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Excerpted From: Mckenna Kohlenberg, Booked but Can't Read: “Functional Literacy,” National Citizenship, and the New Face of Dred Scott in the Age of Mass Incarceration, 44 New York University Review of Law and Social Change 213 (2020) (Student Note) (375 Footnotes) (Full Document)


MckennaKohlenbergCould a place as prosperous, resourceful, and progressive as Dane County also be home to some of the most profound, pervasive, and persistent racial disparities in the country?

On a small, scenic isthmus between Lake Mendota and Lake Monona lies Madison, Wisconsin. Just over 255,000 people call the state capital home. The second-largest city in the state and the seat of Dane County, Madison has topped 'best-of’ lists for nearly a decade: ranked the “most-liveable [sic] smallto midsize city in the U.S.” in the fall of 2014, “the most secure U.S. community among large metropolitan areas” in 2010, and the “best city to raise a family in the country” just last year, the city enjoys a prestigious reputation. Madison and Dane County alike are “known for their support of 'progressive’ social, economic, and political values.” Historically a predominantly White community, Madison “take[s] pride in being welcoming, supportive of inclusion and diversity, and firmly opposed to ... discrimination.” And fewer than two years ago, a brief real estate study published in The New York Times added a lustrous jewel to Madison's crown of accolades: “The Best Place[] ... to Raise Children.” Citing factors like housing costs, median income, crime and unemployment rates, and percentage of population under forty-five, the report first appeared in print in the Times with a headline that implored readers: “Think of the Children.”

But this litany of accolades hides the full truth. Grounded by the question “which children?,” this Article sets forth a different truth--a tale of two Madisons. A different body of evidence implicates a gulf between reputation and reality in Madison, the political hub of “the worst state for Black Americans.” For Black Madisonians, this best-of-worst-of city boasts staggering disparity--generally more than elsewhere across the state and nation. Black children face especially salient disparity in the city's public schools. The Madison Metropolitan School District (“MMSD”) is the second-largest public school district in Wisconsin, where Black/White academic achievement gaps are in fact so vast that they continually rank “dead last” in the nation. Compiling data from the Wisconsin Department of Public Instruction (“DPI”), an op-ed printed in Madison's Isthmus mere weeks after the Times report deemed the city the 'best place to raise children’ evidences just how vast these racialized academic achievement gaps are in MMSD specifically. Subsequent analysis of the data suggests, for example, that 69.6% of MMSD's White students earned a “college ready” score on the ACT in Reading from 2013-2017, compared to just 12.7% of their Black peers. State DPI data also shows racial disparity in MMSD student achievement well before students reach ACT-age. For the 10 academic years spanning 2005 to 2016, while over 50% of MMSD's White fourth graders tested advanced or proficient in literacy, the same held true for fewer than 15% of their Black peers. The 2017-2018 academic year brought an impressive jump in proficiency for the district's White fourth graders to 66.1%. But the number of MMSD's Black fourth graders demonstrating literacy above or at grade level the same year dropped to a mere 8.4%.

The severe, long-term implications of illiteracy in the fourth grade-- ones that impact young Black boys in particular--transform the district's decade-long, systemic failure to provide adequate literacy instruction to Black fourth graders into a racialized illiteracy crisis. Fourth grade is “the watershed year” because it predicts students' potentials in critical ways. Literacy strongly correlates with myriad positive social and economic outcomes, and children who are not proficient by the fourth grade are much more likely than their proficient peers to face a series of accumulating negative consequences including disengagement from learning, social and behavioral problems, school discipline, failing to graduate high school, and decreased earning potential. The most catastrophic consequence, however, is a skyrocketed lifetime likelihood of involvement in the criminal justice system. According to the National Assessment of Adult Literacy (“NAAL”), “85% of all juveniles who interface with the juvenile court system are functionally illiterate.” So too is 70% of America's adult incarcerated population. Illiteracy in the fourth grade is so irreparably damaging, in fact, that any fourth grader who is not proficient has only a 22% chance of ever catching up. The reality is especially damning for the Black boys among this group, who--at just nine- and ten-years-old--have a greater lifetime likelihood of spending time incarcerated than of ever becoming functionally literate in school.

