Why Equal Access Matters

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Why Equal Access Matters:A Discussion with Help from Thucydides, U2, and Stephen Breyer

Rich HaglundGeneral Counsel, Tennessee State Board of Education

Education Law AssociationNovember 2007 Annual Conference



A Discussion with Thucydides, Bono & Breyer, by Rich Haglund, September 2007 1

Introduction

Here, each individual is interested not only in his own affairs but inthe affairs of the state as well: even those who are mostly occupiedwith their own business are extremely well-informed on general

politics — this is a peculiarity of ours: we do not say that a manwho takes no interest is a man who minds his own business; wesay that he has no business here at all. 1

In the United States of America, we educate only an elite minority of our children. One

of the myths 2 circulated in discussions about education is the notion that in America, we educate

all our children, while in places like India and China, 3 only the elite are educated. The facts

from Tennessee – and most other states in the country – contradict this assertion. In Tennessee,

for example, out of 100 ninth grade students, only 16 will complete a bachelor’s degree within 6

years after graduating from high school or an associate’s degree within 3 years after graduation.

We are, it appears, counting on 16% of our population to lead our country economically and

politically.

We are crippling our democracy by allowing a majority of children to leave our

secondary education programs without the capacity to provide a decent living for themselves –

not to mention a family – or to participate in the democratic process. “We judges cannot insist

that Americans participate in” the government elected by the people, writes United States

Supreme Court Justice Stephen Breyer. 4 “But we can make clear that our Constitution dependsupon it.” 5

As small- and large-scale education reforms are implemented and debated, an

understanding of the democratic consequences of education policies is crucial. Justice Stephen

Breyer has recently written about the need for judges to consider the “constitutionally relevant

1 THUCYDIDES , H ISTORY OF THE PELOPONNESIAN W AR 147 (Rex Warner trans., Penguin Books 1972) (1954). This

comment was part of Pericles’ Funeral Oration.2 For additional examples of “education myths,” see JAY P. G REENE , EDUCATION MYTHS : W HAT SPECIAL INTERESTGROUPS WANT YOU TO BELIEVE ABOUT OUR SCHOOLS – AND WHY IT ISN’T SO (Rowman & Littlefield 2005).3 These countries are of particular interest to people like Thomas Friedman, author of T HE WORLD IS FLAT , Farrar,Straus and Giroux, 2005, because they are producing many more engineers and scientists, and are empowering theircitizens to not only manufacture low and high-tech products, but also to design and engineer such products atdrastically lower costs than America is. For an interesting slideshow on this issue, see D ID YOU KNOW ?, by KarlFisch and Scott Macleod, available at http://shifthappens.wikispaces.com/ .4 STEPHEN BREYER , A CTIVE LIBERTY 135 (Alfred A. Knopf 2005).5 Id.

http://shifthappens.wikispaces.com/

http://shifthappens.wikispaces.com/




Even basic political participation – voting in presidential elections – varies widely based

on the education level of our citizens. In 2002, there was a 33 percentage point difference in the

participation rate in presidential elections between high school graduates and college graduates,

aged 18 to 24. 10 That same gap in participation for potential voters between the ages of 25 to 44

remained near 30 percentage points. 11 Since that data was culled from self-reporting, it is

possible that the actual participation rates are even lower. 12 These numbers do not address

participation in politics at a local level, but it seems unlikely that someone who does not vote in

presidential elections would be prepared to propose changes to a local school board, run for a

seat on the county commission or inform neighbors of government regulations likely to affect

their life, liberty or property.

“I’m not a smart man, Jenny. But I know what [equal protection] is.” 13

Access to high quality education is fundamental, particularly for those for whom it is not

important. During a constitutional law class, the professor 14 asked a student about the opinion

rendered by the United States Supreme Court in a particular case. The student paused to think.

Other students began to raise their hands, anxious to answer. The professor wisely waited and

encouraged the student he had first called on: “Something about this case doesn’t sit well with

you, right?” He waited for her to articulate why the Court’s stated reasoning did not seem

“right” to her.

