimes explicitly claim—that public education is fundamentally flawed and government ought to scrap it for something else. At the very least, government ought not be the primary provider of education. This idea permeates states’ decade-long disinvestment in public education and major new investment in private alternatives.” (Schoolhouse Burning, pp. 225-226)

Black summarizes the trends that concern him: “Public education cuts initially looked like a response to the recession—overzealous and foolhardy, but understandable. In retrospect, the cuts look sinister. They came while states exponentially grew charters and vouchers—and remained in place well after the recession passed and state revenues were booming. To add insult to injury, various legislative mechanisms driving charter and voucher growth come at the direct expense of public schools. The contrasting reality of public schools and their private alternatives looks like a legislative preference for private school choice over public school guarantees… The most troubling thing is that it doesn’t take a constitutional scholar or education historian to recognize that something strange has happened. Politicians and advocates have taken on an unsettling aggressiveness toward public education.”  (Schoolhouse Burning, pp, 226-227)

Black concludes: “(W)hat 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.”  And the new trends are not race-neutral: “(S)tates with the highest percentages of minorities have twice the level of privatization as predominantly white states. Public school funding, or lack thereof, is the flipside of this privatization movement…. (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… The average state provides districts serving predominantly poor students $6,239 less per pupil than they need… Today, race remains a powerful undercurrent fueling the notion that government spends too much money on other kids’ education. (Schoolhouse Burning, pp. 238-243)

Disciplining Ourselves to Stay On Message and Make a Difference for Our Children and Their Public Schools

Over 50 million children and adolescents attend public schools in the United States. Our public schools are spread across every city, town, suburb and rural area. And because they are established and regulated by laws, they embody a promise to protect the rights and serve the needs of all children. The protections embodied in our laws have expanded over more than two centuries as our society’s understanding of children’s rights and needs has grown.

In his new book, Schoolhouse Burning, Derek Black reminds readers about the history and significance of our public system of education along with the protection of voting rights as the two central guarantees of our democracy: “This book has told the story of a nation founded on the idea of a self-governing citizenry, bound together by public education.” (Schoolhouse Burning, p. 225) “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, where the waitress’s children learn alongside of and break bread with the senator’s and CEO’s children. 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.” (Schoolhouse Burning, p. 250)

Here in Ohio, we’ve been discussing Derek Black’s new book—about 80 of us gathered on ZOOM. Despite the awkwardness of being together for an entirely online event, one advantage of ZOOM is that we were able to invite Derek Black himself to help launch our first evening’s conversation. He presented an introduction to the book’s history of the founding of public schools and all the subsequent threats to public education—as Reconstruction faded into the injustice of the Jim Crow South—as resistance to Brown v. Board of Education met with opposition strong enough to close public schools for four years between 1959 and 1963 and deny public schooling for the African American children in Prince Edward County, Virginia—and as today public schools face an overwhelming financial drain from charter schools and private school tuition vouchers in an era characterized by tax cutting across many states. Last Wednesday evening, Black concluded his formal remarks by reminding us—all supporters of public education—of the need for disciplined messaging as we try to fight the forces working to undermine our neighborhood public schools.

In the book itself Black explains: “Lawmakers, lobbyists, and commentators will tell you… they want to improve educational opportunity.  If you aren’t sure about that, you will get sucked into policy papers about things like the effectiveness and cost of charters versus public schools, vouchers versus public schools, markets versus monopolies, and organized labor versus incentivized and competitive labor… The point of this book is to help you see that entertaining those policy questions is partly to blame for the current mess… (T)oday’s policy debates skew our frame of reference, trick us into looking at the wrong measures of education’s value and purpose, and distract us from the fundamental questions about the role of public education in our democracy.”  (Schoolhouse Burning, pp. 49-50)

Derek Black himself discusses some of these same policy questions in his book, but he urges all of us who cover the debates in education policy to remember to pay close attention to framing the issues.  We need to articulate not only the threats but also the meaning and importance of the institution we are defending. And he would have us remember that today’s threats to taxpayer supported public education are historically connected to the period after the collapse of Reconstruction, when lawmakers in states recently readmitted to the union figured out how to segregate Black children and push them into inferior public schools by making education funding rely more and more on local property taxes. Historically we also should remember that the widespread racial and economic segregation of public schools today is the legacy of the more recent past—the post Civil Rights Movement, when wealth and privilege and racism expressed themselves in court decisions that banned desegregation across jurisdictional boundaries and encouraged families with means to insulate their children in exclusive exurbs.

One particular framing concern I find myself and others struggling to overcome is that, as we try to identify the people and organizations pushing bad policy, we forget to to follow through with a clear definition of precisely how that particular person or organization is undermining the public schools Derek Black holds up as our most important democratic institution.  While it is good to know, for example, that Betsy DeVos’s American Federation for Children or Jeb Bush’s ExcelinEd or Democrats for Education Reform or the Heritage Foundation or EdChoice or the American Legislative Exchange Council or the Mackinac Center for Public Policy is actively working to undermine public policy with dollars contributed by wealthy Americans, and while it is important to know the names of specific donors, these facts are not enough.  Advocates must also explicitly demonstrate first, what dangerous policy steps that organization or individual is taking to bring about an outcome; second, how that specific policy will directly undermine the public schools in our particular state or local school district; and third, the logic and steps we must employ to counter that policy.

