"Is There a Right to Education and Literacy?" Why? Radio Episode with Guest Derek W. Black
12:03AM Apr 16, 2020
Derek W. Black
Jack Russell Weinstein
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I'm jack Russell Weinstein host of wide philosophical discussions about everyday life. On today's episode, we're talking with Derrick black about the right to education, literacy and the injustice of zero tolerance policies at schools. A funny thing happened to me as I was reading for today's episode, I became livid. Now, this isn't too surprising. As people who know me will attest I can run hot, especially when faced with injustice. But this was a very special kind of anger one I reserved only for schools. The book I was reading is titled ending zero tolerance the crisis of absolute school discipline. Not surprisingly by today's guest, it's about the ways that unjust punishments, undermine education and sometimes destroy student lives. So I don't think I was wrong to be angry. But that doesn't explain why my reaction was so visceral and aggressive. I will confess that I both hated school and wasn't very good at it. It's also true that nothing particularly bad happened to me there. I was never bullied or friendless. I was never targeted by a malicious teacher or vice principal. I was suspended once for writing graffiti, but had no real impact on my life except to add street cred. But here I am now with Chester Fritz Distinguished Professor with a radio show that's about to celebrate its 10th birthday. So what am I so angry about? It's worth noting that I'm in awe of teachers. My mom, dad, two aunts and two grandparents were teachers. My wife and I are of course, and my second book is dedicated to the professor that changed my life. My daughter's teachers have been most Great as have our school staff, so it isn't the people that anchor me. It's the institution, its politics and policies. My fury is driven by the impersonal aspects of the school that bulldoze individuals for a bureaucratic good. From the institutional perspective, students aren't people their data points. They're the most effective yet they have the least power. Their advocates are the least effective when they represent particular kids and most powerful when they enforce rules. School authority comes from regulations not care. Student individuation is always volunteer work, because the day to day institutional function treats all kids as indistinguishable. My anger, it seems, comes from a feeling of helplessness. It involves recognizing that the real Locus of Power is not the students will be in, but the continual negotiation between career administrators and the well organized extremely whose sole goal is to mold students to their own image? The result? history textbooks full of lies, sex education that teaches nothing about sex underfunding low teacher salaries, and students who become expendable in the battle to liberalize gun rights. This reveals the contradiction at the heart of modern schooling. The very thing that justifies school authority is that which schools cannot do replace parents. Schools are built on the old doctrine and local parenthesis. The notion that schools are authorized to act because their substitute parents acting in the kids best interest. But this misunderstands parental authority, which isn't legitimize by biology or power. It's the result of undivided attention. Let me explain what I mean. My daughter has been the most interesting thing in my life for 13 years, and I've spent significantly more time thinking about her than anything else in my whole life. What makes me a Dina's dad is that I understand All the ways she is different from anyone else. Get all the school bureaucracy knows is what makes her the same. conformity is a form of silence. The best schools identify gifted students to give them opportunities and seek out struggling students to provide assistance. Everyone else just muddles along. I was a middle of the road student. No one paid attention to me except to punish me when I was bad and celebrate my natural talents when I discovered philosophy. The rest of the time, school offered me nothing. And had I wanted more. The school's response would have been to demand that I work harder to distinguish myself. This reveals another contradiction. School was supposed to educate me, but instead it made me responsible for the attention I didn't get. Did I have a right to demand more than I earned? Did I have a right to a better education does anyone These are the questions of today's episode, and they lead to yet another contradiction,
schools or collectives. But rights are individual school seek patterns but rights to note specific people doing specific things. This is why the only time schools appeal to rights is when they're trying to take things away. Administrators like acting as parents because parents Trump rights. But what if we flip this on its head and ask not what rights kids have in the face of bureaucracy, but what rights they have to demand schools be better. On today's episode, we're going to ask whether people have a right to an education, to literacy and to among other things, fair punishment, if they do. This means that schools have to meet students where they are not the other way around. If they don't, it means that school is a privilege and only those who are said to have earned it are entitled to its fruits. This, it seems to me leads to inequality and injustice. And that's worth being angry about. And now our guest, Derrick black is a professor at the University of South Carolina School of Law, his areas of expertise and Education, law and policy, constitutional law, civil rights, evidence and torts. He's the author of numerous articles, and the books zero tolerance, the crisis of absolute school discipline and education, law, equality, fairness and reform. Derek, thanks for joining us on why.
Thanks for having me on.
We're pre recording the show today. So we won't be stopping for comments. But please send us your thoughts at ask why UMD. edu, post them on Twitter Instagram at at y radio show or visit our Facebook firstname.lastname@example.org slash why radio show? You can find links to them and find out how to send us questions for future shows at why Radio show.org. So, Derek, it seems to me that asking whether we have a right to education is a new question. I've skated around it a lot in my work, but I don't recall many conversations that address it directly. Is this a new question or is it just new to me?
Well, I don't think it's a new question. I think there's a new to it because all of a sudden, it's more important than it has been recently. And I think you go through a lot of the challenges that we are facing today with our school system. And so now all of a sudden, you know, people want a way to fight back. And so we are revisiting this question of, you know, what our students rights to public education. There was a there's been a couple of sort of high flashpoints in history that have, you know, made that question become more and less important. And now, it seems it's becoming more important for this generation.
Are we at one of those flash points? Or do we just sort of look at them for guidance?
I think we're at one of those flash points, if you see, or if you look at what's been happening to our school system, and I think, you know, first of all, I should say, I felt like I wanted to take the first three or four minutes of your introduction and make it the preface to the second edition of zero tolerance. We can negotiate that
I'll have my people your
call your people Fortunately, we don't have any people, but it is. Alright. So, but but I do think it's a really important moment in time as we see, you know, education becoming more bureaucratic. We see the public education system itself struggling, right. And, you know, we hear a lot of rights talk out of our Secretary of Education, for instance, about the right to go for private school to go to a voucher or a charter school. And I'm sitting here sort of, you know, banging my head against the wall and think about the right to a decent public education. It's quite strange to me that we have an administration and also commentators are co opting that rights talk to talk about Iraq to something other than public education. That is what gives me an enormous amount of concern. And makes me say, look, we really need to focus on you know, the core right to get something decent at your local public school rather than these other things.
I want to talk about those things specifically in a little bit. But you keep using the phrase rights talk, and we're all really familiar with it. We hear it all the time, there's YouTube rants about people having rights at Walmart. When when people talk about rights, do they address it differently than lawyers do? Is there a distinction between the moral approach to rights and the legal and constitutional approach to rights?
