By Kenneth Bernstein, originally posted at Daily Kos

Fifty-five years ago today the Supreme Court of the United States unanimously issued Earl Warren’s opinion in Brown v Board of Education of Topeka, in which it stated unequivocally that

Separate educational facilities are inherently unequal.

And yet even after 55 years the promise of the Brown decision we still have not overcome what is effectively a system of educational apartheid.

Below the fold I am offering the text of a piece by Sam Chaltain, the National Director of The Forum for Education and Democracy. I am going to urge you to read carefully his words. I will offer a few additional comments of my own, but the primary purpose of this diary is to make Sam’s statement more widely known.

Doesn’t Every Child Deserve a High Quality Education?
By Sam Chaltain

On May 17, America will mark the 55th anniversary of Thurgood Marshall’s historic victory in Brown v. Board of Education. If Marshall were alive, however, he would urge us to stop celebrating 1954 and start accepting responsibility for our complicity in the creation of a “separate but equal” education apartheid system – with one method of instruction for the poor, and another for the privileged.

In theory, the Brown decision represents the most hopeful strains of the American narrative: working within a system of laws to extend the promise of freedom, more fairly and fully, to each succeeding generation. “In the field of public education,” the unanimous Court wrote, “the doctrine of ‘separate but equal’ has no place,” and the opportunity to learn “is a right which must be made available to all on equal terms.” The Chicago Defender proclaimed May 17, 1954 as “the beginning of the end of the dual society in American life and the system of segregation that supports it.” Marshall himself remembered feeling “so happy I was numb.”

In practice, integrated schools today are as much of a dream now as they were then, and the subject of segregation has all but disappeared from the national conversation about education reform. Worse still, many of the newest and most promising schools in our nation’s cities are actually increasing the racial stratification of young people and communities – not lessening it.

Providing ‘separate but equal’ facilities, it seems, has once again become an acceptable justification for allowing an inequitable schooling system to exist. In this system, some schools receive ample funding, while others scrape by. Some schools are filled with passionate, experienced educators, while others are flooded with passionate, inexperienced rookies. And while one child is being taught that the key to success is finding the right (multiple-choice) answer to other people’s questions, another is learning that success comes from finding his voice and discovering his rightful place in the world.

Which child is more likely to do well in life, and in a democratic society?

Ostensibly, this inequity was what the Court ended in 1954. But legal changes tend to outpace social changes, and so in 1973 the Court was again asked to intervene, this time when a group of poor Texas parents claimed that their state’s reliance on local taxes to determine per-pupil expenditures violated the Equal Protection Clause of the 14th Amendment. A state court agreed, but the U.S. Supreme Court, in a narrow 5-4 decision, reversed.

The unfair distribution of resources, Justice Potter Stewart conceded, “has resulted in a system of public education that can fairly be described as chaotic and unjust. It does not follow, however, that this system violates the Constitution.”

Justice Lewis Powell agreed. “Though education is one of the most important services performed by the state, it is not within the limited category of rights recognized by this Court as guaranteed by the Constitution.” If it were, Powell conceded, “virtually every State will not pass muster.”

For Justice Marshall, a sitting member of the Court he had stood before two decades prior, that was precisely the point. “The Court concludes that public education is not constitutionally guaranteed,” he wrote, even though “no other state function is so uniformly recognized as an essential element of our society’s well being.”

Marshall understood that without equal access to a high-quality public education, democracy doesn’t work. “Education directly affects the ability of a child to exercise his First Amendment rights,” he explained. “Education prepares individuals to be self-reliant and self-sufficient participants in society. Both facets of this observation are suggestive of the substantial relationship which education bears to guarantees of our Constitution.”

After so many years and so little real change, something new – perhaps even something drastic – needs to be done.

What if Powell and Stewart were wrong? What if we made the guarantee of a high-quality public education our nation’s 28th Constitutional Amendment? Is that the game-changer we need to make the promise of Brown a reality, 55 years later?

Sam Chaltain is the National Director of The Forum for Education & Democracy, a national education “action tank” committed to the public, democratic role of public education — the preparation of engaged and thoughtful democratic citizens.

(follow Sam on Twitter)

Let me start by noting again the words of Justice Powell, that Though education is one of the most important services performed by the state, it is not within the limited category of rights recognized by this Court as guaranteed by the Constitution. And still today, more than a quarter century after that opinion in San Antonio Independent School District v. Rodriguez, it is still true, as Powell wrote in 1972, that virtually every State will not pass muster.

Some states guarantee a free and appropriate public education in their state constitution, although such guarantees were often from a time when such education was only through the 8th grade.

