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Jan Resseger: An “Originalist” Judge Cannot Understand Education

By dianeravitch
October 21, 2020 //
53

Jan Resseger writes here about the misfit between an “originalist” interpretation of the Constitution and the field of education, which has evolved very far from its condition in the 1770s. It is likely that an originalist, as Judge Amy Coney Barrett claims to be, would have nothing to say about contemporary issues in education, since there were no public schools, no Catholic schools, no organized system of education at all in the time that the Constitution was written.

Resseger writes:

For a couple of weeks now, since the publication of Derek Black’s history of the constitutional basis for American public education, this blog has been reflecting on the meaning of constitutional principles in our nation’s founding documents and the 50 state constitutions for defining the role and meaning of our nation’s system of public schools.  (See here, here, and here.)

But this week, Judge Amy Coney Barrett, who defines herself as a constitutional originalist, went through hours of Senate confirmation hearings leading to a Senate vote on her confirmation in the next week or two as President Trump’s latest appointment to the U.S. Supreme Court. All week we have been considering what it means for our society today when members of the U.S. Supreme Court define themselves as originalists who are bound to interpret the constitutionality of today’s laws according to the precise wording of the U.S. Constitution of 1787.

The other day when Chicago Mayor Lori Lightfoot, trained in the law and formerly a federal prosecutor, was asked whether she is an originalist, Mayor Lightfood replied: “You ask a gay, black woman if she is an originalist? No, ma’am, I am not. The Constitution didn’t consider me a person… because I’m a woman, because I’m black, because I’m gay.  I am not an originalist. I believe in the Constitution. I believe that it is a document that the founders intended to evolve and what they did was set the framework for how our country was going to be different from any other. But originalists say that, ‘Let’s go back to 1776 and whatever was there in the original language, that’s it.’ That language excluded, now, over 50 percent of the country. So, no I’m not an originalist.”

Like Mayor Lightfoot, many people today worry about originalist legal interpretation.  In Linguistics 101, students learn that language changes and evolves over time as particular words become archaic, fall out of common usage, or evolve to mean something different. Dictionaries are descriptive, not prescriptive. We cannot know precisely what the founders intended, but we can be sure that the words they used in 1787 may connote something much broader or narrower today.

Schoolhouse Burning, Derek Black’s new book is, in essence, the history of how the meaning of the guarantee of public education as a right for every child has changed and become more inclusive in the over two hundred years since our nation’s founding. Some people say that because the Constitution itself does not mention public education, public education is not a fundamental right, but Black disagrees because public education is so carefully planned in the Northwest Ordinance, passed as a sort of companion document in the same year as the Constitution.  As Black traces the history of our understanding of the right to public education, it’s clear that Derek Black is certainly not an originalist.  His book is the story of how our history—the civil war, the development of the constitutional principles of the 50 states, Jim Crow, the Civil Rights Movement—has informed and further defined the meaning of the founding principles: “The foregoing principles—the right to an adequate and equal education, making education the state’s absolute and foremost duty, requiring states to exert the necessary effort (financial or otherwise) to provide quality educational access, placing education above normal politics, and expecting courts to serve as a check—are all in the service of something larger: the original idea that education is the foundation of our constitutional democracy.  Education is the means by which citizens preserve their other rights. Education gives citizens the tools they need to hold their political leaders accountable…  Democracy simply does not work well without educated citizens.” (Schoolhouse Burning, p. 224)  Black reminds us, however: “The founders articulated educational goals not with any certainty that they would spring into reality simply by writing them down, but in the hope that we might one day live into them.” (Schoolhouse Burning, p 71)

“Originalist” legal interpretation doesn’t pay much heed to how we have lived into the goals and principles declared all those generations ago. How has the meaning of the constitutional protection of equal education evolved over the history of our country?

Categories Accountability, History, Justice

Steven Singer: An “Originalist” View of Public Schools

By dianeravitch
October 19, 2020 //
83

Steven Singer tries to understand today’s public schools through the eyes of an “original story,” someone who judges court cases based on the original intent of those who wrote the Constitution.

He writes:

Let’s say you went to a restaurant and ordered a big ol’ meat sandwich only to find nothing but straw between two pieces of bread.

“Waiter!” You say, calling over a server.

“What’s wrong, Sir?”

“There’s no meat in my sandwich.”

