Flashpost: Does it need to be a law?

In 2019, legal scholar Derek Black wrote that "public education stands in the midst of practical and constitutional crises" in an article compelling the federal government to recognize a fundamental right to education. These words seem even more true 6 years later.

Currently, I am working on a dissertation that also examines the legal pathways to constitutionally protecting some form of education, even if that means simply protecting literacy. I am also teaching an undergraduate course on Black Education in America from Slavery to Brown v. Board of Education. In which we recently unpacked the American Revolution's influence on future public education reform (TLDR: public education is a must value in a society based on republicanism and popular sovereignty).

Because of my research and teaching, the two most recent executive orders on education - Expanding Educational Freedom and Opportunity for Families (1/29/25) and Ending Radical Indoctrination in K-12 Schooling (1/29/25) - are of great importance to me so I wanted to make my first post about them. However, I think they deal with issues to complex to keep in one post (as I already tend to be long winded) so I will follow up with post specifically directed to school choice and race, gender, and other curriculum limitations.

What I want to discuss in this post instead is a reframing of how we think about the law. If you read the text of both of these executive orders, your first thought might be this is great! We all want children to be able to learn in a safe spaces and most people seem in agreement with the argument that parents should have significant involvement in where/how their children are educated.To an extent, I do not disagree with either of those conclusions. But what I desperately want people to understand is that just because you agree with an outcome - it does not mean that you should legally mandate that outcome. Laws are general, rigid, and often leave little room for nuance or flexibility. They apply to every situation regardless of whether they fit the circumstances. And when they are wrong, they often take years of litigation or election cycles to fix - all the while continuing to cause damage in the lives of real people.

Additionally, every law creates a value judgement, especially in a society with limited resources. For example, if you made a law that gave a tax credit to everyone who buys bananas. Then in practice, even though no other fruit is mentioned, you are sending a message that society values bananas over every other fruit because of the incentive. How does this tie into the new position of the federal government on public education based on the language of these two orders?

To me, it suggests that the constitutional and practical crises of public education is at its climax. This is not alarmist - it is very likely that in the next decade or so good public schools will be a) almost non-existent, b) reserved for very wealthy districts (in a lot of places the latter is already true). We all know that public education has had a PR problem for the last 30 years, and there genuinely are significant problems with the system. No one is denies that - but it seems that the answers proffered to solve those problems is to rid us of quality public education all together, which is throwing the baby out with the bathwater as they say. Public education matters and it matters significantly in a republican form of government where the entire governmental premise relies on informed and literate citizens being capable of self-governing.

Again, this is not a dig at alternative schooling methods, I went to private school for almost my entire K-12 education, but it was not funded or supported by the government. We should be valuing, funding, and fixing public education for all - not contributing to the inequitable distribution of resources and knowledge by using law to express values of privatization over public/community goods. We must remember that the law is a powerful tool, it shapes our lives in the macro (big) picture and in the micro (small) picture. And often - we are unable to see the extent of that shaping until years into the future. It might be useful to start asking, “Does this need to be a law?” when evaluating new policies coming forward instead of “Do I agree with the content and the speaker?

P.S. If you have questions about school choice or the indoctrination EO, please comment or send them via messenger so I can decide how to write about those issues (because I have a lot to say and I should probably have something to give me focus).