Schoolhouse Burning

Public Education and the Assault on American Democracy


By Derek W. Black

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The full-scale assault on public education threatens not just public education but American democracy itself.

Public education as we know it is in trouble. Derek W. Black, a legal scholar and tenacious advocate, shows how major democratic and constitutional developments are intimately linked to the expansion of public education throughout American history. Schoolhouse Burningis grounded in pathbreaking, original research into how the nation, in its infancy, built itself around public education and, following the Civil War, enshrined education as a constitutional right that forever changed the trajectory of our democracy. Public education, alongside the right to vote, was the cornerstone of the recovery of the war-torn nation.

Today’s current schooling trends — the declining commitment to properly fund public education and the well-financed political agenda to expand vouchers and charter schools — present a major assault on the democratic norms that public education represents and risk undermining one of the unique accomplishments of American society.




THE LAST DECADE STANDS OUT IN HISTORY AS A PARTICULARLY bad one for public education. Our fidelity to the constitutional rights to education and equal and adequate public schools for all seriously faltered after an important period of expansion in the 1990s and early 2000s. Some combination of factors is to blame. The rights previously established by state constitutions, courts, and laws provoked legislative resistance. Cultural norms changed. Social anxieties motivated irrational decisions. Some would even say sinister plots were hatched. You can decide for yourself. Regardless, the result was the same: major changes in how states and the federal government treat education. With the benefit of just a little historical perspective, those changes are alarming.

The first change was initially hard to see. But a decade later, a long-term global disinvestment in public education is hard to miss. Before the recession of 2008, the trend in public school funding remained generally positive. Students did not have everything they needed, but they typically had more than the prior generation. Then the recession hit. Nearly every state in the country made large cuts to public education. Annual cuts of more than $1,000 per student were routine—the equivalent of an assistant teacher in every classroom or a school’s entire science and foreign language departments combined.1 In North Carolina and Florida, funding fell from over $10,000 per student to around $7,000 in just a few years.2

States did not take time to stop and seriously consider what they were doing, much less offer any good explanations to the rest of us. At best, they assumed schools could be more efficient. How much more efficient? They had no idea. Education, given its overall size, was simply the natural place to find savings. States took out their hatchets and started chopping. They never looked back.

The immediacy of the recession made it hard to second-guess them in real time. But in retrospect, many of the cuts were not about efficiency at all. Rather, the recession offered a convenient excuse for states to redefine their commitment to public education. This sad reality became clearer with each passing year. By 2012, state revenues rebounded to prerecession levels, and a few years later, the economy was in the midst of its longest winning streak in history. Yet during this period of rising wealth, states refused to give back what they took from education. In 2014, for instance, more than thirty states still funded education at a lower level than they did before the recession—some funded education 20 percent to 30 percent below prerecession levels.3 Some states have since gradually increased education funding, but the general national trend of sustained and substantial underfunding of public schools persists.

The mismatch between state revenues and school funding levels was “unprecedented.”4 School budgets always bounced back relatively quickly after a recession in the past. This time, state coffers were getting fatter, but school budgets were not. In fact, many school budgets fell further behind. Costs for things like transportation, electricity, food, and teacher benefits rose with the times, whereas school budgets remained flat. The divergence begs the question of whether states intentionally gouged education—doing things that the courts, the public, and any reasonable politician would have never condoned under normal circumstances.

School funding cuts from 2008 to 2015.

Courtesy of the author.

States did not have to stop funding education at adequate levels. They just stopped trying. A state might have defended only spending the resources it had available. This would have caused school funding to dip, but not plummet. Several states, however, decided to spend even less than what they had available. They took money out of public education and gave it away in tax cuts, shored up other government programs, or, as discussed below, expanded alternatives to public education. A mere eighteen states increased their efforts to fund education once the economy recovered. In short, state education budgets reflected goals and biases that had little to do with economic hard times.

