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44th Street Notes


May 2002

This March the Philadelphia Bar Association held a dinner to celebrate its 200th Anniversary. David McCullough, the biographer of John Adams, was the main speaker. His talk touched on the phrase :the pursuit of happiness; in the Declaration of Independence and what that phrase meant in the culture of the founding fathers. He said that to them the pursuit of happiness meant the enjoyment of learning, the pursuit of self-development through education.

The Bill of Rights does not secure a right to education even though, if McCullough is right, its drafters would have viewed that right as fundamental. The New York State Constitution, however, does. Litigation is now underway that will decide what that constitutional right means. The trial court has held that the inadequate funding of the City school system violates the State Constitution, and the State's appeal is pending.

My grandfather was born in a coal mining town in southern Wales. The schooling available to him was premised on the proposition that the school children were being educated to work in the mines. Since they worked in the mines at a very early age, a big investment in education was not called for or even practical. Also, many doubted whether Welsh coal miners・ children were educable. My grandfather・s educational opportunities in the old world were therefore very limited.

In South Africa before apartheid there were a number of good missionary schools that provided a serviceable education to black South Africans. With this education they were able to become lawyers under a system that required applicants for the bar to be qualified in Latin. Under apartheid these schools were closed and the Bantu Education Act was enacted. The premise of that law was that blacks should be educated for the low-level jobs to which apartheid relegated black people.

Thus, from the point of view of education, the lot of the children of Welsh coal miners and the children of South African gold miners was similar. In both cases bigotry drastically limited their ability to pursue happiness in the sense understood by our founding fathers.

The new world that is America is dedicated to a different vision. This is the land of opportunity, and a sound education is the engine that produces that opportunity. (delta) is the Greek symbol that stands for change or differential. It appropriately symbolizes what McCullough says the framers meant by the pursuit of happiness; it is what education adds to each individual・s realization of his or her potential.

America is committed to equal opportunity. Equal opportunity means that the (delta) is more important than the end point; that the sum of all the (delta)・s for each student is the social benefit produced by education. When a gifted student improves that・s great but it is just as good when an average student or a poor student climbs to a higher level.

We also believe in accounting for need - in giving extra help to those who need it to achieve. As a person with a disability, I have been a particular beneficiary of this wonderful part of the American spirit. This means that the investment we make in a particular student may exceed the average due to the factor of need.

Americans also value excellence. But excellence is not found only in certain racial or economic groups. My father, himself being the son of a Welsh coal miner, presumably would have been considered uneducable in Wales but graduated summa cum laude from Harvard College. When we provide a sound education to everyone we give all who have high potential the chance to realize it.

A great danger to these values is the prejudice of low expectations. An educational system infected by the prejudice of low expectations leads to oppression because it blocks the emergence of excellence in whole populations. The Bantu Education Act is an example where the purpose to oppress was manifest.

These principles are at stake in the litigation mentioned at the outset. There is a danger that New York can slip into the old world attitudes about education that I have described. We are tolerating a City School system that provides a plainly inadequate education to students who are overwhelmingly students of color.

Very recently the State released data on the percentage of students in different racial groups who met state standards for math and English achievement in the fourth and eighth grades. In some schools, particularly middle class schools, black and hispanic students performed on a par with white students but in many schools there was a substantial disparity. In most New York City schools a comparison could not be made because the student population was entirely or nearly entirely black and hispanic.

While this data measures achievement rather than the (delta), it does show that black, white and hispanic students can achieve to a level at comparable rates and that the prejudice of low expectations, which disadvantages black and hispannic students particularly, is likely a problem.

The Association has filed an amicus brief in the school funding case. Debevoise & Plimpton prepared an excellent brief. It makes detailed factual and legal arguments that we hope the Court will find persuasive.

If the courts do find a violation, the issue of the nature of the remedy will move to center stage. A multi-year State-City plan to bring City schools up to minimum standards will have to be developed. The Citizen・s Budget Commission has identified nearly half a billion dollars of excess State spending in wealthy suburban school districts. This money should be on the table, particularly since the repeal of the commuter income tax has compounded the inequity. Improved accountability, productivity and governance in the City school system should also be on the table.

But why wait for the exhaustion of the judicial process to begin the remedial process? We should get to work not because a Court orders it but because enabling the pursuit of happiness by each of us remains a core American value.

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