Derek Black
Appearances
Behind the Bastards
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When Congress is willing to hand the keys over to the president, then we no longer really have a democracy, or at least the constitutional democracy that was created a couple centuries ago. So the bigger danger, I think, is that through law itself, Congress cedes more and more power to the president with a new legislation.
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So if Congress were to pass new legislation giving the president more centralized power, well, that would be a concerning thing to me.
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I'm Derek Black. I'm a professor of law at the University of South Carolina. My area focuses on education, law, and policy, and really sort of how that relates to democracy. But I teach constitutional law and courses like that.
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I'm author of a couple books, Schoolhouse Burning, Public Education and the Assault on American Democracy, and then more recently, Dangerous Learning, The South's Long War on Black Literacy.
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Yeah, I mean, there's always been this states' rights issue that's been with America since its founding. It obviously was a big part of the Civil War. Big part of the civil rights movement, big part of the Affordable Health Care Act debate.
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So you always have this states' rights argument going on, and at least amongst the folks that are worried about that, public education comes up as being a target because there's this argument always that, well, education is not in the federal constitution, so what business does the federal government have to be involved in?
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It's really more of a talking point as opposed to any particular substantive reason why they want to get rid of it. But that's really where it's come from. But it's often been not that serious of a critique, but obviously it's gotten very serious here in the last couple of weeks.
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Well, there's the sort of immediate worries and then there's the larger worries. The immediate worries, I'll have to say, I'm not terribly worried about. I mean, if you look at the reporting that we've seen, it is interesting that the White House seems to distinguish between the things that it can do unilaterally, right, without Congress, and those things that would need Congress.
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And, I mean, it's a weird silver lining, but that gives me, like, some, like, measure of comfortability in this weird, bizarre world only because, you know, two weeks ago, the administration was willing to do things that it had no authority to do, right? It sort of was claiming authority to do everything. And so there is this... at least recognition that there's not unbounded power.
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So that's sort of the immediate threat is not that huge because the White House, Trump's power over the department or to close it up is relatively narrow. Like most of the department is established by statute and he can't just dissolve things or move things around that are created by statute. He can't take money that's for poor kids and spend them on vouchers, right? These things, the law dictates.
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And the fact that he's And implicitly acknowledging or rather his advisers are implicitly acknowledging they need Congress's help gives me a little bit of comfort because I think that getting rid of the department is I'm not sure there's a majority in the House for that. But there's certainly not a filibuster, you know, 60 vote majority for that in the Senate. So that's short term.
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But I think there's something far more disturbing to me, and it's the long term, this sort of idea that there's something illegitimate about the federal role in education, that there's something illegitimate about public education itself. Those are very dangerous ideas.
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I have a piece that just came out yesterday in Slate that says, look, the federal role in public education predates the Constitution itself. Probably not many listeners are familiar or ever heard of the Northwest Ordinances of 1785 and 1787. But before we even had a United States Constitution, this foundational document laid out how our territory is going to become states.
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And without going through all the details, Congress embeds public education in the very fabric of what it means to be a state before we even have a Constitution. And so that's very important is where we start.
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At the end of the Civil War, right, where we almost lost our democracy, Congress, as a condition of readmitting Southern states into the Union, says that one of the terms of readmission is that you create a public education system and you never take those rights away, right, forcing public education into the South in places where it never had been before.
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People are more familiar with the Civil Rights Movement, so I won't go through all that. But just to take one more pause, I mean, Congress created a Department of Education in 1867, right, to get this public education project off the ground. So this isn't some wild new sort of fantasy of liberals or unions that we need a department so that we can – hand over the spoils to teachers.
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This is an idea about what it means to have democracy in America. And public education is a centerpiece of that. And the federal government has been pushing it for 250 years.
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Yeah, so you're picking up on a thread that's much bigger than a department, right? So when Congress is willing to hand the keys over to the president, then we no longer really have a democracy, or at least the constitutional democracy that was created a couple centuries ago here, in which the president executes the law, the president doesn't make the law, right? Congress
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funds programs, not the executive. But if ultimately Congress is going to shift all that authority over like that, that's a dangerous place for democracy to be. There are no checks anymore. So I think what you're raising up is the fear that there aren't any checks in place. Fortunately, there still is a legal apparatus.
