Derek W. Black Says Public Education Represents the Idea of America… Not its Reality

Derek W. Black

Derek W. Black explains how the expansion of public education has developed alongside democracy in America. His recent book Schoolhouse Burning: Public Education and the Assault on American Democracy links the current threat to public education to attacks on democracy. This is the 46th episode of the Democracy Paradox podcast.

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I find it hard to believe, without a lot more justification than they’re offering that somehow that there’s this new secret sauce to opportunity and equality and democracy that does not involve public education as the fundamental pillar. So you have people arguing that it’s not. They’re not saying we want to destroy democracy, but I’m saying, you as reader, you as listeners, need to think about the long-term consequences of shrinking the public education footprint and moving back into a siloed or a fiefdom or a private system that resembles our darkest days.

Derek W. Black

Key Highlights Include

  • Derek explains the case for a right to education.
  • A brief history of public education in the United States
  • How the NAACP used the language of democracy in their litigation for school desegregation
  • Why vouchers and charter schools threaten public education
  • Finally, the intersection of public education and democracy runs throughout the conversation

Podcast Transcript

To say education is the foundation of democracy is neither novel nor controversial. But I find it a challenge to find scholarship that moves beyond platitudes to truly explain the link between the two. Derek W. Black offers an examination into their connection through historical examples that turn esoteric theories into real world experiences. 

Moreover, Derek does not believe it is just education which is the cornerstone of democracy, but public education. He writes, “Public education may be the one institution that helps rebind this nation’s wounds, just as it has in the past, and moves us once again closer to our democratic aspirations.” He views the investment into public education as an investment into democracy. 

But he goes further to recognize the rollback of democratic rights occur alongside efforts to undermine public education. He writes, “States are now trying to take the gift of public education back. It should come as no surprise that they are doing so at the same time that some are restricting access to the ballot box.”

Derek W. Black is a professor of law at the University of South Carolina. He is the author of School House Burning: Public Education and the Assault on American Democracy. Our conversation dives deep into the history of public education in the United States and its link to the Civil Rights Movement. We discuss the ways vouchers and charter schools threaten public education today. But most of all we explore the reasons why public education is a necessary component of a healthy democracy. This is my conversation with Derek W. Black…


Derek W. Black, welcome to the Democracy Paradox.


Yeah. Thanks for having me on. It’s a pleasure to be here.


Derek, I first came in across your work in a collection of essays edited by Kimberly Jenkins Robinson called A Federal Right to Education: Fundamental Questions for our Democracy.  Your essay was called “Implying a Federal Constitutional Right to Education.” And the book itself really caught me off guard, the whole concept of a federal right to education.

But central to this idea was also a Supreme court case, San Antonio v. Rodriguez. And I know that that’s kind of the middle of your story. It’s not the beginning. It’s not the end. It feels almost like the culmination of this sense of a right to education and a missed opportunity. And is so important to understand when we talk about rights regarding education, understanding what the arguments were within this case, the significance of it and what it means for education law today. So, can you explain the significance of San Antonio v. Rodriguez?


Yeah. I mean, San Antonio v. Rodriguez, extremely important decision comes in 1972. It’s right on the heels of a lot of the school desegregation cases. So, you had this period when the NAACPLDF in Brown v Board in 54, and they won a number of other really important cases in the sixties and they had some important cases in the seventies. And there was this feeling amongst the civil rights group that as long as money was unequal, we would never get there in terms of full opportunity for students. And we mean money being equal women for all kids, regardless of race, regardless of poverty, regardless of geography. Right? There’s a lot of kids in rural areas or poor areas. They just said, ‘Look, let’s just sort of make this an even and high playing field for all children.’

And so, there was really two arguments in San Antonio v. Rodriguez. And this is a case out of Texas challenging the way that Texas was funding its public school system. And the two big arguments in that case was, number one, that the way Texas funds its schools discriminates based upon poverty so that if you’re poor, you’re going to get the short end of the stick when it comes to education. And that just like race is a suspect class, just like gender is a suspect class, that poverty ought to be a suspect class. So, a law that discriminates against poverty ought to require a special justification.

