Reconstruction State Constitutional Conventions and the Rebirth of American Schooling

abstract. A rebirth of American education occurred in the state constitutional conventions of the Reconstruction South. At a moment of national constitutional reformation, biracial coalitions of delegates constitutionalized universal public-school systems, viewing them as a core component of remaking their states in the image of the U.S. Constitution. These delegates succeeded in keeping their constitutions free from the language of segregated schooling. This ill-understood history severely troubles the Supreme Court’s jurisprudence of the schoolhouse. This Note fills gaps in the ongoing conversation emanating from the Court about the relationship between our nation’s history and its current educational landscape.

author. J.D. 2025, Yale Law School; Ph.D. 2023, University of Cambridge; B.A. 2018, Yale College. For their mentorship and guidance through my legal education, I thank Akhil Amar, Judge Guido Calabresi, Justin Driver, Paul Gewirtz, Abbe Gluck, Harold Koh, Douglas Kysar, Claire Priest, Judith Resnik, Reva Siegel, and John Witt. I owe immense gratitude to David W. Blight, Luis C.deBaca, Henry Louis Gates, Jr., and Nicholas Guyatt. The members of the Yale Public Law Workshop—led by Justin Driver and Cristina Rodríguez—gave generous and helpful feedback on an early version of this piece. Professors Driver and Siegel provided vital encouragement, conversation, and suggestions throughout the development of this Note. Working with the editors of the Yale Law Journal has been a privilege and a joy. I thank the Notes & Comments Committee and especially Jorge Ledesma, whose engagement with this piece has been invaluable. Finally, as always, I am grateful to Professor Hannah Black.

Introduction

“Nothing this Court holds today in any way detracts from our historic dedication to public education,” the Supreme Court announced in San Antonio Independent School District v. Rodriguez as it held that education was not a fundamental right protected by the Fourteenth Amendment.1 Despite compelling historical evidence, viable jurisprudential paths, and a sizable body of scholarship, the idea of a constitutional right to education seems dead in the water.2 Rodriguez, handed down in 1973, certainly appeared to settle the matter.3 Writing for the majority, Justice Powell stated, “Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.”4 While reiterating Brown v. Board of Education’s espousal of the importance of education to American children, the Court still refused to find education embedded in the Fourteenth Amendment, noting, “It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.”5 Justice Marshall—who two decades earlier had argued Brown before the Court—dissented, seeing in the Fourteenth Amendment “the right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned.”6

While existing scholarship on whether a right to education exists is compelling, it also feels unstable and unsatisfying.7 Whether something is a right is in some sense too big a question for any piece of scholarship to answer. Yet the question as it relates to education also appears simple. Education has held a singular place in the nation’s history, in no small part because of its singular place in the development of the human individual. Education’s fundamentality to human dignity might indeed require a heightened consideration for its potential status as a right. From the Founding to the present, access to knowledge has been seen as a core component of liberty, a requirement for the functioning of the Republic, and perhaps even a natural right of human beings. From the writings of Thomas Jefferson and John Adams, to the Northwest Ordinance, to the common-schools movement, to the Reconstruction rebirth of American education, to Brown—the through line is not hard to draw.8 One might even call this through line the history and tradition of American education.9

This Note takes another tack and offers the most comprehensive assessment to date of education’s place in the constitutional conventions of the Reconstruction South.10 It seeks to join and complicate the ongoing conversation emanating from the Supreme Court on the relationship between our nation’s history and its current educational landscape.11 In synthesizing a history rarely told, this Note uncovers lost historical narratives and questions how state constitutional ferment during Reconstruction could and indeed must alter our current understanding of Americans’ historical right—not just to education but also to unsegregated schooling at all age levels.

The vast majority of universal public-school systems in the South sprouted from the new constitutions mandated by the Reconstruction Acts of 1867.12 The state constitutions of the Reconstruction South are peculiar historical documents that have not received extensive attention from legal scholars. Reconstruction was indeed short-lived, and these constitutions were soon amended or replaced as Southern politicians undid the progress of Reconstruction. In some sense, therefore, their legal significance lies almost entirely in their unique status as mirrors of the transforming federal constitutional order. Many of the core constitutional provisions providing for universal common schools—the centerpiece of this Note—were quickly subsumed into “separate but equal” segregated schooling regimes that took generations to excise.