“Oh, Sir?” He says smiling, examining your plate. “Here at Scalia’s Bar and Grill we adhere to a strict originalist interpretation of language.”

“What does that have to do with my sandwich?”

“Well, Sir, in Old English ‘meat’ meant any solid food, anything other than drink. As in ‘A Journey to the Western Islands of Scotland’ (1775), Samuel Johnson noted, ‘Our guides told us, that the horses could not travel all day without rest or meat.’”

“But that’s not what I ordered!”

“Oh yes it is, Sir. You ordered the meat sandwich. Enjoy your fresh hay and oats.”

In everyday life, you wouldn’t put up with that kind of nonsense.

But for some reason, far right ideologues think it’s exactly the right way to interpret the U.S. Constitution.

The meanings of words change over time.

But ignoring that fact allows disingenuous crackpots to sweep over centuries of judicial precedent in favor of what they pretend to THINK the words meant at the time the law was written.

It’s not even about what the writers of the law SAID it meant. It’s about what today’s justices decide some hypothetical average Joe of the distant past would take certain words to mean.

The most obvious example, according to Pulitzer Prize winning historian Joseph Ellis,is District of Columbia v. Heller, 554 U.S. 570 (2008), which reversed 200 years of precedent on gun regulations.

Before this ruling, the Second Amendment was interpreted to be referring only to service in the militia. The Militia Act of 1792 required each able-bodied male citizen to obtain a firearm (“a good musket or firelock”) so he can participate in the “well regulated militia” the Amendment describes.

It was about the obligation to serve your country, not the right to own a gun. However, Supreme Court Justice Antonin Scalia – the most infamous proponent of judicial originalism – orchestrated the majority opinion in this case changing all that. By doing a thought experiment about what words might have meant in the 1700s, he papered over two centuries of established law. He was so proud of it that he even described it as “my masterpiece.”

THAT’S judicial originalism.

And now that Scalia fanboy and federal judge for not even three whole years, Amy Coney Barrett, is being rammed through Senate Confirmation Hearings, that preposterous ideology is about to have another proponent on the highest court in the land.

Just imagine if we interpreted everything like people living in the 18th Century!

Please continue reading this excellent post.

Categories History, Justice

Today, the Launch of the Orient Express

By dianeravitch
October 4, 2020 //
21

Garrison Keillor’s “The Writers’ Almanac” describes the history of the Orient Express:

This date marks the first formal run of the Orient Express in 1883. The train was the brainchild of Georges Nagelmackers, a Belgian banker’s son. He had been impressed by railway innovations he’d seen in America in the 1860s — particularly George Pullman’s “sleeper cars” — and envisioned a richly appointed train running on a continuous 1,500-mile stretch of track from Paris to Constantinople (now Istanbul). For its formal launch from the Gare de Strasbourg, Nagelmackers arranged battered, rusty Pullman cars on adjacent tracks to show his luxurious conveyance to its best advantage. Many of its first passengers on the 80-hour journey were journalists, and they spread the word of its paneled interiors, leather armchairs, silk sheets, and wool blankets. They also dubbed the train “the Orient Express” with Nagelmackers’ blessing. The train later earned another nickname, “the Spies’ Express,” due to its popularity in the espionage community.

One particular car played a role in both world wars. On November 11, 1918, German officers signed their surrender documents in an Allied commander’s private car. The car was a museum piece in Paris until 1940, when Hitler commandeered it and used it as the setting to dictate the terms of the French surrender. Later, when his defeat was imminent, he blew the car up so that it wouldn’t become an Allied trophy again.

The original Orient Express stopped serving Istanbul in 1977, and its new route ran from Paris to Vienna until 2007, when the train departed from Strasbourg instead of Paris. Finally, in 2009, the Orient Express ceased operation, citing competition from high-speed trains and discount airlines. It has spawned several offspring that have adopted the name for promotional purposes, including the Direct Orient Express and the Nostalgic Orient Express. Only the Venice-Simplon Orient Express, which runs from London to a variety of European destinations and charges $2,300 U.S. to ride in the restored original cars, approaches the original “King of Trains and Train of Kings.”

Categories History

Jan Resseger Loves Derek Black’s “Stunning” New Book

By dianeravitch
September 29, 2020 //
1

Jan Resseger read Derek Black’s new book–a history of American public education by a constitutional lawyer–and loved it.

