Derek Black is a professor of law and the Ernest F. Hollings Chair in Constitutional Law at the University of South Carolina School of Law. He also directs the law school’s Constitutional Law Center. His areas of expertise include education law and policy, constitutional law, and civil rights. The focus of his current scholarship is the intersection of constitutional law and public education, particularly as it pertains to educational equality and fairness for disadvantaged students.

Douglass Collective is a community of lawyers and activists working to promote a more inclusive vision of the Constitution. We believe that the abolition of slavery and the Reconstruction Amendments provide a powerful blueprint for a world where we are all more free. By raising awareness of the Constitution’s abolitionist roots, and building community and power around that vision, we will chart a more free and equal future.

Freedom Readers by Tracy Swinton-Bailey

Intro Music: "Fantastic Negro Type Beat 'Nigga Song Remix'" by BarzMakesBangers: https://youtu.be/egdj0jlsQHA?si=ddBCdOMxCvMIP4hT

Reconstruction ends in roughly 1876.

The justification for tearing it down by the former slaveholders was, well, that was all a mess and you guys wasted all this money on black people who don't need to know anything anyway.

So they construct this false narrative of failure.

Now, certainly it ends.

Reconstruction does end, but during the period of its progress, the progress is enormous.

And even though it gets contorted and deformed, that progress

continues on, just in different shapes, forms, and fashion.

A well-informed citizenry is the best defense against tyranny.

Thomas Jefferson famously said those words, But for 250 years, we've been at an existential struggle over who's included in citizenry,

what tyranny actually means on American soil, and what it means to be well-informed.

Welcome to Reconstructed, a podcast where we talk about the Constitution, how it shapes our lives, and how we can reclaim it as a force for good.

I'm Tonga Leslie, your host, and today we're talking the right to public education.

To help us understand the roots of our public education system and navigate the questions we're faced with over its future, we're joined today by Professor Derek Black.

Professor Black is a professor at the South Carolina School of Law.

We're here to direct the university's Constitutional Law Center.

He's also the author of Dangerous Learning: The South's Long War on Black Literacy, as well as more than a dozen articles on education and law.

Welcome to the podcast, Professor Black.

Thanks for having me on.

Thank you so much for joining us.

Number one, I want to encourage our listeners and viewers to check out this book.

It's been

amazing to read and congratulations on the huge amount of work that I'm sure it took.

I want to, before you dive into the content of the book, learn a little bit about your journey in the law.

One interesting place the book starts is you're reflecting on the backlash to critical race theory and talking about how Derrick Bell reading his work actually was really important to you thinking about

who you wanted to be as a person and also as a lawyer.

For those who don't know, Derek Bell is one of the seminal authors in Critical Risk Theory.

So I'm curious if you can take us back.

How did you think about getting into your career and what role did Derrick Bell's work play in that?

Derrick Bell was a pretty lonely soul as a black man in the academy.

And actually, I don't remember what year he went to Harvard, but he was the first black law professor at Harvard.

He'd been a school desegregation lawyer and he had.

become disenchanted with the direction of the civil rights movement, and he began to write about that.

And then he started writing these books, I guess, at least by academic standards, which were quite wild.

There were sort of allegories and stories in which he was taking his.

perspective on the law and writing it as narratives, these sort of fantasies of the future or the past.

In any event, I really came to his work by accident.

My start in African American studies.

There was just this professor that we would cross paths.

He had the classroom before my classroom in undergrad.

I think, oh, this guy's a nice professor.

I'm going to sign up for his class.

And I think it was nominally titled something about African American religion or history or something like that.

And so he gave us one of Derrick Bell's books to read, Faces from the Bottom of the Well.

And I was like, wow, this is deep stuff.

It sort of set my mind in all sorts of different directions I never would have considered before.

And I think after that, I read another book or so by his.

But things began to change for me late in undergraduate because I thought, oh, I want to be a lawyer.

That's what I want to do.

And the more African American studies classes I took, the more I just sort of thought, well, maybe I should major in history or do something more meaningful and go to law school.

I mean, literally, that's what I thought, because I thought law school as being contracts and that sort of thing.

I had no idea who Derrick Bell was, how important he was.

At that point he was at NYU.

He had left Harvard Law School because of his concerns about being the only one there for an extended period of time.

And so he went to NYU.

And so I just wrote him a letter, old-fashioned way, dropped it in the mail and sent it to him.

And we exchanged a few heartfelt letters about me sort of struggling with what I wanted to do with the rest of my life.

And then he sent me a couple of books that weren't really race related.

They were sort of more like ethical books.

He sent me a book that was sort of like a finding yourself with a lawyer.

And I was like, oh, wait a minute.

No, I do want to be a lawyer.

And so, you know, in the introduction to the book, I really say that this supposed

destroyer of white esteem, which was some of the early critiques of critical race theory that I was going to make white people feel bad about themselves or something.

I think those works, those sort of initial seminal works were core to me engaging and studying in a deeper way than I had and then reaching out to the godfather of critical race theory who inspired me to find my path and go to law school.

So certainly there was no destruction of my sense of self by encountering his work and engaging with him to.

So you had that experience, then you're reading ethical ambition, and it made you think differently about how might you want to be as a lawyer.

What did it make you think about what you wanted to do with your career?

I think what he was doing was sort of humanizing the practice of law for me.

I was from, at best, low middle income, if not low income family, and first in my family.

family to go to college.

The only sense I had of, you know, lawyering would be what I saw on TV or sort of observed from mass media, cold and sort of stale looking profession.

