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)

Will the Biden Administration Provide Leadership to Address Long School Funding Crisis?

Here in Ohio, during the current lame duck session, legislators are considering a new school funding formula. The Cupp-Patterson Fair School Funding Plan has been in the making for almost two years (See here and here.),  but even now as the plan comes to a vote before December 31, the end of the current legislative session, it has been difficult to build a wave of political will for justice for Ohio’s children.

The Ohio Legislature appears split. There is support in the Ohio House for fairer and more generous school funding, but key members of the Ohio Senate want to protect private school voucher programs and delay help for the state’s students in public schools. Even if the Fair School Funding Plan passes, a solution may be illusory.  How will it ever be funded? After a series of state tax cuts early in the current decade and in the midst of a COVID-19 recession, even if the new plan is set in place, making it operational will require a six-year phase in while legislators look for the necessary funds to pay for it.

The mere release of the proposal for the Fair School Funding Plan helped call the public’s attention to the state’s utter failure in recent years to distribute constitutionally mandated state funding fairly across Ohio’s public schools. Eighteen months ago, when the plan was released, we learned that 503 of the state’s 610 school districts had been either capped or on hold-harmless guarantee. These categories mean that despite changes in the number of students they serve or the special needs of their student populations, 503 school districts had, for years in many cases, been receiving the same amount of state funds they got last year and the year before that. Then, because of a shortage of state funds, the biennial state budget for FY 20-21, froze formula state school aid for every one of Ohio’s school districts at the FY 2019 level.

The problem is broader than Ohio, however, and several recent books expose and explain that we’ve just finished a decade of falling financial support for U.S. public schools.

In  2018, professor at Rutgers University and national school finance expert, Bruce Baker published Educational Inequality and School Finance: Why Money Matters for America’s Students.  Baker examines funding trends in American public education since the Great Recession: “The sharp economic downturn following the collapse of the housing market in 2007-08, and persisting through about 2011, provided state and federal elected officials a pulpit from which to argue that our public school systems must learn how to do more with less. It was the ‘new normal,’ Secretary of Education Arne Duncan declared. This idea was embraced by pundits like David Brooks and by conservative organizations like the American Enterprise Institute… As part of the U.S. Department of Education’s campaign, it unveiled on its website a series of supporting documents explaining how public school districts can live within that new normal.

Baker continues, explaining that state governments did even more damage: “Meanwhile, governors on both sides of the aisle, facing tight budgets and the end of federal aid that had been distributed to temporarily plug state budget holes (the American Recovery and Reinvestment Act of 2009 that provided some relief during the recession) ramped up their rhetoric for even deeper cuts to education spending… Notably the attack on public school funding was driven largely by preferences for conservative tax policies at a time when state budgets experienced unprecedented drops in income and sales tax revenue. But the rhetoric has persisted, and perhaps even escalated, despite modest but steady economic recovery.  I’ve found that only… (twelve) states had increases in current expenditures (on average) from 2008 to 2015: Washington, Iowa, Minnesota, Nebraska, Pennsylvania, New York, New Hampshire, North Dakota, Connecticut, District of Columbia, Illinois, (and) Alaska.”  (Educational Inequality and School Finance, pp. 4-5)

How did neoliberal Democratic and conservative Republican school “reformers” justify reducing the funding necessary for hiring teachers and guidance counselors? “The response of the education reform community to the narrative that U.S. public schools are inefficient and noncompetitive, a narrative they themselves largely crafted and promoted, has been to propose quick-fix remedies and magic elixirs, which fall more broadly into the category of ‘cost-free solutions.’ The theory of action guiding these remedies and elixirs is that public, government-run schooling can be forced to operate more productively and efficiently if it can be reshaped and reformed to operate more like privately run, profit-driven corporations…. Broadly, popular reforms have been built on the beliefs that the private sector is necessarily more efficient; that competition spurs innovation… (and) that data-driven human capital policies can increase efficiency…. One core element of such reform posits that U.S. schools need market competition to spur innovation and that market competition should include government-operated schools, government-sanctioned (charter) privately operated schools, and private schools.”  (Educational Inequality and School Finance, pp. 6-7)

