The legal fight to preserve public education — and democracy

We were forewarned. Even before Trump, there were signs of trouble in our democracy. In the 1990s, we witnessed increasing polarization within the federal government, the Gingrich revolution, and prolonged government shutdowns over budget impasses between the parties. In the 2000s, we were hit by a politicized and damaged Supreme Court (Bush v. Gore); 9/11 and the ensuing military and cultural reaction; the Great Recession; and the rise of the Tea Party. And between 2010 and 2016, we experienced a weakening of voting rights and campaign finance laws and a near-total inability of government to tackle big problems (save health care, barely), whether gun control or criminal justice or climate change.

Since 2017, though, we’ve seen an accelerating destruction of democratic norms and safeguards. All three branches of the federal government showed signs of extremism and disregard for the common welfare. By 2018, political leadership in the states, heavily shaped by gerrymandering, skewed toward increasingly hard-right conservatives (although alarm at the actions of President Donald Trump partially reversed this trend for the 2020 and 2022 election cycles). It’s clear by now that polarization and disinformation have run rife through media and social media channels. COVID-19 has laid bare our lack of public health infrastructure and surfaced anger at governmental restrictions on liberty, even for the purpose of saving lives. The nation has staggered through multiple waves of social and cultural upheaval, including stunning backlashes to activism over Black Lives Matter, #MeToo, and advances in LGBTQ+ (particularly transgender) rights.

Like democracy, public education has not been immune to social upheaval. Between 1954 and 2016, schools grappled with (or, in many cases, ignored or resisted) vast disparities in educational opportunity, the Brown v. Board desegregation mandate, new federal regulations for educating students with disabilities, and the federally mandated accountability requirements imposed under the No Child Left Behind Act. Curriculum and culture wars also flared up, notably over the teaching of sex education (see Brown v. Hot, Sexy and Safer Productions, Inc., 1st Cir., 1995) and creationism (see Edwards v. Aguillard, U.S. Sup. Ct., 1987).

Today’s attacks on public education

Today, public education is experiencing an astonishing, multipronged attack. School privatization or “voucher” programs — once an experiment conducted by only one or two states — are now sweeping the nation. Between 2012 and 2021, there was a nearly threefold increase in the number of students using vouchers to attend private schools. Voucher programs transfer billions in taxpayer dollars out of the public school system — often subsidizing parents whose children never attended public schools while saddling low-income parents with additional expenses (Abrams & Koutsavlis, 2023). More than half of states have already enacted some kind of voucher program, and bills to establish or expand voucher programs are pending in at least 24 states (Hinh, 2023).

Meanwhile, public school funding litigation has, with few exceptions, stalled or gone backward. In 21 states, students lack either a right to educational equity and adequacy or a way to enforce those rights (Center for Educational Equity at Teachers College, n.d.). In many of the remaining states, students still experience unconscionably low levels of per-pupil funding and gaping disparities in funding between districts and between schools within districts (Farrie & Sciarra, 2023). Even recent, isolated statewide school funding victories remain unsettled (as in Pennsylvania) or are in danger of unraveling (as in North Carolina).

A third line of attack on public education began in earnest in September 2020, when the Trump administration issued a memo to federal agencies directing them to identify and cancel any staff training programs that focus on “critical race theory” (CRT) or “white privilege.” Weeks later, Trump issued an executive order that restricted the federal government and its contractors from conducting diversity training that examined systemic racism, white privilege, and other issues involving race and gender bias. Although President Joe Biden revoked that executive order on his first day in office, 44 states have since proposed legislation or executive actions banning or limiting the teaching of principles attributed to CRT in public schools (Schwartz, 2023). The anti-CRT and anti-LGBTQ+ movements have fueled a push to remove books perceived to be inappropriate, from All Boys Aren’t Blue to The Bluest Eye, from school libraries or curricula. And a rash of “bounty hunter”-style laws threaten civil and even criminal penalties on teachers who engage in discussion related to race, religion, or LGBTQ+ issues in the classroom (Kim, 2022b). These criticisms of “woke” teaching in schools is reminiscent of reactionary, anti-feminist, and anti-LGBTQ+ movements during the 1970s.

Connecting the dots

These attacks on public education are not unrelated. Since the 1950s, opponents of racial integration and diversity have promoted voucher-like programs to enable white students to attend private, segregated schools (Ford, Johnson, & Partalow, 2017). Unlike public schools, most private (especially religiously affiliated) schools may freely discriminate against students or employees without violating the U.S. Constitution. Fifteen of the 18 states that have passed anti-CRT laws have also passed school voucher laws — and the remaining three anti-CRT states have pending voucher legislation (Public Funds Public Schools, 2023; Schwartz, 2023). Voucher proponents are clearly aiming to sow discontent about public schools through anti-CRT scare tactics — and then ram voucher proposals through state legislatures. We can see this dynamic play out in Texas (Walsh & Self-Walbrick, 2023). In addition, states that have passed school privatization and anti-CRT laws are overwhelmingly the ones that have the lowest per-pupil funding levels in the nation.