It is imperative that all of our children develop the capacity to understand their rights

under the law and to articulate what laws and policies inhibit their pursuit of life, liberty and

happiness. The income or education level of their parents should not limit their capacity to

participate meaningfully in the democratic process.

“Our constitution,” Pericles said in his funeral oration during the Peloponnesian War, “is

called a democracy because power is in the hands not of a minority but of the whole people. . . .

10 U.S. Census Bureau, 2002b, Table 5. 11 Id. 12 From 1968 to 2000, the general participation rates decreased markedly, with the gap between the highest andlowest educated citizens constantly decreasing. U.S. Census Bureau, 2002b, Table A-2. The rate for individualswith no post-secondary education decreased 30%, and for those with only some college, 20%. 13 FORREST GUMP (Paramount Pictures 1994).14 Thomas McCoy, recently retired from Vanderbilt University Law School.




This problem – access to great teaching regardless of income – is one that can be solved

through democratic processes. But citizens need to be educated to understand that. Working at

the State Board of Education, I often get calls on issues that are matters of local concern. I have

to explain to individuals that their recourse, if they are dissatisfied with the actions of a local

school superintendent, is to take their concerns to the local school board. If they are dissatisfied

with the board’s decision, their recourse is not to ask the state board of education to act as the

executive branch police and the judicial branch court, but to elect new school board members.

They rarely understand that they are in charge of the local school board. 26

Conclusion

Education law and policy must aim not only to improve children’s potential to contribute

to the economy, but must also prepare them for citizenship and leadership. 27 Pericles, speakingof the Athenian city-state, said, “We do not say that the man who fails to participate in politics is

a man who minds his own business. We say that he is a man who has no business here at all.” 28

If we are not preparing our children to actively and ably participate in our democratic society, we

exclude them from the democracy and thereby undermine the “consent of the governed”

necessary for the maintenance of government by the people.

They’re reading names out over the radioAll the folks the rest of us won’t get to knowSean and Julia - Gareth, Ann and Bred aTheir lives are bigger than any big idea 29

Preparing our children for meaningful participation in our democracy is more important

than any particular attorney or school administrator or policymaker. It’s more important than

any piece of legislation, pedagogical technique or educational software program. As educators

and attorneys, we are active participants in our democracy and have a particular responsibility to

do our part to “secure the Blessings of Liberty to ourselves and our Posterity.” 30

26 I imagine that they probably didn’t vote in the last school board election, either.27 M ILTON FRIEDMAN , THE ROLE OF GOVERNMENT IN EDUCATION .28 THUCYDIDES , H ISTORY OF THE PELOPONNESIAN W AR 147 (Rex Warner trans., Penguin Books 1972) (1954).29 U2, Peace on Earth , on HOW TO DISMANTLE AN ATOMIC BOMB (Interscope Records 2004).30 U.S. CONSTITUTION , Preamble.




One of my first year law professors defined attorneys as “creative problem solvers.” If,

as Justice Breyer contends, the Constitution’s maintenance requires able participants to solve

problems at every level of government, attorneys cannot monopolize these skills. The British

philosopher Edmund Burke suggests that we cannot expect creativity or responsibility 31 without

a social compact – a civic capacity shared by us, our progenitors and our posterity. 32 In other

words, we should be motivated to enable equal access to great education by more than the fear of

illiterate bedpan changers!

31 Id. at 84 Who would insure a tender and delicate sense of honor to beat almost with the first pulses of the heart

when no man could know what would be the test of honor in a nation continually varying the standard of its coin?No part of life would retain its acquisitions. Barbarism with regard to science and literature, unskilfulness withregard to arts and manufactures, would infallibly succeed to the want of a steady education and settled principle; andthus the commonwealth itself would, in a few generations, crumble away, be disconnected into the dust and powderof individuality, and at length dispersed to all the winds of heaven. Id. 32 EDMUND BURKE , REFLECTIONS ON THE REVOLUTION IN FRANCE 84 (J. G. A. Pocock ed., Hackett PublishingCompany 1987 (1790). As the ends of such a partnership cannot be obtained in many generations, it becomes apartnership not only between those who are living, but between those who are living, those who are dead, and thosewho are to be born.

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