In their new book, A Wolf at the Schoolhouse Door, Jack Schneider and Jennifer Berkshire devote an important chapter to reviewing the collapse of state school funding in the dozen years since 2008: “Education… represents a mere drop in the federal spending bucket: roughly $60 billion. By comparison, just short of a trillion dollars is spent on social Security. Another trillion is spent on the combined programs of Medicare, Medicaid, and the Children’s Health Insurance Program… Of each dollar spent on education in the United States, just 8 cents comes from the federal government… The real spending action in education takes place at the state and local level. States pick up the tab for approximately 47 cents of each dollar spent on public education, while local communities contribute an additional 45 cents, primarily through property taxes. In an effort to starve the beast, then, conservatives have worked at all levels of government to reduce taxation. This has been a logistical challenge, but they have pursued it through networks like the American Legislative Exchange Council and the State Policy Network..” (A Wolf at the Schoolhouse Door,  p. 34)

Schneider and Berkshire explain the punitive education budget policies in some states after the recession was over: “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 mostly 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. Though Wisconsin, like many states, already capped the amount by which local communities could raise property taxes to fund schools… Walker and the GOP-controlled legislature imposed further limits, including restricting when and how local school districts can ask voters for additional help funding their schools.” (A Wolf at the Schoolhouse Door,  pp. 35-36)

Finally in 2018 and 2019, public school teachers themselves challenged and exposed the consequences—in the schools where they were working—of years of tax cutting, fiscal austerity, and privatization. Because of teachers’ strikes and statewide walkouts, it is beginning to look as though we’ve reached a decisive moment when, perhaps, it will be possible to capture national and state education policy back from the ideologues and privatizers.  Striking teachers across the states exposed what had been invisible: staffing shortages that left children stuffed in classes of 40 students and that left children in public schools without an adequate number of counselors, school psychologists, school nurses and librarians.

Schneider and Berkshire describe how the Red4Ed walkouts and strikes by teachers across the states fixed the public’s understanding on appalling conditions across public schools: “The recent wave of teacher walkouts from California to North Carolina, and the widespread public support they attracted, indicate just how unpopular the cost-cutting crusade has become. There is simply no constituency demanding huge class sizes, four-day school weeks, or the use of uncertified educators to stanch a growing teacher shortage in states where pay has plummeted.  In low-spending states like Arizona and Oklahoma, what began as teacher rebellions morphed into broad-based political movements against austerity. For those ideologically predisposed against public education, these public revolts represent a profound challenge. Starving the beast, after all, requires that the public be willing to elect politicians to cut taxes, shrink services, and dismantle public institutions.” (The Wolf at the Schoolhouse Door, p. 43)

Finally, in his new book, Schoolhouse Burning: Public Education and the Assault on American Democracy, constitutional scholar Derek Black examines the future of public education at the end of what has been an ideologically and fiscally precarious decade.  Black believes the wave of Red4Ed strikes may presage a new era if the energy of the movement can be sustained: “As the moniker RedforEd suggests, the pro-public education and teacher movement also defies conventional politics. In 2019, 84 percent of public school parents indicated that they would support teachers who went on strike over school funding issues…  The general public beyond those directly connected to schools has also been steadfast in its support for public education and teachers… These numbers and teacher protests scared those levying attacks on public education. They may, in fact, have pressed their advantage too far for too long. Their messaging succeeded for the better part of a decade, but their messaging could not hide underlying reality.”  (Schoolhouse Burning, pp. 245-24)

The education plan on which President Elect Joseph Biden campaigned shines a bright light on the funding problems which have quietly undermined American public education. Biden pledged to triple funding for Title I, the program awarding federal compensatory funding to schools serving concentrations of poor children.  He proposed within 10 years to fulfill a decades old Congressional promise to cover 40 percent of special education costs under the Individuals with Disabilities Education Act, when today Congress is covering approximately 14 percent of the cost. He pledged more wraparound Community Schools, more federal funding for pre-Kindergarten for poor children, and more support for other programs to address child poverty. This is an agenda to help public schools serve their students.

Of course the President alone cannot accomplish a quick turnaround in education funding. State governments are primarily responsible for school finance, and injustice in school funding will remain a problem in many far right states. But if President Biden can secure support from Congress to enact his education plan along with the federal tax increases for wealthy Americans and corporations he has said are needed to pay for it, his leadership will continue to reshape the narrative.  His leadership has the potential to help build the political will for increasing opportunity for all of America’s children and especially for children in our poorest urban and rural communities.

