Abstract

Excerpted From: Thalia González and Paige Joki, Reproducing Inequality: Racial Capitalism and the Cost of Public Education, 65 Boston College Law Review 317 (February 2024) (268 Footnotes) (Full Document)

When Chloe, a Black high school student living in an emergency shelter without access to any supportive services, lost her student identification card, she was denied access to her school until she paid both a $5 replacement fee and an additional $1 per day fee for every day she was without it. Unable to pay either the original fee or the compounding daily fees, she was not allowed to enter her school and was forced to be absent and accrue unexcused absences. Following multiple days of absence, her school threatened to refer her to the local district court for violations of Pennsylvania's compulsory school law.

When Destiny, a proud Black single mother of two elementary school students at a Pennsylvania charter school, experienced unforeseen delays and safety concerns on public transportation, she arrived late to pick her children up from school. Despite calling the school to alert them of her delay and being told “see you soon, Mom” by the school's front office, upon her arrival she was confronted publicly by school personnel and informed that she would be issued “a late pickup fee” at the cost of “$1 per minute” for each child because she had arrived after the school's brief “grace period.” The fee was non-negotiable, and payment was due immediately. Her failure to do so, regardless of an inability to pay, would ensure that her children, who recently joined the school community, would be denied complete access to a range of school activities, and the school would hold their report cards at the end of the academic year until all balances were paid. Destiny, who describes herself as a vocal and fierce advocate for her children and herself, pushed back. Despite her best efforts, the fees remained and she was presented with an agreement that would oblige her to pay at a later date. She refused to sign it and only after she alerted the school that an attorney would contact them on her behalf did the school permit her to exit the school building with her children without immediate payment or signing an agreement to pay.

Since its inception, the American democracy has employed law and policy to fundamentally dispossess, control, dehumanize, and disenfranchise Black people. In the fields of economic justice and poverty law, specifically, legal scholars have exposed a historical lineage of racial exploitation. As has been documented, the race logics of fines, fees, and debt of the antebellum era scaffolded hierarchies of white power and prescribed Black people as commodities, not humans. To preserve and enforce white power, Black people faced or were threatened with state violence, disenfranchisement, and imprisonment. Tracing the trajectory of the antebellum era to contemporary manifestations of fines and fees, law and political economy scholarship and advocacy have sought to deconstruct political arrangements that have actively sanctioned racialized debt in Black communities and built an interlocking punitive framework of compounding economic, social, and political harms. Within this praxis of economic justice, openings have emerged for opposition, organization, and disruption, from law and social movement activities generating anti-fine and fee discourses, to legal interventions, to structural policy reforms, including the reconsideration of fines and fees in the criminal legal system. This work, increasingly defined through a racial capitalist framework, has targeted the interlocking material and ideological forces that comprise racial capitalist geographies in criminal and civil systems. As creative imaginations of reparations and abolition, coupled with refinements in the exposition of the constitutive nature of capitalism and racism have matured, so too conceptions of legal responsiveness and remedies have evolved beyond their initial frameworks toward the abolition of the fines-and-fees regime. For example, a 2014 lawsuit against the City of Montgomery yielded a settlement that required the City to adopt new policies applicable to people who were unable to pay traffic fines to avoid imposing jail time. In 2017, legislative and policy reforms in California and Mississippi curbed the practice of suspending driver's licenses for non-payment of fines.

Despite this significant work, however, the distinctly racialized dispossessive, extractive, and punitive economic realities of fines and fine regimes in other public state systems, in particular K-12 education, have escaped inter- rogation and advocacy. In legal scholarship, our work is most closely aligned with Steven Nelson and Ray Orlando Williams's formulation of the concept of a “racial-political economy of education” and their application of this concept to contemporary policy in urban education, arguing it is “a reincarnation of past efforts to racially subjugate Black peoples.” We also view a connection to Helen Hershkoff and Nathan Yaffe's assertion that the “confinement experienced by Black, Brown, and poor students in resource-starved carceral public schools serves to maintain and reproduce economic stratification within a system of racial capitalism,” which indicates these systems are functioning as intended and designed. Within this work, however, we recognize a distinction to our analysis as presenting a concrete and discrete form of coercive racial capitalism at play in schools. Despite the fact that education functions as a free public system uniformly made available across the states, the malleable structure of capitalism, and more significantly, racial capitalism has become systematically and operationally interlaced, serving to rationalize exploitation, accumulation, and containment of Black students and parents through a neutral frame of fines, fees, and charges.