The Supreme court says no to that pretty quick. It says we’re not going to treat poverty as a special classification. And the reasoning on that is that if we start looking at poverty and wealth distinctions, there’s so many laws out there. I mean, my goodness, you have a tax code you can’t even wrap your arms physically around it is so huge. And so, look, we can’t be inviting challenges on that. So, the court says no. Poverty is not a suspect class. We’re not going to go there as long as it seems plausible, what they’re doing, that’s okay. The second argument in that case was that education is a fundamental right. So, forget about poverty. It’s just a fundamental right. And everyone has to get equal access to it.

And that made a lot of sense coming after Brown. You know, Brown had this famous line in it which it had said, ‘When the state decides to provide education, it must do it on equal terms.’ And it was talking about race there. So, the idea is can we go broader than that? In Rodriguez, the court ultimately says, ‘No, we are not going to recognize, in San Antonio v. Rodriguez, we’re not going to recognize education as a fundamental right. Yes, it’s important. Maybe it’s the most important thing out there, but we don’t recognize fundamental rights based upon their importance. We recognize them either explicitly written in the constitution or there’s this historical commitment to it to treat it like a fundamental right.’ And the court says, ‘We don’t see those two things. That we don’t think the federal government ought to be getting involved in it.’

So, they also start to get into a lot of sort of rationalizing and saying, ‘Look, if we get involved in this, this is going to mean the court is supervising the way schools are funded across the entire nation. This going to implicate taxes and too many issues of federalism. And we’re just not going to go there.’


So, let’s take a step back and talk about just the idea of public education. I’ve grown up with public education. I take it for granted that there’s public schools. I’ll be honest, I don’t think I’ve ever asked the question. Why do we have public education?


We have public education because at the nation’s founding, giving regular people the right to vote was a radical idea. And we had powerful people who were the ones handing this power over to regular people. And when I say regular people, let’s be clear, we were talking about white men, primarily with property. We weren’t talking about women. And we certainly weren’t talking about African-Americans and enslaved people. But to use their ideology, the people. So, we have very privileged people turning power over to regular people and they said, ‘Look, we can’t have individuals that don’t understand how democracy functions. We can’t have individuals who don’t appreciate the common good voting. Because what will happen is either their votes will be bought or they’ll just vote in their own self-interest.’

And their fear was that maybe the masses might just say, ‘Hey, let’s get more votes than those guys and let’s just take their stuff.’ So, the elite actually believe that it was in their very own interest. John Adams is very articulate about this. It is in the elite’s interests that the masses be educated so that we could come together as one. And he also emphasized not just that everyone be educated, but that everyone would be educated together. That the higher ranks, as he called them, and the lower ranks would go to school with one another and find this common purpose, this common destiny. And so public education is conceived as the glue that holds our electoral system together at the nation’s founding.


But we didn’t have a public education system at the founding, of course. It took a long time to be able to develop that. And even more so today, as we’ve seen somewhat the unraveling of public education through the privatization of education, it begs the question, why have public education itself? Why not just use the market to be able to create education and then figure out ways to disperse it? So, why do we have public education as opposed to other systems to provide education for people?


Yeah. I mean, there’s a handful of reasons there. I mean, one of them articulated by Washington and Jefferson, Adams was that it’s actually the duty of government. That their theory was this thing called a republican government owes it to the people. That if these people are going to be controlling the government, they have to be educated to do it. That’s one. Thomas Jefferson had said that, you see this language in the Declaration of Independence, the only thing that makes government valid is the consent of the people.  The idea that you can only enter into this social contract, if you understand it and consent to it. If someone forces you into a social compact and you don’t understand it, then it’s not real consent. It’s like coerced consent.

And so, his point there then is you need education. You need a certain level of education to consent to government doing things to you. And so, when you think of government that way, it seems altogether natural that you would say, if the government’s going to do things to you, it is also obligated to give you the education to understand what it’s doing to you and to object to what it’s doing to you. That’s the Jeffersonian version of it. Adams, I think doesn’t worry so much about consent. He’s like, ‘Look. This is just the obligation of government and this is the only thing that will make it work.’

During reconstruction, so a hundred years later when public education had not gotten going in the South, we had folks in Congress who are pretty point blank about it. They said, ‘Look, we have got millions of uneducated slaves. We’ve gotten millions of uneducated, poor whites, and some middle-income whites. And if you think those people are going to get educated by the market, you’re crazy. If we don’t set this system up and constitutionalize it, these wealthy former slave owners will never pay for the education of someone else’s child. They just won’t do it.