I mean, I certainly didn't believe the Hollywood version of that's what I would be doing.

So, you know, I think what I took from Bell was this sort of the real humanity in the work that he was doing that wasn't sort of stale or cold.

Part of what I learned over time later, both when Belle was still alive and then after he passed away, that actually I wasn't special.

You know, you sort of, maybe you read it and think, oh, Derek wrote this amazing letter.

I mean, he was incredibly giving

person, to students at least.

I mean, I have heard other scholars say that Derek was kind of grumpy and sort of debating ideas because he was so pessimistic about certain things.

But when it came to non-scholarly sort of subjects, sort of the mentoring of other people, he was just so giving to so many people.

I had a colleague who told me, yeah, he came to her wedding.

I talked to another gentleman who's now a professor.

College of Education, instead of writing a letter, he did something even more audacious.

He was from Brooklyn.

He just walked over to NYU and knocked on the door and the secretary said, Oh, well, Mr.

Bell's not in.

He's like, Oh, I'm sorry.

You're a bashful young person.

So at that point, he was just like, Okay, I'm going to go back home and this is over.

And she said, Oh, no, no, no, no.

Come back at one o'clock.

He'll see you.

He came back and Derek Bell met with him.

So he always had time for people.

What I got was that lawyering could be about people as well.

Well, in your own career, you have really, I feel, forged a path, especially talking about education.

What led you there, and what's kept you there, thinking about our education system, how it works, and the inequalities within it.

At a relatively early point in my life, I did realize the significance of what my teachers were doing for me.

You know, given that I didn't have a lot of background factors propelling me forward, that the public school system was doing that for me, and that that was important.

And I certainly very early on recognized the difference between a private university and a public one.

And I think you went to a private one, so I don't mean this to be bad.

But I mean, when I was visiting law schools, and I still remember now visiting Vanderbilt,

and the doors of the library were locked.

We all come from different races, places, and backgrounds, but even as a white person, I was like, what in the world is this?

Why would you ever lock the door?

a library.

Why would you ever do that?

I mean, if they said, oh, Derek, you can't check out a book, like, okay, I get that, right?

But to lock the doors of the library.

And so I was actually kind of somewhat repulsed by that.

I've since found that it's far more common, but you don't have to lock the doors.

Howard University, where I started, which is a private university, doesn't actually lock the doors to its library.

It's open to all.

But I also think coming from Clinton, Tennessee, which was the first traditionally white high school in the South to graduate an African-American student, I didn't understand that precise fact or significance when I was 18.

But as I went through African-American studies, I began to go, oh, wait a minute.

Actually, not only-- I'm learning something that's about me, too.

And that's another sort of important point to make.

I understand sort of where the country has gone in terms of racial, ethnic and religious and other forms of identity.

I think we actually do an incredible disservice to people as individuals to draw sharp boundaries around those identities and to suggest that those identities are all-encompassing.

And I say this at the beginning of the book, this sort of story of Clinton High School,

And it's racial desegregation.

That's my story too.

I mean, I certainly experienced it from different vantage points from black children.

But that story shaped me too, right?

Although at that moment in time, there was struggle between black and white students, we are all the living beneficiaries of those

battles.

And sometimes we're all the living victims of those battles as well.

And then sometimes we're both beneficiaries and victims at the same time, depending upon what the effects are.

So I feel, you know, just incredibly privileged to have been a beneficiary of the history of what happened in Clinton, Tennessee.

Because I think if you extract that from my personal history, my life ends in an entirely different place.

There's all these levels of history, right?

That's a

probably 20, 30 years in the past, then we go 200 years back.

The book is tracing this long arc of especially Black literacy and education and how struggles around that shape so much else about how we experience public education and access to learning.

Where you begin it is the story of Denmark Vesey.

You sort of present that story as a pivotal moment in

the history of how the South dealt with access to education before the Civil War, with these very long-reaching implications.

Could you maybe lay out a little bit about just who he was and what he did and sort of how he ended up shifting the course of how the South thought about that?

W.E.B.

Du Bois says that public education on the South is a Black idea.

That is factually true, that public education comes to the South through the efforts

primarily of black people, right?

Which means that Derek Black, when he begins kindergarten, he's entering a system that benefits his learning and reading and writing and the rest of things that is a product of the black struggle for freedom.

And to be clear, that black struggle for freedom eventually doesn't become just a struggle for black people.

It is a struggle for a general principle,

of access to public education in the South.

So if you remove black people from the story of the South, it's altogether possible that the education system that white, relatively rural Derek Black enters into in the early 80s is decades behind where it would have otherwise been, right?

Because public education would have been delayed in the South were it not for

the efforts of black people.

It's a much more complicated and difficult spider web than we sometimes give it credit for, which is why I said, you know, this story, and we'll go back to Denmark Vesey, had so many complications that I didn't.

initially understand and appreciate.

But anyway, Denmark Vesey, we don't know exactly where he was born.

We believe that he was born into slavery in the Caribbean.

He was bought in part of the Eastern Caribbean, maybe lower Caribbean, and then by a guy named Captain Vesey, brought to Haiti and resold into slavery in Haiti.

I think Denmark is probably a teenager at that point, mid-teenager.

But again, we don't know this for sure, but I surmised.

We clearly know he's very smart.

We'd see that from later on.

And I think he had figured out that faking epilepsy would get him out of sugar cane work in Haiti.

