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Excerpted From: Lia Epperson, Are We Still Not Saved? Race, Democracy, and Educational Inequality, 100 Oregon Law Review 89 (2021) (106 Footnotes) (Full Document)


LiaEppersonThirty-four years ago, in his seminal book, And We Are Not Saved: The Elusive Quest for Racial Justice, Derrick Bell provided a critical view of American history and constitutional jurisprudence to illustrate the challenges the United States faces in reaching true equality. In his enlightened observations about the structure of our republic, Bell refers to “the American contradiction.” To see true progress toward meaningful equality, he contends, we must reckon with the challenging truth of our history--that we are a nation founded on this “constitutional contradiction”:

[The] contradiction ... sacrificed the rights of some in the belief that this involuntary forfeiture [was] necessary to secure the rights [of] others in a society espousing, as its basic principle, the liberty of all .... [T]he Constitution, while claiming to speak in an unequivocal voice, in fact promises freedom to whites and condemn[ed] blacks to slavery.

In his work, Professor Bell argued that this American contradiction, “shrouded by myth,” serves as a perpetual impediment to addressing historic and persistent forms of racial injustice. This, he says, is “the root reason for the inability of black people to gain legitimacy.” This reality of racial inequality is part of our culture and common history. It is the contradiction embedded in the ideology that formed our republic.

In a series of parables, Professor Bell outlines some of the most significant challenges in using the law as a tool for social change. His book title references Jeremiah, the Old Testament prophet who predicted the fall of Jerusalem and the captivity of Jews in Babylon: “The harvest is past, the summer is ended, and we are not saved.” Bell posited that three decades after the Supreme Court broke the back of legal apartheid in Brown v. Board of Education, after the civil rights movement, the activism and deaths of great leaders, and the passage of key civil rights legislation, there was no permanent harvest of racial equality. And yet, Bell's work also highlights the limited role that some governmental strategies may play in offering pathways to stem the systemic inequities borne of this American contradiction.

As a child growing up in Pittsburgh, Pennsylvania, I learned of trailblazing defenders of the Constitution's work, like NAACP Legal Defense Fund lawyer and Supreme Court Justice Thurgood Marshall. I also learned of Professor Derrick Bell, a Pittsburgh native and former Legal Defense Fund lawyer, who grew up with my mother and her family in a segregated neighborhood called the Hill District. As a young lawyer with the NAACP Legal Defense Fund, I believed deeply in the work of these “defenders of the Constitution.” And as a constitutional law professor, I continue to believe in the meaningful role that each of us plays in making real the promise of democracy and equality set forth in the words of our founding document. Throughout his life's work, Professor Bell challenged us to unmask the more difficult parts of our constitutional history to better understand present circumstances. He used history to craft parables, and these parables served as forewarnings of future crises if we did not heed their lessons.

In this profoundly disconcerting time in our nation's history, the work of Professor Derrick Bell seems deeply prophetic. We hear the constant refrain, “[w]e are living in extraordinary times,” through the devastation of the global health pandemic known as COVID-19; the summer of racial reckoning with the murder of George Floyd and the global protests for Black lives; and the constitutional crisis the deadly insurrection at the U.S. Capitol brought-- where domestic terrorists constructed a gallows on the Capitol steps and brandished Confederate flags through its halls. The extraordinary, however, is in many ways an entirely foreseeable experience when viewed in light of our republic's history and constitutional jurisprudence. As William Faulkner once wrote, “The past is never dead. It's not even past.” It is perhaps because of our failure to reckon with our history that we are here in this profoundly disconcerting time, and why if Professor Bell were here, he would certainly say, “Still, we are not saved.”

We must learn the importance of understanding our past, so we can learn to choose a different future. Perhaps ironically, one can see the most profound and meaningful lessons in the education domain, and in the experiences of our country's most vulnerable students. The events of the last year, including the catastrophic health crisis, racial violence, and the ensuing physical, psychological, and economic trauma, have wreaked havoc on an education system already suffering deeply from widespread inequity. In schools, children learn basic skills such as reading, writing, and arithmetic. But they also learn other life skills. As Thurgood Marshall argued in the Little Rock, Arkansas, school desegregation case, Cooper v. Aaron, “Education is teaching of the overall citizenship, to learn, to l[ive] together with fellow citizens and above all, to obey the law.” Schools are the incubators for the next generation of knowledgeable citizens who will become actively engaged in the continual building and strengthening of our republic. For the most vulnerable students in our public schools, historic and persistent racial and economic segregation greatly shapes their access to quality education. In addition, their experiences are further shaped by both differing public investments in student access to educational opportunities and exposure to racial violence and trauma that have plagued our republic both in and out of education spaces. And the onslaught of COVID-19 both illuminates and exacerbates these entrenched educational inequalities.

At this moment, however, we are at an inflection point. The pandemic of COVID-19 not only exposes and exacerbates educational inequality but also provides an opportunity for a long overdue reckoning with the more troubling parts of our shared history and their indelible mark on access to education in the United States. We have a collective responsibility to create structural solutions to better educate children for full and robust participation in our society. But to do so, we must first examine the recent history of access to educational opportunity to understand how the pandemics of COVID-19 and racial violence shape this landscape. So, I would like to paint a picture for you that details the landscape of existing educational inequality and how COVID-19 lays this bare. It may be challenging, but it is necessary to understand how the “American contradiction” leaves an indelible mark on our institutions of learning. In doing so, through mobilizing our history and engaging legal institutions, perhaps we may forge paths to address these pandemics in education, with pragmatism and hope, and ultimately strengthen our republic.

Therefore, this discussion will proceed in four parts. In Part I, I will paint a picture of the “state of schools” today. In many ways, one could call this the first “pandemic” in education: the pandemic of racial and economic inequality in education and its effect on the life opportunities for students of color. In Part II, I will examine the role of racial violence and trauma and its effect on the opportunities for education. In Part III, I will discuss the ways in which the global health pandemic of COVID-19 has both illuminated and exacerbated the existing racial and economic fissures in American education. These pandemics have ongoing effects on students, on the communities in which they live, and on their futures. Ultimately, in Part IV, I will discuss how, in exposing the landscape of “pandemic education” and its antecedents, we are at a crossroads. While daunting, this exposure can be hopeful in that it allows for a true reckoning with the American contradiction Professor Bell named. In this moment, the American contradiction, by limiting educational and life opportunities, harms all children. In doing so, it weakens our society. Hopefully this reckoning forces a reimagining of structural solutions to help all children to thrive.

[. . .]

As the Supreme Court noted in 1923 in Meyer v. Nebraska, “American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance.” And as Supreme Court Justice William Brennan opined in Plyler v. Doe, “[E]ducation has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.” In this moment of unprecedented educational and economic challenge, it has become quite clear that, still, we are not saved. Yet it is also a moment of unprecedented awareness of the complex inequities that burden our education system and a renewed call for systemic, holistic change. The path may not be linear, but avenues for progress and examples of success remain. With courageous certainty, we may find compassion, hope, justice, and mercy to move forward collectively. Out of pandemic education are opportunities in the American social, political, and legal landscape to create more equitable education policies that support all children. After all, education is the equality enforcer, democracy driver, and ultimate domain for reconciliation.

Professor of Law, American University, Washington College of Law. J.D., Stanford Law School; B.A., Harvard University, magna cum laud

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