Biden’s first step must be to choose an education secretary who will help us remember our constitutional commitment to strive for equity, opportunity, and justice for all children in America’s public schools.

Betsy DeVos Still Doesn’t Get the Connection Between Democracy and Our System of Public Schools

A week ago, at one of the nation’s most conservative Christian colleges, Betsy DeVos delivered a vehement attack on the idea of public education. With the election coming up next week, we can hope it was the final attack on the institution of public schooling DeVos will deliver from per perch as U.S. Secretary of Education.

In a column last Wednesday, the Washington Post‘s Valerie Strauss describes DeVos’s Hillsdale College address: “In 2015, billionaire Betsy DeVos declared that ‘government really sucks’—and after serving nearly four years as U.S. education secretary, she has not tempered that view one iota.  She gave a speech this week at a Christian college disparaging the U.S. public education system, saying it is set up to replace the home and family. While blasting the government is nothing new for DeVos—critics see her as the most ideological and anti-public-education secretary in the Education Department’s 40-plus-year history—she gave what may be her fiercest anti-government polemic at the Hillsdale College event in her home state…. She explained how her philosophy was formed by Abraham Kuyper, a neo-Calvinist Dutch theologian-turned-politician who was prime minister of the Netherlands between 1901 and 1905 and who believed that Protestant, Catholic and secular groups should run their own independent schools and colleges. The United States could fix its education system, she said, if it were to ‘go Dutch’ by embracing ‘the family as the sovereign sphere that is, a sphere that predates government altogether.'”

Strauss reprints DeVos’s Hillsdale College speech in its entirety. In it DeVos confides to her audience the secret she has learned while serving as our education secretary: “I assume most of you have never stepped foot inside the U.S. Department of Education. And I can report, you haven’t missed much. These past few years I’ve gotten a close-up view of what that building focuses on. And let me tell you, it’s not on students. It’s on rules and regulations. Staff and standards. Spending and strings. On protecting ‘the system.'” Remember Betsy’s notorious rebuke all those years ago: “Government really sucks.”

DeVos brags about her accomplishments as Secretary of Education: “(W)e restored state, local, and family control of education by faithfully implementing the Every Student Succeeds Act (ESSA), by ending Common Core, and by urging Congress to put an end to education earmarks by consolidating nearly all Federal K-12 programs into one block grant.  We expanded the in-demand D.C. voucher program…. We supported the creation of more public charter schools… And we support the bipartisan School Choice Now Act.”  Strauss explains that ESSA was passed in 2015 before DeVos became Secretary of Education and tells us that the Common Core had already faded, though it is still in place in several states. Strauss reminds readers that many of the supposed accomplishments DeVos brags about were mere initiatives proposed but never enacted. Congress did not, for example, buy into consolidating all of the Department’s programs into a single block grant, and the School Choice Now Act, introduced by Senator Tim Scott, is merely a proposal for DeVos’s $5 billion Education Freedom Scholarships, a tuition tax credit program DeVos has inserted into the department’s budget every year, but a budget appropriation Congress has repeatedly refused to enact. Scott introduced the program as a piece of stand-alone legislation this year, but Congress has not passed the law.

In her Hillsdale College address DeVos suggests that the average U.S. public school expenditure-per-pupil (encompassing federal, state and local dollars) of $15,000 should be given to families like a little portable backpack that the child could carry to whatever education institution the family chooses. Neglecting to point out that the bulk of that money pays for teachers and other essential school staff, DeVos says: “Now, I can imagine what you’re thinking: ‘I could educate my child for 15 thousand dollars per year!’.. You could improve your child’s outcomes with that kind of money.  A single parent in Detroit, or Flint, or Grand Rapids could open the door to a better life for their child if only they had control of how taxpayer dollars are spent on their child’s education. America’s parents agree. There’s a mighty chorus, rising in volume and urgency, supporting parental ‘school choice.'”

While Betsy DeVos suggests that the sum total of individual choices will automatically constitute the common good, the political theorist Benjamin Barber explains why choices based on self interest fail to protect the vulnerable or provide the safeguards necessary in a modern complex democracy: “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….” (Consumed, p. 132)

Because our schools are public, over more than two centuries of our nation’s history, Congress and the 50 state legislatures have been able to pass statutes to protect the rights of all children, and the courts have interpreted these laws to ensure that the the meaning of the promise to protect every child’s rights has expanded. As primary civic institutions the public schools have inevitably embodied the biases and injustices embraced by our society, but over time as advocates have insisted that we learn to understand the ways our public schools have failed to live up to our nation’s promises, our legislative and legal systems have been able to ensure that schools have moved closer to justice.

