By Derek Black (Click here to view the entire P&R issue)
Public school funding has shrunk over the past decade. School discipline rates reached historic highs. Large racial and socioeconomic achievement gaps persist. And the overall performance of our nation’s students falls well below our international peers. These bleak numbers beg the question: don’t students have a constitutional right to something better?
Most Americans understandably believe that federal law protects their right to education. Why wouldn’t it? All fifty state constitutions recognize a right to education. The same is true of the national constitution in 170 or so other countries. Yet the word “education” does not even appear in the United States Constitution, and federal courts (most notably in the 1973 Supreme Court case San Antonio v. Rodriguez) have rejected the idea that education is a fundamental constitutional right and should be protected anyway.
While advocates and scholars have lamented the problem for the past fifty years, no one has come up with a plausible solution. Effective litigation strategies have been in such short supply that advocates had all but given up on the federal courts by the late 1980s. It seemed the only solution was to amend the Constitution itself. That, of course, is no small undertaking. In recent decades, therefore, the debate over the right to education has been primarily academic.
The summer of 2016 marked a surprising turning point. Two independent groups—Public Counsel and Students Matter—filed lawsuits in Michigan and Connecticut. In the Michigan case (Gary B. v. Snyder), plaintiffs argue that students have a fundamental right to an education that ensures they are literate. Otherwise, “[t]he stigma of illiteracy will mark them for the rest of their lives, deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.” In the Connecticut case (Martinez v. Malloy), plaintiffs argue that while the U.S. Supreme Court has never recognized a full-fledged right to education, its prior decisions leave open the possibility of a federal constitutional right to a “minimally adequate education.” Like the Michigan plaintiffs, they argue that a minimally adequate education is crucial for basic citizenship.
In May 2017, the Southern Poverty Law Center filed a third suit in Mississippi (Williams v. Bryant), claiming that federal law requires Mississippi to maintain the commitment the state first made in education in 1869. Following the Civil War, Congress exercised its authority to grant or deny the readmission of southern states to the Union. When Congress granted Mississippi’s readmission, it did so only under the condition that Mississippi provide public education to everyone and that it never renege on that commitment. Plaintiffs allege that Mississippi has broken that promise.
Research that I began before any of these lawsuits were filed indicates they may be onto something remarkable— particularly the plaintiffs in Mississippi. While the U.S. Constitution does not explicitly mention education, a careful examination of the events leading up to the enactment of the Fourteenth Amendment reveal that education was to be an implicit guarantee of citizenship. Without the government extending education to former slaves and poor whites, they would never fully exercise their rights as citizens, and the nation could not become a true democracy.
Why a Federal Right to Education Matters
A federal constitutional right to education is necessary for all students to get a fair shot in life. Absent a federal check, education policy tends to reflect politics more than an effort to deliver quality education. In many instances, states have done more to cut taxes than to support needy students.
The delivery of education in the United States is extremely decentralized, producing inequitable results. Local districts have a much larger effect on the quality of education a student receives than the state or federal government. State government, in turn, has a much larger effect than the federal government.
The net result is vast funding inequality among states. For instance, New York spends $18,100 per pupil, while Idaho spends $5,800. New York is wealthier than Idaho, and its costs are of course higher, but New York still spends a larger percentage of its state resources on education than Idaho. Likewise, Kentucky is slightly poorer than Tennessee, but spends $8,500 per pupil while Tennessee spends $7,300 In short, geography and wealth are important factors in school funding, but so is the effort a state is willing to make to support education.
States often makes things worse by dividing their funds unequally among school districts. In Pennsylvania, the poorest districts have 33 percent less per pupil than wealthy districts. Half of the states follow a similar, although less extreme, pattern.
These funding cuts and inequalities among and within states matters. Reviewing decades of data, a 2014 study found that a 20 percent increase in school funding, when maintained, results in low-income students completing nearly a year of additional education, wiping out roughly half of the graduation gap between low- and middle-income students. A more recent study found that a 10 percent increase in funding correlates with a 5 percent jump in graduation rates in high-poverty districts. With a 99 percent confidence level, a Kansas study showed that “a 1 percent increase in student performance was associated with a .83 percent increase in spending.” These findings are just the most detailed recent examples of the scholarly consensus: money matters for educational outcomes.