Yeah, there's an enormous difference. I mean, when lawyers talk about rights, they mean that the constitution or a statute, but primarily the Constitution, entitles you to something that you could go into court and say, I'm entitled to this, the state's not giving it to me or the state's interfering with this right. And if the court would have to step in, whereas, you know, as you described it, look, I think outside of sort of the legal environment, we talked about it more of a normative or value or moral based claim upon God. from it. And I think, you know, depending on who you're talking to some people tend more towards morals more. Some others tend more towards the law. But there's, there's a huge variance there. And I think it's also worth noting, I think one of the things that I have struggled with more recently in my scholarship is how do we interpret the rights talk of our forefathers and our founders? You know, what did they really mean when they said, you know, the right to life, liberty and property? Were they just engaging in rights talk of a sort, like, like people not today? Or were they talking about the sort of legal constitutional protections that someone ought to be able to go into court and sue for? I mean, I kind of think it's actually somewhere in between those two things quite often. But
it seems to me that there's an inherent ambiguity because of course, rights aren't delineated as clearly in the constitution as perhaps you or I might want. And then there's also this notion that there are certain rights retained by the people, right that aren't mentioned. And so then you get the Supreme Court and the federal courts, and they have decisions that enumerate these things and explain these things. Once it gets to that point, is it clear? Or does it just muddy the waters? How much can we get? I don't know, certainty about rights by looking at the case law. And by looking at the discussion between the courts.
I think we can get a pretty good deal of certainty by reading the court cases, but I think there is an enormous ambiguity, maybe embedded in what you're what you're talking about, which is, you know, when they were passing, when we were ratifying our Constitution, or we're passing the 14th amendment, the legislative tours did a lot more to protect people's rights. So if you thought about who is it that's going to keep, you know, jack from getting his, you know, school rights, you know, trampled on, they wouldn't have thought necessarily the courts would be the first line of defense, they thought we would be responsive to jack and his concerns, and we know what our ideas are about education. And we'll jump in there and legislate. I mean, there was, you know, there was a lot of civil rights legislation before and after the Civil War. And what we've seen across time, arguably, is our legislators not remaining true to our constitutional commitments, and then it falling upon our courts to sort of enter the breach to close that gap. And that's not to say the courts are right or wrong. I just think in the modern world, we think about our Constitution, what it does, and maybe a much different way than what our founders did. Now, some people would say, Okay, well, that means court shouldn't be doing anything. To me, the answer is no, we have to adapt the times. I mean, the, you know, society has changed. Legal culture has changed and the venues in which we, you know, sort out these issues has changed to a certain extent. I don't think our founders meant to bar courts from getting into these issues.
To the courts ever use the moral language of rights and their decisions, or is it entirely precedent based and text based? And I'm thinking I think, is it Korematsu the decision about the impropriety of putting Japanese Americans in internment camps? That's the right one, right? Well, they said it was.
They didn't write impropriety, the rubber
rubber matches the one that says it's okay. Right. If If, if someone comes along and says it's not can they say in the decision, this is just wrong, this is morally reprehensible. Does that have the power of law? Or do you have to appeal to a particular statute a particular clause in the constitution And a particular text that we hold as having some sort of important value that Trumps opinion.
I mean, that that's a fascinating question. I think it you know, it, maybe I say it varies on the issue. It varies on the speaker. I think the the default rule would be go to the constitutional text first run to the Constitution explicitly protects it. Let's not get into moral moralistic conversation. If there's a clear logical argument under which the text would protect it, let's go to the logic grads in the moral claim. But yet, we can't separate our logic from morals. I mean, you're you know, you're a philosopher, and you've probably got a better explanation as to why we can't, but you know, sort of our morals certainly affect our logical reasoning. And maybe that's a flaw in logic, but nonetheless, that that's that's the way it goes, right. Our logic is bounded by the norms in which we exist to some extent. And so that's my way of saying look I think we see people reach for morals when it when it when it resonates deeply enough, I was reading or rereading portions of a team of rivals the other day. It was about Abraham Lincoln and sort of lead up to his presidency. And then the anti slavery debate comes up and it and I think it was Seward who makes this searing appeal to stopping the slave trade and stopping the growth of slavery. And he makes it from a moral claim. He he lays out this argument that there's no way that our Constitution itself is legitimate if it tolerates morality of slavery, and that there's this sort of higher moral, you know, sort of law that, that, that that sort of, we must adhere to. And when I read that text, I was like, Yeah, like that. You sort of maybe I can use that with some other argument. But But sure enough, um, you know, some other anti slavery people were very upset with with Seward's appeal to this higher moral law because they say we can't enforce that, number one, number two, it's going to change across time. And, you know, we want rules that we can enforce that say stay consistent. So that's sort of one example of, you know, slavery seems like an obvious place where you ought to be able to go into court and make a moral argument. On the other hand, there's reasons why maybe that wasn't a good idea. You know, you look at Kennedy and his discussions of LGBTQ rights, and and you really see morality, it seems to me coming into play quite a bit there.
This is Justice Kennedy, not President Kennedy.
Yeah, Justice Kennedy and his various decisions, recognizing, you know, the right to same sex marriage, recognizing, you know, the right of same sex couples to engage in intimate relationships. There's a tremendous amount of moral talk in there. And he does it through the word liberty, I mean, liberties probably the most, the Vegas word in the contract. tution that we could look at. So what does it mean to have a rod of liberty? Well, he talks about this, you know, ability to set one's own destiny to sort of enter the relationships that that are fulfilling for individuals. And the state does not interfere with that. But there's a tremendous amount of morality, obviously, those opposing same sex marriage are sort of claim that he's actually bringing in morality and the conversation on his his side, I think there's this argument of No, this is the moral decent way that we respect individuals liberty, so, you know, yes, there is plenty of moral talk, but we do have to ground it in some specific constitutional idea
or clause. If we, if we flip that around. I'm gonna ask a question, which I'm gonna have to explain. But is there a floor, a sort of a stupidity floor and what I mean by that is the following. We were talking about a manual con, and I had the students asked whether or not we justified the draft. And one of the students said, Yes, but you have to draft everybody. And and in the conversation, it meant that you have to draft infants to that infants have to be in the army. And so I said to the class, let's assume that Kant wasn't a moron. And, and that if you get when you're dealing with a philosopher, and you get an answer that is just completely stupid, like, infants should be drafted into the army, then you know, you've made a mistake. Is there an equivalent concept in the law, where the courts can look at something and say, this is just dumb? This doesn't make any sense. It runs counter to just not even basic morality, but our basic understanding of the world. And so this just, this can't stand the law can't stand the decision can't stand because it's just stupid. Is there anything like that or is that itself so ambiguous a concept that it doesn't really solve problems?
Well, I mean, I think there's a few places where you can see this this come up. I mean, one is this appeal to rule of law. And I forget the case I was looking at recently. But there is sometimes the court read doesn't have a good answer. And the text might say, well, that's just entirely inconsistent with the rule of law. Maybe it's another way of saying that's just stupid. But But what we're saying is, look, we've set up this system to run in a certain way, right? And it may not even be a specific clause that prohibits you know, this or that. But like, this is just entirely inconsistent with the way our laws operate. Right. And so I think, talking about the presidency is one of those examples. When they say, look, no man is above the law or woman is above the law. Right? And so it is just completely ridiculous to take a position that somehow or another, the President or anyone else in this country might be able to operate outside of the normal rules that we apply to everyone else. So you see it there. We also see these sort of references to historical tradition, which is to say like, we've always done it this way, we've done it this way for a reason. And now you're just sort of throwing out some completely different way of doing things. So we do have these normative values. I don't, you know, courts don't like to use stupid, but I think there is, there's sort of a touch up, you know, this is inconsistent with our all of our historical traditions is inconsistent with the way Congress has done it for, you know, 200 years or what have you. So we do we do see that, but I think it's more I think it's more subtle.