We have already come a long way. Since the early nineteenth century the history of U.S. public education has been the story of the struggle—justified by the promise of equality in the founding documents—to expand the definition of the right to public education to include students who were previously discounted and excluded—to girls and women—to African Americans during and after the Civil War, freed slaves who had been intentionally excluded from literacy—to American Indians—to immigrants—to the disabled.

The battle to expand the meaning of equality included the struggle to ensure that African Americans would not be segregated into inferior and separate schools and once able to enter a city’s public schools, would not be pushed into manual training classes and excluded from the academic track.  Women, African Americans, and immigrants finally have increased the possibility of pursuing all kinds of professions that once excluded them. American Indians, once shunted into boarding schools for forced assimilation into the dominant culture, have fought for the right to attend public schools in their communities, schools which incorporate heritage languages and indigenous culture. Disabled students, formerly locked in institutions, have finally earned the right to attend public schools in the most inclusive settings possible and to not be excluded into sheltered classes. Immigrant students have fought for and won, in some states at least, the right to bilingual education. Undocumented students won the right to a public education only in a 1982 Supreme Court decision, but they are too often still denied financial assistance through in-state college tuition. The fight for justice and equality in our nation’s public schools is the history of citizens trying to win for their children the very equality promised in the founding documents.  If American education were transformed by Betsy DeVos’s vision of universal privatized parental choice, none of these rights could be protected.

In a wonderful new book, Schoolhouse Burning: Public Educaton and the Assault on American Democracy, Derek Black, a professor of constitutional law, demonstrates how, over the centuries since the founding of our nation, our society has been able to expand the democratic protection of every student’s right to public education: “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)

Betsy DeVos’s belief that we should “go Dutch” and adopt universal school choice for families is contrary to the promise of our American democracy.

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

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

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

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

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

Schoolhouse Burning, Derek Black’s new book is, in essence, the history of how the meaning of the guarantee of public education as a right for every child has changed and become more inclusive in the over two hundred years since our nation’s founding. Some people say that because the Constitution itself does not mention public education, public education is not a fundamental right, but Black disagrees because public education is so carefully planned in the Northwest Ordinance, passed as a sort of companion document in the same year as the Constitution.  As Black traces the history of our understanding of the right to public education, it’s clear that Derek Black is certainly not an originalist.  His book is the story of how our history—the civil war, the development of the constitutional principles of the 50 states, Jim Crow, the Civil Rights Movement—has informed and further defined the meaning of the founding principles: “The foregoing principles—the right to an adequate and equal education, making education the state’s absolute and foremost duty, requiring states to exert the necessary effort (financial or otherwise) to provide quality educational access, placing education above normal politics, and expecting courts to serve as a check—are all in the service of something larger: the original idea that education is the foundation of our constitutional democracy.  Education is the means by which citizens preserve their other rights. Education gives citizens the tools they need to hold their political leaders accountable…  Democracy simply does not work well without educated citizens.” (Schoolhouse Burning, p. 224)  Black reminds us, however: “The founders articulated educational goals not with any certainty that they would spring into reality simply by writing them down, but in the hope that we might one day live into them.” (Schoolhouse Burning, p 71)

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

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

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

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

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

Public Schools: Our Democracy’s Essential Institution

This blog recently discussed (here and here) Derek Black’s new book, Schoolhouse Burning: Public Education and the Assault on America Democracy, about the long battles to protect the right to public education under the principles embodied in the nation’s founding documents and the 50 state constitutions. Black believes that public schools are our nation’s essential public institution; he also argues that protecting public education and protecting democracy both require constant attention: “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?”  (Schoolhouse Burning, p. 224)

Reading Black’s new book sent me back to some books on my shelf in which a political philosopher and a philosopher of education explore the role of our nation’s public schools for informing and preserving our democracy.

What about the threats today to the social contract—the idea that along with expecting government to protect our individual rights, we must all take responsibility for ensuring that our institutions and laws protect our collective wellbeing? What about a period like the one we are living through, when the President of the United States and the U.S. Secretary of Education insist that we turn away from “government” schools and instead divert our tax dollars to privatized (but publicly funded) charter schools and publicly funded tuition vouchers to pay tuition at private and religious schools?