And given they won’t do it that means that all power will remain concentrated in the hands of those with resources and those without it will lack it. And so you kind of real politic sense by reconstruction of this is just the only practical way of ensuring that the elites don’t dominate the electoral process.


I was absolutely fascinated by the way that you explained the rise of public education in the midst of reconstruction. I mean, the story was fascinating. The legal arguments that you then derive from that movement are fascinating. We don’t think enough today, in my opinion, of the Civil War as a second founding the way that we used to . And you really take that to heart. In fact, I saw that in your previous essay, you referred to a sense of originalism to defend the federal right to education, but you didn’t mean originalism dating all the way back to the founders.

You were dating it back to the 14th Amendment and the way that we redefined a lot of the foundations of our country within the 13th, 14th, and 15th Amendment and redefined what the United States was going to be, redefined it as a democracy, and strengthened our country. There’s a quote in your book that that gets at the heart of how much change occurred at that moment. You write, “Too much deference to states had proved too divisive, too disastrous. The South had substituted aristocratic rule for republican government. Ignorance for education. National peace had devolved into civil war.” How did reconstruction redefine how we looked at education within our country?


Yeah, well, before I even used the word education, I’ll emphasize something that I emphasize to my con law students every year. And it’s this. Most of the conversation about state’s rights and federalism today is devoid of any recognition of the 14th Amendment. From the nation’s founding up until 1868 the word state basically does not appear in the federal constitution. The 1st Amendment, freedom of speech. The 2nd Amendment, the right to bear arms. Third Amendment, quartering soldiers. On and on, it would go through all of them. The word state doesn’t appear in any of the Bill of Rights. All of these things are restrictions on the federal government.

So, at the founding, there is this concern that the federal government’s going to take over the states. We need the federal government to stay weak. It’s going to help do national defense and stuff like that. But otherwise, the states will take care of it. As you described in that quote, what we saw was that led to disaster on a human scale and many other scales. And the 14th amendment does something that, as I say, reframes the entire constitution. For the first time in our history, it says no state shall, no state shall deny any individual of life, liberty, or property. No state shall deny any person of equal protection of law and no state shall deprive them of their privileges and immunities. That is taking the constitution and turning it upside down from the founding.

It’s explicitly saying this thing used to be about worrying about the federal government and now it’s about the States. And then the fifth section of the 14th amendment says Congress shall have the power to enforce these provisions which means not only does the constitution operate to limit the states, Congress now has the power to pass expansive legislation telling States what to do. This was radical, right? It changes everything. And so, the people who are in the streets and the 200 and some odd representatives who signed the Southern manifesto after Brown v Board of Education, they’re completely ignorant of the basic words in the constitution. So, I think that’s the first thing we have to understand is that it was a rebirth of democracy. And each new constitutional amendment changes whatever comes before it.

Now, where does education fit into that? Well, what we also have during reconstruction is the readmission of Southern States. So they had seceded from the union. They tried to form… I guess formed their own illegal nation. And now they’re under military rule. Well, the constitution has a provision in it that says that Congress and the federal government shall guarantee a quote ‘republican form of government in all the states.’ So, you know, that doesn’t take a genius to say enslaving after the war, particularly enslaving millions of African-Americans, that’s not a republican form of government. You’re denying millions of people basic rights. So, at this point Congress now has the power to say what are the terms upon which we’re going to readmit the Southern States and what do we understand the republican form of government to mean after this war and this period of enslavement.

And Congress is crystal clear in its mind about what it believes a republican form of government means. It means the people governing themselves. And now all of a sudden we’re back at the ideology of Jefferson and Adams. Governing oneself means voting and the education to cast that that vote intelligently. And there’s plenty of discussion in Congress about ‘Look, we failed to provide that type of government.’ So, Congress says to the Southern States, ‘For you to be readmitted into the union, you have to rewrite your state constitution to conform to republican form of government.’ And that meant abolishing any slavery language, extending the right to vote to African-Americans, and providing for public education in your state constitutions.

You have all these state constitutional conventions that form in 1868 and 1870. And this word republican form of government is repeated dozens of times. And they’re explaining education as being the greatest assurance for the preservation of republican government and that it’s hand in hand with voting. And so that’s what we have. We have this very short window in which all the Southern States between 1868 and 1870 rewrite their state constitution and provide for non-discriminatory voting and a public form of education, quote, ‘Open to all. Open to all.’ And so, it’s a radical period in time.


