Why Equal Access Matters:

A Discussion with Help from Thucydides, U2, and Stephen Breyer

Rich Haglund
General Counsel, Tennessee State Board of Education

Education Law Association

November 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 in
the affairs of the state as well: even those who are mostly occupied
with their own business are extremely well-informed on general
politics — this is a peculiarity of ours: we do not say that a man
who takes no interest is a man who minds his own business; we
say 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 depends
upon 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, HISTORY OF THE PELOPONNESIAN WAR 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. GREENE, EDUCATION MYTHS: WHAT SPECIAL INTEREST
GROUPS 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 THE WORLD IS FLAT, Farrar,
Straus and Giroux, 2005, because they are producing many more engineers and scientists, and are empowering their
citizens to not only manufacture low and high-tech products, but also to design and engineer such products at
drastically lower costs than America is. For an interesting slideshow on this issue, see DID YOU KNOW?, by Karl
Fisch and Scott Macleod, available at http://shifthappens.wikispaces.com/.
4
STEPHEN BREYER, ACTIVE LIBERTY 135 (Alfred A. Knopf 2005).
5
Id.
 A Discussion with Thucydides, Bono & Breyer, by Rich Haglund, September 2007 2

consequences” of the provision of the United States Constitution at issue in a given case. 6
Because education determines individuals’ capacity to participate in our democracy, attorneys
and educators have an obligation to think critically about and offer thoughtful guidance on
education policies, so more children will leave secondary education equipped to understand and
benefit from the rule of law.

NVLB (No Voter Left Behind)

The economist Milton Friedman said, “A stable and democratic society is impossible
without widespread acceptance of some common set of values and without a minimum degree of
literacy and knowledge on the part of citizens.” 7
So, what is a common set of values we expect our citizens to share?

We hold these truths to be self-evident, that all men are created equal, that they
are endowed by their Creator with certain unalienable Rights, that among these
are Life, Liberty and the pursuit of Happiness. — That to secure these rights,
Governments are instituted among Men, deriving their just powers from the
consent of the governed, 8

We the people of the United States, in order to form a more perfect Union,
establish justice, insure domestic Tranquility, provide for the common defense,
promote the general Welfare, and secure the Blessings of Liberty to ourselves and
our Posterity, do ordain and establish this Constitution for the United States of
America. 9

What kind of opportunities for life and liberty has Tennessee’s education system
provided the 84 of every 100 young men and women who did not complete a post-secondary
degree within three or six years of graduating high school? What about the 33 of every 100 ninth
graders that do not even graduate from high school? Do they have any choices – economic or
political? Do they know what to do to improve their skills and provide for themselves and
dependents when the factory job they had just evaporated? Are they equipped to serve as jurors,
contest a mistaken property appraisal that causes them to lose their home or meaningfully
participate in the election of their local school board?

6
Id. at 120.
7
MILTON FRIEDMAN, THE ROLE OF GOVERNMENT IN EDUCATION, available at:
http://www.schoolchoices.org/roo/fried1.htm (last viewed Aug. 30, 2007) (first published in 1955).
8
THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
9
U.S. CONSTITUTION, Preamble.
 A Discussion with Thucydides, Bono & Breyer, by Rich Haglund, September 2007 3

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 and
lowest educated citizens constantly decreasing. U.S. Census Bureau, 2002b, Table A-2. The rate for individuals
with 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.
 A Discussion with Thucydides, Bono & Breyer, by Rich Haglund, September 2007 4

No one, so long as he has it in him to be of service to the state, is kept in political obscurity
because of poverty.” 15

[T]he people, and their representatives, must have the capacity to exercise their
democratic responsibilities. They should possess the tools, such as information
and education, necessary to participate and to govern effectively. . . .
[I]nstitutions and methods of interpretation must be designed in a way such that
this form of liberty is both sustainable over time and capable of translating the
people’s will into sound policies. 16