The Original Intent to Ensure Education
While normally the refuge for civil rights claims, federal courts have refused to address these educational inequalities. In 1973, in San Antonio v. Rodriguez, the Supreme Court explicitly rejected education as a fundamental right. Later cases asked the Court to recognize some narrower right in education, but the Court again refused. These new lawsuits are seeking to change that at last. While none of the new lawsuits explicitly state it, all three advance the notion that education is a basic right of citizenship in a democratic society. Rich evidence to support this principle can be found in the history of the 14th Amendment itself.
Immediately after the Civil War, Congress needed to transform the slaveholding South into a working democracy and ensure that both freedmen and poor whites could fully participate in it. High illiteracy rates posed a serious barrier. Illiteracy among whites in the South was more than four times higher than in the north. African American illiteracy in the South was even higher; it had been a crime to teach African Americans to read. As my research documents, this led Congress to demand that all states guarantee a right to education. Without education, Congress believed, the average person could never fully become a citizen.
Congress implemented this guarantee through a complex series of events following the war. By 1868, Congress was in the middle of two of our nation’s most significant events: the readmission of southern states to the Union and the ratification of the 14th Amendment. While numerous scholars have examined this history, few, if any, have closely examined the intersection of public education with these events. The evidence is in plain view, but has never been properly contextualized or pieced together. The most startling revelation is how central education was to transformation of the south and the nation as a whole. In fact, the evidence shows, Congress demanded that southern states provide public education, with a direct effect on the rights guaranteed by the 14th Amendment.
As I detail in the Constitutional Compromise to Guarantee Education, Congress placed two major conditions on southern states’ readmission to the Union: Southern states had to adopt the 14th Amendment and rewrite their state constitutions to conform to a republican form of government. In rewriting their constitutions, Congress expected states to guarantee education. Anything short of this was unacceptable, and Southern states got the message. By 1868, nine of ten southern states seeking admission had guaranteed education in their constitutions. Those that were slow or reluctant were the last to be readmitted. The last three states—Virginia, Mississippi and Texas—saw Congress explicitly condition their readmission on providing education.
The intersection of southern readmissions, the rewriting of state constitutions, and the ratification of the 14th Amendment must be understood to define the meaning of the 14th Amendment itself. The Fourteenth Amendment could not become an official part of the Constitution until southern states also adopted it. And southern states could not reenter the Union until they ratified the 14th Amendment and rewrote their state FEMA must improve management of private insurance companies that process flood claims to ensure that people receive the benefits for which they are eligible. Too many families’ claims in New Jersey were improperly rejected or underpaid—and there remains no clear and speedy appeal process to address these problems.
On the local front, the processes for accepting and processing impacted resident’s assistance applications must be easily understood, contain safeguards to protect information, allow residents to track their application processing, and guide them through an unwieldy alphabet soup of aid programs and offices that can confound ordinary families. Poorly designed procedures—and an over-reliance on contractors with poor track records of responding to other disasters—divert resources that could be used to help families and significantly prolong the rebuilding process.
While disaster recovery will involve the hiring of many contractors, advocates should take care to ensure that federal Section 3 diversity targets are met or exceeded and that local minority- and women-owned businesses have a fair shot at bidding for work against out-of-state outfits that swoop in and seek work following a disaster. Because mistakes will occur, it’s imperative that all disaster relief applicants know about, and have access to, quick and simple appeal processes and that all aid request denials are explained to families in clear, simple language they will be able to understand. Also key to any effective response from the advocacy community is access to current disaster recovery data. Advocates should press state, local and federal officials for accurate and timely data on recovery to track progress and quickly identify trouble spots.
Finally, if local officials are preparing to implement inequitable recovery plans, advocates must be prepared to move quickly to protect the civil rights of impacted communities. It is imperative that advocates work quickly to insert themselves into the process so that the voices of low-income communities and families of color are listened to and included in any final disaster recovery plan. This involvement is especially critical for the longer term recovery programs using Community Development Block Grant-Disaster Recovery (CDBG-DR) funds administered by HUD. Federal, state and local governments face pressure to quickly initiate recovery programs, but, if the programs are flawed from the beginning, valuable time is lost and unnecessary suffering occurs in the many months it will undoubtedly take to correct problems and to resolve a civil rights complaint.
Time is of the essence in the weeks and months following a major hurricane. Advocates should be armed with an understanding of how federal dollars are allocated to impacted communities and the lessons of Superstorm Sandy, and be prepared to utilize new tools, particularly the 2016 civil rights guidance, to win a seat at the table and ensure that any final recovery plan focuses on the needs of low-income residents and communities of color.
Derek Black, derekwblack@gmail.com, is Professor of Law at the University of South Carolina School of Law.