And is there Alas, this with an eye towards our discussion of education? Is there a, an umbrella method way of doing things that everything under the law has to follow? And what I'm really asking is, is education a special case? We talked about education differently than we talked about most things and in your book, and we'll talk about this in more detail after the break in your book. There's a whole discussion of how Punishment does not follow the punishment schools do not follow the same rules as punishment elsewhere. is education a special case or when we start talking about education and rights and constitution and laws, that we have to be consistent with the way that we talk about everything else? Driving jobs, taxes? insert your favorite item in the list here? Is education, the same as everything else and just an instance, or is it fundamentally different? And we have to think about it differently?
Well, I think we have to, yes, we have to think about it differently. Um, and I think two different ways. I mean, one, it's just the status of the child him or herself. Right. You know, you're making the comment earlier about drafting everyone when I was teaching voting the other day, and we were talking about, you know, voting equality and, you know, who all should get to vote and, and in my mind, well, the students were saying, Yeah, look at everyone vote that, you know, doesn't matter as long as you're here. And I said, well, kids too, and well, how can we have a room It says everyone and not include kids. I was like, kind of going back to your stupid point I go, Well, yeah, that makes sense. We're not gonna let eight year olds vote, just not gonna do that. No matter how committed we are to the idea that everyone affected by the law to have a say in it. And so there is something special about children that that says, Look, there's certain stuff we're not going to give them access to, or expose them to because their children that seems wholly appropriate are going to expose them to the draft anymore, then we're going to grant them the right to vote. So that's one thing on the other side, I think that public education is a special institution. And maybe it dovetails into what I just said is that we realize these children are in a stage of development that that requires that we have special obligations to these children that we do special things for them. And that we also realize if we don't treat them special, that we are setting ourselves up. for disaster when they're adults, and quote unquote, no longer special.
This is a great segue into the larger conversation about rights about responsibilities and how we deal with people who are developing rather than we regard as full persons. So we'll deal with all of that stuff after the break. You're listening to Derrick black and jack Russell Weinstein on why philosophical discussions about everyday life We'll be back right after this.
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You're back with wide philosophical discussion about everyday life. I'm your host, jack Russell once and we're talking with Derrick black and asking whether there is a basic right to education and literacy and whether or not things like zero tolerance policies undermine that. And I'm in a particular position because I've been in I've been in school my entire life. I think that this year, I'd probably in the 42nd grade or something like that. And so I get very, I don't know, I'm bothered when students say things like, well, this is just school, we need to prepare for real life, as if school isn't real life and I always respond that the consequences of what happened in school Real, you can get diseases, you can get hurt, you can get smart, you can get dumb, you made friends, you decide what's important to you. All the things that happened in school are real, but they should be at least somewhat safer. They should be more experimental. You do have permission in school to try things and think about things that you might not have the opportunity to do. I decided in my life that I didn't want to leave that venue, ironically, but other people want to get out as quickly as possible. So, Derek, I think the question that I want to ask you related to this is, to what extent does school treat students like it's real life and to what extent are students treated as whole people, full people, or are they a different class because they're younger and don't have the same kind of authority that say, a 49 year old has?
Well, I wish I knew what real life was. You and I have the benefit of some author
So, I don't know. But I think I think that that whole people, a whole person, concept is an important one. And even we have this idealized notion that our schools once taught our children has been hold people. I don't know for sure that's entirely true. It's my sense of things that that was probably more so the case that our children were whole people before. But I think what what we increasingly see now is sort of the, the, the robot making our children into robots and they're all the same and they don't have unique status. They all need to learn the same thing and all the teachers need to teach the exact same thing and they teach at the same time of day the same book, on on and on. And I think that's, that's really dangerous idea if nothing else for the sole of the teachers, most students don't really know it's the same thing as everyone else in the same but they don't know it was the same thing last year. And so I think there's a debilitating thing that happens to teachers when we do that. But it also limits us sort of the freedom of thought, you know, when I think an hour now we are really just philosophizing, what are they, you know, I think about what the real value of public school is. It's not learning the events that occurred in some particular historical period or learning that one is more important than another or, you know, learning rules. And so I think it's really about that development as an individual and exploration and figuring out how to explore I mean, I think that's, that's the key, which I'm sure resonates with some of your, your listeners is that
the information we give children is not as crucial as the skills that we give them. And those skills are going to develop different And the kids have had that freedom. So yeah, I do worry that we're not we're not educating them as whole persons. And the discipline code is another sort of clear aspect of that, that all children must, you know, sit up in their desk in the same way and be quiet in the same way. And, you know, as I saying, in my book, some children don't, I should say, most children do not have the capacity to be quiet all day. I mean, let's just sort of do a thought experiment, which is say, the rule is children shall not speak once they enter the schoolhouse gates at 730. Until lunchtime, they shall be allowed five minutes of conversation at the beginning of lunch, so that they can order what they want to eat and then they shall proceed to to eat and be quiet and say nothing else until we release them at 320. Now, I'd venture to guess that there's a few children who could live up to that rule, but most of them can't. And the problem with that Rule, notwithstanding its absurdity is the idea that all children are the same. And if we set a rule, or we set a curriculum or whatever, that they'll, they'll rise to that occasion and that, you know, anyone who's got children knows that is completely, completely misguided notion. Children don't just do what we say, because we said it. They don't think something's important just because we said it was.
So it's not just your kid to know,
not just my kid too. And so
now you talk to the standardized test makers, you know, and the state level bureaucrats and they'll say, Well, how about we know that the learning anything? And I have to be honest and say, Well, you know, I think it is tough. It is tough to know what kids are learning when when we actually try to teach them the stuff that I say is important to give them those skills. It's not easy to test critical thinking that's at least on a, at least not on a standardized exam. But I think that's really what School ought to be doing. I think that's the stuff that kids get excited about any, you sit at home and, you know, as I do sort of lecturing, give it Well, I'm not meaning to lecture them, but it comes off like a lecture, you know, sort of imparting information and wisdom. And, you know, they're not interested in that right there. They might be interested in having conversation with me about something, but they're not interested in just, you know, following the conversation in the direction that I want it to go.
So there's another tension here, you keep using the word persons, and you're talking about the social idea of a person who has his or her own desires and who has developmental or not. Yet, persons in the law means something different. My daughter in a couple weeks is becoming Bar Mitzvah. So in Jewish law, she's going to be an adult, but she's not committed adult and I'm not going to get rent out of her no matter how much I try and the law by saying she was a person The Jewish law means something different than her being a fully developed human being. When you say persons in that sense and what kids are developed to be able to do, that means one thing does the law treat kids as persons in the same way as it treats adults? Do kids have the same basic rights the same basic freedoms? Man? No, they can't vote, they can't drive. But in terms of the philosophical concept, political concept of a person, does it apply to children?
Great question. I guess my short answer, I think they're like two thirds of the person.