In Chicago, for example, many people accepted Arne Duncan’s (and later Rahm Emanuel’s) neoliberal Renaissance 2010 charter school expansion project as a nice experiment that might bring more choices to Chicago’s families with few choices. But advocates like Jitu Brown—an organizer of the Kenwood-Oakland Community Organization (and now leader of the Journey4Justice Alliance)—realized that what Renaissance 2010 was really accomplishing was the closure of neighborhood public schools across Chicago’s South and West Sides. In 2016, Jitu Brown and other advocates protested the closure of Dyett High School with a 34 day hunger strike. Their advocacy and their action eventually reopened Dyett High School as a public neighborhood high school. After 50 Chicago neighborhood public schools were shut down due to charter school competition in June of 2013, the University of Chicago Consortium on School Research and sociologist Eve Ewing chronicled the massive and widespread community grieving that followed. Renaissance 2010 is a Portfolio School Reform policy to expand charters, and it’s always good to point that out, and even to point out that the theory came from the Gates funded Center on Reinventing Public Education.  And it is fine to note that it was Arne’s policy later endorsed by Rahm. But what challenged Chicago to look hard at the danger of public-school-destruction was community advocacy about the meaning of the the school closures themselves. Advocates demonstrated that when Chicago tried Renaissance 2010, it destroyed public education across some of that city’s proud but poor Black neighborhoods.

In Schoolhouse Burning, Derek Black pushes advocates to do a better job of framing: “(W)hat 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 committed to during the civil rights movement… Public school funding, or the lack thereof, is the flipside of this privatization movement… Today, race remains a powerful undercurrent fueling the notion that government spends too much money on other kids’ education.” (Schoolhouse Burning, 238-243)

The late political theorist Benjamin Barber had a way of capturing the principles we must learn to name explicitly  as we advocate for the public schools.  Barber wrote:

“Through vouchers we are able as individuals, through private choosing, to shape institutions and policies that are useful to our own interests but corrupting to the public goods that give private choosing its meaning. I want a school system where my kid gets the very best; you want a school system where your kid is not slowed down by those less gifted or less adequately prepared; she wants a school system where children whose ‘disadvantaged backgrounds’ (often kids of color) won’t stand in the way of her daughter’s learning; he (a person of color) wants a school system where he has the maximum choice to move his kid out of ‘failing schools’ and into successful ones.  What do we get? The incomplete satisfaction of those private wants through a fragmented system in which individuals secede from the public realm, undermining the public system to which we can subscribe in common. Of course no one really wants a country defined by deep educational injustice and the surrender of a public and civic pedagogy whose absence will ultimately impact even our own private choices… Yet aggregating our private choices as educational consumers in fact yields an inegalitarian and highly segmented society in which the least advantaged are further disadvantaged as the wealthy retreat ever further from the public sector.  As citizens, we would never consciously select such an outcome, but in practice what is good for ‘me,’ the educational consumer, turns out to be a disaster for ‘us’ as citizens and civic educators—and thus for me the denizen of an American commons (or what’s left of it).” (Consumed, p. 132)

Barber almost perfectly formulates the problem that threatens our public schools in 2021: “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)

What Is at Stake when ALEC, the State Policy Network, The Buckeye Institute and EdChoice Lobby for Vouchers?

As we begin 2021, there has been troubling coverage about new voucher programs popping up in state legislatures. This is despite that Betsy DeVos is gone and that President Joseph Biden is a strong supporter of the institution of public schools. And in states like Indiana, and Ohio, where privatized school vouchers have been in place for decades, we can also watch pressure for their expansion.

Earlier this week, Bill Phillis, Ohio’s longest and best informed proponent of public schools and the executive director of the Ohio Coalition for Equity and Adequacy of School Funding, sent around a troubling article from the Fort Wayne Journal Gazette describing a bill being considered by the Indiana House Education Committee for the radical expansion of an already enormous publicly funded private school tuition voucher program in Indiana, Ohio’s neighbor:

“The proposed bill expands the $172 million a year voucher program to allow a family of four earning as much as $145,000 a year to qualify for vouchers. Median household income in Indiana is about $60,000 a year. The bill also eliminates income limits on the size of the voucher awards. Currently, a family of four earning up to $48,000 a year is limited to a voucher worth 90% of per-student state funding for the school corporation in which the family resides. At $60,000 a year in household income, the voucher drops to 70%. Four-person families earning up to $96,000 a year qualify for 50% of per-student funding. But HB 1005 drops the income tiers even as it raises income eligibility. A family of four earning up to $109,000 would qualify for a 90% voucher in 2021-22. In 2022-23, eligibility rises to $145,000 a year for a 90% voucher. That translates to millions of tax dollars to parents who do not choose public schools but can afford tuition for their children.”