The conscious decision to underfund education was obvious in North Carolina. North Carolina cut education funding by 15 percent while also giving out the largest state-level tax cuts in the nation’s history (and giving them to the state’s highest-income earners in what some called a systemic war on poor people). North Carolina then continued to starve education when its economy started to boom. In 2015, the economy was so strong that North Carolina had a half-billion-dollar surplus in spite of deep tax cuts. Yet North Carolina refused to use the surplus to repair the harm it had done to education in prior years.

The story in Kansas was similar. Governor Brownback sold the idea that $700 million in tax cuts would supercharge the state’s economy. It didn’t, and he called for enormous school funding cuts less than three years later.5 Those cuts brought education spending 17 percent below prerecession levels.6 Brownback also fought to keep those cuts in place when courts insisted that Kansas increase school funding. If you know a person by the friends he keeps, Brownback’s goal for education was sinister. Brownback was the poster boy for Grover Norquist’s agenda to shrink government to the size where you can “drown it in a bathtub”7—a plan that necessarily included public education.8

The real-world impacts of budget cuts of this magnitude had serious consequences for schools. The cuts were not just numbers on a spreadsheet. They affected schools’ ability to staff classrooms and deliver services. They drove some districts to the brink of catastrophe. School funding shortfalls were so steep in Pennsylvania that they eventually morphed into tragic national headlines. Philadelphia schools, for instance, cut nursing services to two or three days a week. Students, however, still got sick five days a week. In 2014, a couple of sick students were not treated and died at home later in the day.9 Whether a solid budget would have prevented the tragedies is impossible to say, but the funding crisis got so bad that national civil rights leaders descended on the state in protest, concluding that “Pennsylvania has become a national model of dysfunction in education.”10

A year later Pennsylvania schools began the 2015 academic year without a state budget. They finished the school year in the same position. Wealthier school districts drew on “rainy day” reserve funds, increased local funding, and borrowed money. Poor districts could not. Some of those poorer districts asked teachers to work without pay. Others, like Erie, contemplated closing altogether—permanently.

These public school crises stood in stark contrast to how states were treating alternatives to public school. While states were reducing their financial commitment to public schools, they were pumping enormous new resources into charters and vouchers—and making the policy environment for these alternatives more favorable. Charter schools, unlike traditional public schools, did not struggle during the recession.11 Their state and federal funding skyrocketed. Too often, financial shortfalls in public school districts were the direct result of pro−charter school policies. North Carolina, again, offers a clear picture of public schools and charters moving in opposite directions. Between the start of the recession and 2014, North Carolina more than doubled its charter school budget.12 During that same period, it cut public school funding by more than $2,000 per pupil, falling from a state whose funding levels ranked twentieth in the nation prior to charter school expansion to one that ranked forty-sixth in 2012.

States fund charters through various mechanisms, but a recurring problem was the way states required local school districts to transfer funds to charters. In Pennsylvania—a state that already grossly underfunded high-poverty districts—state rules made a bad situation worse. The funding transfers intensified the financial struggles of districts like Chester as the charter school population increased. By 2012, the Chester Public School District owed charter schools $43 million—almost half of the entire budget for Chester’s public schools.13 Litigation later revealed that Pennsylvania’s charter reimbursement system created perverse incentives for charters to take the most profitable students and leave the higher-cost students behind in the public schools. The result was a vicious cycle in which Chester’s public schools sank further into a hole and nearly hit financial insolvency.

In Ohio, charter school incentives fueled so much growth so quickly that fraud and corruption took hold. The state itself later admitted the need for new controls. But it was like the Wild West until then. Ohio charter schools received substantial funding increases every year between 2008 and 2015. While public schools received increases in a few of those years, they were modest at best—in one instance just one-tenth the size of the charter school increase. In fact, public school increases were not really increases at all because the required funding transfers to charters eviscerated the increase. In 2013–14, Ohio school districts, on average, went $256 in the hole for every student who went to a charter. Some went deeper in the red. Nine districts sent charters between 20 percent and 65 percent more money than they received from the state—a hard reality to justify when Ohio was already sending charters other funding on the side. All told, charter schools received $7,189 per pupil in state funding. Public school districts received less than half that amount.

