Derek W. Black Turns to the Past to Warn of Privatization's Perils

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Derek W. Black Turns to the Past to Warn of Privatization’s Perils

In perhaps the most suspenseful chapter of Richard Kluger’s magisterial book Simple Justice (Knopf, 1976), Kluger recounts the intense collaborative effort by scholars working over the summer of 1953 for the NAACP to address the chief concern of the Supreme Court following the initial series of oral arguments in Brown v. Board of Education. The Court asked, “What evidence is there that the Congress which submitted and the state legislatures ... which ratified the Fourteenth Amendment [in 1868] contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools?”

To the Court, reversal of Plessy v. Ferguson, the 1896 decision establishing the doctrine of “separate but equal,” hinged on historical proof that the Fourteenth Amendment meant what the NAACP legal team contended: that school segregation violated the amendment’s enshrinement of “equal protection.” As Kluger describes, John Hope Franklin, Alfred H. Kelly, and C. Van Woodward, among other groundbreaking scholars enlisted by the NAACP, pored over the archives to document the egalitarian intent of Congress in formulating the Fourteenth Amendment. To fix the present, Kluger makes clear, required a detailed understanding of the past.

In Schoolhouse Burning: Public Education and the Assault on American Democracy (PublicAffairs, 2020), Derek W. Black likewise interrogates the past to correct contemporary education policy but he does so in book-length form. To Black, the privatization movement that has spawned charter schools, vouchers, and tuition tax-credit scholarships contradicts the educational vision of the Founding Fathers, the architects of Reconstruction, and the justices deciding Brown. At stake, Black argues, is the fate of public education and, with it, democracy itself.

A modified excerpt from the penultimate chapter of Schoolhouse Burning, entitled “Through History’s Eyes,” captures the essence of Black’s argument. This modified excerpt, tailored by Black for the National Center for the Study of Privatization in Education, represents the first installment of a new NCSPE feature to complement our working papers and commentaries on current events. Coming soon will be an excerpt from Joanne W. Golann’s Scripting the Moves: Culture and Control in a “No-Excuses” Charter School (Princeton, 2021).

Black, a professor of constitutional law at the University of South Carolina, opens this excerpt bluntly. “The continued rapid expansion of vouchers and charters marks a major Rubicon for our democracy,” he writes. “As new voucher and charter bills lock in the privatization of education, they create the possibility of the permanent underfunding of public education. In doing so, they also roll back democratic gains and constitutional commitments that reach back to Reconstruction, when Congress insisted that public education be equal, uniform, open to all, and absolutely guaranteed in state constitutions.”

Outside of this excerpt but within the same chapter, Black cites one state after another over the past decade “reneging on constitutional commitments.” State legislatures in Kansas and Washington refused to abide by court orders to meet obligations to provide public schools with adequate funding; in Kansas, legislators went so far as to threaten cutting the judiciary’s budget and altering the procedure for appointing judges before getting shut down by the state’s supreme court. In Kentucky, Governor Matt Bevin, after seeing the legislature override his veto of its approval of long-overdue raises for teachers, strong-armed the state board of education into terminating the superintendent of schools without cause and replacing him with a charter advocate. In North Carolina, the legislature altered its charter bill to permit the equivalent of allowing individual communities to secede from school districts by granting them the authority to impose taxes to support their own charter schools. In both Arizona and Florida, state leaders have labored to alter their state constitutions to authorize vouchers.

Drawing on the work of the historian Nancy MacLean, Black contends that charter and voucher advocates are ultimately not about improving education or even about choice itself. Black maintains instead that the choice movement is at base driven by a conservative rich minority set on shielding its wealth from the taxation power of the democratic majority.

“[I]f one looks at state government,” Black writes, “public education has always consumed the most resources—by a large margin—and redistributed them among the masses. And if education is a commodity [as market advocates typically believe] rather than a pillar of democratic government, public education is just another way voters tax the wealthy to fund personal benefits for themselves. From this perspective, robust public education systems are a core problem of our majority-rule government system.”

For Black, it follows that charter schools—which cost less to run than district schools, as approximately 90 percent operate without union presence and the concomitant countervailing power of collective bargaining—and vouchers—which fall far short of matching per-pupil spending in district schools—have been embraced by a conservative rich minority.

* * *

While many readers might find Black’s argument too cynical, one need only read Milton Friedman’s seminal essay endorsing vouchers, “The Role of Government in Education,” published in 1955, and survey recent legislation in West Virginia and Indiana as well as pending legislation in North Carolina and New Hampshire to see the legitimacy of his concerns. Black does not mention Friedman in Schoolhouse Burning, but the presence of the Chicago economist is implicit.