The threats to education and democracy also are related. Those who are driving attacks on public education are often aligned with those who want to cut taxes and disinvest in social welfare, including Social Security, Medicare, and even the Internal Revenue Service. Underfunding and privatization of public schools, whose student population is now majority non-white, combined with the ban of teaching concepts such as systemic racism and white privilege in schools, suggest not only long-standing discomfort with racial integration but also, disturbingly, the education of non-white children generally. (If that seems crazy, let’s not forget that, through much of the 19th century, the education of Black Americans was criminalized across the South and banned in many Northern states as well.)

The common, overarching goal of anti-education and anti-democracy efforts is clear: concentrate power and wealth, weaken government programs that spur social mobility, and foment public resistance and hostility to societal diversity and equity.

The role of law to preserve public education

The courts have played a pivotal role in whether public education receives legal protection. On vouchers, the U.S. Supreme Court has concluded that, under federal law, state voucher programs, if available to nonsectarian schools, must include religious schools (Kim 2022a), but advocates have continued to argue that voucher programs themselves violate state constitutions and laws. There have been some victories, including in Kentucky and Nevada, but also recent setbacks, including in West Virginia.

On school funding, lawyers and advocates must wage at least three distinct types of battles (Rebell, 2022):

• Pressing for favorable remedies in states with pending (e.g., New Hampshire and Wyoming) or recently decided cases (e.g., New Mexico and Pennsylvania).

• Initiating advocacy or litigation in states where courts have asserted jurisdiction over school funding but have not meaningfully engaged on the topic since the Great Recession, which caused school funding to plummet (e.g., Virginia and Wisconsin).

• Increasing advocacy in states where courts have ruled that school funding issues are outside the courts’ purview (e.g., Missouri and Mississippi).

On diversity and discrimination, the American Civil Liberties Union and other organizations have mounted cases in multiple states, with an eye toward turning back censorship, book bans, and anti-CRT laws. While these efforts are clearly necessary, they’re dwarfed by the mountain of discrimination claims that  students of color, immigrants, English learners, victims of sexual harassment, LGBTQ+ students, and students with disabilities have filed. In July 2022, the federal Office for Civil Rights projected that it would receive more than 28,000 student civil rights complaints by the end of the year. The federal government simply cannot resolve this volume of complaints without meaningful assistance from state and local agencies and advocates.

Looking ahead: Fighting in the courts won’t be enough

In Plyler v. Doe (1982), the U.S. Supreme Court stated that “public schools [are] a most vital civic institution for the preservation of a democratic system of government” and that “education has a fundamental role in maintaining the fabric of our society.” These words have never rung truer than today.

Given the magnitude of the current assault on public schools and democracy, what’s needed is nothing short of a new civil rights movement focused not just on defending public education and democracy but on pursuing affirmative strategies to strengthen them. Lessons from the school finance front teach us that litigation alone won’t succeed (Sciarra & Dingerson, 2022). Broad civic engagement, robust advocacy campaigns, research, and a strong communications effort also are necessary. And while some states have a rich advocacy infrastructure in place, others are virtual advocacy deserts that need considerable reinforcements from national organizations and organizations in sister states.

As we stare down an existential threat to democracy, preserving public education won’t offer a complete solution. But any strategy that ignores the perils in public education will be futile.

References

Abrams, S.E. & Koutsavlis, S.J. (2023). The fiscal consequences of private school vouchers. Public Funds, Public Schools.

Center for Educational Equity at Teachers College. (n.d.) SchoolFunding.info.

Farrie, D. & Sciarra, D.G. (2023). Making the grade: How fair is school funding in your state? Education Law Center.

Ford, C., Johnson, S., & Partelow, L. (2017, July 12). The racist origins of private school vouchers. Center for American Progress.

Hinh, I. (2023, March 21). State policymakers should reject K-12 school voucher plans. Center on Budget and Policy Priorities.

Kim, R. (2022a). Public schools, religion, and equality after Carson v. Makin. Phi Delta Kappan, 103 (8), 64-65.

Kim, R. (2022b). Wanted: American educator. Phi Delta Kappan, 104 (1), 60-61.

Office for Civil Rights. (2022, July). Safeguarding students’ civil rights: Promoting educational excellence. U.S. Department of Education.

Public Funds Public Schools (2023). PFPS bill tracker.

Rebell, M.A. (2022). State courts and education finance: Past, present, and future. BYU Education and Law Journal, 2022 (1).

Schwartz, S. (2023, March 23). Map: Where critical race theory is under attack. Education Week.

Sciarra, D. & Dingerson, L. (2022). From courthouse to statehouse — and back again. Education Law Center.

Walsh, D.A. & Self-Walbrick, S. (2023, March 22). Here’s everything you need to know about school vouchers in Texas. KERA News.

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This article appears in the May  2023 issue of Kappan, Vol. 104, No. 8, pp. 60-62