There’s an intellectual trap though that I want to avoid. That the way that we’re describing it, the federal government stepped in and said, ‘We’re going to give people education,’ almost as if they’re forcing it upon people, saying, you guys weren’t doing education. We’re going to force it upon people, as though individual citizens had nothing to do with it. As if individual citizens were just hapless bystanders. What I love about your book is that you emphasize how the freedmen played such an instrumental part in pursuing their own education in both developing schools, within their communities, but also embracing the idea of becoming educated. This wasn’t something the government was imposing upon people. This was the government empowering people to become educated. I was so impressed with some of the stories and descriptions you had in your book.


Yeah. I mean, South Carolina gets a lot of deserved bad raps through history, but South Carolina is a bright and shining star in 1868. That convention which met was majority African-American. We were a majority African-American state and those men, there weren’t any women, those men fully understood what education meant for them and for their children. And they go on about it at length. In fact, the state constitutional convention of 1868, the report on it of the debates is about a thousand pages long.

I mean, if you’re looking for something to read that’ll blow your mind, just about how progressive it was. I think I was saying this in the book, you know, we think we’re all high and mighty and, you know, I don’t like that word woke. We’re all woke. Well, it’s like, you know what. Read the South Carolina constitutional convention of 1868. A lot of these ideas that we talk about now, they were talking about back then. We just failed to execute on them. But we have then by extremely large margins, you know, voting to create a system of education, debating its various nuances. Debating whether in 1868 white children and black children should go to school together in the state of South Carolina. And the answer to that question was ‘Yes, they shall.’ In 1868, yes, they shall. You know, that’s an amazing moment.

The poll tax, which we think of as a tool of discrimination and did become such in Jim Crow, the poll taxes in the South were enacted by African-American men who said, ‘There’s nowhere else for us to get any money to start schools. But we think, and we know, that we ourselves want to exercise the ballot so much. And of course, a lot of whites do too, that we’re just going to charge a poll tax and we’ll take every single penny of the poll tax and devote it to public education.’ Which again, showing that connection between voting and education. But they were egalitarian as well. They said if you can’t afford the poll tax, we’ll let you vote anyway. But you know, there this sort of very, very important point there.

And the other thing to recognize was that, you know, the South had these anti literacy laws which had actually been the means by which to enslave both the mind and the body because the freedom of the mind also had the potential to create the freedom of the body. And there were literate slaves who had learned to read and write in private and kept that knowledge secret, had used it to gain freedom. And those men and women as they became leaders in their community, they said, ‘We’ve got to have this for our children.’

I think it was the colored people’s convention in Charleston that met before the constitutional convention said ‘An educated people will never again be enslaved.’ That that was their words. And they sent a letter to Congress demanding the right to education be as secure in South Carolina as it is in Vermont and Massachusetts. So, those families who knew what it was to be denied education wanted to make sure it would be there forever for their children and for everyone else’s children and so they constitutionalized it. So yeah, they weren’t begrudgingly saying, ‘Oh, yeah, the federal government’s making us do this.’ We’re saying, ‘No. We want this for our people.’


And what amazes me is in the story of American history, when we think of our process of democratization, how important that moment was for American democracy. Because we take for granted that our country was a republic, that people had rights and freedoms throughout the country and that slavery was the only obstacle in the South. But the South was highly aristocratic.  It did not provide education, not only for African-Americans, but it also did not provide education for poor whites either. And that this moment of reconstruction completely changed the way that American democracy worked not only for black Americans, but also for many of the impoverished white Americans within the South.


Yeah. I mean, if you could imagine or rewind yourself to the way society functioned in the South under slavery, what you have are slave owners who really think of their land as being a fiefdom and it was in the same way that sort of feudal Europe might’ve been. And they didn’t want any interference with that. The other thing is the idea that you would take something off of my plantation and give it to another plantation, the idea that you would take something off of my plantation and give it to some homeless or ship builder whatever like that. That’s crazy talk. That is not part of the way that they see the world.