Where Dane County's largest public school district has largely failed to produce literate Black fourth graders for more than a decade, it follows that the same racial disparity exists in the county's correctional institutions. In 2011, a Black minor from Dane County was 25 times more likely than a White minor to be incarcerated. This racial disparity “carr [ies] over” to the adult system: the next year, Black adults in Dane County were arrested at more than eight times the rate of White adults. This Article coins the term illiteracy-to-incarceration pipeline to define the accumulation of negative consequences caused by early illiteracy, which too often form the “strong connection between early low literacy skills and our country's exploding incarceration rates.”

This Article's use of Madison as a case study to demonstrate the illiteracy-to-incarceration pipeline is intentional. Traditional legal scholarship on racial disparity in public education tends to focus on poorly resourced urban districts attended almost exclusively by students of color; this scholarship at times posits that the persistent deprivation of basic educational opportunity that occurs in these districts would be “unthinkable” in well-resourced ones that primarily serve White, affluent students. But MMSD tells us otherwise. In Madison, where the generally well-intentioned White status quo touts a commitment to public education and racial justice, where public schools are “high quality,” resourced “more than most,” and list “racial equity” among their core values and “Black Excellence” among their goals, and where all signs point to equal educational opportunity, Black boys are forced by law to attend schools that have failed systemically and for over a decade to provide them adequate access to functional literacy: the minimum level of literacy that is necessary to function, let alone participate meaningfully in, today's democratic society. Yet, reputation and talk of equity disguise the de facto exclusion of the city's Black boys from basic educational opportunity. The lack of meaningful response to Madison's racialized illiteracy crisis forms the basis of this Article's inquiry into accountability. Where the American government has long recognized “the importance of education to our democra[cy]” because “it is required” for and “the very foundation of good citizenship,” how have we come to allow the widespread preclusion of Black boys from “the most fundamental educational building block: literacy?” Who can and should be accountable for implementing practical steps to end the mass funneling of this class into the illiteracy-to-incarceration pipeline?

In a society that has decided “schools are the mechanism by which [we are going to] fix racism,” I propose a strategy not to relieve schools of this burden but to have other institutions help carry it. Proceeding in four Parts, this Article suggests federal accountability.

Part I lays definitional groundwork for the illiteracy-to-incarceration pipeline and demonstrates its concrete consequences for and disparate impact on young Black boys in particular. A discussion of jurisprudence showing the federal government's selective recognition of this pipeline implicates federal accountability for and ability to advance adequate access to functional literacy nation-wide.

Part II offers a legal etiology of America's racialized illiteracy crisis. Detailing the pivotal judicial battles in the war to shape the American mind, this Part analyzes the waves of the traditional approach to establish a fundamental right to education through the Fourteenth Amendment's Equal Protection Clause. Elucidating how the federal-state push-pull for control over public education enables a cyclical lack of accountability for the systemic exclusion of young Black boys from functional literacy, I substantiate the need for a meaningful, transparent system of accountability.

Part III then examines Gary B. v. Snyder, a contemporary spin on the Equal Protection Clause approach. Here, plaintiffs in 'slum-like’ Detroit schools file federally for recognition not of a general fundamental right to education but of the fundamental right of access to literacy.

Inspired by Gary B.'s federal approach and the district court's finding that whether this specific right exists is an open question, yet unconvinced by plaintiffs' odds of success through the Equal Protection Clause when the case is heard upon appeal, Part IV suggests the need for a new approach: to advance a national goal of equal educational opportunity via a meaningful floor of adequate literacy instruction through the Fourteenth Amendment's Citizenship Clause. Drawing on California State Supreme Court Justice Goodwin Liu's work, this Part provides a conceptual framework for the term “national citizenship” and its substantive rights, which then grounds the arguments that: access to functional literacy is a substantive right of national citizenship; access to adequate literacy instruction is a part of equal, national citizenship; and Congress is therefore obligated to ensure this right. Then, concluding where it began, this Article returns to Madison, where the systematic, persistent deprivation of young Black boys' access to the level of literacy one needs to participate meaningfully in democratic society precludes this class en masse from equal national citizenship and lawfully disparages them to non-citizen subjects today. In this age of the mass and disparate illiteracy-to-incarceration pipeline, Michelle Alexander's words echo louder than ever before: “We have not ended racial caste in America; we have merely redesignated it.”