That's not written down anywhere, but then not
three fifths because that's a whole other problem. Yeah,
that's a whole other problem. Um, and but I will say they used to be more like one third or not even a third. And so during the 60s and 70s, the court really did. cross this bridge in which they began extending, you know, freedom of speech and Fourth Amendment, which is the right against search and seizure, they started extending those rights to children in a way that had never been extended before. And there were a lot of there were, that was a controversial there were people in the court said, Wait a minute, yeah. Kids don't have rights in school. They come. They sit down, they shut up. They do what the adults say. And the the at least the majority of Corbin said now that that's that's not true, right? They they are persons who have first amendment rights, they don't shed them at the schoolhouse gate. So why only two thirds of a person now? Well, because after the court said that, they've spent, you know, three decades, scaling back those rights and talking about Well, yeah, they have the right to free speech, but it's not really the same as adults or they have a right to privacy but it's not really the same as adults where they have the right to not be searched, but not in the same way as adult so they're probably more like two thirds Have a person as opposed to a full one at least as far as the Constitution is concerned. And you know, there's really asinine legal debate going on right now in Texas that I think typifies this. So, you know, the court says students have the right to free speech. It also says because they have the right to free speech, you can't force them to pledge allegiance to the flag, right? That the individual child's decision to say, you know what, I want to kneel just like the NFL players have done, because, you know, this is how I feel about America right now. That is the individual child, right? Well, apparently not apparently, there's a rule and Texas School District that says, Well, that's fine. But if you're going to opt out of the pledge of allegiance, we need parental consent for that we need parents to say it's okay for you to to not engage and not do the Pledge of Allegiance and the Texas attorney general, is now siding with the school district and saying that's right. No, the school can require that the student get parental consent. If that's the case, first of all, I think that's legally wrong. But if a court were to validate that what they're really saying is that the children actually has child has no first amendment right, that their first amendment right is subject to whether mom and dad thinks they have it. And they've informed, you know, the principle of it. I mean, that, to me is an incredible concept that is, you know, further scaling back the personhood of children.
It also seems to me to be a wasted teaching opportunity, instead of demanding the permission slip, why not have a conversation about why and have the students think for themselves and I guess that gets back to the standardized test question and the developmental question. When we have conversations like this, is it about education or is it about order? Are is is the the the school role in Texas in the Turney general, are they thinking about how students learn? Or are they thinking about controlling people in a large scale public institution and bureaucracy? what what what's the goal there?
Well, I think it's I think it's control. And it is, you know, trying to make people make it hard for people to diverge from the party line, whatever the party line is. And I think there's an enormous constitutional tension there. And the first school discipline case, which is called gossipy Lopez, the question was, you know, do you have to give students some sort of process before you kick them out of school? How about process we mean, notice of what you've done, and a chance to respond a chance to say I didn't do that or that's not right, or that's not fair. And the Supreme Court said yes, before you exclude a child from school, you have to tell them what it is they've done, give them a chance to respond. And one of the sort of key rationales in that case coming from from the court was what is the lesson we're teaching children If we don't give them notice of what they've done if we just kicked them out, and the Supreme Court said, public schools are actually the first experience that 95% of the people in America ever have with government, this is your introduction to government. And when government deals with you, will deal with you in a way that's respectful and has some back and forth, or will it simply discard you however it sees fit without any explanation? You know, I think the problem as bureaucracies get involved is that we forget that learning experience that we're actually teaching a lesson, and we discipline a child and it's sort of a back and forth lesson and that we respect your side of the story and really, it's going to hear you out before we before we do something to you. But I think it's hard as bureaucracies grow bigger to to stay true to those ideas.
This is a really abstract criticism, and I'd like you to talk a little bit about the The case that made me so angry. In your introduction to your book, you talk about a kid who's suspended for having a knife in his notebook. Would you talk about that case a little bit and how it represents the problem that you're trying to figure out?
Yeah, so there's a middle school student in Loudoun County, Virginia. It's just over the River County over from from Washington, DC. When he was going there was still pretty small county loud. He's loud and big and pretty wealthy at this point, but when he was going there is about a decade or so ago.
He had a friend who had known to be suicidal in the past.
You know, she'd done things herself had issues and I think she had treatment, whatnot. Well, he sees her on a Monday morning and she shows up and she says, you know, I've been suicide. I've been feeling suicidal over the weekend and I've brought a knife to school with him. Thinking about hurting myself. And his response, which I think is the appropriate response of any good developing person is to try to help her and he says, you know, Can I have it? Can I have enough? And she says it's in, it's in my, you know, my locker, you can go get it. It's inside of a notebook. So he goes to the locker and actually, I don't think he ever touched or even saw the knife, at least there's no indication that he did. He just grabs the book binder and takes it and puts it in his own locker. Put it in safekeeping. Well, like any good Middle School, you know, story spreads quickly. Everyone knows about it. And in fact, the principal finds out about it. before lunch, I think it was 1011 o'clock, something like that. And so the principal then calls the this young man, Benjamin Ratner calls him to the office and, and says, you know, do you have Do you have the knife and he says, Yeah, he said, Can you go get it for me? Which actually, I is an incredibly compelling fact. And we read through things so quickly. We don't stop to think about this. But what are the humans doing at this point? The principal says, Can you go get it for me? Now, if we just sent out a blind survey, a standardized survey, how many principles if noticed that a child or a middle school student had a knife would allow them to go get that knife and retrieve it themselves? I would venture to guess that less than one 10th of 1% of principals in the United States would say, yes, let the child go get the knife, but that's what this principle did. And it's telling and that he realized that there was absolutely no danger that this child wasn't a danger that he really hadn't done anything wrong. So john goes and gets the bond and brings it back. And in fact, the principal says, you know, Benjamin, I'm sorry, you did the right thing, but I'm gonna have to suspend you. You know, Benjamin must have been floored at that point. I actually tried to track him down and did track him down. I left a voicemail but had I didn't want to invade his privacy too much. So he maybe had already done too much at that point. He didn't he didn't call me back. I left it at that. But I really did wonder, you know, what sort of went through his mind and what his experience was because you don't get that, from the from the papers, what his experience was what he was thinking. But in any event, the principle suspends them, notwithstanding the fact that he'd said he did the right thing. I think his mom must have been equally shocked, because when he got home a little bit later, there was there was another phone call that said, you know, you guys need to show up at the superintendent's office because we're considering expelling him. We're not just gonna suspend him for a few days and kick him out of school for the rest of the school year. Until I have a hearing and sure enough, they they expel him for the rest of the year. Yeah, the courts get involved and then apart. I mean, that the story thus far upsets me but then what, what upsets me even more is that, you know, the court, who I believe is really there to protect rights to protect students in these sorts of situations, won't get involved to protect Benjamin either it's it's a it's a it upset you it still upsets me now it's a story that just defies any sort of logic that I can come up with. I mean, they offer one but I don't think it's a legitimate logic.
So So while the the the shout outs are in my head, there are there are a variety of things that come to mind and a couple questions. The first is one of the things that doesn't come off when you tell the story, which is pure speculation on my part, which is, how does this girl feel who's already suicidal? And now someone tries to help her and love her who has done the right thing for her, and he's gotten in trouble. Does that make her more suicidal? That seems problematic in and of itself? Then we have two competing questions that I want to ask the first is, is this a violation of due process? Is this an unjust punishment and under the law, and Whether or not the Benjamin is a person, can he appeal to the due process aspects of the law? But after that, I want to ask it have a conversation. What if he turned around and said, by suspending me, you are violating my right to an education? Because that's obviously the point of us being here. But we'll get to that in a second. Can Benjamin say, look, this is arbitrary. This is it doesn't make sense. You followed some procedure, but I'm not represented in that procedure. And that in itself is unjust. Can he do that part?