The short lifespans of these constitutions and the frustrating lack of enforcement of their provisions have little to do with the import of their enactment, however. These constitutions—crafted amid the throes of federal Reconstruction—shed unique light on the original meaning of the Reconstruction Amendments and the contemporary significance of education to Americans at the time. The state constitutional conventions of the Reconstruction South had one overarching task: to remake their state constitutions in the image of the U.S. Constitution that was itself undergoing reconstruction.13 Each of these state constitutions was to be reconstructed in parallel with the Federal Constitution, and the state and federal documents were meant to interlock and rhyme. Indeed, they were part of the same constitutional project of eradicating slavery and stitching the Union back together. The documents the states produced and subsequently ratified via popular vote thus provide us with unique insight into how the Thirteenth and Fourteenth (and potentially the Fifteenth) Amendments were originally interpreted. While the constitutions varied in many respects, the constitutional lodestars of Reconstruction—eradicate slavery, restore the Union, expand the privileges or immunities of citizenship, extend the franchise, and begin undoing the effects of slavery—were present throughout these documents. Perhaps even more than the words of the Amendments’ drafters in Congress, the actions of these state constitutional delegates demonstrate the contours of the Reconstruction Amendments as understood by the Americans who sought to give them meaning as they instituted their state analogs.

But looking at the history of education during Reconstruction and asking if it proves that there is a fundamental right to education embedded in the Fourteenth Amendment is to ask a question that is—perhaps unexpectedly—too narrow in focus. The various coalitions of reform-minded Black and white Republican delegates that attended the state constitutional conventions in the South strove for something more complex than the right to public schooling alone. They sought to harness the singular power of their constitutional moment to open the schoolhouse gates to all children, and many fought to keep the stain of segregated education out of the charters they drafted. They sought to institute new systems of opportunity that would, however slowly, reverse the detriments of the freshly destroyed system of chattel slavery.

To these Reconstruction reformers, the schoolhouse was a proxy for the wider racial order that had been radically shaken by the Civil War. Many firmly believed that segregation—an offspring of slavery—had to be kept out of the new constitutional charters. These delegates understood that the country was on the precipice of a revolution in education—that school systems would soon proliferate across the country. Would Black children be permitted to play an equal part in this revolution? Would they inherit the newly granted blessings of universal schooling that other American children were to receive? To what extent would the new educational order be pre-molded by the existing racial hierarchy—could it come into being on paper free from racial distinctions? How these reformers went about answering these questions can tell us more than whether Americans have a right to the schoolhouse. This Note, therefore, seeks to detail not just the right to education but the rebirth of education in the United States.

This Note incorporates evidence and archival research from the Reconstruction constitutions and constitutional conventions across the postwar South and presents five case studies: Virginia, North Carolina, South Carolina, Texas, and Louisiana. Together, these states exhibit a suitable sampling of the demographic, economic, and political diversity of the South in the wake of the Civil War. Further, each of these states offers a unique perspective on the incorporation of a potential right to education into Southern state constitutions. Virginia, of course, contained the capital of the crushed Confederacy and had a singular historical identity as the preeminent political powerhouse of the South. North Carolina was unique in specifying education as a right in its Reconstruction constitution. South Carolina was the only state with a majority Black delegation at its constitutional convention, offering unparalleled insights into the views of Black Southerners and recently freed individuals as they exercised the levers of political power in the United States for the first time. Texas is of special importance for the role it would play in twentieth-century Supreme Court litigation over the right to education, and its convention records trouble the Court’s later reasoning. Finally, Louisiana’s convention was evenly split between white and Black delegates and produced a constitution that established, at least on paper, integrated public education up through the university level.

These conventions and the texts they produced provide us with a historical narrative wholly missing in Supreme Court jurisprudence and faintly acknowledged in the academy. A systematic14 look at Southern Reconstruction constitutions and constitutional conventions reveals multiple historical facts with legal import: (1) each former state of the Confederacy covered by the Reconstruction Acts constitutionalized, in one form or another, a universal public-school system; (2) in the drafting conventions of almost all of those states, attempts were made to include language mandating segregated schools, and these attempts failed; (3) Black delegates, who could hold office for the first time, were pivotal players on the education committees of many of these conventions and were often vocal in Republican efforts to defeat segregation provisions; (4) while some Black delegates expressed concern that mixed schools would be unsafe—or not preferred by Black communities—keeping the language of de jure segregation out of state constitutional texts was still deemed a priority; (5) the belief of many, if not most, delegates that schools would ultimately become segregated by local means did not stop them from keeping the language of separate schools out of their constitutions; and (6) delegates frequently extolled education as a necessary component of human advancement and a tool to move the South past slavery and rebellion.

A note on method is in order. This investigation might appear to some readers to draw outside the lines of traditional constitutional interpretation—in its cast of constitutional characters, its reliance on underutilized primary sources, and the significance it places on constitutional absences and silences. To the contrary, such a study adheres to traditional methods of constitutional interpretation. It highlights the official statements and actions of elected, state-level constitutional actors at the hinge point of Reconstruction. It relies almost entirely on the texts of the state constitutions and the published journals and debates of the constitutional conventions. Where necessary, it utilizes press coverage to fill in gaps in the published records of the state conventions. These actors and texts are ripe sources of historical-legal evidence about the intentions of the Republican Party, the political and social context that birthed the Reconstruction Amendments, and the original public meaning and purpose of those Amendments.