In a 2007 book, Consumed: How Markets Corrupt Children, Infantilize Adults, and Swallow Citizens Whole, the late political theorist Benjamin Barber describes precisely how today’s move to privatize public schools in the name of expanding individual parents’ freedom to choose ultimately means that the powerful can serve their own purposes while society loses its capacity to protect the rights of vulnerable families and their children: “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)

Derek Black defines public education as “the state’s absolute and foremost duty.” (Schoolhouse Burning, pp. 254-255)  Exactly what is it that makes our public schools so essential for a viable democracy?  In a 1998 collection of essays, A Passion for Democracy, Benjamin Barber defines our schools’ public purpose precisely and what we will lose if we neglect to pay attention: “The logic of democracy begins with public education, proceeds to informed citizenship, and comes to fruition in the securing of rights and liberties. We have been nominally democratic for so long that we presume it is our natural condition rather than the product of persistent effort and tenacious responsibility. We have decoupled rights from civic responsibility and severed citizenship from education on the false assumption that citizens just happen. We have forgotten that the ‘public’ in public schools means not just paid for by the public but procreative of the very idea of a public. Public schools are how a public—a citizenry—is forged and how young, selfish individuals turn into conscientious, community-minded citizens.” (A Passion for Democracy, pp. 220-221)

Why is all this especially important at a time when the President of the United States has condemned public schools for teaching about the injustice of slavery and has advocated for public schools which whitewash our history?  Barber counters the President’s argument: “Our public schools are our point institutions in dealing with our nation’s oldest and most intractable problem: racism….(T)he ‘public’ in public schools (must) be understood as signifying plurality and diversity… America is not a private club defined by one group’s historical hegemony. Consequently, multicultural education is not discretionary; it defines demographic and pedagogical necessity…  English will thrive as the first language of America only when those for whom it is a second language feel safe enough in their own language and culture to venture into and participate in the dominant culture. For what we share in common is not some singular ethnic or religious or racial unity but precisely our respect for our differences: that is the secret to our strength as a nation, and is the key to democratic education.”  (A Passion for Democracy, pp. 227-231)

In a profound 1998 book, Common Schools: Uncommon Identities, Walter Feinberg, professor emeritus of education philosophy at the University of Illinois at Champaign-Urbana, considers the urgent importance of a critical approach to the teaching of the nation’s history: “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’…  This means, among other things, that students must learn about the various meanings that people from different backgrounds might give to different events. They need to address these differences in ways that promote continuing discussion…  (T)he common school must be involved in teaching students both to speak from the knowledge that their cultural identity provides and, as audience, to hear the voices of others… It is within and across this medley of difference that the common school continues the dialogue begun during the American Revolution about the nature of national unity and the character of national identity.” (Common Schools: Uncommon Identities, pp. 232-245) (emphasis in the original)

Finally to summarize the public role of our nation’s system of public schools, we can turn back to Benjamin Barber and his 1992 book, An Aristocracy of Everyone: The Politics of Education and the Future of America: “This book admits no dichotomy between democracy and excellence, for the true democratic premise encompasses excellence: the acquired virtues and skills necessary to living freely, living democratically, and living well. It assumes that every human being, given half a chance, is capable of the self-government that is his or her natural right, and thus capable of acquiring the judgment, foresight, and knowledge that self-government demands. Not everyone can master string physics or string quartets, but everyone can master the conduct of his or her own life. Everyone can become a free and self-governing adult… Education need not begin with equally adept students, because education is itself the equalizer. Equality is achieved not by handicapping the swiftest, but by assuring the less advantaged a comparable opportunity. ‘Comparable’ here does not mean identical… Schooling is what allows math washouts to appreciate the contributions of math whizzes—and may one day help persuade them to allocate tax revenues for basic scientific research… The fundamental assumption of democratic life is not that we are all automatically capable of living both freely and responsibly, but that we are all potentially susceptible to education for freedom and responsibility. Democracy is less the enabler of education than education is the enabler of democracy.” (An Aristocracy of Everyone, pp. 13-14)

Attacks on Teachers Have Been Central to Republicans’ Agenda to Reduce Government Spending

Among the lingering effects of state budget reductions during the 2008 Great Recession have been widespread drops in teachers’ overall compensation. Although some states and local school districts do their part to pay their teachers fairly, and some provide the fringe benefits such professionals should expect, overall according to a new report from the Economic Policy Institute, “teachers are paid less (in wages and compensation) than other college-educated workers with similar experience.”  And, “(T)his financial penalty discourages college students from entering the teaching profession.”