These stories from the above states, unfortunately, are not unique. They are just a few of the worst examples in a parade of horribles that stretches from California to New Jersey. Time and again, states expanded charters while hammering public schools. Up close, the economy and an ever-evolving landscape of education policy overshadowed the significance of what was occurring: a preference for public school alternatives.

In the past, the federal government might have raised objections to the disinvestment in public schools. But there, too, a major shift in thinking was taking hold. It started with President Obama’s choice for Secretary of Education. The presumptive choice for the job was Linda Darling-Hammond. She headed up education policy for Obama’s transition team and is one the nation’s foremost education experts. When it looked like she might land the secretary’s job, education reformers excoriated her as an old-school, pro-teacher type who would stymie reform. A leading school choice advocate and former Bush official called her the “worst case scenario.”14 Obama took the easy way out and tapped Arne Duncan instead—someone whose track record in Chicago involved substantially expanding charters.

Obama said his goal in picking Duncan was to end the ideological divides:

For years, we have talked our education problems to death in Washington, but failed to act, stuck in the same tired debates that have stymied our progress and left schools and parents to fend for themselves. Democrat versus Republican; vouchers versus the status quo; more money versus more reform—all along failing to acknowledge that both sides have good ideas and good intentions.15

Yet rather than end ideological divides, Obama’s choice ceded enormous ground in the larger war over education. Whether the president was duped or soft-pedaling the agenda he wanted does not matter much now. Either way, the department took a serious turn on charters and teachers under Duncan.

For the next several years, the federal government promoted and sometimes forced charter school expansion16—well beyond the baby steps prior administrations had taken.17 The Obama administration basically condoned everything states were doing with school funding and made it a little worse. Federal funding for public schools remained flat while the federal budget for charter schools increased by nearly 20 percent between 2008 and 2013.18 President Obama called for another 50 percent increase for charters on top of that in 2016 (though he didn’t get it).19 The real surprise, though, is how much Duncan managed to accomplish through administrative action. He used executive power—which was particularly strong during a time of economic and regulatory crisis—to ensure that states adopted pro-charter policies.

His biggest coup was the process he set up for doling out innovation funds during the recession. As part of the economic recovery legislation, Congress had set aside a substantial chunk of money for education innovation but didn’t specify exactly what schools could spend it on. Duncan, however, told states that if they wanted access to the money, charter schools had to be part of the mix. States that “put artificial caps on the growth of charter schools,” he said, “will jeopardize their [grant] applications.”20 States, looking for money anywhere they could find it during the recession, saw little choice but to lift their charter school caps and make the policy environment more inviting.21 Many states got what they had once worked to prevent—rapid charter school growth.

The overall result of these state and federal actions was stark—nearly 40 percent growth in the number of charter schools22 and 200 percent growth in their enrollment.23 Charters secured solid footholds during this period that are difficult to dislodge. Attempts to reverse the trends are derided as attacks on the children in charters (even if the point is to phase out some charters without affecting current students). Attempts to just slow new charter growth are characterized as inequitable limits on familial autonomy, teacher union pandering, or, even worse, racial paternalism. Charter schools, as much as public schools, now claim an inherent right to exist.

Similar narratives are fueling private school vouchers and tax credits, even though these alternatives cannot plausibly claim the mantle of “public education.” The attempt to expand them represents the clearest agenda to reshape and shrink the state’s role in public education—a goal that becomes more audacious and explicit each year. The traditional voucher rationale was to help disadvantaged students escape failing schools.24 They deserved the same options as wealthy families, voucher advocates would say. That argument was hard to criticize if it really worked to create equity that was otherwise unavailable in the public school system.

Older voucher programs were structured to fit that narrative as best they could.25 They included income eligibility caps and geographic restrictions that limited vouchers to particularly distressed communities.26 In general, they were pet projects with relatively little effect on the overall education system. But after a long period of failing to gain serious policy traction, voucher supporters moved away from the stated objective of assisting disadvantaged students and communities.