So he has these...

what I believe to be concocted, faint and whatnot.

And so the person who had purchased him says, Well, he's defective, right?

And so under the law of the time, you could demand that if you'd been sold a defective, enslaved person, that you could get your money back.

So the next time Joseph Vesey comes through Haiti, he has to take Denmark back.

Joseph, it seems, also spotted something special in Denmark.

He is enslaved, but he works

alongside the other folks on the ship in the slave trade.

That part is a fascinating part.

It's like what was Denmark himself sort of thinking about that experience.

But Joseph shuts down or decides he's not going to, at least actively through shipping, trade slaves.

He settles down in Charleston, South Carolina.

Denmark then, it seems, begins to run their import-export business in Charleston.

But Denmark, and this is something I didn't know, that in places like Charleston and Savannah, Wilmington, for instance, it was not unusual at all for black people who were enslaved to basically live on their own.

So Denmark did not live on the plantation lands or whatever, what you would have referred to them of Captain Veasey, but he lived

you know, in a rented spot there in Charleston.

And he did hired labor, which I also was not aware of, in which he shared in the profits of his labor.

So some of the money went back to Joseph and some went to Denmark.

And apparently, Denmark liked to buy lottery tickets.

And so he bought a lottery ticket in 1799, I believe it was, in the Bay Street

lottery, which is funds that end up building the major street in Charleston today.

He won the lottery.

And so he uses that money to purchase his freedom from Joseph Vesey and walks free with $900, which was quite a large sum at the time.

So then with the book then sort of focusing on the sort of literacy part of it, tries to trace his literacy journey over the next 20 years from

1800 to 1821.

Best I can tell, it's highly likely that Joseph Vesey is the one that taught him to read.

Given what his advanced reading was later on, you don't develop that overnight.

And that a literate black person is more skilled labor.

And so if he's running business, keeping books, maybe writing letters, this all makes sense.

And Joseph Vesey had taught

taught other black people to read later in time.

There's documents of that.

So in any event, we have this person born into slavery, fakes his way out of the field, acquires skills on the high seas, literacy at some point, and then he spends, though, upon freedom the next 20 years just really reading everything he can get his hands on.

They start teaching other people how to read at the church there.

And he becomes very enamored, enamored isn't the right word, just incredibly interested in the Missouri Compromise of 1820, because there is this debate happening in Congress where it's not clear that Congress is going to allow slavery in the territories.

That's the sort of fight.

And there's these northern senators who are objecting to slavery in the territories.

I think that VC actually thought, I write this in the book, or must have believed there was some reasonable chance that actually maybe America was going to make a break with slavery at that moment in time.

And if America did make a break with slavery in the territories, then wouldn't it also be possible that it might make a break with it in the South?

And the reason why I sort of come to that conclusion is because when the Missouri Compromise is signed and

Slavery does extend into the territories.

It seems at that point, Denmark shortly thereafter begins to plot a revolt in Charleston, South Carolina.

Estimates are that anywhere from 7 to 9,000 people

had purportedly written their name in this sort of book or had their name written into this book, a potential co-revolters.

But at the 11th hour, the story finally gets out and the authorities investigate and interrogate and prosecute a number of black people.

And then Mark Vesey ends up being executed.

Although that story itself was interesting because he was so well educated, they had assigned him self-educated.

after whoever initially taught him to read and write.

He's assigned a white attorney, but he says, I don't want him.

I mean, imagine this.

is a man born into slavery in the late 1700s, has been free now for two decades, but living in the center of slavery's empire.

And he says, no, I'll defend myself.

No, thank you.

And so he starts cross-examining witnesses and all of this stuff and reading the judges, the riot act, et cetera.

So nonetheless, they obviously execute him.

There's no doubt in my mind that had it not been discovered, he would have been successful.

I mean, they had a good plan.

They had materials in place.

His plan was to take these two sort of arsenals

in the middle of the night, take the weapons, hand them out to black folks.

And the peninsula itself was overwhelmingly black.

So there's just no way, it seems to me, with guns that whites could have resisted that.

And they weren't going to stay on the peninsula and defend ground.

Denmark knew how to sail the high seas.

He was going to hop on a ship and go to Haiti.

They'd already sent a letter to Haiti asking the president, will you receive us if we can make it there?

So to me, Denmark, unlike Annat Turner or others,

He really only needed to be successful for 24 hours to make this happen.

Maybe they could have chased him down on the high seas.

I don't know how great of a sailor he was or not, but otherwise, I mean, they're gone, you know?

It's incredibly cinematic, and it reminded me a little bit of the Hamilton story, actually, at least what we get from the musical, like all the journeys he's on, how he's learning, and the way that you trace his intellectual development.

It seems to be what the white authorities thought of and we'll get to how they responded.

That it wasn't about the numbers or even necessarily the logistics or even necessarily the access to weapons, but that what kind of

set him apart and made it possible, made the spark possible was the actual information and knowledge and way of thinking that he had.

That with that actually there was a real chance even then that he actually could succeed with this rebellion and they could actually overturn this setup.

Education could be the difference on whether this keeps holding or not.

They were astounded by this man.

That's the sort of beauty of this book for me and trying to approach it as honestly as I could and trying to

figure out what all the various actors, how they were perceiving it.

Southern whites were sort of walking around in this stupor going, Our black folks are docile and they like us and we give them this alternate version of Christianity on Sundays and everything's good.

Of course we should keep guns away from them and that sort of thing, but they're not smart enough to figure out things anyway, et cetera, et cetera.