I read Black’s book and interviewed him on a Zoom about the book. I too loved it. Black makes clear that public education is the central American tradition, an idea envisioned by the Founding Fathers and realized over decades as an engine of our democracy. In a multicultural, diverse society, public schools bring students together from many backgrounds, to live and learn together.

Her review begins:

Derek Black’s stunning new book, School House Burning: Public Education and the Assault on American Democracy, threads together a history that has rarely been collected in one volume. Black, a professor of constitutional law at the University of South Carolina, presents the history of an idea first articulated in the Northwest Ordinances of 1785 and 1787, threatened again and again throughout our nation’s history but persistently revived and reanimated: that a system of public education is the one institution most essential for our democratic society. And, while the specific language defining a public education as each child’s fundamental right is absent from the U.S. Constitution, the guarantee of that right is embedded in the nation’s other founding documents, in the history of Reconstruction that followed the Civil War, in the second Reconstruction during the Civil Rights Movement, and in every one of the state constitutions.

Today’s post will skim the history as Derek Black presents it; on Wednesday, this blog will explore how Black believes both public education and democracy are threatened today.

While the U.S. Constitution never formally names public education as the nation’s fundamental and necessary institution, the provision for public education is the centerpiece of the Northwest Ordinances of 1785 and 1787: “The Ordinances, and education’s role in them, however, cannot be so easily dismissed. The Northwest Ordinance of 1787 is one of the most significant legal documents in our nation’s history and the current United States Code treats it as such… In many important ways, the history and effect of the Constitution and the Ordinances are inseparable. First, the documents were passed by many of the same people… Second, the Northwest Ordinance’s substance is a constitutional charter of sorts. Practically speaking, it established the foundational structure for the nation to grow and organize itself for the next two centuries. Precise rules for dividing up the land, developing the nation’s vast territories, and detailing the path that these territories would follow to become states are not the work of everyday legislation. They are the work of a national charter.” (Schoolhouse Burning, pp. 64-65). “The 1785 Ordinance specified how every square inch of the territories would be divided into counties and towns. Every new town had to set aside one-ninth of its land and one-third of its natural resources for the financial support of education. And every town had to reserve one of its lots for the operation of a public school.” (Schoolhouse Burning, p. 62) The Northwest Ordinances named the urgent purpose of public education and prescribed a means of funding the schools.

Jumping way ahead to the early 1970s, after President Richard Nixon replaced Chief Justice Earl Warren with Chief Justice Warren Burger and the U.S. Supreme Court moved away from the principles embodied in Brown v. Board of Education, Black describes the significance of San Antonio v. Rodriguez, the U.S. Supreme Court case which declared that because the U.S. Constitution itself does not explicitly protect the right to public education, public schooling is not a fundamental right. Black believes the founding documents should be read to include the Northwest Ordinances and that the fundamental role of education is further affirmed through our nation’s troubled history: “(I)f you asked modern legal scholars whether education is a fundamental right protected by the federal Constitution, they would tell you no, and they would be correct in one sense. The United States Supreme Court (in a 5-4 decision) refused to recognize education as a fundamental right in 1972, reasoning that the Constitution neither explicitly nor implicitly protects education. The Court feared that nothing distinguished education from the various other things that are important in life, like food and shelter. The foregoing history, however, reveals that education is far different than anything else government might offer its citizens (other than the right to vote). The nation’s very concept of government is premised on an educated citizenry. From its infancy, the United States has sought to distinguish itself with education. More particularly, education has been the tool though which the nation has sought to perfect its democratic ideas.” (Schoolhouse Burning, p. 133)

And she continues:

I hope you will read Derek Black’s new book, for these comments merely skim the surface of his fascinating history of the American idea of public education. As he concludes his history, Black summarizes the book’s thesis: “The foregoing principles—the right to an adequate and equal education, making education the state’s absolute and foremost duty, requiring states to exert the necessary effort (financial or otherwise) to provide quality educational access, placing education above normal politics, and expecting courts to serve as a check—are all in the service of something larger: the original idea that education is the foundation of our constitutional democracy. Education is the means by which citizens preserve their other rights. Education gives citizens the tools they need to hold their political leaders accountable… Democracy simply does not work well without educated citizens.” (Schoolhouse Burning, p. 224) Black reminds us, however: “The founders articulated educational goals not with any certainty that they would spring into reality simply by writing them down, but in the hope that we might one day live into them.” (Schoolhouse Burning, p 71)

Categories Democracy, History, School Choice, Supporting public schools

My Conversation with Steve Suitts about the Segregationist Origins of School Choice

By dianeravitch
September 27, 2020 //
11

Link corrected!