The success of a multiracial coalition of Republican convention members in keeping the language of segregated education out of their constitutional documents was not solely a meaningful moment of resistance. It was a constitutionally significant success. This success had content that cannot be divined from the text of these state constitutions alone. In many ways, the omission of segregated education is as important as the text—it is a ratified constitutional truth that is hidden and untextualized. It is a piece of constitutional meaning that we cannot see but is vitally significant. That’s why these documents are sources of constitutional meaning. The ratified texts rejected discriminatory ideals.

This discussion of the history of American schooling and the Fourteenth Amendment is timely given the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA).15 The case’s holding that Harvard and the University of North Carolina’s race-based affirmative-action plans ran afoul of the Equal Protection Clause of the Fourteenth Amendment has forced a reassessment of admissions practices in higher education institutions across the country.

SFFA is also significant for another reason: its opinions and dissents contain four different retellings of the history of Reconstruction and its intersection with American schooling. Chief Justice Roberts argued for a colorblind reading of the Equal Protection Clause and began his assessment of the merits with a recounting of Reconstruction and the views of key Republican Reconstruction congressmen.16 Justice Thomas, concurring, presented his own narrative of Reconstruction “to offer an originalist defense of the colorblind Constitution.”17 Justice Sotomayor’s telling of Reconstruction, in dissent, foregrounded the idea that the Fourteenth Amendment was not understood historically as a “blanket ban on race-conscious policies.”18 Justice Jackson’s dissent encouraged us to assess admissions practices “with history in hand.”19 Her interpretation hinged on the theme of “[g]ulf-sized race-based gaps” separating white and nonwhite Americans that “were created in the distant past, but have indisputably been passed down to the present day through the generations.”20 These gulfs were rooted in slavery, and in Justice Jackson’s telling, the Second Framers sought to reconstruct the American constitutional order in such a way as to “right historical wrongs.”21

Altogether, the opinions and dissents in SFFA represent a remarkable series of interpretive vignettes—variations on the themes of the legacy of slavery, the intentions of the Second Framers, and the significance of education. Each vignette probed the nature of the equality ushered in by the Fourteenth Amendment. Was it a colorblind equality (Roberts and Thomas)? Was it a race-conscious equality (Sotomayor)? Was it a reparative equality meant to rectify historical wrongs (Jackson)? Despite offering four separate historical interpretations of Reconstruction, the Court in SFFA—continuing the pattern of Brown, Rodriguez, and Plyler v. Doe22—passed over a distinct and legally significant set of constitutional events and actors that this Note seeks to revive.

In surfacing this history, this Note seeks to fill a gap in the Supreme Court’s ongoing dialogue—exemplified by SFFA—on the legal significance of the United States’s history of slavery, emancipation, and the schoolhouse. It seeks to demonstrate how a vital group of constitutional actors—Reconstruction delegates to Southern state constitutional conventions—understood equality as it related to education and knowledge acquisition at the precise moment the Fourteenth Amendment was undergoing ratification. These delegates were elected constitutional actors whose articulations of the meaning of equality and freedom in the throes of Reconstruction add crucial color to our understanding of Reconstruction’s constitutional realities.

Accordingly, the following assessment proceeds in three parts. I begin in Part I by triangulating the constitutional and historical significance of the Southern state constitutional conventions. From one angle, I will assess the current scholarly consensus on the relationship between the Fourteenth Amendment and education, a consensus defined by intellectual consternation and pragmatic resignation. From a second angle, I move to analyze the use of history in Brown v. Board of Education and establish what I call Brown’s methodological bargain. To clear the path for a straightforward textual reading of the Equal Protection Clause, the Court conceded that the history of education around the time of the Fourteenth Amendment’s ratification was “inconclusive.” While of vital importance to Brown, this methodological move came at a cost. The final piece of Part I excavates two antebellum cases—Crandall v. Connecticut and Roberts v. City of Boston—in which legal advocates made prescient, persuasive, but unsuccessful arguments about the place of education in American constitutional law. Part II comprises the bulk of this Note’s analysis, unearthing the set of short-lived Reconstruction Era constitutions crafted and ratified by biracial coalitions of delegates in the South in the aftermath of the Civil War. Finally, Part III seeks to reassess Rodriguez and Plyler in light of this historical evidence and question where this evidence fits in the historical frameworks offered by the Court in SFFA.