We have come out of a two-term presidency where the focus on No Child Left Behind as the supposed means of addressing the inequity that is still pervasive in America’s schools has had the unfortunate effect of narrowing the educational opportunities for many children of color. The recent scores on the National Assessment of Education Progress (NAEP) show that while scores at the elementary level have risen somewhat (albeit less than in the previous periodic assessment covering a time when NCLB had only briefly been in effect), the gap between white and black had not closed and at the high school level there had been no significant change in performance. In short, we are still leaving many children behind. And in the meantime we are robbing them of access to the arts, which are not tested, and incredibly to history and civic education, which also are not part of the calculation of Adequate Yearly Progress under NCLB, and hence get ignored inr restricted in favor of more time to raise scores on those tests whose results do get included.

I teach government. Thus the words of Thurgood Marshall in dissent are to me quite relevant: Education directly affects the ability of a child to exercise his First Amendment rights. Our students need to understand those writes to be fully participating citizens helping shape their own future and the future of this nation. Marshall recognized this: Education prepares individuals to be self-reliant and self-sufficient participants in society. Both facets of this observation are suggestive of the substantial relationship which education bears to guarantees of our Constitution.

But these ideas are not new now, nor were they when Marshall expressed them in 1972. Let me offer a selection from Warren’s opinion in Brown that remains as relevant today as it was 55 years ago:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

We must remember that despite the unanimity of the Brown decision there was strong resistance. I write these words from the Commonwealth of Virginia, which after the succeeding Brown 2 decision of 1955, which said that segregated school systems must be integrated with all deliberate speed chose a path of “massive resistance” repeatedly articulated in the editorial pages of a major newspaper, the Richmond News Leader, penned by the very articulate editor James Jackson Kilpatrick. We often forget that Topeka was only one of 5 districts involved in the Brown case. There were two parallel decisions, because one case came from our national capital which since it was note a state had to be decided on somewhat different legal grounds as it was in Bolling v Sharpe. The other states, besides Virginia, included South Carolina and Delaware. The Virginia situation is illustrative of how difficult it has been to achieve racial equity in public schools. The General Assembly had allowed the closing of public schools that were to be integrated, but this was ruled unconstitutional in 1959, whereupon the General Assembly repealed compulsory school attendance and left it to local option. That meant either integrated public schools or no public schools. Prince Edward County, which had been the subject of the Virginia case combined into Brown, chose to be the sole Virginia district that abandoned public education. From May 1, 1959 until in 1964 the Supreme Court of the United States ruled unconstitutional governments making grants to private (segregated) schools, Prince Edward County had no public schools.

Too many do not know the history of that time. The decision 55 years ago today did not magically erase an era of racial discrimination in education. While it might no longer be de jure on racial grounds today, the inequity of schools serving primarily or exclusively minority populations is not so much better, despite the various federal and state efforts that have been made. The process of of addressing the failures of such schools has inextricably become a political football used by some to advance causes that have little to do with the meaningful education of children whose economic situations give them less access to educationally related activities outside of school, and whose in-school education has increasingly been narrowed to preparation for tests to “prove” we are offering an education, even if the unstated purposes on the part of many advocates are things like destroying the legitimacy of (and hence the support for) public education and destruction of teachers unions as a force both in educational policy and in politics.

Education is essential if we are to remain a liberal democracy. It is one of the few ways we can empower all of our citizens to something beyond a dependence on the whims of corporations whose sole purpose is maximizing their profits. Education should prepare people for a future that is more than merely for the workforce, but also for civil society, for the body politic, for the future of America.

We have come 55 years since the Brown decision was issued. We have not yet come close to fulfilling the promise contained in Warren’s sweeping opinion. Despite the unanimity of the Court in 1954, we have never achieved a consensus on the purposes of public education, nor do we have a willingness to make the commitment necessary to achieve the promise of the right to a high quality public education.

Perhaps pursuing a federal Constitutional Amendment is the only way of refocusing our attention as a nation to what Brown was supposed to help us achieve. Certainly the public discussion that would ensue from exploring that option would benefit the nation, whether or not we ever ratify such a proposal.

Warren wrote in Brown that

To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.

Allowing clearly inferior educational opportunities, even if nominally not done specifically on racial grounds, nevertheless still has the same impact. Students are not idiots – they quickly realize that the inferiority of their facilities, in some cases teachers, and in many cases quality of instruction indicates that society does not truly care about them despite the rhetoric about leaving no child behind, of overcoming the disparity that is apparent when we look even at gross indicators like test scores. Their hearts and minds are still battered by the inequity a continuing part of the experience of far too many children of lesser economic circumstances. They may be children of color in inner cities. They may be whites in economically distressed rural communities. They are often children in schools on the reservations in which many Native Americans still grow up.

Regardless of race or location, when we do not offer them a high quality education, we betray the basic principles of our Constitutional system and give lie to the promise of the Brown decision.

Fifty-five years. We have come somewhat. We have not come far enough.

Peace.