The goal of voucher proponents in Indiana is clearly similar to Ohio State Senate President Matt Huffman’s dogged purpose in Ohio. In late November, Huffman pushed through without even a committee hearing a revamp of his primary project: expanding voucher accessibility to an ever increasing number of students across our state. The American Legislative Exchange Council (ALEC) is always said to be the driver of voucher promotion nationwide.  In 2017, ALEC and another national far-right organization FreedomWorks made Matt Huffman their legislator of the week.

A nationwide right-wing bill mill, ALEC creates model bills, including bills for tax credit vouchers and education savings account vouchers, and sends its model bills into the 50 statehouses with the intention that at least in some places they will be enacted into state law. FreedomWorks defines itself: “FreedomWorks exists to build, educate, and mobilize the largest network of activists advocating the principles of smaller government, lower taxes, free markets, personal liberty and the rule of law.”

But ALEC and FreedomWorks are not the primary advocates testifying in in state legislatures for the launch of school vouchers—or in states like Indiana and Ohio, the expansion of school vouchers. In Indiana, the Milton and Rose D. Friedman Foundation for EdChoice, now formally named EdChoice , describes its purpose: “EdChoice is a 501(c)(3) nonprofit, nonpartisan organization. Our team is driven by the shared mission to advance a K–12 education system where all families are free to choose a learning environment that works best for their children.” This is doubletalk for the idea of substituting universal school choice at public expense for a system of public schools.

In Ohio, aligned in purpose with EdChoice, is the Buckeye Institute, a nonprofit that actively and regularly floods the statehouse with lobbyists. In the area of education, the Buckeye Institute says its purpose is, “Giving all children the best education through school choice and returning local control to every community.”  And it announces a special priority: “Support education savings accounts for parents to personalize their children’s learning experience and save for college.”

EdChoice and the Buckeye Institute are both members of the State Policy Network (SPN), which SourceWatch describes as, “a web of right-wing ‘think tanks’ and tax-exempt organizations in 50 states (see this interactive map), Washington, D.C., Canada, and the United Kingdom. As of August 2020, SPN’s membership totals 162. Today’s SPN is the tip of the spear of (a) far-right, nationally funded policy agenda in the states that undergirds extremists in the Republican Party… SPN groups operate as the policy, communications, and litigation arm of the American Legislative Exchange Council (ALEC), giving the cookie-cutter ALEC agenda a sheen of academic legitimacy and state-based support.”

Where does the money behind this State Policy Network of organizations come from?  In a major 2013 investigation of the State Policy Network, SourceWatch reported that it is hard to know, because funding mostly flows through DonorsTrust and the Donors Capital Fund, dark money sources that do not name individual donors: “The largest known funder behind SPN and its member think tanks are two closely related funds—DonorsTrust and Donors Capital Fund… They are what are called ‘donor-advised funds,’ which means that the fund creates separate accounts for individual donors, and the donors then recommend disbursements from the accounts to different nonprofits. It cloaks the identity of the original mystery donors or makes it impossible to connect donors with recipients because the funds are then distributed in the name of DonorsTrust and Donors Capital Fund.”

SourceWatch has identified some major contributors in addition to DonorsTrust to the State Policy Network and its so-called “think tanks,” including the Walton Family Foundation: $1,725,000 (2014-2019); the Bradley Foundation: $1,570,000 (2014-2019); and the Sarah Scaife Foundation: $840,000 (2016-2018).

Unfortunately knowing about pro-voucher organizations and even some of the groups which are funding all this activity does not make it any easier to advocate against this kind of massive influence peddling for vouchers and tax credit vouchers and education savings account vouchers across our state legislatures. In an important new book, Schoolhouse Burning, constitutional law professor Derek Black explores the serious challenge posed by dark money and groups like ALEC, the State Policy Network, Ohio’s Buckeye Institute, and Indiana’s EdChoice. Derek Black believes the threat is greatest in the nation’s most vulnerable communities serving Black, Brown, and poor children:

“(T)he interests of those pulling the political and financial levers behind the scenes to expand charters and vouchers do not align with disadvantaged communities. Their goal, unlike that of minority communities, is not to ensure that each and every child, regardless of wealth, race, or religion, receives an equal and adequate educational opportunity. The powerful interests behind the scenes want a much different system of government than the one our founders put in our state and federal constitutions. Undermining public education is a big part of making that happen. Education, they say, is ‘the lowest hanging fruit for policy change in the United States today.’ In their minds, the scales of justice should tip away from mass democracy and the common good toward individualism and private property. That means less taxes, less government, less public education. While couched as more liberty, what they really mean is that government should let the chips fall where they may. It isn’t government’s job to ensure equal participation in democracy.”  (Schoolhouse Burning, p. 19)