So, what they had done in the South was kind of built this system whereby the plantations will float their own boats and the rest of the people they’ll just sink or swim. That’s sort of the way it worked. And so, there was also this fear, at least other scholars have said there was this fear, that if in fact they began to support education and services that might extend to regular whites that those folks might say, ‘What the heck are we committing this sort of protection of slavery? Anyway, what good is that to me and in our society.’ And so, they had a vested interest in kind of blocking public education for whites.

And, you know, Charles Sumner was a great voice for freedom, but he said, ‘Look, an educated people in the South would have never rebelled and seceded.’ Now, I don’t know if that’s true or not, but that’s at least his republican form of government that if the broad swath of whites, most of them who didn’t own slaves, actually knew enough they wouldn’t have been on board with going to war. Not to say they would have opposed slavery, but they wouldn’t have been on board putting their own livelihood at risk for a small handful of slave holders, but the slave holders are dominating everything and so they can rush the nation into war.

So yeah, it’s just fascinating.  And so, reconstruction says this is a new day. That it really is about, I don’t want to overly romanticize it, but at least in theory, that we the people, now for the first time in the United States history, begin to function in the South. And that means taking down a lot more than just slavery. It means building up institutions as well for regular people.


And what I found remarkable too, as we fast forward through history, and we go through the period of Jim Crow and segregation that the civil rights movement itself leaned a lot on ways to be able to desegregate education first. The desegregation of education was a cornerstone moment of the civil rights movement itself. It makes so much sense the way that you explain it within your book that these two features, civil rights alongside democracy, walks alongside the expansion of public education.


You know, I learned a lot of new things in researching that period. You know, I said the words, ‘They started with education for a reason.’ I’ve said that to my classes. I’ve sat in lectures dozens of times, but I didn’t really fully appreciate the full strategy there. What I thought was they started with public education because they figured kids were sympathetic. That’s what I thought. And there surely it was some of that. But as you dig into that history and dig into the briefs, they started with education because the language of education resonates with the language of democracy and what they thought was that they could make democracy arguments that would be compelling to the courts.

So, not only do they start with education, but they also start with a school of education. One of the early cases was challenging segregation at a college of education. And what the NAACP said is ‘Look, schools are designed to bolster and expand our democracy, to prepare citizens for democracy. And if what we have is a system that trains one set of teachers on the right for one type of democracy, and another set of teachers on the left for another type of democracy or maybe we just don’t even fully give democracy to one group, we’ve got a big problem. So, hey, we’re not challenging segregation in engineering school. We’re not challenging segregation at medical schools. We’re not challenging segregation in library sciences. We’re just saying you can’t have segregation at colleges of education.’

So, you sort of trace this history piece by piece. You see the NAACP time and time again calling on these ideas of democracy and education’s role in it. Now, the story that we ultimately get at the end there in Brown and the one we know now is purely this thing about race, but the early part is clearly about democracy, race, and education. And when you understand that you understand that paragraph in Brown v. Board of Education in which the court in kind of a throwaway paragraph that doesn’t have any legal significance now, but in this paragraph, they said, ‘Education is the very foundation of good citizenship.’ No child should be expected to succeed in life without it thus when a state decides to provide it, it must do so equally.

Well, that paragraph, it is the same ideology condensed into just a few sentences that dates back to the founding. They just add one word about race in there. And the NAACP had been fostering and sort of developing that idea for 20 years before Brown v, Board of Education and the court latches on to it and puts it in their opinion, Brown v. Board. You don’t see much of that conversation afterwards, because then you get into the racial tension and details and the fights to try to make that real.

The only other place you see it clearly is in Milliken v. Bradley. Justice Marshall, who of course had been the architect of Brown, he writes a dissent in Milliken v. Bradley, which is kind of one of the ending points for desegregation. He said ‘Until our children learn to play together, they’ll never learn to live together,’ or something along those lines. And so, you see him sort of echoing that again there. So it’s a beautiful story, but you have to put all the dots together and that’s what I’ve tried to do in the book.


So, I started out with the San Antonio v. Rodriguez decision and that kind of creates a lost opportunity for a right to education. And after that there are a lot of wins at the state level that you detail. But as we kind of come into the present moment, you see another new threat. In fact, you write in the book, “The last decade aligns better with the darker periods of our history than the brighter ones. The trend is alarming, not just for public education. It is alarming for democracy itself.” Can you explain what those concerns are today in terms of our educational system?