And then you've got this Denmark Vicey figure.

When they went to his home, they characterized, they had a library in his home.

He had all these books.

It was quite obvious that he was, based upon other testimonies, like familiar with all sorts of ideas.

He was very familiar with all these congressional debates.

The sort of white paternalism was such that they just assume they don't know anything other than what we tell them, right?

They don't know what Washington, D.C.

is.

They don't know what senators are.

They don't know what they're talking about.

They're arguing about.

They know what the issues are.

It's just like...

to keep them in this little bubble.

What Denmark does is, number one, blow the top off this idea that there's a bubble, and they also blow the top off the idea that the mind isn't a dangerous thing, right?

He now has access to these ideas, and how do these ideas change a person?

And then, how?

How do they empower a person?

He sort of personifies all of that, right?

And such that you go, well, I thought it was great when he was keeping my books and exchanging letters from merchants.

Like, you know, that's not harmful.

But then there's other pieces.

He wasn't the only literate one.

He just ends up being the leader, but you know, he's reinterpreting the Bible, right?

Again, not something they'd really been thinking about.

One of the things...

both in Africa, but I think also in the South.

Mostly it was probably just sort of orally preaching a different version, but there had long been these sort of different printed versions of the Bible that were shared in black communities because the idea was they didn't want to share anything or teach anything that might be revolutionary.

But then Mark Vesey, he reads this thing and he's reading about the Israelites and likening the experience of black people to that of the Israelites and how God would deliver them.

He's pulling out these anti-oppressive ideas in there.

So it's not just that

can read, not just he's got ideas, he's now preaching this black liberation gospel, which in scholarly circles normally something that's late 1800s, early 90s.

Like now he's preaching a liberation gospel out of the Bible in the 1800s.

This is all very

frightening.

And so the South is really beside itself.

South Carolina calls the federal government and they deploy troops from other areas in the South to sort of secure South Carolina.

The whole South is on edge and they release a formal report of the Denmark VC and other trials and all the stuff about reading.

And then two things happen.

One, the rest of the South goes.

Yeah, well, that's probably a South Carolina problem, right?

Again, that's that sort of like self-delusion.

It's like, yeah, I mean, Virginia's slaves aren't like that, you know, or North Carolina, that's South Carolina.

So they sort of go back to the way they were, you know, they get by pretty quick.

But then South Carolina goes, holy crap, we just sent out a documentary blueprint

about Denmark Vesey?

What if other black people read this thing?

So then, after having published, I don't know how many thousands of copies of this thing, they make it illegal.

You have to round them up and hide them and burn them.

So they try to eviscerate the face of the South with this report so that no other black person gets their hands on it.

And in fact, the copy that's at Harvard and Harvard archives now

was actually discovered when the Union took Charleston in the 1860s and they found a copy of it sort of stashed in this hiding place in this house.

It was one of the few surviving copies.

With retrospect, we can say there's a certain level of buffoonery amongst the whites about how they're sort of managing this situation.

They burned the black church, though, in Charleston.

They began to restrict access to reading and writing.

In Charleston, the state actually had resisted legislation, but Charleston passed an ordinance, the state legislation come

comes later.

I did see the irony in that.

First, everybody should know about this, and then now nobody should know about this.

You take us through there, and it leads to this censorship, this anti-Black, anti-education push throughout the South.

This is what, 1830s, 1840s, people are banning literacy and education.

And then we come through to the Civil War and now the idea of public education as a mandatory norm is being actually placed in state constitutions.

Can you talk to us a little bit about the road from here to there?

Being disabused of my false premises.

In my prior book, Schoolhouse Burning, I had written about this enormous quick rise of public education in the South, the work of the freedmen.

It almost seems as though it just sort of appears for no obvious reason.

I think the missionaries and soldiers didn't fully understand

what was happening.

And they also didn't understand why it was that some black people knew how to read and write in 1862, 63, 64, 65.

That sort of post-VC through Civil War, which I'll just go through real quick.

First we have VC.

Then we have a free person of color, David Walker, that comes right after him.

He'd been born in Wilmington.

pretty darn sure he had crossed paths with Denmark and actually left Charleston as a result of the banishment of a lot of the black leaders after the VC episode.

He doesn't say that, but I think that's what happened.

In any event, in 1829, David Walker writes this manifesto, an appeal to the colored citizens of the world.

Short story is it's calling on black people to rise

and seize their freedom.

And it certainly has some violent undertones to it as possibilities, but it also says that the first step to freedom is actually mental freedom.

If black people get mental freedom, and he actually said North and South, mental freedom.

that everything else will fall in place because, you know, slavery effectively and second-class citizenship will become intolerable.

And so he calls on black people to educate themselves and even those who are already educated to educate themselves in a more robust way than they already are and then rise up and take freedom.

He smuggles this thing in the South and that sets off an even bigger anti-literacy set of laws than had VC because there's mass distribution going on with underground distribution.

Six, nine months after that, the Nat Turner revolt, which a lot of people know of Nat Turner in Virginia, which ends up being the bloodiest revolt in the South.

They were convinced, or at least they would sort of believe that Nat Turner must have read David Walker's appeal.

I don't think he actually did.

There's no evidence of that.

And he probably didn't, because he didn't really say anything that would have suggested that.

But he, like VC, was sort of preacher.

He actually sort of styled himself as a prophet and claimed to have visions.

In any event, his literacy makes him a leader, makes him a preacher, put him on a pedestal for a period of time in his community, and against his literacy.