Many parents may think their children are attending good schools and receiving a good
education, but they do not know enough to realize that they’re at a significant disadvantage.
Many children leave our schools not knowing what equal protection is or how to argue that laws
restricting their access to quality education ought to be scrutinized strictly. 17 When I first read
the Rodriguez case 18 in law school, I thought I had misread the ruling denying the plaintiffs’
claim that education was a fundamental right and that the state’s education funding scheme based
on property tax values violated their equal protection rights. In a cartoon by Stu Rees based on
the Rodriguez case, 19 the judge tells the plaintiff’s attorney, “No, education is ‘important’, not
‘fundamental’. You’d know that if you’d been raised in a better school district.”
Given Justice O’Conner’s hope that we may not need racial preferences as a tool to
further the interest of diversity in higher education student bodies, 20 could poverty become a
suspect class? Could a poor student zoned for a failing school with mediocre teachers allege that
not allowing her to use the per pupil funds allocated by state and local governments for her
education at the school of her choice deprives her of the equal protection of a state constitution
or law giving her a right to an education?
Are the majority of the people in our communities able to articulate this argument? Are
we as education attorneys and administrators helping them do so? Or helping solve the problem
so they don’t have to?

15
THUCYDIDES at 145.
16
BREYER at 16.
17
.In Equal Protection Clause jurisprudence, the type of alleged differential treatment dictates the level of scrutiny
used to determine whether the government action violates the 14th Amendment. Alleged differential treatment
based on race, for example, may only be justified if it survives “strict scrutiny”.
18
San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973)
19
Available at http://stus.com/.
20
Grutter v. Bollinger, 539 U.S. 306, 343
 A Discussion with Thucydides, Bono & Breyer, by Rich Haglund, September 2007 5

Are Our Public School Children Learning to be Democratic Problem Solvers?

[T]he Constitution is not a document designed to solve the problems of a

community at any level—local, state, or national. Rather it is a document that
trusts people to solve those problems themselves. 21

The recent United States Supreme Court case 22 involving student assignment plans that
made race a factor in assignments offers a good example to apply Justice Breyer’s conception of
active liberty from the perspective of individual citizens. “I believe that increased recognition of
the Constitution’s democratic objective can help judges deal more effectively with interpretive
issues, thereby helping communities deal better with the problems that have called those issues
into being.” 23
Did any of the stakeholders ask questions tied to the relevant democratic objectives? Did
the citizens in Seattle, Washington and Jefferson County, Kentucky articulate their ultimate
concerns? Did the court consider the democratic principles underlying the constitutional
provision alleged to have been violated? Did Justice Breyer consider those principles in crafting
his dissent?

Where you live should not decide

Whether you live or whether you die 24

Demographic issues make educating all of our children more difficult, but the job of
policymakers, education attorneys and school administrators is to ensure that all children,
regardless of race or gender, economic background or eligibility for special education services,
have access to high quality teaching, so they have an equal opportunity to be successful in post-
secondary work, further education and active participation in our democracy. The authors of a
study cited in one of the opinions noted, “It is clear to us that focusing simply on demographic
issues detracts from focusing on improving schools.” 25

21
BREYER at 134.
22
Parents Involved in Comm. Schools v. Seattle Sch. Dist., __ S. Ct. __; 2007 WL 1836531 (June 28, 2007)
23
BREYER at 37.
24
U2, Crumbs from Your Table, on HOW TO DISMANTLE AN ATOMIC BOMB (Interscope Records 2004).
25
Parents Involved in Comm. Schools, 2007 WL 1836531 at *35.
 A Discussion with Thucydides, Bono & Breyer, by Rich Haglund, September 2007 6

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, speaking
of 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 radio

All the folks the rest of us won’t get to know
Sean and Julia - Gareth, Ann and Breda
Their 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
MILTON FRIEDMAN, THE ROLE OF GOVERNMENT IN EDUCATION.
28
THUCYDIDES, HISTORY OF THE PELOPONNESIAN WAR 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.
 A Discussion with Thucydides, Bono & Breyer, by Rich Haglund, September 2007 7

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 with
regard to arts and manufactures, would infallibly succeed to the want of a steady education and settled principle; and
thus the commonwealth itself would, in a few generations, crumble away, be disconnected into the dust and powder
of 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 Publishing
Company 1987 (1790). As the ends of such a partnership cannot be obtained in many generations, it becomes a
partnership not only between those who are living, but between those who are living, those who are dead, and those
who are to be born.