Yeah, I mean, so far what we’ve talked about are the happy stories. How we use education to try to expand democracy and to be clear, our schools are not perfect today, they never have been, and I don’t expect that they will be perfect during my lifetime. It is part of our journey to a more perfect union. And our schools are part of that. Sometimes it makes steps forward. Sometimes we stepped back. Now what you’re asking me about is the steps back and the biggest step back was after 1876 when the North removed the troops from the South so the Republicans could hold the presidency and Jim Crow begins to take hold.

And, you know, the Mississippi constitutional convention, the best example, they’re the first to form, is ‘That we’ve come today for one reason and one reason only. And that’s the disenfranchisement of the Negro.’ And what they meant by that was get them out of the ballot box and let’s undermine their schools. And so that’s what that constitutional convention was about. And so that stops that enormous progress that was happening after reconstruction.  What I’m trying to say about this modern period, which is your question, is that if you look at all the history leading up to it, education and voting together have either been used to expand democracy or shrink it. With the pre-civil war era – shrink. And then Jim Crow shrink.

We look at today, what we have seen are various attempts to restrict access to the ballot box, various attempts, to redraw district lines to make sure that certain people stay in power and other people don’t come to power. And those same coalitions have a lot of overlap with designs to privatize public education. So, I say, look, I look at it with a historical lens and say that this certainly is not Jim Crow, but if you think about factions trying to take democracy for themselves and take it away from other people, they do it at the ballot box and they do it through public schools. And we can dress up policies today about privatization and vouchers as being about private choice or liberty and all of this sort of rhetoric.

But, you know, when you push away the rhetoric and look at history, what you see is this is attempting to shrink what has been a fundamental pillar of expanding democracy for 200 years. And I find it hard to believe, without a lot more justification they’re offering, that somehow know that there’s this new secret sauce to opportunity and equality and democracy that does not involve public education as the fundamental pillar. So you have people arguing that they’re not saying we want to destroy democracy, but I’m saying you as reader, you as listeners, need to think about the long-term consequences of shrinking the public education footprint and moving back into a siloed or a fiefdom or a private system that resembles our darkest days.


Now, when you talk about the privatization of education, you’re specifically talking about vouchers and charter schools. I’m sure a lot of people don’t recognize a difference between charter schools and public schools, because both of them you go to for free. You’re not paying to go to a charter school normally I would imagine, I’m sure you can design it any way that you want. Even vouchers, you might be able to go to a private school for free. So, it feels as if the public is still providing education. Why is it important for the public to provide the education rather than just the resources to be educated?


Yeah, I mean, great question, and we do have a distinguished between charters and vouchers. So I think the first phrase to start out with is there’s a difference between public education and publicly funded education. We have lots of publicly funded things that aren’t public right. And your question is why is public education important? Well, I think the easiest starting point on that is that public education has to represent public values. So that means due process. That means equality. That means free speech. That means not establishing or teaching religion in the public schools. It means equality in its various forms. It also means the mixture of the public, just like John Adams said, the highest rank with the lowest ranks.  We don’t have schools for poor kids and rich kids. We have public schools.

And in fact, Pennsylvania and some other states used to operate pauper schools. P A U P E R for poor kids, before they had a full system of public education. And they said, ‘Look, this thing isn’t working. The public’s never going to be on board with a full quality education just for poor kids. That’s one of the things I worry about now. If we’re moving towards public schools that are just for poor kids we’re lost. So, it’s important that the schools be public so that they are held accountable and they represent all of our public values.

Voucher schools are the opposite of that. Yeah, you can cut Justin a check and say, go get whatever education you want. Cut Derek a check, go get any education you want. I can go buy Neo-Nazi education. I can buy male supremacy education. I can buy single-sex education. I can buy whites only, Baptist only. I can do that. That’s the market. You know, it’s just like picking music. You pick the flavor that suits you. None of those, sort of, public values come with that. And so, if you’re thinking about building a democracy as they were in the early period that represents the common good that common good gets represented in a public system.

And really the whole theory is that everyone ought to be able to find their own good and do that in a private school. And I’m not saying that people can’t pursue that if that’s what they want to do with their own money and their own sacrifice, but the only reason why we pay for education is to support the public good, not the private good. So actually her theory is, internally flawed in terms of the logic and then say, look, if we’re going to abandon public education, then we ought to abandon publicly financed education to be quite honest, right? Why would I be paying for that any more than I would pay for you to have a tax credit on a new suburban that gets, you know, 12 miles to the gallon? Like, why would I do that? That’s not the public good.