Derek Black believes those of us who are committed to public education must not merely be persistent in opposing all kinds of school privatization. We must also be prepared clearly to articulate why public schools are so important: “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, where the waitress’s children learn alongside of and break bread with the senator’s and the CEOs children. 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)

Education Law Center Exposes Collapse of States’ Investment in Public Schools Since 2008

One of the ways we attribute meaning to what we see is through stories.  Here is the story of my school district. We are among the top districts in Ohio in the local school property taxes we have voted.  But our district was forced to cut teachers and programs this year, and the teachers almost went on strike because of threatened cuts to their health care benefits despite that, in November, we passed yet another local school property tax operating levy. When my children were in elementary school in the 1980s and early 1990s, each school had a nurse and each school had a certified librarian, but now schools share nurses and the libraries are staffed by aides. Looking at this situation from a purely local point of view, many people in my community interpret these facts in a way that blames the district for mismanagement or salaries that are too high, or both.

But a new report from The Education Law Center insists that citizens must expand their understanding of funding public schools beyond the local story: “The political dynamics in state capitols have profound implications for the level and distribution of school funding. Nationally, state sources (mainly sales and income tax) provide 47%, and local sources (overwhelmingly from property taxes) provide 45% of the revenue to support public schools. The federal government contributes the remaining 8%. When state governments allow tax revenues to decline or remain stagnant, public schools, which states are legally obligated to maintain and support, pay the price. Elementary and secondary education on average accounts for 36% of states’ general fund spending, the most of any state government services.”

The Education Law Center’s new report, $600 Billion Lost: State Disinvestment in Education Following the Great Recession, sets the financial crisis in my school district and a mass of other school districts in a much clearer context. The Education Law Center blames state policy over more than a decade as the primary cause of our dilemma. I already had some understanding of the current fiscal problems for the nation’s public schools because, for years, I have been reading reports on this topic from the Center on Budget and Policy Priorities (see this example).  But the new report is short, up to date, readable, and extremely important for clarifying the fiscal reality for public school districts a decade after the Great Recession and as the result of the fiscal conservatism of too many Tea Party-dominated state legislatures.

If you look merely at your own school district’s finances or even merely at where your own state stands with regard to funding public education, you are missing the larger landscape according to the Education Law Center:  “In the decade following the Great Recession, students across the U.S. lost nearly $600 billion from the states’ disinvestment in their public schools. Data from 2008-2018 show that, if states had simply maintained their fiscal effort at PK-12 education at pre-Recession levels, public schools would have had over half a trillion dollars more in state and local revenue to provide teachers, support staff and other resources essential for student achievement. Further, that lost revenue could have significantly improved opportunity and outcomes for students especially in the nation’s poorest districts.”

The report emphasizes that, even after states recovered from collapsed tax revenues caused by the Great Recession, too many state legislatures did not prioritize helping school districts recover: “Yet as economies rebounded, states failed to restore those investments. As our analysis shows, while states’ economic activity—measured as Gross Domestic Product (GDP)—recovered, state and local revenues for public schools lagged far behind in many states. This ‘lost decade’ of state disinvestment has put public schools in an extremely vulnerable position as the nation confronts the coronavirus pandemic.”

The Education Law Center has created an index of “tax effort” that measures each state’s economic capacity to fund public schools against the educational investment the state actually makes.”  Only four states, Wyoming, Illinois, Connecticut, and Alaska have raised their commitment to public education as measured by the Education Law Center’s tax effort index.

What about the rest of the states? “In some states the disinvestment was dramatic. In 2018, the effort in Arizona, Florida, and Michigan was more than 25% below 2008 levels. Nearly half of the states had an effort index that was at least 10% lower than in 2008. High and low effort states alike reduced their effort. Michigan and Ohio were ranked highly in effort in 2008—3rd and 7th, respectively—but significant reductions dropped these states to 16th and 21st by 2018.”  Bar graphs in the report trace the trajectory of each state’s K-12 public education investment.

The Education Law Center challenges state legislatures to counter the effects of the current COVID-19 recession by increasing state taxes: “The ability of states to withstand the impact of revenue losses from the pandemic hinge on enacting and sustaining progressive tax policies… Progressive tax campaigns are building in states across the country. These campaigns typically propose raising income taxes on the wealthy… and dedicating those increased revenues for education and other social services.”

Unfortunately, in Ohio, where I live, the legislature seems committed to expanding school choice instead. The Ohio Senate killed a progressive new public school finance plan in December, and at the same time has insisted on expanding school privatization. The legislature just revised and continues to expand its EdChoice Vouchers, which suck money for private school tuition directly out of local school district budgets through something called the school district deduction.