[. . .]

We need to work toward keeping children behind books, not bars.--Kadjata Bah

While the Constitution afforded Dred Scott no national citizenship when the Court denied his freedom in 1857, the ratification of the Fourteenth Amendment eliminated Chief Justice Taney's justification for finding that “neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were ... a part of the people, nor intended to be included in the [Declaration of Independence]” and thus, the Court's finding that Black Americans have “no rights which the White man [i]s bound to respect.” The Citizenship Clause's guarantee of equal, national citizenship renders the “reduc[tion of Black men] to slave[s],” to non-citizen subjects, no longer “lawful[].” Yet today, more than 150 years later, Black men in America continue to be denied meaningful national citizenship through deprivation of the substantive rights that make national citizenship effective. Public schools across America are failing to provide adequate access to functional literacy instruction at such staggering rates that we cannot build prisons big enough or quickly enough to accommodate our incarcerated populations.

In cities like Madison, the status quo's rhetoric of equity and inclusion fosters popular perception that all students have adequate access to basic educational opportunity, while daily practices in the city's institutions continue reinforcing racial hierarchies. Why did the use of the n-word by a White teacher in Madison in 2018 cause public outcry, “a no-tolerance policy on the use of racial slurs,” and the teacher's resignation, when the district's practice of failing to provide adequate functional literacy instruction to Black fourth graders en masse has continued for over a decade without inciting real change? Why does the teacher's use of the n-word spur “restorative circles” for students “to process thoughts and feelings,” when the district's history of skyrocketing Black boys' lifetime likelihoods of incarceration incites only the former-Superintendent's statement that “it's important to recognize the progress we have made, which is substantial?”

Today, in America's 'best city to raise a family,’ in a public school district that names “racial equity” and “social justice” among its core values and “Black Excellence” among its goals, 91.6% of Black fourth graders are functionally illiterate. Acknowledging the racialized illiteracy crisis in Madison and the district's racial disparities in school discipline, MMSD School Board President Gloria Reyes contends “that the good work teachers are doing to support the district's anti-racism efforts also should be recognized.” Consider Michelle Alexander's words:

Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you're labeled a felon, the old forms of discrimination--employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service--are suddenly legal. As a criminal, you scarcely have more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesignated it.

But in cities like Madison, “good intentions do not mitigate results.” The district's position that the “reality” of closing racialized academic achievement gaps is that this “is probably some of the most complex work there is” does not justify not doing this work. In the words of Justice Liu: “Reasonable [actors] may disagree on how best to define and deliver educational adequacy for equal citizenship. But such disagreement, if pursued in good faith and with a determination to act, would be a welcome step forward from the present neglect of this constitutional imperative.” This good faith process of ensuring adequate access to equal educational opportunity for equal national citizenship will indubitably “reflect socially situated judgments about the prerequisites of equal citizenship in the contemporary life of the nation.” Thus, this Article concludes with a rewriting of Alexander's elegy and extends it instructively not just to Madison, but to best-of cities, worst-of cities, and all other cities in between:

Rather than rely on race, we use our public education system to label young Black boys “subjects” rather than “citizens” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against functionally illiterate Black men in nearly all the ways that it was once legal to discriminate against African Americans. Once you're a functionally illiterate Black man, the old forms of discrimination--employment discrimination, housing discrimination, denial of educational opportunity, and inclusion in a class far more likely than any other to be stripped of freedom, involuntarily shackled, and confined--are suddenly legal. As a functionally illiterate Black man in the age of the mass and disparate illiteracy-to-incarceration pipeline, you scarcely have more rights, and arguably less respect, than a [B]lack man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesignated it.

J.D. Candidate, University of Wisconsin Law School/M.S.-- Educational Leadership and Policy Analysis Candidate, University of Wisconsin School of Education; B.S., University of Wisconsin, 2015.

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