So that’s vouchers. They articulate it as about being religious freedom and somehow or other the public schools are oppressing them. And that’s a radically different form. That sort of publicly financed private education is radically different. And I’m not saying that all the private schools are doing awful things. I’m just saying public education serves a function that is much different.


So. If public education is important because it teaches everybody consistent things that we need to know for democracy. And it pools our resources, makes us operate as a community, why couldn’t we take a more radical position in the opposite direction and require everyone to attend public school and say, ‘We’re not going to have a two-track system where we offer, even allow, private schools’? That would be a very radical position. I’m not advocating it, but I’m interested to know why we wouldn’t take that more extreme position.


Yeah, well there was a scholar, I’m blanking on his name. He wrote an article in Villanova law review about 10, 15 years ago that laid out this argument that basically said as long as you have private schools, all these things that Derek’s talking about as being theoretically great about public schools would just be theoretical. Regardless of whether he’s right about that, there’s a case in the early 1900s called Pierce v. Society of Sisters in which the state of Washington had done exactly that. It had required that all students attend public schools and the Society of Sisters was a Catholic school. And it educated a lot of poor and homeless and abandoned children. And of course, had families that paid for their kids to go there as well.

And so they challenged and said, ‘This violates the parental right to control the upbringing and education of your children.’ What the Supreme court said in that case that parents do have this right to pursue a private education and that the state could not prohibit it. There’s nothing harmful about private education and it is the parent’s duty to see that their children are educated and to make these decisions. And the state cannot deprive them of the ability to make that decision. I have to be honest, that seems right to me right. We’re not a totalitarian state nor should we become one. And if there are families who believe that there’s things they want for their children that aren’t available in the public school system or different values, I think that’s their constitutional right. I don’t have a problem with that.

And it’s just sort of like the right to not listen. I have the freedom to speak. You have the freedom to not listen. And the public schools have the freedom and, I believe, the constitutional obligation to provide public education, but, you know, there’s some parents that have the freedom to go, ‘I don’t want my kids to hear that. And so, you know, I’m going to go somewhere else.’ But that doesn’t mean that when you turn off, you know, Justin’s podcast or Derek’s lecture that you can ask Derek for a check for you to go listen to somebody else’s podcast or to buy you a new, iPhone to listen to that. And that’s kind of what they’re arguing. Like we don’t do that.

Now charter schools are different. The first time I wrote something scholarly about them and thought deeply about them, I said they’re kind of like empty vessels. They can be what we want them to be. They’re kind of creatures of the state, so we can make them, with no problems at all apply and have all the same rules as our public schools. And maybe do something better in a few instances. Maybe we can create integration across school district boundaries. I mean, we can create different options. Maybe we can experiment with things that we’re not willing to dive into the deep end with in our public schools. The problem in my mind is that vessel has primarily been used by individuals that are you using it to serve other ends.

And again, I’m not saying all charters are bad.  The worst thing we can do is paint with an overly broad brush. There are some great charters out there. There are charters that are diverse by design. We have charters that seem to be specifically tailored to making sure that students with limited English proficiency are getting the right environment or maybe LGBTQ youth, but those are the exceptions rather than the rules. And that’s the problem because those are what I would say, good faith actors, try to do something good with an empty vessel. But the dominant system here is business. It is one in which give these private operators a check and with relatively little accountability and oversight, they will manage their teaching workforce. They’ll operate lotteries. They’ll do all these things and then hopefully it works out good.

So, you let the market decide. What we found is unfortunately, anytime there is a lot of public money available and relatively few rules, there’s opportunities for corruption. We’ve seen far more corruption and self-dealing than I would have ever imagined. The simple way I sum this up is charter schools do things every single day of the week that if a public school official was doing them, the public school official would find him or herself in prison. And the difference is that what the charter schools are doing is completely legal. So, what I’m calling corruption is actually legal in the system that we’ve set up. And so, there’s a lot of profit to be made there. So that’s one thing.