Yeah, he can. I mean, try to break down the due process as simply as I can. there's sort of two types of due process. One is about Did you did you jump through the right hoops with this child? Did Did you call him in Did you Tell them what have you done? Did you get a chance to respond? Did you have a hearing? Right? That's what we call procedural due process. And that's largely a box checking exercise. Like did you go jump through the hoops, as I said, then there's what we call substantive due process, which is a question about rationality, which is, what do you have a good reason for suspending the kid? Does it make sense? You know, we know you went jumped through all the hoops, but does it make sense? And it's very, very easy case for a court to say you didn't jump through the right hoops, right? The hoop is give them notice you didn't give them notice you violated that. On this question of rationality courts are extremely, extremely deferential to the school's rationality. And I think there's a lot of undeveloped thinking by the courts there that they just they don't want to get involved. They've never wanted to get involved. The general rule is we don't second guess the substantive decisions of School officials and and I appreciate that. I don't think that that courts should second guess everything a school does. On the other hand, if the question is whether this is a rational action or a rational rule for that matter by the school, I think we've at least got to go through the analysis before we reach that decision. But what we saw in Benjamin's cases, no more than a sentence or what literally, I think I say in my book, I think they spent one paragraph, a single paragraph dealing with and justifying the rationality of what the school had done. I don't think that's serious, serious analysis or serious attention. So I think, you know, in part, go back to your question, yes, he has rots. Ah, my feeling is a lot of courts don't respect those rights. They don't they're not explicitly rejecting them, but they're sort of they're not respecting them or not taking them seriously and so kids aren't getting a fair chance to have their have their day in court.
I want to interrupt and ask this, which is, are they not respecting those rights? Because those rights are not adequately codified in law? Or are they not respecting those rights? Because judges are, as we're all completely immersed in at the moment, ultimately political figures who are responding to political pressures. What's the major cause of this lack of respect? Is there just no tradition of children's rights and therefore it needs to be developed? Or are they ignoring it for rhetorical, political, strategic reasons?
I think there's not a tradition there on this question of sort of the rationality of the punishment, that the initial assumption of the court during the 60s and 70s is, if we can just get schools to have hearings, to sort of give the procedural due process they'll make good decisions, right. That'll fix it. That was the hope. We didn't have zero tolerance, then. All right, we didn't have the level of suspensions and expulsions, then that we have now. So, you know, I don't know, maybe the court was right, maybe it was wrong, then. But the court has never had to come back to the serious question of well, if if giving a hearing is not enough to make suspension or school discipline rational, do we need to call it some new rules to help it be a little bit more rational. So without because the Supreme Court has not sort of revisited the basic rationality of the rules themselves in any serious way? We're stuck with well, as long as you've jumped through the hoops of giving hearing, it's probably irrational decision by the court. So just enormous amount of discretion there. And and I think the court hasn't revisited that again, because, again, there's a there's a lot of concern that, you know, courts will make things worse rather than better. You know, that that school officials will begin acting defensively and You know, making decisions not based upon pedagogy, but on what they think a chord is going to say. And I don't think that's a good place either. I don't think our educators should be running around making decisions about children based upon what they think courts are going to say about
is, is there a sense? And again, I think I might have to explain this. But is there a sense that schools are afraid of the children and what I mean by that is starting in the 1950s, when America develops a real teenage culture, and rock and roll starts to embody sexuality and violence, there's a tamp down a clamp down on teenage life and then the 1960s and 70s makes it worse. And then in the 1980s 90s. This becomes very politicized in terms of two strikes laws and increasing prison population. And when I look at high schools Particularly one of the things I see and this is now expanding to middle schools. A deep seated fear of teenage sexuality, of teenage rebellion. is some of this a core fear of the power and the uncomfortableness that teenagers in particular cause on cause some people to have? Or is it really just in the educational strict educational realm? And again, we just don't have that tradition to work with?
Oh, that's a tough question. I mean, I think if you read some of some of the cases about 10 years ago dealing with with drug testing of students, what you see there is this fear of drugs wrestler that that kids are gonna be plagued by them and, like, you know, you're a parent, I'm a parent, I certainly worry about that. This thing that's striking though, is if you read cases that are 10 years older than that 20 years, 30 years, like, people have always been worried about their kids getting into stuff, right. And every time you see a court talk about it, it's always the worst time in history. Drugs are run amok and the kids and doing this and that and so, you know, so there is this sort of slippery slope, you know, fear about how how bad things will get if we get involved or how things how bad they'll get if we don't let schools do this or that to kids. So, so there is that, um, I guess it would also come back to your statement earlier about, you know, just who's on the court. I mean, I do think and this is not a political party issue, I mean, you know, lawyers there there is a good deal of, of conservatism in us all right, that we actually believe you have to follow the Constitution. You don't do What you think is right, you follow the Constitution, right? We don't just put it up for democratic vote every time we do what the Constitution says. And so lawyers as a group, legal structures, that institution maintain the status quo, right. And the status quo is government power in many respects. And so I do think there's this built in or I know there's this built in deference to government power, that's also at play here. So you've got a child population that's at risk of being overrun with drugs. And we've got this sort of government benevolent government power on the other side, and, you know, with those two factors, yeah, let's, let's, let's defer to the state on this.
Okay, so let's revisit the Benjamin case. Let me ask that second question that I asked. So suppose, independent of the due process or lack thereof. Benjamin comes back with an ACLU lawyer in tow and says, You can't suspend me. You can't expel me because That would violate my right to education. I have I have a basic fundamental right to have access to this school and to learn, is that a coherent statement? Does that make sense? And what can you do with it?