Core voucher advocates’ relationship with minorities had always been a strange one anyway. Vouchers originated as a tool to maintain school segregation during the 1960s. That history always made minorities an unlikely constituency to push voucher policy over the top. The real constituency was libertarians, religious conservatives at odds with public school values, and wealthy families who thought school taxes were too high and wanted a little something back to finance their private school choices. Faced with those realities, voucher advocates eventually came clean with their motives. New voucher laws fully reflect the change.

During the recession, states began eliminating restrictions on who could participate in the programs. Middle-income and wealthy families, regardless of where they lived or what public school their kids might otherwise attend, could finally participate.27 This meant vouchers were not about education quality or closing gaps in opportunity anymore—if they ever were. They were about reframing the state’s approach to education. Rather than ensuring a robust system of public education for all or promoting common goals, states should promote individual autonomy and freedom—however the individual might define it. Stated another way, public education was the problem, not the solution. The public school system stood in students’ way, whereas private schools could liberate them.

Florida initiated the shift. Its prerecession voucher program only applied to low-income students attending a “failing” public school. The program was short-lived. The Florida Supreme Court declared it unconstitutional because the state funded the vouchers with money that the state constitution specifically reserves for public schools. Florida then began experimenting with ways to get around the problem. It developed an alternative form of vouchers, what it called a “scholarship” program. In most respects, it operated just like a voucher, paying for tuition at private schools. But rather than funding the tuition directly out of the state coffers, Florida gave tax credits to businesses and individuals who donated to a state “scholarship” fund that the state then used to pay private tuition. The real farce, though, was that Florida reimbursed businesses and individuals for the full cost of their “donations.” The scheme was so finely tuned that, until the federal government caught on, donors could make money by also claiming an additional charity deduction on their federal taxes. That doesn’t sound like any donation I’ve ever made. It sounds like the state turned private companies and individuals into conduits for laundering state money around the constitution—and allowing a little profiteering on the side. It worked. Legal challenges fell flat. The only limit was how much the state was willing to spend on tax credits.

When Florida first created its neo-voucher system of tax credits and scholarships just before the recession, the state immediately pumped an impressive amount into private school tuition—$178 million in 2006 and $204 million the next year.28 But after the recession, when it began expanding the program beyond just poor families and increasing the value of the neo-vouchers,29 its investments skyrocketed, jumping a hundred million dollars every few years. By 2016, Florida had more than quadrupled its investment in private school education to $759 million.30 Current estimates predict that Florida is on the verge of spending $1 billion a year. Yet even that was not enough to satisfy the current generation of choice advocates. When Ron DeSantis was elected governor, they went back for more.

Florida tax credit spending on private school tuition, by year.

Courtesy of the author.

Florida’s tax credit system may have solved the constitutional problem, but it created a practical one. The tax credits relied on middlemen, which meant a practical limit and inefficiency to the program. With DeVos cheering him on, DeSantis tweaked and revived the old voucher system in 2019, renaming it the Family Empowerment Scholarship. For all intents and purposes, it was the same type of voucher program the state Supreme Court previously struck down. No middleman. Just state revenues into private coffers, coming right out of the state’s “operational formula for traditional public schools.”31 To the extent the voucher program had changed, it was in a bad way: the new one was not reserved for the state’s poorest students. It was open to families making triple the federal poverty level: $77,250 for a family of four.32

Other states followed Florida’s lead in redefining what was possible with vouchers. They drastically increased funding and raised income eligibility caps, sometimes effectively eliminating them altogether.33 Some states never even bothered with tax credits. They just went straight for the public education dollars. With each year that passed, voucher legislation looked like a privatization arms race. New states vied to outdo the record-setting program others had passed the year before, wowing the school choice crowd with bolder payouts for broader cross sections of students.