The Ohio Legislature also supports a large and well funded charter school sector. In his new book, Schoolhouse BurningDerek Black examines the school finance implications of the expansion of school privatization at public expense during the same decade the Education Law Center describes the states’ failure to invest in public education. Black examines, for example, the growth of charter schools in Ohio:

“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…  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 2013-2014, 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. 35-36)

Biden’s Education Plan Addressed Lagging School Funding: Now with a Democratic Senate Majority, He Needs to Act

President Elect Joe Biden prioritized public school funding as the center of his education plan during his campaign to be the Democratic nominee for President.  Why did he prioritize public school finance and why is it so urgently important in 2021?

Here are Jack Schneider and Jennifer Berkshire, in their new book, The Wolf at the Schoolhouse Door, explaining the problem: “Almost every state reduced spending on public education during the Great Recession, but some states went much further, making deep cuts to schools, while taking aim at teachers and their unions… Moreover, states including Arizona, Kansas, Michigan, and North Carolina also moved to permanently reduce the funds available for education by cutting the taxes that pay for schools and other public services.  In Wisconsin, Governor Scott Walker took aim at education through Act 10—what was first called the ‘budget repair bill.’  Act 10 is remembered for stripping teachers and other public employees of their collective bargaining rights.  But it also made $2 billion in cuts to the state’s public schools.” (The Wolf at the Schoolhouse Door, pp. 35-36)

In August of 2018, the late Jim Siegel at the Columbus Dispatch summarized an important report by Ohio’s school finance expert, Howard Fleeter: “Nearly 77 percent of the total revenue increase from state funding and local taxes in the past 20 years occurred before 2009, according to a new analysis by the Ohio Education Policy Institute… State funding increased 35 percent from 1999 to 2009, but in the past 10 years it has actually fallen nearly 2 percent below inflation… Fleeter points to three key reasons why state funding slowed, starting with the great recession in 2008 and 2009, causing unprecedented drops in state tax revenue.  GOP leaders also eliminated the tangible personal property tax, which more than a decade ago generated about $1.1 billion per year for schools.  For a time, state officials reimbursed schools for those losses, but that has largely been phased out…. And finally, there are Gov. John Kasich’s funding formula and fiscal priorities including income-tax cuts that have meant an estimated $3 billion less in available revenue each year.”

It has seemed as though there was hope for better public school support in the Ohio Statehouse. The Ohio Legislature spent the biennium that ended on December 31, 2020, working with experts to design a more adequate and equitable formula.  On December 3, 2020, the new plan passed the Ohio House by a margin of 87-9, but the Ohio Senate killed the bill by failing to schedule a vote before the end of the session. It is extremely unlikely that the plan will be reintroduced and passed in the next legislative biennium without changes that will reduce its cost and reduce its attention to the needs of Ohio’s poorest school districts.

The problem is not merely in states like Ohio with a history of long struggle to fund public education.  The executive director of New Jersey’s Education Law Center, which litigated the extremely successful legal challenge, Abbott v. Burke and ensured that New Jersey’s school funding has been a national leader, David Sciarra reports that right now New Jersey is falling behind the funding guarantee established through the lawsuit: “In 2018, upward of 196 New Jersey school districts were funded below ‘adequacy,’ that is, the level required by the state’s school funding formula to deliver a thorough and efficient education. That year, the state owed public school students close to $1.5 billion… The governor and legislators made some modest progress in 2019 and 2020, when they increased state school funding by $355 million and $191 million, respectively.  While the increase lowered the number of underfunded districts to 166, half of New Jersey’s students still attended underfunded schools, many in districts intensely segregated by poverty and race.  And the progress was short lived. This year, as the COVID-19 pandemic raged, (Governor) Murphy scrapped a planned $335 million funding increase, and lawmakers jumped on board with ‘flat’ state aid reminiscent of former Gov. Chris Christie’s consecutive state budgets from 2010 to 2017.  In short order, the state’s debt to public education is now back up to $2 billion, and lawmakers have abandoned their high-sounding rhetoric promising to close the funding gap by 2024.”

State and local school districts share over 90 percent of the responsibility for public school finance, with the federal government providing less than 10 percent. But funding even for the federal portion of public school finance has lagged.  The Committee for Education Funding provides this chart which demonstrates that while, in December of 2020, Congress appropriated a small increase for FY 2021 in U.S. Department of Education Discretionary Funding, the appropriation remains $7 billion below the FY 2011 amount in inflation adjusted dollars.

But the bigger problem remains in the states, which increasingly have reneged on their responsibility. In his new book, Schoolhouse Burning, constitutional scholar, Derek Black summarizes what has happened in too many states in the past decade: “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)

In over 40 states, another problem has arisen.  The tax dollars that states once invested in the public schools have been divided up into three separate education sectors: traditional public schools, publicly funded but privately operated charter schools, and private and religious schoosl which accept tuition vouchers paid for with public tax dollars.

In Schoolhouse Burning, Derek Black examines the school finance implications of the expansion of school privatization at public expense: “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. 35-36)

In a groundbreaking 2018 report about California, political economist Gordon Lafer exposed the net loss of $57.3 million local school district dollars diverted from the Oakland Unified School District to charter schools every year.

