This chapter examines the history of efforts to ensure gender equity in education. Special attention is paid to the provisions, case law, and enforcement actions of Title IX of the Eduational Act of 1972. Key precedents are examined, including Grove City, Cannon, Gebser, and Davis. The chapter also examines the use of the Equal Protection Clause to create equal educational opportunities for women - most notably exemplified by Justice Ginsburg’s majority opinion in United States v. Virginia. The chapter compares the disparate approaches to Title IX enforcement taken by the Obama and Trump adminstrations, contrasting the standards, emphases, and procedures outlined in their respective regulatory documents. Finally, the chapter examines the ongoing prevalence of gender discrimination in American education and American society at large. The tenets of social constructivism promise to help mitigate both harmful tendencies.

This chapter traces the development of education in America from the end of Reconstruction to World War II. The industrialization that characterized this period gave rise to a system of “scientific” management which prized efficiency and competition above all other factors. This in turn influenced the philosophy of behaviorism, which remains a pillar of American education. The chapter exposes the faulty premises of behaviorism and its unfortunate effects when applied in schools. In addition, the chapter examines sources as varied as the Founders’ writings and the latest neuroscientific research to critique behaviorism and endorse social constructivist pedagogy. The chapter also features a brief discussion of the outer limits imposed by the Supreme Court on the government’s ability to regulate education. The discussion includes an examination of three seminal cases: Pierce, Meyer, and Yoder.

This chapter illuminates the many deficiencies of contemporary educational reform movements. Most notable among these movements are “accountability,” privatization, vouchers, and charter schools. All of these impulses prove, under closer examination, to be inimical to the tenets of social constructivism, the vision of the Founders, and the project of democracy. Many of these “reforms” have even tacitly adopted the language and principles of behaviorism. The chapter concludes by proposing social constructivist pedagogy and early childhood intervention as the best way to educate a democratic citizenry.

The Introduction notes that the language of the Thirteenth Amendment to the United States Constitution would, if fully embraced by courts, result in a jurisprudence more dedicated to equal educational opportunity. It argues that the disparities in opportunity currently in existence are inimical to a participatory democracy. The best tool to fight these disparities is social constructivism. The introduction previews the specific categories of educational injustice that the book intends to examine.

This chapter explores the efforts of the Founders to harness the power of education to create a citizenry capable of self-government. It emphasizes that while the Founders built a Constitution premised upon a cautious view of human nature, they saw education in a more optimistic light. Specifically, they viewed its role as helping to create a body of citizens capable of forming and maintaining meaningful relationships. In fact, they saw this as an indispensible task. Additionally, the chapter recounts the efforts of individuals such as Benjamin Rush and Horace Mann to expand educational access The chapter concludes with a critical analysis of Reconstruction, highlighting the missed opportunities and faulty historiography that continue to deny many citizens an equal chance to obtain an education. Though intended as a “re-founding” of the nation, Reconstruction in practice failed to live up to the Founders’ vision. The early promise of the “Civil War Amendments” and similar legislation went largely unfulfilled due to an adverse Supreme Court ruling and lack of political will.

This chapter tells the story of the long struggle to overturn Plessy v. Ferguson and desegregate American schools - culminating with the Supreme Court’s unanimous opinion Brown v. Board of Education. The chapter then examines the application of Brown, detailing how subsequent rulings purporting to stem from Brown have, in fact, failed to carry out its central command to desegregate all American schools. Much of this checkered legal history arose due to the Court’s insistence on delineating between de jure (legally mandated) and de facto (arising incidentally as a result of non-legally mandated conduct) segregation This distinction led to the 2007 PICS ruling, which dramatically circumscribes the use of race to achieve a desegregated educational environment for districts which experience de facto rather than de jure discrimination. The chapter concludes with an analysis of the growing “resegregation” of American schools, tracing its deleterious effects on all students.

Chapter 8 surveys the landscape of special education in America. It emphasizes the centrality of the Individuals with Disabilities Education Act (IDEA) as well as the protections of the statute’s centerpiece: the Individualized Education Program (IEP). The chapter recounts the major precedents in this area of the law: namely, Rowley, Honig, and Endrew F. It traces the slow but steady path toward inclusion of all students in the learning environment. The chapter concludes with a celebration of the emerging concept of neurodiversity and the possibilities that a pedagogy informed by social constructivist tenets holds for general education and special education students alike.

Chapter 6 exposes the Supreme Court’s acceptance of inequality in educational opportunity as a result of its opinion in San Antonio Independent School District v. Rodriguez. The chapter begins with a detailed examination of Justice Powell’s majority opinion in Rodriguez, which rejected arguments for protecting education as a fundamental right and applying the language of the Equal Protection Clause to treat impoverished Americans as a discrete group. Against this framework, the chapter juxtaposes Justice Marshall’s comprehensive dissent. Later, the chapter examines Plyler, which prohibits the absolute denial of educational access to a discrete group that is covered by the Equal Protection Clause. In addition, the chapter surveys the widespread and growing inequities in funding across school districts - inequities exacerbated by the 2001 No Child Left Behind Act. It also recounts a number of decisions at the state level in which advocates convinced state courts to recognize education as a fundamental right under the constitution of their state, and summarizes the most promising legal routes available to advocates for educational equity.

Chapter 9 evaluates the legal precedents and practices surrounding student discipline. It begins with an analysis of the key Supreme Court cases dealing with student due process rights: Goss and T.L.O. Both establish deference to educators as the cornerstone of student discipline. Coupled with a reaction to numerous violent incidents in schools, this has resulted in an overreliance on exclusionary discipline. The balance of the chapter examines the tension between exclusionary discipline and the stated aspirations of policymakers. When scrutinized, it becomes clear that despite lofty rhetoric, exclusionary discipline is tacitly accepted. This tendency was confirmed in the recommendations of the Federal Commission on School Safety convened by President Trump. The chapter concludes by investigating the rise of the school-to-prison pipeline, and links the troubling racial disparities that have arisen in student discipline with many of the themes discussed earlier in the book. Finally, it proposes a combination of trauma-informed pedagogy and restorative justice as a more effective, constructive, and inclusive approach that will properly educate a democratic citizenry.

This chapter examines the various philosophies of education familiar to the Founders. Specifically, it traces the influence of classical theorists like Plato and Aristotle as well as Enlightenment thinkers including Locke, Rousseau, and Montesquieu. It reveals the Founders’ unique synthesis of these two strands of thought. In addition, the chapter surveys the state of education in Colonial America. It recounts the context in which the Founders themselves were educated, and notes the effect this context had on Thomas Jefferson’s early advocacy for a more accessible educational system in Virginia.

Chapter 5 examines the shifting landscape of the legal precedents controlling the use of race-conscious admissions policies in higher education. It begins with an in-depth examination of Bakke, which allowed such admissions policies for the sole purpose of pursuing the educational benefits of diversity. The chapter then traces the applications of Justice Powell’s framework announced in Bakke, and includes analyses of Grutter, Gratz, Fisher I, and Fisher II. Taken together, these cases reveal a tenuous adoption of Justice Powell’s approach which serves to prevent a robust pursuit of diversity and racial equity in higher education. The chapter features a discussion of recent ballot measures banning the use of race-conscious admisssions policies in certain states. The Supreme Court upheld the constitutionality of these measures in Schutte. The chapter concludes with an examination of Justice Sotomayor’s thought-provoking dissent in Schutte as well as a summary of the proven neuroscientific benefits of a diverse learning environment.