In case you missed our Zoom conversation, this is the link to my discussion with Steve Suitts about his new book about the segregationist origins of “school choice.”

His book is “Overturning Brown: The Segregationist Legacy of the Modern School Choice Movement.”

Categories Accountability, History, School Choice, Segregation

Sign a Petition Against White Supremacist Curriculum

By dianeravitch
September 22, 2020 //
12

Trump wants to restore “patriotic history” and has vowed to creat a “1776 Commission” to carry out his wishes. Historians, history teachers, and everyone who cares about accurate teaching of history and academic freedom are alarmed.

Kevin Kumashiro has drafted a petition. If you agree with it, please consider adding your name.

Friends–I’m writing to folks who lead or are closely connected to a number of educational organizations/associations/centers/unions. I haven’t had a chance to update the website yet, but in just the first few hours since the first announcement went out, we already have 300+ signers, and we’ve only just begun to publicize! Individuals AND ORGANIZATIONS can endorse, so I wanted to make sure you saw this and that I reached out to you first to:

(a) invite your organization to endorse (T4SJ already endorsed, thanks!), and

(b) ask you to please help to spread the word to your members and comrades.

The announcement is below, which includes the URL to the sign-on form. I hope to push out to the media the full statement (with all the endorsements) in the coming days. Let me know if you have questions, and thanks for considering and helping,
Kevin

*

Dear Friend, Colleagues, Comrades: A coalition of organizations and a team of educators and scholars invite all educators, educational scholars, and educational organizations in early-childhood, K-12, and higher education across the United States to join us in endorsing this important new statement:

“Educating for Democracy Demands Educating Against White Supremacy:
A Statement by U.S. Educators and Educational Scholars”

To view and endorse the statement: https://forms.gle/PcSRzSSvTbDp69V36

From the Introduction: “The battle over what story about the United States gets taught in schools and who gets to tell that story is what has made education, particularly history curriculum, one of the main sites of ideological struggle. Today, as has happened repeatedly before, those who insist on teaching only a white supremacist rendition of U.S. history claim that curricula about the historical and systemic nature of race and racism are based on lies, biased, divisive, and un- or anti-American—but research soundly rejects such claims.”

From the conclusion: “Our country cannot become more just and democratic without illuminating, addressing, and healing from its long legacies of injustices, including imperialism, colonialism, and racism. As educators and educational scholars who specialize in early-childhood, K-12, and higher education across the United States, we reject the renewed calls to deny or ignore the legacies and systems of racism that have long defined and shaped U.S. schools and society and that continue to do so. Our job is to teach toward democracy by teaching the truth, and we proudly work collectively and in solidarity with the communities most impacted by injustice to do so.”

All educators, educational scholars, and educational organizations in early-childhood, K-12, and higher education across the United States are invited to join us in endorsing this statement. Read the full statement and add your endorsement here: https://forms.gle/PcSRzSSvTbDp69V36

Please forward to other educators, scholars, and organizations who may wish to join us. Thank you!
-In Solidarity-
***
Kevin Kumashiro, Ph.D.
https://www.kevinkumashiro.com
Movement building for equity and justice in education
***

Categories Academic Freedom, Civics, Curriculum, History, Trump

Watch Trump’s Call for “Patriotic History”

By dianeravitch
September 22, 2020 //
32

This is a short teaching video created by Tim Slekar, dean of the college of education at Edgewood College in Milwaukee.

In the video, you will see Trump denounce Howard Zinn and the “1619 Project,” a series of essays about African American history published by the New York Times magazine.

Trump is reading from a teleprompter.

He has a reputation as a non-reader. You can be sure that he has never read anything written by Howard Zinn and he has never read the “1619 Project.” Based on many comments he has made, it’s apparent that he never studied American history and has no tolerance at all for teaching the history of racism, ethnic groups, persecution, discrimination, segregation, or anything that reflects poorly on our great leaders. He thinks that Robert E. Lee was a patriot, not a traitor who led a rebellion to dissolve the Union and preserve white supremacy. He has frequently referred to the Confederate flag as part of our “great national heritage.” He has opposed all efforts to rename military bases named for leaders of the Confederacy.