That is the means by which he motivates this revolt in the same way that VC had.

And we've got David Walker.

And so after the Nat Turner revolt, everyone said, we're done with this.

We are going to criminalize it, even death penalty for people who teach it, including whites.

I tell that story because a lot of people just assume black people weren't reading and writing the standard

Well, it was always criminalized.

So yeah, maybe there was a few people, but it was always criminalized.

Actually, no.

There were black people learning to read and write out in the open, including actual schools on the peninsula in Charleston for both free people of color and enslaved children.

Well, they weren't free.

They were black sort of self-help.

This was not abnormal.

I'm not here to say, oh, 50% or 25% of

Black people were literate.

I don't know the exact numbers, but there were substantial numbers.

And so just because the South criminalizes literacy pretty much everywhere by the end of the 1820s doesn't mean that those people who knew how to read don't know how to read anymore.

So they passed that learning on, right, in secret from generation to generation over the next 30 years.

In fact, I write about secret schools, so black people began to operate secret schools in places like Charleston and Wilmington and Savannah.

This one woman, last name DeVoe, she operated for 32 years, a secret school in Savannah, Georgia.

And so when the Union troops arrive, what you have are some people who've already been committed to this project.

And you also have reading and writing as, symbolically speaking, forbidden fruit to much of the black community and something akin to magic.

as some described it elsewhere, because of its enormous power.

I use this analogy in the book.

Can you imagine, particularly from the perspective of people faced with violence, that one man scribbles a note on a piece of paper, hands it to another man on a horse, and it leads to the flogging or the death or whatever of a black person on the other side of the plantation?

That piece of paper is powerful, right?

Almost like magic, just a piece of paper.

causes things to happen in the world.

So when you sort of take that history of used to have it, now it's forbidden fruit, it's incredibly powerful.

Of course we know lots about people writing their own passes out of slavery, which is another incredible, powerful thing.

When the power of slavery falls down, this is what black people want.

And so there's this enormous outpouring of demand and desire for education as soon as the troops arrive.

I mean, they're stunned by it.

They just can't believe how many people show up.

My favorite line from the archives that I looked at is this, School in the Sea Islands of South Carolina, where a teacher is at.

This is

Probably 1865, 1866, the North is in control.

The war is either over, almost over.

And they're operating freedom schools.

It's a mix of missionaries from the North and federal military support.

And she shows up at the school.

She has her daughter, her granddaughter, her mother and her grandmother with her.

Five generations of black women show up at that school.

She said, We've been in darkness far too long.

And now it's time for us to come into the light.

Us want to learn.

And that's not like some random one-off.

That emotion propels public education into existence over the next three, four years.

A public education that's open to all.

White, black, poor, rich.

You talk about the northern missionaries, but also these colored conventions where even before the shape of what reconstruction is going to be, if there's going to be a national reconstruction, they already start putting these plans in motion and these demands in motion of what they want the new political order to look like.

That was very interesting to me.

Could you talk a little bit about that?

Before we had the state constitutional conventions in the South,

Before we have the 14th Amendment, citizenship and voting rights, and then the 15th and all this, immediately after slavery, black people organized themselves into what they call these colored conventions of South Carolina and North Carolina.

Every state has.

And so they're coming together as a community to try to articulate their vision of what they want society to be, what they want to see the new constitutional order look like, what they want civil society to look like, et cetera, et cetera.

One of the scenes that I detail most closely is the South Carolina People's Convention, which was held in a very auspicious place itself.

But in any event, a lot of big names attended that.

The very first resolution that they passed unanimously, they say the three great pillars of society are the press, the pulpit, and the schoolhouse.

And we want them to be secure in South Carolina as they are in Massachusetts.

And that was a letter to Congress, right?

That's what they had resolved.

And so you see this repeated over and over again.

Freedom of the press, right?

Schools, and then, of course, the pulpit is where this sort of initial liberation theory was coming from anyway.

That's what they, at least in South Carolina, had articulated.

And then a lot of the people who had participated in those, a good number of the people who participated in those code people's conventions were then delegates to the state constitutional conventions.

South Carolina, Jonathan Jasper Wright, who had been a teacher in a freedman's school in the Sea Islands.

He was originally from Pennsylvania.

He comes south as a missionary.

He's also the first black attorney in the state of South Carolina.

That happened in 1866 or something like that.

He was at the Colored People's Convention, then a delegate to South Carolina's Constitutional Convention, and then the first black Supreme Court member in South Carolina.

He probably took the bench in 1870 or something like that.

You have these incredibly literate, powerful black people, and he's not the only one that come out of these conventions and really shape the direction of the constitutional conventions as well.

There is this through line through those conventions to what becomes of the constitutions as well.

And in South Carolina,

Also the case probably in Louisiana, maybe Mississippi, but there were a couple of states in which the majority of delegates to the constitutional conventions of 1868 were black people, right?

So these were constitutions written by black people, which goes back to Du Bois' idea that it wasn't old white leaders who mandated the state of South Carolina provide public education to all its people.

It was biracial, these weren't close votes, but it really was black leadership propelling those ideas.

The crazy part of what follows is, number one, both that some of these provisions still stand today, and yet at the same time, obviously there was not open access to a universal public education in the South.

Two things I'd like you to comment on.

There is a narrative just, well, Reconstruction was a failure.

It did not bring about big change.

you seem to think, actually there were some pretty momentous changes that came out of this in terms of the way people are educated.

