The Mises Institute monthly, free with membership

Sort archived Free Market articles by: Title | Author | Article Date | Subject

December 1995
Volume 13, Number 12


Schools and Judicial Tyranny
William J. Watkins, Jr.


Cheers to the governors of Alabama and Virginia for sending back millions of dollars earmarked for the "Goals 2000" program slated to be imposed on their states' schools. After decades of federal attacks on local control, they have responded to voter demands that school centralization be halted. 

Today, despite Washington's desires, education is the perfect candidate for de-centralization. But it's not only "Goals 2000" that stands in the way; judges enforcing anachronistic "desegregation" orders still hold a tight grip on state and local governments and their educational priorities. 

For decades, schools have only gotten worse. Per pupil spending in constant dollars has increased from $2035 in 1960 to $5247 in 1990, though this 158% increase has not improved the quality of schools. Employers report that only one applicant in five with a high school diploma can meet business standards. 

Local control would go a long way towards improving this problem. Yet many communities are prevented from running their own schools. Court-ordered desegregation continues to criminalize neighborhood schools. Elected school boards have had their powers stripped by unelected federal judges. The judges make decisions regarding busing, school placement, the distribution of scarce funds, and even the levels and types of taxes used to fund education. 

Judges have imposed educational goals that can only be met by higher taxes and radical redistricting. Such rulings have a perverse effect on state politics by keeping the voter desire for tax cuts from being admitted as a policy option. Legislatures deserve credit for stalling implementation for as long as possible, or at least until the judge imposes a tax increase. If ever there was a case of taxation without representation, this is it. 

There's no point in avoiding the real source of federal tyranny over education, of which Goals 2000 is a mere symptom. It all began in 1954 with v. Topeka Board of Education. The Supreme Court ruled that state-mandated separate educational facilities for the races were unconstitutional. Rather than basing its decision on constitutional law, however, the court turned to social science, especially Swedish socialist Gunnar Myrdal. It reasoned that segregated schools harmed childhood "in a way unlikely ever to be undone." Only in integrated schools, the justices claimed, could black children achieve academic success. 

The court's opinion hinged on the fact that in the modern world, education was of enormous import and had become one of the primary functions of the state. To deprive black children of a good education, which could only occur in integrated schools, was to deprive them of "the equal protection of the laws guaranteed by the 14th Amendment." 

Never mind that the framers of this amendment never viewed it as a way for D.C. to dictate state-level education policy. The Warren Court was determined to push its own agenda, no matter what the Constitution said. From his retirement, the great American jurist Learned Hand described the Court's actions as that of "a third legislative chamber." 

Despite opposition, defenders of the Brown social science data hewed to the idea that without integrated schools, black academic performance would continue to suffer, placing blacks at a disadvantage in the job market. This harm-and-benefit thesis became the basis of the drive to integrate public schools with massive amounts of social engineering. Court-ordered busing and racial quotas in the 1970s led to much civil unrest and even riots. 

Federal involvement in the education business today has left a nationwide path of destruction and wasted minds. Denver, Colorado, has been the victim of judicial engineering for 21 years, even though segregation has been statutorily barred since 1895. 

Much of this resulted from the 1973 case Keyes v. School District #1 of Denver. The high court held that the school board could be forced to assume responsibility for school segregation fostered by residential housing patterns, unless the board could prove "definitively" that state action did not cause housing segregation. The school board was unable to jump through the hoops to prove "definitively" it did not intentionally segregate vis- -vis school location and other factors, and thus fell under court order. 

The first of many bitter results of Keyes was a massive white exodus from the city. In Denver, white public school attendance fell by 70% from 1968 to 1994. Many of those who stayed around enrolled their children in private schools, thus paying twice (taxes and tuition) just to have some say over the children's education. The quality education promised to the children of Denver through court-ordered busing and other gimmicks never materialized. Today, one in four students lacks proficiency in English and 10% are enrolled in special-education classes. 

Yet many still cling to ideas such as forced busing and other court-ordered desegregation plans. Not only must overt discrimination be eliminated, but also the effects of discrimination. Under this standard, this will occur only when black and white academic performance becomes equal (the view held by Thurgood Marshall). This egalitarian goal--which treats people like numbers in a math problem--could be used as a means of control in perpetuity. 

The most striking effect of the resulting demographic upheaval has been the reappearance of racial homogeneity in public schools, the very opposite of the stated intent of the court rulings. It has provoked another reaction to, in the words of California Judge Paul V. Egly, "make the most efficient use of increasingly scarce white students as possible." 

Despite such intellectually bankrupt sentiments, there has never been any evidence (though the Department of Education has tried to produce it) that people learn better in a multiracial environment. The attempt to bring it about has essentially nothing to do with education as such (as blacks and whites have painfully learned) and everything to do with the social and political ambitions of government managers and therapists. 

The failure of this social and economic experiment has become so pronounced that some judges have begun to back away. Judge Richard Matsch ended Denver's 21-year-old ordeal with forced busing, sparking the hope that the city's schools might yet be salvaged. 

Neighborhood schools, with a maximum local control, offer parents an opportunity to take an active role in their children's education. For those who are unable to homeschool or send their children to private schools, local control of public schools makes the best out of a bad situation. 

A return of local control would mean a repudiation of the statist, centralizing, and egalitarian principles of Brown v. Board of Education. But that is exactly what is needed to end judicial control, return to fiscal responsibility, create coherent communities, and reinvigorate an educational system that works for students and parents.


William J. Watkins, Jr. is assistant editor of The Freeman.


Close Window