Indiana started the race. In 2013, Indiana’s school funding was on a bad run, down a total of 12 percent in real-dollar terms since 2008 (even though the economy had rebounded).34 It chose that moment to enact the most expansive voucher program in the nation’s history.35 Over the next four years, voucher enrollment grew by roughly 600 percent and state funding for vouchers by more than 700 percent.36 Two years later, Nevada blew that model out of the water, making a voucher theoretically available to every single public school student in the state. More dazzling was the handsome dollar amount the state was willing to spend on those vouchers. Nevada authorized the transfer of close to every state public school dollar to private school tuition. For each special education student, the state would transfer 100 percent of state per-pupil funding from the school district to a private account. Presumably, in an attempt to keep up the ruse that it was not favoring private over public education, vouchers for non–special education students were 90 percent of the public school allotment.37

The program had the potential to eliminate public education as we know it in certain parts of the state. It all hinged on how many students took the state up on its offer. If enough students signed up, public schools would have found it nearly impossible to operate at some point. In the end, only the state constitution stopped the threat. Nevada’s Supreme Court declared the measure unconstitutional because it violated the state constitution’s rules for public education funding.

Regardless, Nevada’s legislature had shown what was politically possible, and others tried to do the same in places like Arizona, South Carolina, Tennessee, and Florida. Florida’s new voucher program, for instance, is worth 95 percent of state education funding per pupil. At levels like that, the line distinguishing the state’s role in public and private education—or favoring public education rather than private education—grows razor-thin. DeSantis’s and DeVos’s justification for pursuing this parity was an absurd redefinition of public education: “Look, if it’s public dollars, it’s public education.”38

The last major sign of change in public education doesn’t require a calculator or interpretation. During the recession, the teaching profession was turned upside down, and that was the explicit point. Teachers were labeled as the bad guys or girls, sometimes even called the “enemy.” Such a narrative could justify everything else described above regarding money, public schools, and privatization. Think we spend too much on schools? It’s because teachers are overcompensated and have too many benefits. Think students aren’t learning enough? It’s because of ineffective teachers. Think we need more experimentation? Get rid of unions. Think public education does not respond to your child’s needs? Well, vouchers and charters can break the monopoly that caters to teachers rather than students. In almost every aspect of their professional life—salary, classrooms, expectations, and public persona—teachers were on the defensive. Commentators, including the front page of Time magazine, dubbed it a “War on Teachers.”

Teachers have never been accorded high salaries or the professional status they deserve, but they have long held a special place in the public’s heart. That special place did not always show up in their bank accounts, but it was reflected in tenure, respect, and reasonable expectations—whether it was in public policy or face-to-face interactions. Teachers, after all, spend enormous amounts of time with our children. The least we owed them was our goodwill. Knowing as much, the public at large and public education families, in particular, freely afforded it. Even if a few teachers were ineffective or difficult, teachers on the whole were not the ones to target with vitriol. If there was an enemy of public education, it was not teachers. During the recession, that all changed.

Conservatives who believed the unions had too much political power teamed with education reformers who thought the teaching profession needed an overhaul. Government leaders looking to shrink public investments were eager to listen. The recession provided a perfect opportunity and justification for scaling back teachers’ salaries, rights, and political influence. Why let a good crisis go to waste? What had previously looked politically impossible suddenly looked feasible. With reform, anti-union, and fiscally conservative groups working together, they might just fundamentally change states’ relationship with teachers.

It worked. Across the nation, states made major changes to teachers’ collective bargaining agreements, salary structures, overall benefits, and teaching expectations without giving teachers anything in return.39 One of the first salvos was in Wisconsin, where Governor Scott Walker made it his mission to break teacher unions (which would later open the door to his school privatization reforms). In 2011, the state passed new legislation to restrict, if not eliminate, public employees’ collective bargaining rights and slash their benefits. The real target of the law, however, was teachers. The proof was in the pudding. Walker exempted police, firefighters, and state troopers from the collective bargaining changes, leaving teachers as the primary group to see its rights change. Teacher compensation took a direct hit too, “decreasing by 8.2 percent in inflation-adjusted terms.”40 Within four years, it fell even more—a whopping $10,843 from teachers’ paychecks and benefits disappeared.