And then also, let's talk a little bit about how did this not end up getting rolled out?

So #1, the sort of idea of the failed Reconstruction comes from the objectors to Reconstruction, right?

So Reconstruction ends in roughly 1876.

The justification for tearing it down by the former slaveholders was, well, that was all a mess, and you guys wasted all this money on black people who don't need to know anything anyway.

So they construct this false narrative, right, of failure that certainly it ends, reconstruction does end, but during the period of its progress, the progress is enormous, and even though it gets...

contorted and deformed, that progress continues on just in different shapes, forms, and fashions.

But anyway, you've got the slavocracy or sort of the redeemers claiming failure.

And then, you know, one of the things that at least frustrates me personally, right, is you've got a lot of progressives or whatever category you want to put on them.

It's like, oh, you know, that was a failure, or oppressed people today will look back, oh, that was a failure.

And it's like, it was cut short.

We do the same thing with school desegregation.

School desegregation was a failure.

No, it wasn't.

School desegregation was not a failure.

The percentage of black children attending school in non-segregated schools in 1954 was one-tenth of 1%.

Desegregation doesn't really start until 1964, and then by the mid-70s, 40% of black children are going

to non-zregated schools and the black-white achievement gap shrinks more during that period than any other period in history.

Although maybe if we had good data we'd have something different about reconstruction.

Maybe actually there was something different there.

That's the best success story that we can document.

But then we stopped.

We reversed.

Much of the positive things that we would cite today in society are an outgrowth of the principles and changes that school desegregation achieved.

In the same way I said, you can't separate any of those things from my story.

It's like, if you were raised 68 to, we'll just say 75 from American history,

this is a different country in a much, much, much, much, much worse way.

So don't tell me it wasn't this.

It may not have achieved all we wanted, but it achieved A lot.

And the same way the Reconstruction did.

I tell my constitutional law students, the Constitution was entirely inverted and reframed in 1868, right?

I mean, prior to 1868, states were free to deny

Individuals, individual rights, both white, black, ethnicity, they could deny people, whatever they wanted to.

Due process, equal protection, freedom of the press, these weren't enshrined rights.

The Bill of Rights only applied to Congress.

It's the 14th Amendment in which we say for the very first time, no state shall deny.

No state shall deny any person.

Life, liberty, or property, equal protection of the law, privileges and immunities.

And an original constitution that was written entirely for the purpose of constraining federal power now constrains state power and now gives Congress the ability to pass legislation to further constrain it.

So that all by itself just changes everything we know about how the Constitution operates today.

We've already talked about public education, right?

I mean, the South did not have a public education system for poor or middle-class whites prior to that.

Now it has one, right?

Maybe it's not as good as your next-door neighbors or whatever, but it has one, right?

It produces lots of fantastic opportunities, not as many as it should, but it produces them, right?

Even after Reconstruction ends, I mean, this is the other part, right?

And I write about this more so in Schoolhouse Burning, that idea of the states

obligation to deliver education to all of its citizens.

Though perverted, though discriminatory later on, it changes society.

One of the best stories that I love to tell is so black people put education in the Mississippi Constitution.

It comes into being now white children are getting education too.

When the Redeemers come in, 1891

94, whatever year it was that Mississippi begins to rewrite its constitution, they opened the convention up and they said, we've come here for one reason and one reason only today, and it is to disenfranchise the *****.

And by that they meant two things.

Take away the vote, take away the schools.

And there were a number of delegates.

who said, you know what, we should just remove that education thing from the Constitution altogether.

Putting all these ideas in black people's minds, cost all this, let's just do away with it.

And the interesting thing was even those who were committed to oppression of black people said, I don't know, that's a bridge too far.

Black community kind of likes this thing.

We think it's doing good stuff here.

They say we might segregate it, but we're not going to do away with it.

So in a moment of enormous virulent racism,

The idea of public education survives, right?

The idea that black people put there.

So, again, that goes with this spider web, right?

It's always sort of messier than the story that we get in the headlines.

Two countries I want to talk about in the present that you...

weighed on.

One is this question about localism and local control.

And there's been this huge school choice movement, this big idea that, okay, just push things back to the local levels.

But you seem to have more skepticism about that for reasons that are based in what you've learned in your reading of history.

Can you explain to us a little bit about what your concerns are with localism?

There's this narrative, and this really develops at the tail end of school desegregation as a justification for bringing

school desegregation to an end, letting local communities decide for themselves, neighborhood schools, you know, all these sorts of things.

Same thing with school funding, right?

Let locals decide.

And so I was looking into this question of like, well, how local is local education or how central is it?

You know, the court says that it's central, but how central is it?

What I found was that, yes, we deliver education at the local level through local administrators, but the actual creation of those schools

The expansion of those schools really has always been a state objective.

There are so many places across the north and south that public education never would have reached were it not for the state.

And so what the state did, and I know it'll bog people down in school financing, but what they did over the course of decades was create financial incentives for localities to create schools that didn't want them or they couldn't afford them.

Pennsylvania is a great example of this.

Like, yeah, Philadelphia is populated and advanced, but Western Pennsylvania might as well be Wyoming in many respects.

And so bringing education there is a much different thing.

And so it takes the state to do that, which it does.

The other thing, and this is where I think the localism, confusion happens, you can't have public schools without taxes.

That's number one, and that's obvious.

Number two, at the beginning of the public school movement, people weren't really used to paying taxes.

And nobody likes taxes.

That's a universal principle.

People do not like to pay taxes.