In the video, you will see that he is issuing an executive order to create a “1776 Commission” to rewrite American history and to inspire patriotism by removing all problematic issues from teaching American history.

Only a very stupid man would hold history in such contempt and assume that it can be rewritten by a commission.

I am reminded of a trip that I took to the Soviet Union in 1988, before the Wall and the Soviet Union had fallen. My host was a high-level bureaucrat at the Ministry of Education. I met with professors at pedagogical institutes, visited schools, asked questions. On one day, my host tried to impress me by offering me a plate of sliced tomatoes; that was a great delicacy because fresh food of any kind was not in the stores. During conversation, she mentioned that the Department’s big project was rewriting the history of the USSR. I asked her who was in charge of writing it. She said, proudly, “Chairman Gorbachev.” I was trying to imagine the head of state in charge of writing new history textbooks.

I feel the same about Trump’s “1776 Commission,” which hopefully will disappear after November 3.

Categories History, Propaganda, Trump

Join My Zoom with Derek Black About His New Book

By dianeravitch
September 21, 2020 //
1

I will be Zooming with Derek Black on September 23 at 7 pm EST.

The information about signing up is here.

If you have ever debated with friends about school choice, you will want to hear Derek Black.

In his engaging history of public education, Derek shows that the Founding Fathers intended to create public schools, not a system of publicly funded private and religious schools.

It is an important book that you should read. But first, take this opportunity to meet the author.

Please join us.

The discussion is sponsored by the Network for Public Education.

Categories History, School Choice

Peter Greene: Will China Finance Trump’s “Patriotic” History Curriculum

By dianeravitch
September 21, 2020 //
24

You won’t believe this post by Peter Greene, but it’s documented.

Trump announced a ban on TikTok, a social media app, unless the Chinese company that owns it sold 20% to two Trump supporters.

Greene says this looks like a shakedown.

The new company, 80% Chinese, 20% American, would then give $5 billion to finance Trump’s “patriotic” history curriculum.

It is a campaign gimmick, like the pledge that Mexico would pay for Trump’s Wall? Where will the $5 billion go?

I keep repeating that federal law prohibits any federal official from medaling in curriculum or instruction. This is all nuts.

Categories Curriculum, History, Trump

Yohuru Williams: The Words of John Lewis Inspire Creation of Coalition to Get into “Good Trouble”

By dianeravitch
September 19, 2020 //
11

Yohuru Williams is Dean of the College of Arts and Sciences at the University of St. Thomas in St.Paul, Minnesota. He is a noted scholar of Black history. And he also serves on the board of the Network for Public Education.

Dean Williams writes here about the activism for social justice in Minneapolis-St.Paul, inspired by the words of the late Congressman and civil rights icon, John Lewis.

Earlier this September, in Minneapolis and St. Paul, a brave collection of principals and assistant principals banded together to take on the issue of equity and justice in education.

Lewis’s letter, though directed at Black Lives Matter activists in particular, encourages all of us to find ways to get into “good trouble, necessary trouble,” in order to advance the goals of justice.
The members of the alliance, now 159 strong, have branded themselves the “good trouble” coalition after the mantra of the late Congressman John Lewis, who, before passing away in July, wrote a final letter that sought to inspire a passion for activism around racial injustice.

In his last months of life, Lewis lamented the dangerous and deadly state of affairs in the United States: persistent unjust police violence against African Americans, the failed governmental response to the COVID-19 pandemic, and continued efforts to erode American democratic practice at the highest levels of government.

And Lewis’s letter, though directed at Black Lives Matter activists in particular, encourages all of us to find ways to get into “good trouble, necessary trouble,” in order to advance the goals of justice—especially in tackling the most urgent issues of racial inequality, climate change, mass incarceration, economic disparities, healthcare gaps, and political division.

He also invited young people to consider how they might transform the future through studying history as a means of understanding our enduring struggles to achieve lasting peace and equality.

It is ironic that Cong. Lewis urged young people to study history as a means to “lasting peace and equality,” even as Trump demands a reactionary revision of U.S. history to glorify its “leaders” (no doubt including the Confederates who rallied to preserve white supremacy) and diminish or remove the role of African Americans in that history.

Categories Accountability, Equity, History, Justice, Minneapolis, Racism
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