Public vouchers to pay private school tuition have likewise expanded, with the financial impact too often felt in the school districts serving poor children.  In November, 2020, for example, the incoming Ohio Senate President Matt Huffman introduced and rapidly passed without public hearings a revision of Ohio’s EdChoice private school tuition voucher program. Huffman rammed through changes which make the vouchers—which are fully extracted through local school district deductions—available only to students living in Title I districts.  Wealthy districts are now protected from losing any of their school district budgets to this voucher program. Now, Ohio’s EdChoice vouchers undermine not only the adequacy of school funding, but also inequitably impact the state’s school districts serving concentrations of poor children.

The authors of both Schoolhouse Burning and The Wolf at the Schoolhouse Door agree that the 2018-2019, Red4Ed teachers’ walkouts and strikes from West Virginia to Kentucky to Oklahoma to Arizona to Los Angeles to Oakland to Chicago exposed the deplorable school funding conditions across many U.S. states.  In some cases, those problems were addressed as the strikes were resolved, but the danger is that state budget shortfalls resulting from the COVID-19 business shutdowns and layoffs will reduce state budgets further in this budget year and perhaps for several years to come.

Clearly, as Candidate Joe Biden and his advisors drafted an education plan, they were aware of the school funding collapse so carefully documented in each of these new books and in press coverage from state to state. Now that Georgia’s run-off election last week has provided our incoming President with a Democratic Senate majority, advocates for children and public schools must hold President Biden to his promises.  First, Biden and Congress must immediately pass another COVID-19 relief bill that finally includes funding relief for state budgets and provides immediate help to ensure that children and their teachers are safely back to school as soon as possible. Then our new President needs to turn his education plan into a federal budget that triples funding for Title I, takes the first steps fully to fund the Individuals with Disabilities Education Act within 10 years, increases the number of wraparound Community Schools, and significantly expands enriched pre-Kindergarten for children living in poverty. Biden also needs to use federal policy to incentivize the states to provide enough funding to cover the real cost of educational services and to ensure that the school districts serving concentrations of poor children can begin to address long-standing opportunity gaps.

Prospects for COVID-19 Stimulus Package Fade: Will We Have to Wait for A New President and New Congress to Negotiate Relief for States and Their Public Schools?

Negotiations between House Speaker Nancy Pelosi, White House negotiator Steve Mnuchin and Senate Republicans for a second coronavirus relief bill have collapsed until at least after the election—maybe until a new Congress convenes in 2021 and, perhaps, a new President takes over.  Senate Majority Leader, Mitch McConnell has declared that the U.S. Senate will not even be back in session until November 9.

Of immediate urgency is essential assistance for individuals and small businesses now that most of the programs funded by last March’s CARES Act have run out—the one-time $1,200 stimulus checks, the small business paycheck protection program, pandemic emergency unemployment benefits, an eviction moratorium, and support for health coverage. But there is another critically important need—one that is slightly farther removed from families’ immediate crisis.

Through months of negotiations, the two sides could never reach any agreement on one of Nancy Pelosi’s top priorities and something essential for the nation’s over 13,000 local public school districts: significant relief for state and local governments. State funding averages 40 percent of all public school funding, with local funds comprising around 40 percent.  President Donald Trump and some Republican  Senators opposed what Trump called “a bailout for poorly managed ‘blue’ states.”  While Trump and so-called “deficit hawk” Republican Senators have politicized the issue, here is how—last April—Rutgers University education funding expert, Bruce Baker, and Albert Shanker Institute policy expert, Matthew Di Carlo defined the urgent need for relief for state and local governments: “The most terrible and lasting effects of the coronavirus pandemic will of course be measured in loss of life. But a parallel tragedy will also be unfolding in the coming months and years, this one affecting those at the beginning of their lives: an unprecedented school funding crisis that threatens to disadvantage a generation of children. It currently is difficult to make any precise predictions about the magnitude of the economic recession caused by the coronavirus pandemic, except to say that it has already started and it is likely to be severe. The revenue that funds public K-12 schools—almost 90 percent of which comes from state and local sources—will see large decreases… Making things worse, school districts in many states have yet to recover from the last recession, the so-called Great Recession, which officially began in late 2007 and devastated state and local education budgets.”

On Wednesday, the Wall Street Journal‘s Heather Gillers and Gunjan Banerji analyzed how a COVID-19 recession continuing for at least the next two years will affect the states: “U.S. states are facing their biggest cash crisis since the Great Depression.  Nationwide, the U.S. state budget shortfall from 2020-2022 could amount to about $434 billion, according to data from Moody’s Analytics…. That’s greater than the 2019 K-12 education budget for every state combined, or more than twice the amount spent that year on state roads and other transportation infrastructure…. Even after rainy day funds are used, Moody’s Analytics projects 46 states coming up short, with Nevada, Louisiana and Florida having the greatest gaps as a percentage of their 2019 budgets… States are dependent on taxes for revenue—sales and income taxes make up more than 60% of the revenue states collect for general operating funds…. Both types of taxes have been crushed by historic job losses and the steepest decline in consumer spending in six decades… The U.S. economy has steadily recovered since the spring, and more than 11 million jobs of the 22 million lost earlier in the year have come back.  Still, the unemployment rate recently hovered at 7.9%, and there has been an uptick in permanent layoffs.”