And so there's this question of, they know that people are going to maybe be a little bit upset with paying taxes and things of this sort.

And so they kind of make this judgment that maybe those taxes would be more tolerable if collected at the local level rather than by some state collector.

I'm not trying to short-shrift all the local work that goes on, but on the financing piece of things and creation piece of things, it really is this attempt to deal with tax policy more than it is this idea that each community is just going to do whatever it wants to do.

So it seems like a compromise was made to bring the taxation closer.

Do you have thoughts on how this could be or should be different and how we think about funding and how we think about reaching that universal ideal?

I've emphasized over the last 20 years that these are state schools, right?

They're state schools, the responsibility exists on the state, and they delegate that authority to a local community.

I mean, you just think about it in the most simple way, whatever county you live in, they actually do not have authority to tax your property, comma, unless the state gives them that.

There's nothing about being a county or a local municipality.

You don't have taxing power, the state is the only one that has authority to take your stuff.

How radical would it be to say, oh, this guy set up a tent over there in that field and he says we need to start paying him.

You'd be like, I ain't paying him anything.

Now, if the state said you need to pay that guy in the tent, that's a much different thing, right?

We're used to it, right?

This sort of normalization of local authority, but that local authority proceeds from the state constitution and state authority.

That's very important.

Number 2, you get to keep those taxes only because the state says you get to keep them.

This came up in Buckhead outside of Atlanta a few years ago.

I was reading this and citizens of Buckhead kind of talking about our money, our money.

How can the state and I back in the blog days, you know, I wrote this sort of snippy thing that said there's not a single tax dollar raised in Buckhead that belongs to Buckhead.

Right?

Those are state authorized taxes.

And so don't act like somehow or another you're some private independent municipality operating separately.

That's not how government works.

Maybe I'm just swimming upstream on that, but I think it's really this fundamental disconnect between where the authority goes.

But even if you don't get where the taxes go, I mean, the thing that I and David Chiar, a longtime director of the Educational Law Center,

said over and over and over again.

These are state responsibilities, state responsibilities.

So just forget about the local, what they're doing or not doing.

The responsibility for there to be adequate and equal schools.

in your community.

That responsibility lies with the state and the state alone.

If your local school district messes it up, yeah, you can go complain to them, but it's the boss who's accountable, right?

You know, it's like when you have a problem at whatever your favorite shopping store is, you don't berate the person at the counter if there's a policy problem.

You go to the manager.

Same thing here.

The buck stops with the state.

And so I think we also misdirect our rage sometimes at local officials.

It's the state that creates a structure that then allows for the dysfunction, or that allows for the underfunding, or that allows for the segregation.

And they like to step back and kind of wash their hands out of it, but they're the wizard behind the curtains, unfortunately.

The state level is where we find a lot of these explicit literal education guarantees.

And you've also written and argued, however, that there's a national, a federal right to education as well, or at least that there might be.

Where do you find that in the text, the history, and what does that add?

So mine is a little bit more convoluted maybe than the person that just says, hey, there's a federal right to education.

But I think mine's historically grounded and structural.

It sort of starts with the provision in the federal constitution that says,

Congress shall guarantee a Republican form of government in the states, right?

We often think of that solely in terms of voting, right?

That there's some representative government, so as long as South Carolina has representatives that set policy in the state and there's some sort of election, that that's a representative form of government.

But when we go back to the founding, it is clear, at least to me, and it is certainly pervasive amongst folks like Washington and Adams and Jefferson and Madison and Webster and others, that a Republican

form of government includes an educated citizenry.

You cannot hold government accountable, nor can you restrain excessive power if the citizens are not sufficiently educated.

So Jefferson and Adams, most notably, but not the only ones, consistently articulating the idea that Republican government owes an obligation to its citizens to educate them such that when they cast their vote, they can cast them intelligently, which makes democracy not chaos, but also hold power

accountable.

That's all over the place, right?

Congress talking about that for extended periods of time.

That mandate shows up in statehood.

So as our original colonies, they entered the union by compact, right?

We signed on to this constitution, so we're good.

We're not changing anything, right?

Not even slavery.

But as to the new states where Congress really is in a position to say, okay, we're going to give you statehood or not give you statehood, they require lands be set aside for public schools.

They require the provision.

And this requirement becomes

gets more and more specific and pervasive over time.

And just to be quick about it, at the end of the Civil War, when the nation really is being reframed, as I said earlier, Congress places specific conditions on the readmission of Southern states to the Union, and those conditions are conform your state constitution to a republican form of government, which meant

provide public education, these affirmative guarantees that black people are insisting on.

And in fact, the last three states to reenter the Union, Congress in the statute readmitted them specifically conditioned their readmission on never depriving anyone of the education rights they had just placed in their state constitution.

No state ever enters the Union again after the Civil War without guaranteeing public education in their constitution.

What we have now with that story is one in which it is Congress's responsibility to

guarantee that states have a republican form of government, which they think includes education, otherwise you can't be a state.

But it's actually the state's obligation to deliver that education.

So there is this federal connection to the state constitutional right to education.

Education has been thought of as a highfalutin other thing that people are stacking on, and you're really putting it at the center.

I think a lot of the debates we see today are about what will be taught and what certainly will not be taught in these schools.

And you have written about this question of orthodoxy and how much room for debate should there be/must there be in schools for them to actually build this generation.

Can you talk a little bit about that and what that does for us as citizens?

There's some leverage out of this constitutional guarantee clause, I guess, for content, but it's a little bit harder to get at.