Yeah, that is coherent on everything you have to talk about constitutions. I mean, the one thing that actually entitles students to any sort of due process is the idea that there's a right that's been taking away. So the only time the government has to give you process for anything, is if you've got a rot that they're taking away. And so, you know, the court said, kids have a statutory right to be there, right? Actually, they're compelled by law to be there. And so his right to education triggers the due process. And then we get into, I think, maybe what maybe maybe what you're getting at is, let's just assume, let's assume, well, Benjamin did break the rules, but let's let's change the facts for a minute and say, you know, there's a rule against Fighting. Benjamin gotten to finally punch someone, and now they've suspended him for it. Does Benjamin still have a claim to say you can't just suspend me for the rest of the year? Because I have a right to education? Right. And so that that has came that has come up in some state court cases. And the way that sort of filters out is to say what depends on some law say some courts have go Well, that doesn't apply to discipline, the sort of rights talked about doesn't it doesn't doesn't apply to suspensions, if there's a rule and you broke it. That's it. I think those cases are problematic, but but for the most part, what you see is a little bit of a, if the court does the analysis correctly, a little bit of balancing, which says, Well, you know, how important is the state's interest here? Like, can they, you know, is suspending a kid for for fighting, putting aside the facts of the individual case? Is that a legitimate rule? Does the State have a sufficient basis for that? And the courts would say, yeah, yeah. Finding that that seems reasonable. Then there's another question that this says, Well had the state gone about this and the least restrictive means, which is to say, okay, we understand the state has a good reason for for prohibiting and punishing kids who get in fights. But does that mean they can like, kick you out of school forever? Right? Is that necessary? Or does it just mean maybe shave in school suspension instead? And so what we're looking at are often looking at this as if there's a sufficiently important rot on the part of kids, even if the school has a reason to take it away. We want to we want them to do it in the least intrusive way. Right. So let's use a different example. Talking shot. Yeah, the school can say no talking or you know, no talking during instruction, or you have to obey rules and the teacher tells you to be quiet. Does that mean it could you know, if you start school in September first, they could suspend you for the next eight months because you didn't shut up when the teacher told you I mean, that seems to be Isn't there some lesser way to take care of it? And that's part of, of what I try to talk about in my book is on this question as well, the courts have refused to evaluate the threat the child is posing in relationship to the schools need to remove them once, instead of engaging in that balance, which would be the appropriate thing. What courts tend to say is, did the school have a rule? Is that a legitimate rule? Ie no talking? Did the student violate that rule? Yes. Okay, we're done. There was a rule it was a legitimate piece of spin on punishments up to the school. I think a serious constitutional evaluation of that shows that I can't stand it cannot be the case of the school could suspend and expel a student for the rest of the year because they talk during the first period of of class but if you look at some of the Supreme Court opinions including Benjamin Ratner's, which Have should say, Court of Appeals. If you look at Benjamin Ratner's opinion in the Fourth Circuit, it is consistent. It is consistent with the idea that a school could could suspend a student for the rest of the year for talking in school. I
there's, there's a lot that I want to ask you. But I actually want to take us down a more complicated road to see if we can get back here. Because I want to take this away from punishment and ask about education in itself. So suppose someone comes along and says, I've been in school for 10 years, and I don't know how to read. You have violated my rights by not teaching me to read. It's not that I didn't come to school. It's not that I caused problems. I came. I didn't learn how to read. I have a right to literacy and you didn't give it To me, the first question is, is that legally coherent? Is there a tradition for that? And second, suppose someone comes along and says, You didn't give me literacy, you didn't teach me to read. I'm gonna sue for damages. I know that, that brings in a whole other can of worms. But what I'm really asking is, we're talking about the right to education in a very abstract way. And what we're really talking about, for the most part is the right to access to instant educational institutions, the right to be at school. And what seems to be the next question is, is there a right to education in and of itself to learning and if a student doesn't learn if a student isn't taught properly, has the school not just not done its job, but has the school violated a right that a student has?
Well, on the question of tradition, I would say there's not a there's not a good tradition of That sort of right, that individual right that you're talking about, we should say quickly, and then we can come back to it or move on whatever. Now, we do have a statute for students with disabilities, and that does have individual rights and it and those students can get damages so students can get compensation, they can get remedial stuff. And so there's a very robust sort of set of statutory rights for for students with special education disability needs. For the rest of the students. There isn't that tradition as an individual. What we do have, however, and this is a fine distinction, so I'll try to make it clear, is this notion that the state has a duty to all children, right. So you know, you know whether my son could come in pen Sue and say, hey, you're you didn't, you didn't give me what I needed. You know, we don't have a tradition of that. Cool. My son's school group of children as an entirety say, hey, this school stinks. You know, three quarters of us can't read, you know, the state isn't doing what it needs to do. We do have a tradition, at least three decades of tradition in our state courts in which state Supreme Courts have began to say, yes, states do have a duty to provide an adequate and equal education to all students across the state. But again, what we're talking about is a duty to the students as a whole, not yamana let individual john or Jimmy come in here and Sue, because they didn't get what they needed.
So we're making this distinction, which I guess I'd like to ask you about, between a right and a duty. How do those two things relate?
Now we're gonna put people to sleep. So
they like philosophy. It's okay. You have permission?
Yeah, so I guess I guess The answer is like, generally speaking, anytime there's a duty the duty of one party, that means somebody else has arrived. That's like, that's the general rule. So like, 90% of the time, if someone has a duty to do something, that means somebody else has a right to receive it. We've got a few exceptions. There's one exception to that which courts have recognized in personal liability cases, which is to say, yeah, you know, law enforcement has a duty, right to go out and investigate crimes. And, you know, if it were the case that, you know, the police officers were just eating doughnuts all day, and they were well invested crime, investigating crime, maybe we could bring a claim about that. But that doesn't mean that when Derek black calls and says, hey, there's a break in at my house, that they have to drop everything else they're doing, drop all their other investigations, or prioritize Derek ahead of everyone else, right. So they have a duty to do their job, but that doesn't mean Derek has a right to Have them come out to his house, when he says, get here now. And so we do we have seen that with law enforcement. We've seen it with fire departments. And that makes sense, right? Because there are these sort of priorities that police have to make, right? Like, what is we're going to be policing at this time of day or not? And how much money are we gonna spend? So we see it there. In education context, I'll have to be honest, the courts have not wanted to touch that distinction. They have used the word education as a fundamental right. And some of my friends go What do they really mean that that they mean that it's a fundamental right, are they really saying that government has a duty? And so, you know, I that hasn't been fully fleshed out there. But I think if you look at the holistic body of you know, education quality, you know, litigation, what you would say is that probably what the court is doing is talking about a duty to students as a whole, not around At individual students can enforce. Now when I say something else that makes no sense anyone which is but, you know, john q student, you know, sues the state. And so it's like, you know, john smith against, you know, North Dakota, and says, you know, I'm not getting my, I'm not receiving an adequate education, here's the evidence in regard to me and my peers and all of this, and the courts will entertain this and take this case and never get into this distinction between the individual and the group 30. But the remedy, the remedy that they will give to, you know, Mr. Smith, is not, you know, a remedy for him as an individual it will be I remember the aim that his entire school or the entire state, potentially.
So so and you use these words, and I was gonna ask about them to duty seems group oriented collective, right seems individual and so we're at that same problem that I articulated in the beginning of the episode, which is when I express my frustrations about schools. It's frustration as an individual, not a group, Michael Apple of philosophy education has been on the show a couple times makes a point of saying, look, despite the fact that we have criticisms of our public schools, the public school graduates more people than it ever has in history. It has more diverse population than it ever has in history. It has been more successful in in most regards than it ever has in history, and that we shouldn't just denigrate the schools because they're easy to denigrate. And I am totally sympathetic to that. But I'm really interested in this notion of the individual experience of a student because this right is individual in nature. So what remedy is there at all for the student who isn't taught to read? Is it simply a boot strap, right? You have to pull yourself up, you have to make yourself read. And of course, we forget that the phrase bootstrap actually implies impossibility, right? That you can't pull someone up. But but but someone can't pull themselves up by their own bootstraps. That's the point. Right? So but is it? Is it ultimately there is no right because ultimately, I think it's the individual student's responsibility to solve this problem for him or herself with his or her family. That seems to me to be problematic. So I'm gonna just repeat the question perhaps in a different way. Is there anything that an individual can do to say, I have this right to literacy I have this right to read, I have this right to write you haven't taught me. You owe me something as an individual, not because I have special needs. But because I'm me, a person in a system is there any way to deal with that? I know it's a hard question.