Our economy has now entered another recession due to layoffs and business closures during COVID-19, and without further federal relief to states, teachers are likely once again to be the victims.

All summer and through September, U.S. Senate Republicans have refused to negotiate with House Democrats, who passed their bid for a second coronavirus relief bill, the HEROES Act, on May 15.  Until this past weekend, it looked as though Congress would recess until after the election without the Senate’s agreeing even to take up the bill for consideration.

House Speaker Nancy Pelosi and White House negotiator Steve Mnuchin returned to discussions last week, but until the President became ill with COVID-19 over the weekend, it looked as though progress had broken down. The President’s infection by COVID-19 and indications that the economy will continue to lag have, apparently, brought Pelosi and Mnuchin back to the table over the weekend, and have also made Senate Majority Leader Mitch McConnell and his caucus more amenable to further federal investment.  A relief package is needed to help the unemployed, to strengthen SNAP (food stamps) and Medicaid, and to help states avoid catastrophic budget cuts like those that have continued to depress school funding more than a decade after the 2008 recession.

The Washington Post‘s Erica Werner and Jeff Stein reported late Friday on what appears to have been a turnaround in the negotiations once the President became ill with COVID-19: “House Speaker Nancy Pelosi said Friday she anticipates striking a bipartisan economic relief deal with the Trump administration, suggesting that the president’s coronavirus diagnosis could speed up an agreement… Democrats had sought a $2.2 trillion package, while the White House’s most recent offer was closer to $1.6 trillion… The pace of talks—and the possibility of a deal—have picked up markedly in recent days… The U.S. economy plunged sharply into a recession earlier this year when the coronavirus pandemic led many companies and employers to lay off workers and temporarily close.  The economy recovered a bit during the summer, but it has shown signs of lagging in recent weeks…. In a sign that a deal could be emerging, Mnuchin told at least one Republican senator in a phone call Thursday night that the agreement with Pelosi would include a substantial amount of money for state and local governments, a provision numerous conservative Republican senators have strongly resisted….”

However, after the President was hospitalized and three U.S. Senators tested positive for COVID-19, Senate Majority Leader Mitch McConnell announced that he is recessing regular sessions of the Senate until October 19 to protect the health of the members. His decision puts the future of a further COVID-19 relief bill in question.

Why does a second federal relief package matter to states and to their public school districts? First of all, state budgets are lagging in the current recession, but, by law, states are prohibited from running deficits. Further, the effects of the 2008 recession still linger in many states. And, as school funding expert, Mark Weber explains, “Fiscal relief for states is fiscal relief for schools.” Weber continues: “Historically, federal revenues accounted for between 7 to 13 percent of total K-12 funding…. The biggest sources of funding for K-12 schools have been state and local revenue… (E)ach accounts for about half of the remainder after separating out federal funding. Of course, that varies considerably from state to state… But even in the states where districts rely the least on state funding—Missouri, Nebraska and New Hampshire—state funding still accounts for a third of revenues. In the majority of states, half or more of all revenues for schools come from the states themselves. Funding schools is actually one of the primary fiscal activities of the states.”

The Senate’s refusal to negotiate all summer with House Democrats reflects a much larger problem in economic and political ideology, however.  In Schoolhouse Burning: Public Education and the Assault on American Democracy, a new book exploring a growing trend of politicians’ lack of willingness to support federal and state constitutional responsibilities, Derek Black contends that states’ response to the 2008 recession exposed something deeper than the precipitous drop in state tax receipts when the housing market collapsed. What if, as the U.S. Senate has shown us this summer, political leaders are giving up on building the public will to support civic institutions like the public schools which have defined our society for more than 200 years?

Black explains: “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)

By refusing even to negotiate with Speaker Pelosi all summer long, Senate Majority Leader Mitch McConnell and his Republican majority have appeared committed to neglecting public purpose and public responsibility in their refusal to raise the federal deficit (despite their giant 2017 tax cuts for the wealthy and corporations).