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I mean, even if Congress isn't standing up, shouting and complaining, it's still the case. The president can't just do whatever he wants, and hopefully the courts would step in. I use the word hopefully. I think courts would step in to limit his ability to do things that go beyond his statutory power. So the bigger danger, I think, is that through law itself,
Behind the Bastards
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more and more power to the president with a new legislation. So if Congress were to pass new legislation giving the president more centralized power, well, that would be a concerning thing to me. Let me just stop and we'll get to your next question and go, but we have a larger phenomenon that's just, it's not just about Trump and people don't necessarily realize this. I mean,
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Look, I don't think that President Obama was a dictator or had authoritarian tendencies. I was part of the Obama-Biden transition team, but I testified against Arne Duncan in a case or against the United States Department of Education in 2012 or 14 or something like that because the department was taking power that it clearly did not have in regard to No Child Left Behind waivers.
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And I told the current administration, as much as I hate it, I wish we could just wipe away student debt. I feel bad for my students who have huge debt. But I said, it is beyond the president's power to just wipe away all this debt. And they did it anyway. The real point here is that
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Both Democrats and Republicans have been asking things of their presidents that their presidents don't have the power to do, and their presidents are doing it anyway, right? And it's because our Congress is broken. Our Congress isn't doing its job, so citizens are demanding that our presidents do things that they really don't have the power to do.
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Well, I deal with this every year at the beginning of my constitutional law class. This is not a new problem. It seems more real and frightening, but it's not a new problem. And so what I tell my constitutional law students is that the rule of law doesn't exist because of courts, right? It doesn't exist because of police officers, right?
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That the rule of law, when push comes to shove, exists in the hearts and minds of Americans. And if they don't believe in it, all is lost, right? So for when Brown v. Board of Education was decided, it was reportedly... The case that the president said, you know, if the court wants to desegregate schools, let it do it itself. Because guess what? What's the Supreme Court? It's nine old people.
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in one building with a handful of Capitol Police. Like, they can't do anything. They don't have the power to do anything, right? So our entire system really rests on good faith. Or as I tell my students, like, what if, due to something, you know, President Trump or Biden or whoever had done, the federal district court issued an order directing U.S. Marshals to take President Trump into custody.
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So that order goes out. The marshals receive it. They march over to the White House. They come in the door and they say, we are here to take the president. Signed. And it's already been fast-tracked by the Supreme Court. Signed by the Supreme Court. The answer to whether, we'll just use Biden, the answer to whether President Biden is escorted out of the White House by U.S.
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marshals is not a function of military. It's not a function of police power. It's a function of when that piece of paper is held up. Does the Secret Service member believe that the rule of law exceeds his loyalty to the man standing behind him? That's where it's at, right? And so, you know, it really is a good faith litmus test.
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And I think we used to live in an era when I think we all had maybe more faith in the idea that people put fidelity and commitment to the Constitution and the law above personal loyalty. Right. But we increasingly live in a Congress and in a world and a situation when it seems that people put personal loyalty above the Constitution at times.
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Well... I mean, look, I tend to be the guy in the room that says, let's not overreact. Let's see what happens. There's a lot of institutional history, and there's a lot of Americans who I think the majority are good and decent people, and they don't want authoritarianism. So this is me, right? This is my predisposition. But A week or so ago, I had a huge crisis of confidence, shall we say.
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There were just a few events in the news that I was just like, I just never thought that this would happen in America. I never thought a governor would, I mean, some of this was what governors were doing. I never thought a governor would do that. I never thought a president would do that. I just never thought, you know, never thought, never thought.
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And so I said to myself, you know, are any of my opinions or projections, you know, valid anymore? Because I'm the guy who never thought. And so that was a tough 24 hours for me, I'll have to say. So I don't know if I just rebooted for self-sanity and moved forward or whether there is still some truth and reason to believe in certain stability. And I mean, I will say this.
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As we started this conversation, the fact that the White House is conceding that it can't do everything to the Department of Education that it wants to do without Congress is a good thing. If you read the five executive orders or four, however many that they've already issued there, it's a good thing that actually if you read them carefully –
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It's mostly directing appointees to think about stuff, not actually do stuff, but to think about stuff. And of course, the president can appoint them to think about stuff. If they do the stuff they're thinking about, that becomes a problem. But again, it is this sort of like, can I grab a headline about what would sound like an awful thing?