In that 1955 essay, Friedman described the current state of public education as the result of “an indiscriminate extension of governmental responsibility” and advocated a voucher system as the path to minimizing the role of government in education. Friedman’s focus was so much on this concept of minimization that he used the word “minimum” thirteen times in the first seven pages of his essay to describe what “degree of literacy and knowledge” should be expected of citizens, what level of schooling should be required for children to reach that measure of attainment, and what standards schools funded by vouchers should meet.

Ideally, Friedman contended, parents should bear the cost of educating their children: “The advantage of imposing the costs on the parents is that it would tend to equalize the social and private costs of having children and so promote a better distribution of families by size.” But Friedman conceded that such an expectation was unrealistic, as many families could not afford to educate their children and as the negative “neighborhood effects” of a sizable uneducated portion of the population would make “[a] stable and democratic society … impossible.” To Friedman, the necessary compromise involved the government mandating “a minimum required level of education” for all children, funded by vouchers worth “a specified maximum sum” redeemable at schools meeting “certain minimum standards such as the inclusion of a minimum common content in their programs.”

Legislation passed by West Virginia in March comports precisely with Friedman’s vision: beginning in 2022, all families across the state will be eligible to withdraw their children from public schools and, in turn, receive a voucher worth approximately $4,600 per child, to be used for home-schooling expenses as well as private school tuition, a sum that does not amount to half of what the state currently spends per student in public schools.

In addition, voucher legislation passed by Indiana in April lifted the income cap for family eligibility from $96,000 a year for a family of four to $145,000, meaning 90 percent of families in the state will now be eligible for vouchers. Pending voucher legislation in North Carolina would likewise lift the income cap for family eligibility from $72,000 a year for a family of four to $85,794. Pending legislation in New Hampshire would provide vouchers worth about $4,600 to families with incomes up to 300 percent of the federal poverty threshold. As in West Virginia, the money allocated for vouchers in Indiana, North Carolina, and New Hampshire does not amount to half of what the states currently spend per student in public schools.

* * *

To Black, such economizing as well as outsourcing does not square with the meaning of public education. For that meaning, he turns earlier in the book to George Washington, John Adams, Thomas Jefferson, and James Madison; the Northwest Ordinances of 1785 and 1787; the Reconstruction Act of 1868; Brown v. Board of Education; and Justice Thurgood Marshall’s dissent in San Antonio v. Rodriguez.

While Black makes clear that the Constitution itself lacks any mention of education—a void that would have bedeviling consequences—he cites multiple exhortations for government investment in education from the country’s first four presidents and describes in detail how the Northwest Ordinances of 1785 and 1787 provided for public education in the territories that would become Ohio, Michigan, Indiana, Illinois, and Wisconsin. Black moreover notes that the Continental Congress passed the latter iteration unanimously and that 39 years later the U.S. Congress passed an amendment to the original legislation requiring even greater support of public education.

Confirming the deep national commitment to public education for Black is a central stipulation in the Reconstruction Act of 1868 for readmission of the former Confederate states to the Union: the explicit guarantee for all citizens of “school rights and privileges” in state constitutions, with the qualification that such a guarantee could never be amended.

In the civil rights era, which Black notes scholars have termed the “Second Reconstruction,” it is the language of the Supreme Court in Brown that defines the country’s commitment to public education. The Court at once famously called education “perhaps the most important function of state and local governments” and “a right which must be made available to all on equal terms.”

Because education itself was not mentioned in the Constitution, Chief Justice Earl Warren refrained in authoring the opinion from calling it “a fundamental right,” though Black writes that the implication should have been clear enough that it is and that Warren himself thought so. The Court would nevertheless decide 19 years later in Rodriguez—concerning unequal funding of public education—that it is not, precisely because Justice Lewis Powell and four fellow justices ruled that a right cannot be fundamental if it is not spelled out as a right in the Constitution.

To Justice Marshall, Black writes, the majority lacked the imagination necessary to discern the dependency of rights on interests not specifically mentioned in the Constitution. “The fundamental importance of education,” Marshall wrote in his dissent, “is amply indicated by the prior decisions of this Court, by the unique status accorded public education by our society, and by the close relationship between education and some of our most basic constitutional values.”

In the same vein, Black is challenging advocates of charters schools and vouchers in this passionate, learned book. To outsource education and underfund it, Black contends in sum, is to lack the imagination necessary to discern the dependency of democracy on a solid system of public schooling.

Whether one agrees or not with Black, one’s forced to grapple with a series of unsettling questions. This excerpt provides the first step to such a journey.

Samuel E. Abrams
Director, NCSPE
June 7, 2021

Published Monday, Jun. 7, 2021