Last week, the Center on Budget and Policy Priorities’ Robert Greenstein enumerated several basic responsibilities the Senate has seemed determined to abandon by refusing to negotiate: “If policymakers can’t agree on a package… the coming months will be much more difficult for many individuals and families across the country, for numerous small businesses, and for the economy as a whole… (J)oblessness remains high, with job losses concentrated among workers without a college degree… Some 35 million people including 9 million children, are unemployed or live with an unemployed family member… Compounding these concerns, state and local revenues have fallen from pre-pandemic levels even as states and localities face large new pandemic-related costs, leaving them with gaping budget holes. As of August, about 1.1 million public-sector workers had lost their jobs since February…. A number of states have indicated that without substantial relief soon, they will institute more and deeper cuts… In addition, the package would raise the maximum SNAP (food stamp) benefit, which is particularly important for the lowest-income households since they were left out of an earlier increase… The package would also temporarily expand… important refundable tax credits.  It would make the full $2,000 Child Tax Credit available to poor and low-income children, who now get a partial credit or none at all because their incomes are too low… It boosts Medicaid funding to help cash-strapped states cope with rising caseloads and costs and avoid cutting health benefits. And it includes important public health funding to help combat the pandemic more effectively.” If Congress fails to approve a deal, the real worry as some states have, over more than a decade, chosen to avoid facing the lingering effects of the 2008 recession, is that those problems will be compounded once again, as states are forced to ratchet down spending.

In mid-September, the Economic Policy Institute (EPI) 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.  After the Red4Ed wave of strikes and walkouts across the states—from West Virginia to Kentucky to Oklahoma to Arizona and other states and cities—in 2018-2019, some states at least temporarily made teachers’ salaries and benefits fairer last year.  But the compensation gap between teachers and other professionals remains sizeable.

Allegretto and Mishel explain:”The teacher wage penalty has grown substantially since the mid-1990s… The regression-adjusted teaching wage penalty was 6.0% in 1996.  In 2019, the penalty was 19.2%..”

They continue: “The wage premium that women teachers experienced in the 1960s and the 1970s has been replaced by a significant wage penalty… (W)omen teachers enjoyed a 14.7% wage premium in 1960…. In 2019, women teachers were earning 13.2% less in weekly  wages than their nonteaching counterparts…. The wage penalty for men in teaching is much larger than it is for women… and it too has worsened considerably. The teacher wage penalty for men was 16.6% in 1979.  In 2019, male teachers earned 30.2% less than similar male college graduates who chose a different profession. This explains, to a large degree, why only one in four teachers are men.”

Have rising benefits compensated for the large teacher pay penalty? “While teacher wage penalties have worsened over time, some of the increase may be attributable to a tradeoff school districts make between pay and benefits.” But, “The benefits advantage of teachers has not been enough to offset the growing wage penalty…  The bottom line is that the teacher total compensation penalty grew by 7.5 percentage points from 1993 to 2019.”

Finally Allegretto and Mishel conclude: “The teacher wage penalty exceeds 20% in 21 states and in the District of Columbia… In no state, on average, does the relative wage of teachers surpass that of other college graduates. These inequities must be addressed if we are to ensure that the brightest, most highly skilled professionals are at the head of each and every classroom, and to retain experienced teachers in the mix.”

In his new book, Derek Black explains how growing attacks on schoolteachers over the past decade have been an integral part of the larger far-right attack on government spending and public purpose: “Conservatives who believed the unions had too much political power teamed with education reformers who thought the teaching profession needed an overhaul. Government leaders looking to shrink public investments were eager to listen. The recession provided a perfect opportunity and justification for scaling back teachers’ salaries, rights, and political influence… Across the nation, states made major changes to teachers’ collective bargaining agreements, salary structures, overall benefits, and teaching expectations without giving teachers anything in return.” In Wisconsin, after Governor Scott Walker passed legislation attacking public sector collective bargaining in 2011, “Teacher compensation took a direct hit too, decreasing by 8.2 percent in inflation-adjusted terms. Within four years, it fell even more—a whopping $10,843 from teachers’ paychecks and benefits disappeared.” (Schoolhouse Burning, pp. 42-43.”

Let’s hope that Speaker Pelosi and Senate Majority Leader McConnell will deliver a relief package which will at least help prevent states from being forced to cut teachers’ salaries further.  And in the longer term, it will be essential to turn around the  ideological attack on public schools. They are at the heart of our nation’s promise of opportunity for our children.

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