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)

Individualism vs. Community: the Tragedy of Small Thinking and Small Hopes

Arthur Camins is the director of the Center for Innovation in Engineering and Science Education at Stevens Institute of Technology, but Camins is a humanist, not a technocrat.  In a new piece at Huffington Post, Camins explains that what’s gone wrong with our thinking about public education is at the level of our deepest values: “The anthem of the civil rights movement was not, I will get ahead, but We Shall Overcome.  The vehicle for ‘bending the moral arc of the universe toward justice’ was not winning competitions with neighbors or winning a competition with fellow workers for merit bonuses, but rather walking hand-in-hand.  Maybe the most important historical lesson is that only mass collective action guided by a moral vision will pressure elected leaders to prioritize the interest of the many over the selfish demands of the few.”

How does all this apply to public education policy? “(A)dvocacy for charter schools and vouchers is framed as the personal right to choose a school.”  “In contrast to the collective spirit of previous social and economic justice efforts, the core value of current education reform policies is individual advancement.  In fact, its advocates seek to undermine collective action, democracy and community responsibility.  They explicitly accept the notion of improvement for the few at the expense of the many.  This value is reflected in the idea that parents should secure their children’s future by competing for a slot in a charter school. It is evident in the idea that teachers will work harder and smarter when they compete to achieve better student scores than their colleagues in order to receive a financial reward.”  A policy that aims to help a relative few children compete to escape cannot possibly improve the schools that serve the mass of children who are left in what competition has made into big city school districts of last resort for the children who have not won the lottery.

Camins’ thinking is in the tradition of the kind of philosophy that has guided the development of public education for over two centuries.  Consider his words in the context of these other education thinkers:

From the political philosopher Benjamin Barber: “(T)he object of public schools is not to credential the educated but to educate the uncredentialed; that is, to change and transform pupils, not merely to exploit their strengths. The challenge in a democracy is to transform every child into an apt pupil, and give every pupil the chance to become an autonomous, thinking person and a deliberative, self-governing citizen: that is to say, to achieve excellence…  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…  Learning begins at birth, and much of it takes place at home or in the marketplace, in the streets or in front of the television.  Yet, what happens in these venues is largely a private matter… That makes formal schooling, however inadequate, our sole public resource: the only place where, as a collective, self-conscious public pursuing common goals, we try to shape our children to live in a democratic world.  Can we afford to privatize the only public institutions we possess?”  (Benjamin Barber, An Aristocracy of Everyone, 1992, pp 12-15)

From philosopher of education, Walter Feinberg: “(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.”  (Walter Feinberg, Common Schools/Uncommon Identities: National Unity and Cultural Difference, 1998, p. 245)

From Mike Rose, UCLA professor of education: “There have been times in our history when the idea of ‘the public’ has been invested with great agency and hope.  Such is not the case now.  An entire generation has come of age amid disillusionment with public institutions and public life, disillusionment born of high-profile government scandal and institutional inefficiency, but, even more, from a skillful advocacy by conservative policy makers and pundits of the broad virtues of free markets and individual enterprise… Our reigning orthodoxy on the public sphere…. downplays, often dismisses, the many ways that markets need to be modified to protect common people and the common good against market excesses—for markets are relentlessly opportunistic and dollar driven… We have to do better than this.  We have to develop a revitalized sense of public life and public education.” (Why School? 2014 Revised and Expanded Edition, pp. 204-206)

From education historian David Tyack, “But wait. Is education primarily a consumer good or a common good?… If Thomas Jefferson, Horace Mann, and John Dewey were now to enter policy discussions on public education, they might well ask if Americans have lost their way.  Democracy is about making wise collective choices, not individual consumer choices.  Democracy in education and education in democracy are not quaint legacies from a distant and happier time.  They have never been more essential to wise self rule than they are today.” (David Tyack, “Introduction,” School: The Story of American Public Education, 2001, p. 8)

Arthur Camins believes our public education thinking these days derives from what he calls “the audacity of small hopes”: “In the shadow of the Great Recession and after several decades of increasing wealth disparity in the United States, the politically and financially powerful have the audacity to call upon the nation to accept small dreams.  Nowhere is this more evident than in the pathetically small hope that consequential testing and competition—among parents for entry into charter schools, among schools for students, and among teachers for (bonus) pay increases—can lead to substantial education improvement and be a solution to poverty… We can be better than the audacity of small hopes.  The next anthem for equity needs to include the unifying theme: We’re in this together for jobs, justice, and equitable education.”

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