Why the sudden attack, and in Wisconsin of all places? The Koch brothers. As one democratic politician remarked, “The Koch brothers are the poster children of the effort by multinational corporate America to try to redefine the rights and values of American citizens.”41 The Koch brothers’ own advocacy organization, Americans for Prosperity, proclaimed that it was “going to bring fiscal sanity back to this great nation.”42 If that was the goal, Wisconsin education was on the trail to the Holy Grail. Education is the largest state program by a long stretch in all states, but Wisconsin was a state where the teaching profession was particularly strong. If the Koch brothers could win there, they could win anywhere. So they chose Wisconsin as the opening battleground to reimagine and shrink the size of government through a war on public education.

It also helped that Scott Walker looked to play the role. He was brash and eager to make a name for himself, maybe even propel himself to national office. He was happy to run with their playbook and make teachers the foil. Early in his administration, Walker and the Koch brothers got almost everything they wanted. They broke teacher unions, cut public education funding, adopted a statewide voucher program, and instituted a cap-free charter school system that local districts couldn’t block.43

Their success stoked a new national discourse around teachers that spread. Some of the commentary was downright shocking. For example, reflecting on his experience fighting teachers and his qualification to fight terrorism as president, Walker said he would “do everything in [his] power to ensure that the threat from radical Islamic terrorists does not wash up on American soil.… If I can take on 100,000 [teacher] protesters, I can do the same across the world.”44


  • "A well-informed and cautiously optimistic defense of public education's central role in the American experiment."
    Publishers Weekly
  • "A polemic against the ongoing dismantling of public education... Education reformers and public school advocates will find a powerful ally here."
  • “Black’s book is packed with information and analysis, but remains exceptionally accessible, like getting a detailed explanation from a legal scholar who just happens to speak plain English. Beyond the well-researched history, Black also provides a convincing argument in favor of public education in this country, a defense of a foundational institution at a time it is once again under attack.”—Forbes
  • “Derek W. Black analyzes the problem with public education in the United States today, and lays out a plan to fix it.”—Bustle
  • "I loved Schoolhouse Burning for its stirring defense of the central importance of public education to American democracy, and for Derek Black's groundbreaking research. He definitively shows that the founders of the nation enthusiastically promoted public schools, that public schools enjoyed overwhelming bipartisan support, and were established in every state as central to democracy. The current efforts to privatize them with vouchers began with segregationists in the 1950s and continue today with charter schools, reinvigorated vouchers, and deep cuts to public school funding. I highly recommend Schoolhouse Burning as an important counter to a destructive trend."—Diane Ravitch, author of Slaying Goliath and Reign of Error
  • "Derek Black has written a magnificent book on the history of public education in the United States. Professor Black shows that the future of American society-its equality, its democracy-depends on improving its public schools. This beautifully written book offers a path forward to making a right to a quality education for all children a reality."
    Erwin Chemerinsky, dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley
  • "Derek Black is the rare education law scholar willing to put his vast skills and knowledge in the service of defending our nation's public schools. Schoolhouse Burning is a searing analysis of the current assault on public education by those intent on its destruction and, with it, the further erosion of our democratic institutions. It is also an urgent call to action to join with parents, advocates, teachers, and lawyers on the front lines of ensuring the right of every child to a high-quality education remains prominent, paramount and fully protected."
    David Sciarra, executive director of the Education Law Center
  • "Black argues that education does indeed play a foundational, constitutional role in American democracy and that it is the state's obligation--often the state's primary obligation--to provide it....[H]e takes us back to several crucial moments in American history when questions about the meaning of democratic governance became inescapably acute, and he reminds us of the central role that public education played in each of them."
    Derek Gottlieb, author of A Democratic Theory of Educational Accountability

On Sale
Sep 22, 2020
Page Count
320 pages

Derek W. Black

About the Author

Derek W. Black is a professor at the University of South Carolina Law School where he teaches constitutional law, civil rights, and education law. He is a well-known and outspoken advocate of the importance of public education and his work has been published in both professional legal journals as well as the mainstream media.

Learn more about this author