“School Choice”: DeVos v. Education

Much too often since the election of Donald Trump, I have felt a sickening sense of return to the 1950s. January 31, 2017, was one of the bad days. I watched the Senate Committee on Health, Education, etc., review the nomination of Betsy DeVos as Secretary of Education, hoping without much hope that the senators would reject such an obviously and utterly unsuitable candidate. It all went as I feared: DeVos made her way through the Committee despite the opposition of every Democrat and the reservations of two Republicans – Senators Susan Collins and Lisa Murkowski – both of whom, despite their “concerns,” voted to send the nominee forward. She was approved by the full Senate and is now our Secretary of Education.

The Committee’s proceedings and outcome were depressing enough, but it was Senator Tim Kaine’s remarks, specifically, that dragged me back to the 1950s. During her initial hearing, DeVos had revealed her ignorance of the Individuals with Disabilities Education Act of 1975 (IDEA), a federal law requiring public schools to provide free and appropriate education for students with disabilities. (Irony alert: just a few weeks after the DeVos hearing, the Supreme Court unanimously ruled to upgrade the provisions of IDEA, reversing a lower court ruling by none other than Neil Gorsuch.) Apparently unaware of the very existence of IDEA as well as much, much more, the nominee had asserted that the needs of students with disabilities should be left to the states. Senator Kaine, referring to that ignorant assertion, reminded his colleagues that as a Virginian, he knew what could happen – and had happened – when educational justice was left to the states. Kaine’s words, spoken almost as an aside, evoked some dismal memories.

Most Americans know that the May 1954 Supreme Court decision in Brown v. Board of Education of Topeka ended de jure segregation in public schools. However, much of what happened in the following years may have been forgotten except by old-timers, American historians, and Virginians such as Senator Kaine. The Court’s announcement of the Brown decision was what we might today call Real News; it had been a long time coming. From many parts of the country, including my perch in college in New England, cheers went up from those who recognized the abysmal failures of “separate but equal” as established by Plessy v. Ferguson, the infamous 1896 case that legalized racial segregation.

There were loud cheers for the Warren Court, and for the NAACP lawyers who had been working on school desegregation for two decades before they argued Brown (see Kenneth Mack, Representing the Race: The Creation of the Civil Rights Lawyer, 2012). We welcomed the decision as a necessary, overdue step forward for education and for democracy.

“…segregation forever!”

Negative reactions were just as loud and just as heartfelt, especially and predictably in parts of the country where racial segregation in schools was established by law. One year after Brown, as southern states requested exemptions, the Court issued a second, enforcement decree (aka Brown II), upholding the earlier decision but leaving its implementation to local school boards and declaring that desegregation must be advanced “with all deliberate speed.” Brown II was at best ambiguous: what is deliberate speed, exactly? In parts of the South it was interpreted as sometime – maybe never.

Fred O. Seibel Richmond Times-Dispatch (1958)

As Senator Kaine acknowledged, reactions to Brown I and II in his home state were especially complex, creative, and – in the long run – devastating to thousands of children. Virginia Senator Harry F. Byrd, Sr. controlled the Democratic machine that dominated Virginia politics for much of the first half of the 20th century, and on the very day that Brown was announced, Byrd called the decision “the most serious blow that has yet been struck against the rights of the states.” The senator led what became a movement of “Massive Resistance,” but he did not work alone. The Richmond News Leader and other papers preached fierce opposition to desegregation, writing in a spirit of furious resentment of the Court’s interference with established custom, local mores, and what they defined as the will of Virginians (white Virginians, needless to say). Some News Leader editorials sounded more like the 1850s than the 1950s: “States’ Rights” was the mantra of Resistance, bolstered by revival of the old notion of “interposition” – the insistence that states had the right and the duty to “interpose their sovereignty” between their own people and the federal government. In 1956, the Virginia legislature pledged to “resist this illegal encroachment upon our sovereign powers… the reserved powers of the states.”