Now, I just don't want to give you the answer.
So the, I think the cold hard reality is that as the law stands now, the answer is no. There is no such thing. I should say there is no, there is no current enforcement of an individual rod of the sword he just mentioned. And I hesitate to say that because I mean, right that, that that's a cold, hard truth. Now, I'll say there's there is another side of this, and this is that maybe the dirty underside of of litigating social justice. And that even goes back to school desegregation, that when we talk about education reform, and we talk about education rights, and the courts, we have, when I say we, I mean civil rights attorneys and even the plaintiffs who step forward We have always been fighting for the next generation. We've never fought for the current generation. And that's not a critique. But that that is the nature of the beast. So, you know those children? Well, there are a few children that are a few children who were part of the school desegregation movement who got to see the fruits of their labors. Although those were sometimes dirty fruits, but but in any event, but most of the time we those folks understood that they were fighting for for their grandkids or their own kids. And, and that's troubling and I think when we talk about our when I talk about our, you know, state constitutional claims to an adequate and equal education, those children are fighting for the next generation. I think his first name was john, but Mr. Leandro brought a lawsuit in North Carolina. And, you know, by the time the Supreme Court had done anything serious with his case? He was in college. And I think, you know, Mr. Leandra understood that when he brought that case, it wasn't gonna benefit him. And so that's the nature of and I guess we could we could have a philosophical discussion about the nature of social justice and whether we ought to focus more on the current generation that later on, but that's the way civil rights advocates have attacked these, these issues. And I guess I would, you know, get ahead of that and go let me pose it to myself is that a smart strategy and one respect, and one respect it is because if we were really going to get serious about what it meant to remedy the harm of school desegregation for children who were in the ninth 10th 11th and 12th grade, whatever it was back then, who had suffered, already suffered, you know, a decade of educational deficit and harm although a lot of the you know, many of the African American schools were really great but they were underfunded. You know, and that that child, graduate Some can't get a good job or can't go to college. What's the remedy for that kid? Well, the remedy for that kid is a lot of money, right? lost wages, lost education opportunity that can never be gotten back. But if that was the claim that you marched into, you know, federal district court and Somerville, you know, South Carolina and said, We want these children to get, you know, checks for what segregation has done to their lives. Court wouldn't have done it, no way. You know, so, you know, there is a reality, which is No, there's nothing for us individually, right here. And now it's for the next generation, and maybe that's the best we can hope for. On the other hand, I mean, I have written a couple of pieces. And, and Jim Ryan, Dean of, I should say, president of University of Virginia now great education scholars made the same point that maybe there are some ways that we could force force the here and now on states, and it would actually do a better job of compelling them to provide a good education. So here in South Carolina, for instance, I wrote an op ed, we're dealing with our school funding and quality issues and, and the state isn't, you know, acting in good faith in my mind or at least not coming up with a remedy in short order. And like he can't make the legislature pass new funding bills. No one can do that. It's up to them. But I said, but what a court could do, they could say, we know that the children in these 10 schools are receiving an inadequate education. And we know that in the suburbs of Columbia, South Carolina's kids are getting a pretty good education. It's pretty good school is pretty good teachers and pretty good funding. And so what we are going to do while the state is figuring out how to fund education better is we are going to
order the state to Immediately allow for the enrollment of these children across the school district boundaries. I mean, can you imagine that now that like 1000 kids show up, but you don't know our mo but our mo hospital and knock on it. We're here today we're here for our public education. Right. And you have this happening across the state, I can tell you that state would move with lightning speed to come up with a remedy for the educational challenges that children and struggling schools face. So you know, maybe there are maybe we ought to be more creative about what we're asking for so that we can instead of me telling, you know, there's no remedy for for john Q, in the here, and now maybe we can find one that we just haven't been bold enough to do that yet.
So so I want to say first, because it's been rolling around that, that, that the statement that you just made, that social justice is always concerned fighting for the next generation is one of the more powerful things than anyone has ever said on the show. It's immensely intuitive. Right, and meaningful, and both incredibly inspiring and tremendously disappointing at the same time. So I mean, thank you for that, because I think it helps me understand things. And so then we have this question, which is, does that mean that the remedies are purely political? Or can there be court based legal actions for the constitutional scholars? You and I very briefly, when we met before the show, had a brief reference to the teacher strikes across the state. Is that something that we can understand in terms of the right to education? are teachers fighting for that? And is that something that is a substitute for working with the courts? Is it supplemental to working with the courts? Is it parallel but independent? How do we address this problem? Problem. Yeah, actually and legally, right. Yeah. Please, socially and legally, what's happening there?
Well, I should start off by saying there has never been I shouldn't say never. That's dangerous there. I can't think of an instance in which a court has announced a major civil rights or education victory. And which the remedy just happened because the court said so. Right. Right, just right. And so one of the things that we emphasize with with our school quality, adequacy and equity litigation is that if you, if you're just going to go into court and litigate your case, you might as well hang it up and go home, unless there is grassroots advocacy, that places pressure on the legislature or the local school board or whoever the state power may be, unless there is a coordinated effort outside of that court to make the make real people outside Have the court live up to the ideas that the court announced it will not happen. And we've seen that in a number of states. So, you know, I don't want to probably engage in too much court glorification. So I offer that to say we shouldn't glorify them too much. And it's often the case to be quite honest that a court will only recognize a rot after people have been beaten on the doors for a decade. Right. They are they are not a progressive group. They are one to follow the wave of the people rather than leaving the waves themselves. So so we recognize that, you know, as the teacher strikes, I think, yeah, this is a great example of you know, we haven't we have seen a lot of harm done to public education since the recession. You know, we've got about 30 states spending less today and real dollar terms on public education than they did before the recession started. Stock Market is on fire tax revenues are On fire, we're spending less today on public education in real dollar terms than we did in 2008, before the recession, and that's a good that's sort of the major explanation for why we saw teachers across this nation striking this year. I said, Look, we've been dealing with, you know, tattered books for a decade, we've seen our class sizes grow for a decade, we've seen our salaries remained stagnant for a decade while everyone else is doing well. We've seen fewer people coming into the teacher pipeline, we see students with needs that aren't being met, and the states won't do anything. All right, and in fact, we've had people come in and make fancy, you know, constitutional claims, like we've been talking about you got a right to an adequate equal education. And legislators have kicked the can down the road or, you know, found ways to get out of it or delay having teacher said, we've had enough. Enough. And so what is amazing is how That shows strength by teachers achieved something in a matter of weeks or two weeks, that would have taken, you know, attorneys years to achieve. And so there is there is something quite amazing and the power of the people to, to actually say we don't need a court to enforce, you know, the state's duty for education, we'll do it ourselves. Now, I don't want to be too too naive about that either. You know, the people that those teachers were negotiating with, I do not believe they're committed to the constitutional obligations that they have. And so they did what they need to do to get the teacher to go back to work. They have not changed their approach to public education.