One effect will be a reduction in teachers’ salaries, which are already significantly lower in many states than average salaries and benefits for similarly educated professionals.  In mid-September, the Economic Policy Institute showed the long term effects of the kind of government stinginess we see in too many states and which we have watched this summer in the U.S. Senate’s refusal to consider continued federal relief. Sylvia Allegretto and Lawrence Mishel released their annual report on the long-term teacher pay penalty which is making it hard in too many states to attract enough college students into teacher preparation programs and making it difficult for states to hire enough quality teachers.

In his new book, Schoolhouse Burning: Public Education and the Assault on American Democracy,  Derek Black worries about the long consequences of a COVID-19 recession for public school budgets: “If states cut public education with the same reckless abandon this time as last (the 2008 recession), the harm will be untold. A teaching profession that spent the two years prior to 2020 protesting shamefully low salaries may simply break. The number quitting the profession altogether will further skyrocket. No one will take their place. The number of college students pursuing teaching degrees was already shockingly low. Class sizes will continue on their decade long expansion. And the pre-kindergarten opportunities, mental health counselors, and other supports that disadvantaged students so desperately need—but which states wouldn’t fund during good times—might as well be on permanent hold.” Schoolhouse Burning, p. 258)

Last week, Education Week‘s Daarel Burnette II examined the current situation in the context of what happened during the Great Recession a decade ago: “The last recession was financially ruinous for poor and majority Black and Latino school districts, almost wiping out the progress states had made in the last half century in closing funding gaps between property-rich and property-poor school districts.  Many of these school districts, even before the pandemic, had yet to financially recover from recession-era budget cuts. The pandemic has again blown a crater in sales and income tax revenues on which property-poor districts are heavily reliant. Without a substantial federal bailout, low-income districts are expected to lose millions of dollars in the coming years, which will undoubtedly have academic repercussions.”

Describing last week’s collapse of negotiations for a second COVID-19 package between House Speaker Pelosi, White House negotiator, Mnuchin, and Republicans in the U.S. Senate The Wall Street Journal noted: “Administration officials acknowledge that Senate Republicans remain a major roadblock to passing a deal with a high price tag.” Throughout the negotiation process, Senate Majority Leader Mitch McConnell reported many Senators were refusing to support assistance for state and local governments. These Senators are the far-right, so-called “deficit hawks,” who are now alarmed about increasing the size of the federal deficit despite that they passed enormous tax cuts for the wealthy and corporations in 2011.

Last week, Nobel Prize winning economist and NY Times columnist Paul Krugman confronted the deficit hawks’ argument. Krugman assumes that the responsibility for passing COVID-19 relief will be delayed until we have a new Congress in January and a new administration headed by Joe Biden instead of Donald Trump. Krugman directs his advice to the new President: “Given the current and likely future state of the U.S. economy, it’s time to (a) spend a lot of money on the future and (b) not worry about where the money is coming from. For now, and for at least the next few years, large-scale deficit spending isn’t just OK, it’s the only responsible thing to do… (I)t will be crucial to provide another round of large-scale fiscal relief, especially aid to the unemployed and to cash-strapped state and local governments. The main purpose of this relief will be humanitarian—helping families pay the rent and keep food on the table, helping cities and towns avoid devastating cuts in essential services. But it will also help avoid a downward economic spiral, by heading off a potential collapse in consumer and local government spending. The need for big spending will not, however, end with the pandemic. We also need to invest in our future. After years of public underspending, America desperately needs to upgrade its infrastructure… And we should also do much more to help children grow up to be healthy, productive adults; America spends shamefully little on aid to families compared with other wealthy countries.”

While state and local governments are, for the most part, prohibited by law from borrowing, the federal government can borrow. Krugman continues: “When a government can borrow at low interest rates, and in particular when the interest rate on debt is well below the economy’s long-run growth rate, debt just isn’t a major problem. It doesn’t pose any threat to the government’s solvency; it doesn’t in any meaningful way compete with private investment.” “Under these conditions it would actually be irresponsible for the federal government not to engage in large-scale borrowing to invest in the future.”

Even New Jersey, the State with the Best Funded Schools, Needs a 2nd Federal COVID-19 Relief Bill

In the midst of the COVID-19 recession, even New Jersey, the state with the nation’s best school funding system, can’t maintain its constitutional obligation without additional federal help through the relief package which was first proposed by the U.S. House of Representatives in May.  U.S. Senate Republicans have refused to consider a second COVID-19 relief bill through the whole summer and into the fall, but discussions had revived in recent days.  Just yesterday, however, President Trump seemed to kill any chance that a second federal relief package will be forthcoming before the November election.

