"A sense of inferiority affects the motivation of a child to learn." --Chief Justice Earl Warren
The recent ruling by a federal judge in Michigan who dismissed legal challenges to NCLB on grounds that Congress has the right to impose mandates on the states should be a clear signal for opponents of NCLB to change strategy. Howard Zinn’s recent article, "Creating Justice," discusses the historical role that the rule of law, the Constitution, and the Supreme Court have played in terms of protecting the rights of citizens. Zinn’s main point is that social justice and change usually take place because people protest, organize and shake things up, “because the courts have never been on the side of justice, only moving a few degrees one way or the other, unless pushed by the people.”
Well, it's time to shake things up. What is disturbing about the current legal challenges against NCLB is the premise of the argument itself. Basing the legal challenge on unfunded state mandates or flexibility implies that throwing more money at testing and other elements of the legislation or giving states more flexibility will solve the problems or rectify the injustices being created by the law. By continuing to frame the legal challenges around costs and flexibility, the discourse over the more egregious and harmful effects of NCLB on children, teachers, and schools are not being addressed and have not yet entered into the public debate.
It is becoming increasingly clear this battle has got to be fought on the grounds that NCLB is a violation of the most basic and fundamental human rights to freedom and is a clear violation of the Constitutional right of due process as stated in the Fourteenth Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
It would be a good idea to take a close look at the Brown decision and Chief Justice Warren’s opinion for what it says about equality and education. This might lead to future challenges to NCLB as a violation of a child’s fundamental right to an equal education and to a "real" education. Here are some excerpts from the decision:
“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, an in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms."
The relevance of Warren’s argument to NCLB is that he went beyond the accepted notion that having equal physical facilities provided black children with an equal education. Warren extended the concept of equality to include a much deeper interpretation of equality, one that incorporated the "effects" of separation on the psychological well-being of the child:
"To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court that nevertheless felt compelled to rule against the Negro plaintiffs: 'Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.'"
With its embedded stigma of failure associated with standardized tests, what is NCLB doing to the motivation and ability of a child to learn? In effectively negating Plessy, Warren stated, "Separate educational facilities are inherently unequal." In 2005, we need to ask if the type of education a child receives also be inherently unequal. The evidence is piling up and has been clearly documented that NCLB, with its punitive consequences, sanctions and emphasis on testing and failure is not only leading to further segregation but is causing intellectual and emotional harm to children. Like segregation itself, it is inherently unjust and causes damage that can never be undone. Increasingly, the most vulnerable and under-funded schools are being turned over to private, for-profit management organizations with scripted, mind-numbing narrow curriculum.
The Brown decision established the doctrine of sociological jurisprudence in education by invoking the Fourteenth Amendment. It's time to revisit Brown and create new frameworks for legal challenges to NCLB on the grounds that it is an inherently unequal and unjust law.
Getting back to Zinn: "The law can be just; it can be unjust. It does not deserve to inherit the ultimate authority of the divine right of the king."