So you have a wonderful piece, which I will link to on the website about the history of the rights education, stemming from the 14th amendment and after the Civil War, and one of the things point out, which you've alluded to is that we have that whatever rights there are to education are on the state level, not on the federal level. And we're running out of time. So Alaska sort of generic question, which is, is there a reason for optimism? Do you feel optimism about the future of the rights of education, not just education institutions, but do you think that progress is being made and will be made in terms of this tradition of thinking education in terms of rights, or do you feel pessimistic? And do you think that in the end, it's going to be the vicissitudes of politics and social interaction that makes us decision as as a constitutional lawyer? Is there reason for optimism,
yet? 2.2 part answer and in the spring of 2016, I thought we were on the verge of a new constitutional hair. Education and partly because what I had sort of discovered in regard to the right to education I thought I had found, you know, the Holy Grail is one of my colleagues called it although he caution TV, but nonetheless a cautioning against holy grail thinking, but I thought I had it. And I stumbled across it. So like an archaeologist, just sweeping dirt away looking for her bones, and then they find an alien artifact, or I don't know if that's ever happened. But in any event, so I was extremely optimistic as I see the Supreme Court changing now, I worry. Not that I didn't find the holy grail, but that some judges might just smash it and if you break the holy grail, you don't you can't put it back together at some later point. So So, and that's sort of a political conversation who's on the court, but, you know, what is that whole Grail, at least as I would describe it, well, there's this fascinating thing that happened, you know, in 1865 to 1868, which was, you know, we just had a civil war and Congress had to put our nation back together, right? We've got illiteracy rates in the south that are four times the literacy rate in the north, and I'm just talking about white folks. You know, and of course, we've got millions of African Americans who've been held in slavery, for whom it is a crime has been a crime to read and write. Alright, so Commerce has come up with a solution how we could build democracy in a place that, you know, a lot of white folks can't read, and they can't vote either. A lot of white folks, you know, without land couldn't vote, white women couldn't vote, and, of course, all African Americans how we're going to make democracy and Congress passes the reconstruction act. We have got a number of states that ratify the 14th amendment, but the 14th amendment isn't part of the Constitution yet. And so Congress says, here's our plan. Southern states, if you want to be part of this nation again. Alright, we've got a few conditions for you. And in fact, the Constitution gives Congress the authority to place those conditions constitution says Congress has the authority to ensure what we call a republican form of government, in every state, by a republican form of government will just say, direct democracy to ensure a working real democracy there. And so Congress says, we know how we're going to do that one, you're going to let everybody vote? Not when you're gonna let all the males vote. Right. And this is before we even past 15 minutes, and you're going to rewrite your constitutions and make sure you're providing public education.
reconstruction act is 1867. Congress does this.
In a matter of two years.
Every single southern state amend its constitution to affirm provide for public education. Now, most people have looked at this, this the state constitution independently of reconstruction independently of Congress, they just said, Okay, well, you know, North Carolina's constitution dates back to 1868. on education, South Carolina's 1868, Texas 1870. You know, that's the years, what I did was say, wait a minute, this didn't happen by accident. That what Congress was saying is that what it means to have a democratic society, we have come to learn through era, because we didn't have it in the south means public education, and you're going to do it. And all the southern states do it. And in fact, the last three states to be readmitted Mississippi, Texas, and Virginia and their readmission statute, Congress specifically writes down that those states shall never take away those education rights from the people. So we have this cataclysmic shift about what It means to be a democratic society what it means to comply with the Constitution. And I'll also argue that those rights become vested in the 14th amendment itself. There's additional history I think that sort of confirms my sense of how things change, which is the northern states then began readmit being began amending their constitutions of their own volition. And when they do so, they include education. And following the Civil War, we had, you know, another 20 or so states to be admitted, no state would ever again be admitted to the United States of America without a clause in its state constitution, guaranteeing education. So I take that history, I take those events to say, education became an a constitutional sense, a federal constitutional sense, a duty that states must carry out. Now that doesn't answer the question of what's that education supposed to look like? I've got plenty of research on that, but we don't have time to talk about it. But this idea that is that some that has been accepted as conventional wisdom for the past, you know, several decades this sort of idea that, you know, states can have or not have public education, as they see fit argue is completely refuted by that period in 1865 1868, that our federal constitution does obligate the provision of public education. And then, you know, we want to talk about later some other time what that education looks like, I'm happy to have you to come back.
The problem is that what you just did was start an episode. With an ended episode, I have about four more hours of questions that I want to ask you. I will tell the audience that you summarize a lot of this in this piece that I referenced earlier, so I will put it on the website. It's incredibly interesting. And in the context of this conversation, it's really helpful and really exciting. And I guess all you need to do is find someone with standing to get yourself to the Supreme Court and make that argument and when you do, I will be there by your side. Derek, thank you so much. for joining us on why this has been fascinating and challenging and really wonderful.
You've had been listening to Derrick black and jack Russell Weinstein on why philosophical discussion that everyday life we've been talking about the right to education, and I will be back with a few thoughts right after this.
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You're back with wide philosophical discussions about everyday life. I'm your host, jack Russell Weinstein, we were talking with Derrick black about whether or not there is a right to education and what the consequences of that might be. Does it mean that people can get a certain amount of education? Does it mean that students shouldn't be punished? Does it mean that we have to appeal to the law or social justice? These are deep questions. But what I found tremendously interesting was that at the end, when Derrick offered a optimistic solution, he had to go back to reconstruction. He had said several times during the discussion, there's no tradition of individual rights of students. There's no tradition of appealing to the rights for quality of education. And at the same time, what he meant was, we have to find that thread that extends back to the beginning, and he thinks he has and that's amazing to me. It's amazing to me that the solution to this problem is not something new. But something old that when we look at the time that America was most divided, and came back together, the rules for coming back together or the place, we have to look for the solution. Maybe this shouldn't be surprising. Maybe that division is also the cause of our problems. We didn't spend a lot of time talking about racial disparity in education. But we know it's there. We didn't really talk about Brown versus Board of Education, and the idea of separate but equal being unconstitutional, but we know it's there. We didn't talk about the social forces that divide student from student, but we know they're there. Instead, we talked about school as an institution and we talked about the laws and the structures that help establish what a school is. And if we want to find that answer, we have to go back to the place where it all started, or rather, I should say to the place where we Got to rethink it once again. And that's reconstruction. The right to an education is essential to a democracy. Democracy is built on citizens participating, and having all the capacities, the capacity for argumentation, the capacity for a reasoning, the capacity for discussion, the capacity to learn. And when you're rebuilding a democracy after a crisis, like the Civil War, you want everyone to have that. Now it's 2018. And we want people to have that, for the first time. Again, I'm not sure what the words would be. But the tradition tells us that if we want to solve a problem, like inadequate education, we should go to the place where we had to solve all of the problems. We have to go to the place when we had to rethink who we are, and that involves reconstruction law as a tradition, and if we're going to appeal to the continent, And the cases and the discussion we have to appeal to history. Derek reminded us the problem that we face is a long standing problem and feels new because it's relevant, but it's as old as democracy itself. You've been listening to jack Russell Weinstein and why philosophical discussions about everyday life. Thank you for listening. And as always, it's an honor to be with you.
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