There’s also the recruitment. Most of them do not want high needs students. If they take special education students, they want special education students who don’t really have high needs. So, they leave the highest needs there. And so what we’ve seen is this sort of sorting. You know, we looked at Newark, New Jersey as a prime example. You have to go beyond race too. What we see is a slightly higher income African-American student going to charter schools than in Newark schools. And to be clear, you know, Newark schools are all students of color to begin with. So, it’s really a sort of socioeconomic issue there. We also see sorting between ethnicity or we have schools predominantly African-American, others that are predominantly Latinx. We also see relatively few special education students being in those charter schools and most of those staying in public schools.

So, what we see is a market functioning, much like a private school would where students are sorting out into these little silos in part so that people can make a buck maybe. In North Carolina, never perfect, but had the broadest base and most stable form of school integration of probably any state in the nation. And including voluntary integration even into the two thousands, well, charter schools, as I describe it in the book and elsewhere provide an opportunity for an exit option. So, I don’t have to go to private school. I don’t want to pay for that. And North Carolina doesn’t have vouchers or maybe there’s not a good private school, but gee, you know, I don’t like this integration deal or I don’t like being bussed here and only being told I can’t go here, whatever.

But the state is telling me we can start our own little charter school in our neighborhood. And so what we see in North Carolina and every state is different. This isn’t true everywhere, but in North Carolina. The charter schools are becoming whiter as the public schools are becoming brown which I interpret as being an exit option from diverse spaces. So again, charter schools are empty vessels. We could regulate this money part of things. We could require and some states do require that the demographics reflect the public schools. They just have never enforced them.

You have litigation going on in Newark about that right now. It’s like this isn’t supposed to be this way. But what we’ve seen is that the charter schools are operating like markets and they are catering to different demographics in a way that I think is contrary to all the values that you have been talking about.


So, a big part of your big idea is that education is key for democracy, but education is oftentimes described in a lot of different ways. It’s thought of as necessary to be able to create an occupation to be able to learn what you need to be able to get a job. So oftentimes we’re thinking of our schools as vessels for vocations. We teach a lot of different subjects beyond just civics which directly relates to democracy. We teach things like math, science, in a proper school, in my opinion, you also have art and music and many other subjects. So how do all these different subjects, all these different things that we want to include in schools. How does this come together to have a role for democracy? Is it really just the civics portion or is all of this necessary to prepare our kids to live in a democracy?


I’ll emphasize, I believe it’s democracy first and foremost. And you know, the key skill for that is critical literacy, but I can’t imagine a school that was great at delivering civics and critical literacy skills that somehow or another was bad at science. Like that doesn’t make sense, so I believe those things would naturally follow. I don’t have a lot of concern about that. If we’re talking about sort of the founder’s idea, I think it really is centered on civics at the same time.

I think we need to acknowledge the American idea of the self-made man, that man, and now woman, can become who they want to be. This is the land of opportunity and if we, you know, just give men and women or boys and girls, the opportunity they need, they will rise on their own. And that idea, although it’s not as clearly embedded in the founding conversations, clearly goes to vocation and science and all of that. That obviously if what we want is people to be free economically, as well as politically, that they need that broader education. It’s very hard to be politically free if you’re not also economically free. And so those things go hand in hand. There’s just not as much conversation about it at the same time.

Pennsylvania’s constitutional convention of 1872-73, you know, they’re clearly thinking about and talking about the need to make sure that there aren’t. I mean, they probably do use the phrase, something like dregs on society. That even if you’re not showing up at the ballot box, we want people to be self-supporting. So that’s certainly part of it. It’s not as core to the conversation. But as I started out, the skills that it takes to be a good citizen are sort of the stepping stones to be good workers, you know, critical thinking skills, and even math. I mean, in today’s world where statistics and data and empirical claims are so important, you can’t really be a critical consumer of the media if you don’t understand basic statistics. So, math’s key too. Not as key as civics, but it’s part of the equation.


Well, I was very impressed with the book. Thank you. Thank you so much for writing it. When I came across it, I really did get excited, because I had a sense of what you were going to bring to the table and you did not let me down. It was a great book. Thanks Derek.


Well, that’s the best compliment I’ve had so I will take it and I really do appreciate it. Thank you.

Key Links

Schoolhouse Burning: Public Education and the Assault on American Democracy by Derek W. Black

San Antonio Independent School District et. al. v. Rodriguez

Follow Derek W. Black @DerekWBlack

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