In New Jersey, the state supreme court has held New Jersey’s legislature accountable for fulfilling its constitutionally defined responsibility to fund the state’s public schools.  In his 2013 book, Improbable Scholars, David Kirp, a professor of public policy at the University of California at Berkeley, describes the long series of decisions in New Jersey’s state constitutional case of Abbott v. Burke: “Beginning in the early 1990s, additional help came from an unexpected source—the New Jersey Supreme Court.  Over the past half-century, those justices have acquired a reputation for the boldness and controversiality of their opinions… None of the court’s decrees has made a bigger splash or taken a bigger bite out of the state treasury than the epic school finance case Abbott. v. Burke. In twenty-one decrees issued over the course of nearly three decades, the justices have read the state’s constitutional guarantee of ‘a thorough and efficient system of education’ as a charter of equality for urban youth. That 1875 provision, and the court in its historic 1990 ruling, Abbott II, meant that youngsters living in poor cities were entitled to an education as good as their suburban counterparts… Money cannot cure all the ailments of public education…. But the fact that New Jersey spends more than $16,000 per student, third in the nation, partly explains why a state in which nearly half the students are minorities and a disproportionate share are immigrants has the country’s highest graduation rate and ranks among the top five on the National Assessment of Education Progress, the country’s report card. The additional money also helps to account for how New Jersey halved the achievement gap between black, Latino, and white students between 1999 and 2007.” (Improbable Scholars, pp. 83-85)

However, pledges to rectify inequity depend on annual appropriations that sometimes don’t keep up with the promises. Even New Jersey has fallen behind in recent years.  While New Jersey has continued to increase school funding, which averaged $21,866 per pupil last year, over the last decade, the state has fallen behind in its pledge to fully fund its school formula:  POLITICO’s Carly Sitrin reports that, “new research suggests New Jersey’s failure to fully fund its approach to education spending after achieving those goals has left a significant gap between white and Latinx students.” And the problem has worsened this year as the state has fallen into recession due to COVID-19.

Sitrin explains: “Democratic Gov. Phil Murphy made a campaign promise to fix that situation by fully funding the formula—even cut a deal with the state’s legislative leaders to do that. But the pandemic-induced economic downturn has put that effort on pause, leading Murphy on Tuesday to sign a state budget that keeps school funding flat. The move sets back the state’s seven-year commitment to achieve equity in spending for all children… Yet, Murphy and state lawmakers are celebrating the flat funding as a success. After all, they say, the state didn’t have to cut school aid during a pandemic that devastated revenues. At the same time, they’re hoping the federal government will come through with rescue aid next year.”

A long problem in school funding is that too many states have failed to get back on track after recessions. The 2018-2019, Red4Ed wave of teachers’ strikes and walkouts across the states—from West Virginia, Kentucky, Oklahoma, and Arizona to Los Angeles, Oakland, and Chicago—were an attempt by schoolteachers across the states to draw attention to class sizes of 40 students; widespread shortages of counselors, school social workers, librarians and school nurses; and teachers’ salaries so low that many could not afford the rent on a one-bedroom apartment in the communities where they were teaching.  These were the lingering effects—a decade later—of the 2008 recession.

The question now is how much the COVID-19 recession will further depress state spending on healthcare, colleges and universities, K-12 public education, and other state functions. Until yesterday, a second federal COVID-19 relief bill had seemed at least possible. House Speaker Nancy Pelosi and White House negotiator Steven Mnuchin had revived discussions last week. But yesterday afternoon, the Washington Post‘s Erica Werner and Jeff Stein reported that President Trump abruptly called off any negotiations for a second stimulus bill until after the election: “Economic relief talks screeched to a halt Tuesday as President Trump ordered Treasury Secretary Steven Mnuchin to stop negotiating with House Speaker Nancy Pelosi until after the election…  Trump’s surprising announcement stood in stark contrast with recommendations from Federal Reserve Chair Jerome H. Powell, who had said in a speech hours earlier that more economic stimulus was needed to sustain the recovery… Barring another unexpected development, Trump’s declaration kills any near-term chance of new aid for millions of Americans who remain out work and at risk of eviction. Pelosi and Mnuchin spoke shortly after Trump’s tweets, and Mnuchin informed Pelosi that the negotiations were indeed over…”  Assistance for the state governments that support roughly 40 percent of school funding across the states had been part of the discussions.

In, Schoolhouse Burning: Public Education and the Assault on American Democracy, a new book on the importance of the nation’s founding principles—guaranteed in the federal founding documents and in the 50 state constitutions, Derek Black emphasizes that these documents have made it possible for states like New Jersey to maintain their constitutional commitment to education, at least when times were not so hard as the current recession.  And even in bad times, such documents help us remember how far we are straying from our society’s most basic commitments.

The New Jersey Supreme Court’s Abbott v. Burke decisions to protect equitable school funding are among the best examples across the states of Black’s argument: “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) 

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)

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.