Volume 112

Deny, Defund, and Divert: The Law and American Miseducation

by Janel A. George

Racial inequality in public education is not inevitable, it is constructed. The law has been elemental in crafting racial inequality in public education. In this Article, I posit that lawmakers seeking to entrench racial inequality in and through public education do so by enacting laws designed to deny Black children access to education, defund public schools disproportionately attended by Black children, and divert many Black educators away from the public education system. This Article draws a through-line between laws enacted to prevent desegregation in the aftermath of the Brown v. Board of Education rulingan era known as massive resistanceand recently introduced laws that seek to exclude the nation’s history of racial inequality and its enduring effects from curriculum. While contemporary laws are cloaked in colorblind language that makes them appear racially neutral, at bottom, they are predicated on the same anti-Black sentiment and white supremacy of Slave Codes, Black Codes, and Jim Crow laws.

This Article builds upon the critical race theory concept of race, reform, and retrenchment by asserting that education retrenchment laws enacted following periods of racial progress can be characterized by the deny, defund, and divert framework. This framework helps us to understand how lawmakers impose racial inequality in and through education, and it can also inform strategies to thwart such laws.

Racial inequality in education is not intractable. Deny, defund, and divert laws can be thwarted by race-conscious laws that seek to promote culturally inclusive education, to strategically fund under-resourced schools, and to rebuild the pipeline of Black educators. Racial inequality cannot be cured solely through reliance on formal equality; instead, laws entrenching racial inequality and white supremacy must be affirmatively dismantled.

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