The original theory of America was quite radical. In a world ruled by kings and queens, our founders sought to turn political power over to average people. This new experiment in self-government depended on educated citizens. Without education, the founders feared democracy would devolve into mob rule and open doors to unscrupulous politicians and hucksters. Our democratic experiment might very well just fail. As Benjamin Franklin bluntly acknowledged at the close of our Constitutional Convention, the founders had established “a republic, if you can keep it.”
Recognizing the challenge, the nation’s commitment to public education actually predates the Constitution itself. Two years before the Constitutional Convention met, the Continental Congress needed to resolve the colonies’ competing land claims in the western territories and establish the rules for creating new states, not just extensions of existing ones. The solution came in the form of the Northwest Ordinances, which still today are reprinted at the front of every copy of the United States Code alongside the Constitution and Declaration of Independence. In 1785, the Northwest Ordinance divided new lands into territories and towns that would ultimately become the states of Ohio, Illinois, Indiana, Michigan, Wisconsin, and Minnesota. Those same rules later governed land west of the Mississippi too. In total, the Northwest Ordinance helped shape thirty-one states.
Education was embedded into the structure of these future states. The Northwest Ordinance divided every town into thirty-six lots and reserved a center lot for public schools, requiring outer lots to generate resources for those schools. Then, while delegates were literally drafting the Constitution, the Continental Congress added a guiding principle to the Ordinance: “religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
Our founding era presidents also implored the nation to expand public education as rapidly as possible. President George Washington urged Congress that no “duty [is] more pressing on [the national] legislature” than “the common education of a portion of our youth from every quarter.” The very “prospect of [a] permanent union” depends on their education. Thomas Jefferson was similarly convinced that public education is “necessary to prepare citizens to participate effectively and intelligently in our open political system [and] to preserve freedom and independence.” He boldly proposed committing the nation’s financial treasure and future surpluses to education—and amending the Constitution if necessary. John Adams was even more specific, arguing that government has a responsibility to provide education to “every rank and class of people, down to the lowest and the poorest” and pay for it at “public expense.”
Yet universal access to public education—much like universal participation in self-government—was a concept honored more in American ideas than reality during the nation’s first century. The most glaring breach was slavery. In addition to physical slavery, states tried to bind African Americans’ minds, making it a crime for slaves to read and write.
That breach, however, evoked responses that involved some of the nation’s most inspiring and redeeming moments—moments that the modern mind struggles to fully appreciate. Slaves fled for Union lines shortly after the Civil War began and, once safe, made the acquisition of learning—a right long denied them—a top priority. Makeshift schools immediately sprang up and quickly swelled beyond capacity across the South—from Fort Monroe along the Virginia coast (the location where slaves had ironically first arrived in America) to the banks of the Mississippi. Some schools had over one thousand students.
Underneath these efforts was a deep human longing. For instance, when a white missionary teacher first arrived at a freedmen’s camp along the Mississippi River, an elderly former slave greeted her at the water’s edge, immediately indicating that he knew her purpose: “I’se been ’spectin you…for de last twenty years. I knowed you would come, and now I rejoice.” Similarly, when asked if she wasn’t “too old to learn,” an eighty-five-year-old woman explained that “she must learn now or not at all, as she had but little time left, and she must make the most of it.”
Swelling numbers and passion soon transitioned into a burgeoning movement. Freedmen asked for, and sometimes demanded, education through letters, face-to-face encounters, and the organizations they created to advocate for education. Their expectation and articulation of what freedom meant—and education’s central role in it—literally redefined the nation’s constitutional norms regarding citizenship. With education and voting at the top of the freedmen’s list, those things were soon at the top of Congress’s too. For instance, as a condition for rejoining the Union after the war, Congress forced Southern states to rewrite their state constitutions and embed the right to education in them.
Senator Charles Sumner wanted to go even further. He offered an amendment to the Reconstruction Act to require that the system of education that southern states were about to create would be “open to all, without distinction of race or color.” The Amendment surprisingly failed by a single vote, but the idea even more unfathomably made its way into southern state constitutions anyway. No less than South Carolina led the way. Delegates to its constitutional convention argued that “[i]t is republicanism to reward virtue. It is republicanism to educate the people, without discrimination.” Another explained that “the question is not white or black united or divided, but whether children shall be sent to school or kept at home. If they are compelled to be educated, there will be no danger of the Union, or a second secession of South Carolina from the Union.” Those arguments carried the day and a constitutional guarantee of education soon became the national norm. No state ever again entered the Union without guaranteeing education in its constitution and other existing states following suit.
Today, all fifty state constitutions protect the right to education. This right and its protections were so successful over the past half-century that one might have concluded that the constitutional rights to education and voting, proceeding together, secured an irreversible triumph. Notwithstanding imperfections in our voting and educational systems, the rights to vote and education were no longer in serious dispute. The overwhelming majority of Americans seemingly believed that everyone ought to be able to vote and that the federal and state governments must ensure a quality education all.
But democracy’s triumphs are rarely irreversible or settled. Some states—aided and sometimes prodded by federal officials—have been trying to take the gift of public education back. They are turning their backs on ideas as old as the constitutions under which they operate. While threats to the ballot are immediately understood as threats to democracy, attacks on public education are not always fully appreciated as such. But rest assured, just as the gift of public education has helped build up our democracy, taking it back threatens to tear down our democracy.
Fortunately, regular citizens are standing in opposition. In 2018 and 2019, tens of thousands of citizens—including in the reddest of red states—marched together, demanding that their legislatures fully fund public schools, fairly compensate teachers, and place real limits on the privatization of education in the form of charter schools and vouchers. After securing key legislative victories in the states and catching the attention of the full democratic slate of presidential candidates, public education appeared poised for a comeback.
A worldwide pandemic, however, reset the political, cultural, and economic landscape again. States immediately cut public education budgets and gave no consideration to the fact that the cost of education would soon rise, not drop. As education went online and stayed there, the technology gap became more important than ever before and expanded already unacceptable achievement gaps. Sensing a freefall, parents with means began retreating to their corners, worried less with the overall health of the education system and far more with maintaining their kids’ competitive advantages. The result was a wave of new private school enrollments, pandemic pods, and individualized demands. National leaders, including President Trump and Secretary DeVos, eventually charged that public education itself was the problem and holding the nation back, throwing more fuel on the fire of one of the most divisive presidential elections of the modern era.
History suggests both danger and possibility ahead. Public education has always served to bring disparate groups together and expand opportunity to those without it. It also reveals that private institutions have never been successful in systematically doing either of those things. America’s ability to reach the other side of crisis as a stronger nation rests not upon radical new ideas that denigrate or undermine public education but upon its willingness to cling to those ideas that were once radical, two hundred years ago, and managed to get us this far. And the events of January 6, 2021, painfully remind us that we remain on a precipice, that we have never fully committed to those ideas, and still have a long road ahead. ▀
Derek W. Black (blackdw@law. sc.edu) is a Professor at the University of South Carolina Law School. This article is excerpted from his new book, Schoolhouse Burning: Public Education and the Assault on American Democracy (Public Affairs, 2020).