Professor Joshua Weishart Posts Forthcoming Scholarship to SSRN

“Separate but equal” legally sanctioned segregation in public schools until Brown. Ever since, separate but free has been the prevailing dogma excusing segregation. From “freedom of choice” plans that facilitated massive resistance to desegregation to current school choice plans exacerbating racial, socioeconomic, and disability segregation, proponents have venerated parental freedom as the overriding principle.

This Article contends that, in the field of public education, the dogma of separate but free has no place; separate is inherently unfree. As this Article uniquely clarifies, segregation deprives schoolchildren of freedom to become equal citizens and freedom to learn in democratic, integrated, and transformative settings. We must name and reclaim these positive, social, emancipatory freedoms—envisioned by the framers of state constitution education clauses, developed by early progressives, reflected in the case law, and applied in “freedom schools” and by Southern Black teachers during the civil rights era.

School choice practices that sustain and intensify segregation arbitrarily deprive children of these freedoms and thus offend due process guarantees in state constitutions. Antebellum state courts were the progenitors of substantive due process, prohibiting arbitrary deprivations of vested rights and voiding class legislation that conferred special benefits or imposed unique burdens rather than serve legitimate, public purposes. This Article is the first to propose revitalizing state due process guarantees to resist segregative school choice practices in as-applied challenges.

Amid a pandemic, legislators are advancing bills which exploit the specious rhetoric of public-school failures and angst about the modes of instruction to expand schools of choice. But parental freedom through publicly funded school choice enjoys no constitutional protection. Nor is there a legitimate, public purpose for segregative practices that arbitrarily deprive children of their freedoms, confer benefits on a few and burden the rest, and subvert the state constitutional duty to educate all children democratically.

Opposition to separate but free extends beyond school choice, reaching potentially other segregative state actions that curtail educational freedoms.