And my other scholarship, I get at this content from the First Amendment side of things, which is less about affirmative provision, but sort of things you can't do as a state, right?

So if you understand that the system is there to secure a republican form of government, and you also understand

free speech clause, et cetera, aren't there limits to indoctrination and orthodoxy in the schools?

One of the ways I go at it in that article is to say, look, if the point of this system is the reinforcement of republican form of government and the people holding government accountable, then government ought not be able to short circuit the system through its schools by restricting skills development or ideas that might challenge the powers that be.

And that's an oversimplified version of a law review article.

That's sort of one of the ideas.

What things are in direct contradiction to free speech, deciding for yourself what ideas are going to be, and holding officials accountable?

And some of that is specifically in constitutional doctrine, right?

We have West Virginia versus Barnett, which the court says the state can't compel a child to pledge allegiance and says if there's any fixed star in our constitutional constellations, that no public official, high, or petty can dictate what shall be orthodox in law, in politics, religion, or

matters of opinion.

It seems to me that's a pretty good rule.

The question is how do you apply that?

At what point does a school cross over into dictating what shall be orthodox in matters of politics, opinion, or religion?

And I don't think mere exposure, so to speak, is a problem there.

I mean, even in West Virginia versus Barnett, you can have the Pledge of Allegiance and you can require the students to be in the room and at least be quiet while everyone else is pledging allegiance.

You can't force them to participate, right?

That principle leads to the idea that our schools ought to be reproducing our democracy in some form.

It's fine for them to say that democracy is good and separation of powers is good and laissez-faire economics is good, or at least generally capitalism.

It's fine for them to do that.

What they ought not be able to do is force the student to conform and agree to that, right?

And I think that's a key point.

The other part, which is one step further but kind of tricky, is, can they put out false narrative?

Or can they put out false information?

Or can they deny access to alternatives?

It seems to me that sometimes they shouldn't, because that's the same thing as indoctrinating.

So instead of forcing you to say, I believe X, what I'm going to do is deny you of the ability to hear about or speak about anything that's contrary to X.

And then I'm going to give you a bunch of propaganda about X.

I mean, that seems to me to be not as obvious as a compelling of the salute, but equally problematic.

Well,

I don't expect it to solve all the problems in our education system in the short time we've had.

We close out.

One thing that's very interesting with education is there's so many levels.

There's whatever the federal governments are going to do, whether the state government is going to do, but I think this research and the reality showed that there's also a ton of individual agencies, right?

Like black folks were teaching each other, promulgating ideas, regardless of what the legal structure was.

I think there's a lot of space for parents, teachers, learners,

What takeaways have you had from this history in how you approach teaching and how you approach learning?

What would you hope our listeners think about for themselves?

Your agency point I think is just crucially important.

Like how much is on us?

We always complain about what everybody else is doing.

What are we actually doing ourselves?

And it reminds me of this conversation that I was having with a school board member during the height of the CRT craze and he was lambasting it and carrying on.

And I said to him, I said,

On one level, I don't know how much this matters anyway.

He kind of looked at me in shock.

I mean, it matters culturally.

I was trying to prove it.

He goes, what do you mean?

I said, we don't teach history in our schools right now anyway.

This idea that we're teaching all these subversive ideas that needs to be stopped is wrong because we're not teaching subversive or non-subversive.

We're just not doing that, right?

It comes back to this agency.

It's like, what are we doing to make a difference?

And one of the things that kind of, it happened early in Florida, I haven't heard much on it since then, but when the first CRT stuff started

coming out.

In Florida, you know, a lot of Black communities did what they've done since Vessi.

They said, Well, we're going to do it ourselves, right?

We're going to have African-American history and this, that and the other.

We're going to have it at church on Saturdays and Sundays.

Wonderful idea, right?

We've got some people who run freedom schools in a few different places in the South, and it's like, yeah, our government ought to be doing better, no doubt.

We ought to be doing better, too.

And I think when we realize that, I don't mean that as a criticism, but it empowers us to actually, instead of spending all of our time in agency worrying about what the government's doing that we don't like, to say, what is it within my own power to accomplish?

And we all have a tremendous amount of agency to accomplish a lot.

There's a woman, I'm blanking on her last name right now, but she started Freedom to Read, Freedom Schools.

She said, look, you know, these young disadvantaged students in the low country have reading needs that are not being met by the standard curriculum.

And so she developed this program and recruited senior citizens to become mentors to young people and to advance their literacy.

And she said step number one is for these older people to find out what these young people

You need to 1st say, what are they interested in?

And then once you figure that out, you need to find some books about the things that these young people are interested in.

The next step is you begin to read to them.

Then you can imagine all the things that happened after that.

And I thought, how many grandparents or retirees do we have across this country that can make a real difference in the literacy gaps that young people have, that young black people and other children have?

There's a tremendous resource there.

Tracy Swinton is her name.

It takes people like Tracy to create these programs, which are just people power, just local people power.

She's got about 12 different organizations doing it across the South.

Her motivation and the way we came to be connected was

familiar with this history of black agency around literacy.

Why can't we do that?

Why can't we continue to make that sort of empowering movement in our communities?

I think there's a lot of things that we could be doing ourselves that make a real difference.

We'll definitely lift her up in the show notes and I mean, thank you as well for your scholarship.

Fascinating read and appreciate the work you've done.

Thanks for joining us.

Yeah, thank you for having me on.

It's been a pleasure.

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