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But really all I've done is talk to people to think about that reality. That gives me some faith, right? And notwithstanding the fact that this United States Supreme Court granted an immunity to all presidents that – I never could have imagined, you know, this court does, you know, issue opinions that surprise us every single term, and they line up with the rule of law.
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It's just, it's unpredictable to some extent which opinions those are going to be. So, I have this faith, you know, these sort of pieces of the puzzle that still suggest we're still a democracy and are going to remain one, but I have my really bad days. I think a lot of people have a bad day every day right now. I just feel thankful mine are fewer and further between than others.
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And maybe that's just psychological coping. I don't know.
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Yes, I spent a pretty good deal of time on this disunion question in my new book, Dangerous Learning, because most of that book is focused on the three decades leading up to the Civil War. So the Civil War doesn't just happen overnight. It happens over the course of... late 1820s to 1860, with the South just saber-rattling over and over again, openly talking about disunion, right?
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So that you had a South that actually was diverse in lots of ways in its opinions about various things. I'm not going to say that they were a bunch of abolitionists, but there was a manumission society in North Carolina in 1829 that had, I think, 1,600 members. The very idea of 1,600 anti-slavery advocates in North Carolina in the 1820s is shocking to a lot of people.
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But 10 years later, only 12 people show up to the final meeting. So you had something that changed there. And so you have this sort of period of escalating disunion. and censorship and propaganda and sort of policing what is publicly acceptable commentary in the South.
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All this stuff is happening, sort of going in and editing their sort of censoring textbooks, demanding that books only be written by Southerners. Like, oh, I make it go on and on and on. We don't have time for it. What I point out, though,
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And my analysis of what's going on right now over the last few years in education is that there are a lot of policies that are attacking public education in the way that they previously had. And a lot of them are symbolic of disunion instincts, right? Sort of just sort of anti-government. Yeah. Anti sort of whatever the current culture is.
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And then there's actually policies that I argue are facilitating disunion. And one of those that I talk about is our public school voucher. I say private school vouchers. You are so upset with – you're so raging at the public school system that we need private school vouchers, right? And we are effectively paying – we're going to pay individuals – to leave the public school system.
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And I call this a coded call for disunion, even if people don't think that's what they're doing. If we look back at where we started this conversation, which is institution of public education as something upon which American democracy has been built. Of course, it had lots of flaws and it wasn't perfect, but it's been part of how we build a democracy. It's always been a bipartisan project.
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now becoming the thing that we rage against, now becoming the thing in which we are going to finance exit from, right? This is a step towards disunion from a fundamental institution of American democracy. What happens to us? if they actually execute on that plan. I shudder to think about where we might be because it's not just some private school that's the equivalent of the public school.
Behind the Bastards
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We're talking about people on the public dollar retreating into their religious silos, into their racial silos, into their culture silos. And if there's anything I think that we could all agree on is listening to only the people that you like on Twitter or listening only to the people that you like for the evening news is what got us here.
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And if what we have is education that becomes the equivalent of MSNBC and Fox News and Newsmax and whatever else, that is a dangerous place. I don't know how we build democracy on such a system.
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Well, I'll say this. Public schools can't solve all of democracy's problem, be a fool to say otherwise. But if what we're doing is talking about education itself, I think number one is that I think our leaders need to understand, better understand the dangers of education. you know, vouchers, for instance, like right now, and I'm writing about this, like they think it's just a policy dispute.
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And like, if you just look at the surface level, it's like, well, who cares if we give some more vouchers and that makes the most far reaches of our party happy. But like, I think sort of really stepping back and appreciating how dangerous this is to our democracy is step one. And that's hard, right? I'm talking about teaching adults to see things differently than what they currently see them.
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But as to our schools, I mean, I've got a little bit of stiff medicine for both sides. I mean, I do think that in the push for more justice in our public schools, and I think we do need – I mean, that's what I've devoted my career to. I do think that – Well, I don't think our schools did any of the awful stuff that the right has said.
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But I do think that they maybe were not as open to people disagreeing with them as they should have been. And what I really mean is in the push for justice, I think there was a bit of shutting down conversation, not teaching children to reach their own conclusions, but giving them conclusions and expecting them to reach them. And so
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One of the things I'm working on in my new book is that I really think we have to rethink how we teach history, how we teach literature. Maybe not so much literature. I think our literature teachers are pretty good. But rethink how we teach those things such that we are not committed to our children reaching particular conclusions. What we're committed to...