“Southwest, Valley Have One Problem; Southside and Tidewater Quite Another” (Richmond News Leader, May 1954)

Immediately after the Brown decision was announced, even before the implementation decree, the governor of Virginia appointed a commission whose mandate was to find ways around integration. Recognizing that demography and race relations varied widely across the state, the commissioners emphasized local option: they recommended that local boards be authorized to assign children to schools and approve transfers between schools – understood, though not stated, to be based on race. They suggested that public funds be made available for tuition grants to parents who wanted alternatives to public schools, and that attendance laws be “reformed” so that no child could be forced to attend an integrated school. The elected power structure – governor, legislature, senators and representatives – building on an ideology of states’ rights, actually abdicated their responsibilities. They abandoned public education, turning it over to the will and management of the smallest possible units – towns and counties – relying on deeply entrenched racism to accomplish their agenda. The mechanics of resistance, including enthusiastic support of private and religious schools and the use of public funds for private tuition at “segregation academies” and the like, were developed and finely tuned in the 1950s. That process and its various elements were celebrated then, as now, under the rubric of “freedom” – or in today’s favorite euphemism, “school choice.”

Opposition to integration in Virginia grew ever more determined and vociferous, increasingly so after the crisis in Little Rock in 1957. Virginians, along with the rest of the world, witnessed what some of them regarded as the nightmare of federal troops enforcing integration at Central High. In 1958, public schools were actually closed in many parts of Virginia, and the first wave of students fell victim to what had become a kind of holy war for states’ rights, local option, and “choice.” Alternatives to public education were hastily assembled for white children; nothing was done for black children.

In Prince Edward County, the most extreme case, the public schools were closed from 1959 until 1964, when they were ordered to reopen by the Supreme Court. For all those years, white children (except the very poorest, whose parents could not pay for private schools even with the help of state tuition grants and county tax credits) attended whites-only schools. Black children, unless their parents were able to arrange for them to live with friends or relations elsewhere, received no education from state or county. Some studied at improvised and impoverished schools supported by their community, with no help from public funds, in church basements or other friendly spots. Many received no education at all. (See Katy June-Friesen “Massive Resistance in a Small Town: Before and After Brown in Prince Edward County, Virginia,” Christopher Bonastia’s recent piece on the racist history of the charter school movement, and his book Southern Stalemate. See also Dennis McFarland’s fine novel, Prince Edward.)

Brown was a complex and difficult decision, much more complicated than those who cheered were aware at the time. If the weaknesses of Brown II were partly responsible for the strength and persistence of resistance in Virginia and elsewhere, it should also be said that Chief Justice Earl Warren – foreseeing trouble – wanted a unanimous court, and for that, “all deliberate speed” was the best he could achieve. In the mid-1950s the Court was out in front of the other branches of government: President Eisenhower was not enthusiastic about school integration; the Senate, dominated by southern Democrats, was opposed; the Representatives were divided. Oddly enough, much of the support and some of the impetus for the decision came about, indirectly, through the Cold War: the justices were well aware that the battle for hearts and minds around the world was severely impeded by widespread dislike and disapproval of race relations in the United States. (See especially Mary Dudziak, Cold War Civil Rights: Race and the Image of American Democracy.)

White Boston fought desegregation (circa 1974)

If Brown was complicated, Brown II, in hindsight, was disastrously vague, leaving more than enough room for decades of struggle over the timing and terms of desegregation. Some critics of Brown argue that the Court overlooked or chose not to recognize the depth and persistence of racism that continues to shape our educational system regardless of law, and not only in the South. Veterans of the 1970s in Boston remember the busing struggle all too well, along with associated scenes that could have been witnessed in Virginia in the 1950s. The battle for educational justice was certainly not settled by Brown or Brown II – far from it. But no matter what our conclusions about the decisions and their consequences, we cannot ignore the lesson mentioned by Senator Kaine. As he remarked, we know what can happen when educational justice is turned over to the states – as was suggested, in ignorance and indifference, by our new Secretary of Education.

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