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is our children engaging in free and open thought amongst themselves, right? With hopefully an adult in the room that can establish some guidelines. But I think public education didn't do that very well five years ago, 10 years ago, 30 years ago when I was there. But I think in this moment of cultural fracture, we do really have to commit to
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Free speech, open debate, inquiry, listening harder, thinking harder, right? Not just bullet points, not just bullet points.
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well let's just rewind and this is i guess an example of why you know someone still got their finger in the dam um holding back holding it together you know the the president of the united states asserted unilateral authority over the entire federal budget when he came into office right he does not have that power federal district court and joined it he then backed down from that right
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But let's say he didn't back down. It's like, well, okay, you know, maybe, you know, it's a district court. But if the United States Supreme Court or a court of appeals told the president, you lack the authority to sequester those funds, and he still did it. So just the budget, that's it, just the budget.
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You know, just the belief that the president can spend our money however he wants with no constraint. And that would be crossing the Rubicon. Now, I'll tell you, and this is why, you know, you have to kind of be like a constitutional law professor or, well, you don't have to be a constitutional law professor, but you've been following it. It's like, you know, I've been alarmed.
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And this goes back, this isn't just a Trump problem. Like, I was alarmed with the NCLB waivers. Probably nobody on this even knows what I'm talking about, right? Like, you know, a decade ago. Not that, like, President Obama was, like, going to take over the country, but alarmed that somehow or another he thinks he can do this. Like, why is he even testing the boundaries this way?
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Yeah. And so, but I was like, you know, you can kind of get it. There were some gray area, this where you kind of need to be a constitutional law professor to kind of figure out why that was such a big deal. Yeah.
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But when Biden, I mean, think back, and again, I don't begrudge people needing their debts relieved, but when President Biden effectively asserted the power to allocate federal dollars to pay off debts that was like half of the discretionary funds of the entire federal government, like that's a big move to just say, I can commit this nation to a 50% increase in its fiscal outlays tomorrow.
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That's not constitutional democracy. But now, right, we have a president going even further than that. But he, like Biden, at least thus far, stepped back, at least from the district court, right, when the court said can't. So it's really that sort of defying of the court at that point. Yeah, they've all been pushing the boundaries. He's pushed them further.
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Thus far, they've all complied with judicial orders, but it would be the refusal to comply with judicial order.
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Well, the thing that really sort of jumps out at me, and I was telling several reporters, is that you're right. He's pushing it further. It looks scarier. But part of why it's scarier, to be quite honest... well, I think it's scary, I don't know, is that he's doing it out in the open.
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I mean, on some level, some of this stuff, like telling people to cook up crazy plans to do this, that like presidents have been doing that, like, you know, Nixon was paranoid. He was like, this is what presidents do, but it's not appropriate to do it in public, right? You do it behind closed doors, you know, offer some plausible rationalization.
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for what you're doing, and you minimize it, act like it's no big deal. What's startling here is that he is out in the open expressing his designs to us, giving us the sort of thoughts. And that's very unusual, and it does show that what's acceptable from public officials is much different now.
Behind the Bastards
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Because had Nixon shared his designs with the American public, he wouldn't have made it as long as he did. and probably true of a lot of other presidents. They would have been gone. So what's actually acceptable as public behavior has clearly changed. What's acceptable as a policy agenda has clearly changed. And so he's just putting it out there.
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He's putting his dirty laundry out there, and people are like, oh, this is normal.
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Yeah, I mean, I'm on... Blue Sky more recently. Still on Twitter. I sort of have just lots of friends on there, so I'm still there. Me too. Me too. Yeah. I'm not on there as often as I used to be. I gave up blogging a long time ago. So as we drink out of a fire hydrant, I spend a lot of time just trying to explain basic things about public education to reporters. But But you can find me there.
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I'm a professor of law at the University of South Carolina. And like I said, you know, Dangerous Learning just came out, you know, a week or so ago, really helping us, I think, helping us to see this current moment through a long lens of war on black equality, black freedom, and to be quite honest, just free and open debate. We've had those wars before and we scarily are having them again.
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All right. Thank you so much. Thank you. Thank you.