Across other fields of study, scholars have also contended with the physical practices and ideological effects of racial capitalism in education. They have raised provocative questions with respect to caste education, school discipline, urban education, STEM education, teacher training, educational leadership, dispossession of land on which schools are built, the creation of racialized divisions of labor by education systems, and student debt in terms of both its accrual and its impact. This has challenged and strengthened clarification of the subtleties and nuances of racial capitalism. As legal scholarship has underscored, “[t]he interlocking material and ideological forces that comprise neoliberal racial capitalism offer rich and urgent sites for critical educational research, and such scholarly critiques can point to openings for opposition, organizing, and disruption.” This observation of the disruptive and generative nature of the framework of racial capitalism analysis raises a serious question for legal scholars to grapple with--“[h]ow ... might we use racial capitalism as a theoretical framework to better understand racialized educational inequities?”

As a critical education scholar and education civil rights attorney, this question sparks a multiplicity of responses between us and guides our intervention into the literature at three levels. The first is theoretical. This Article synthesizes existing work on interactions of racial capitalism, drawing most specifically on analyses by Carmen Gonzalez and Athena Mutua, as well as work by Prentiss Dantzler, on law and sociology, respectively, to explicate racial capitalism's constitution in U.S. public education. The second is descriptive and analytic. This Article applies these frameworks to the fines and fees regime present in Pennsylvania public schools and finds three central features of racial capitalism expressed. Lastly, this work is prescriptive and provides education civil rights attorneys with a framework for state and federal law that may be available to protect Black students and families from resource extraction.

This Article deliberately uses fines and fees throughout rather than the full set of coded terms included in Appendix 1 to emphasize two central features of racial capitalism. In the case of fines, it expresses the constitution of punishment within a racial capitalist ideology. For example, “[r]acialized debt is a cornerstone of racial capitalism” and reflects “the structural ways in which profit is exploited and dispossession is inflicted upon groups rendered different through race and other intersecting power dynamics.” With respect to fees, the term signals and privileges the privatization of public education and the state's active production of highly inequitable, under-resourced, and segregated learning environments. As it has been argued in the case of racial capitalism and Black student debt, “Black people are treated as a means for finance capital.”

In advancing racial capitalism as a constructive feature of this Article, however, we do not simply seek to contribute to the academic literature with a theoretical exposition of fines and fees in public education. Instead, we use critical race theory and social science methodologies to construct a direct understanding of the infrastructure, pervasiveness, and impact of economic education sanctions in Pennsylvania public schools. As the client stories recount, the dispossession inherent in capitalism operates to create, reinforce, and intensify racial differences for students, parents, caregivers, and families. As such, this Article contributes to the field in multiple ways. It attends to an undertheorized yet formative area of critical theory and exposes how racial capitalism operates through a familiar racial evasiveness modality to structure and shape educational processes across a spectrum of axes. Additionally, it invites civil rights education lawyers as well as economic justice and poverty movements to be in direct conversation with the aim of altering the racialized, extractive, and punitive education landscape. We are ready to imagine what the dismantling of fines and fees--akin to work in other public systems--would mean for Black students and families, as well as for Pennsylvania schools to meet their explicit constitutional commitments to public education for all students, which has been recognized as a fundamental right under Pennsylvania's Constitution, and related statutory commitments to ensure the public education system is free.

As the stories that open this Article illuminate, racial capitalism in education produces conditions that map against multiple contours of race-making aimed at reifying ideologies of inferiority and justifications for state-sponsored violence and disenfranchisement. Put another way, for students like Chloe, the threat and actuality of financial penalties expands far beyond the boundaries of economic inequality or injustice or debt creation. They operate to perpetuate race-making stereotypes and tropes of Black identity, implicitly label a Black child as being unworthy of meaningfully accessing their right to public education, and justify the creation and enforcement of systems that deprive Black children (and Black communities) of educational opportunities altogether. They also ascribe worthiness to learn as bound to racial and class identity. Furthermore, they create intentional boundaries and obstacles that Black children must navigate across the arc of educational experiences, from threats of criminalization that lead them directly into other sites of subjugation, control, and exploitation, to limits on engaging in activities with peers or participating in life-defining moments such as graduation ceremonies. And for caregivers, such as Destiny, late charges are not a “benign” act of economic disenfranchisement. They are direct, abusive, and coercive mechanisms cooperating to compound intersectional matrices of oppression levied against Black mothers. They reinforce the expansive reach of education laws and policies to regulate Black families beyond the schoolhouse doors and police, punish these families, and exclude those that do not conform to normative formulations of fit parents (re)produced by white supremacy. Moreover, they serve to concretize the adversarial and anti-Black positionality of public education institutions charged, under the law, with an explicit duty to serve Black children and families. Following this experience, Destiny's children felt unwelcome and expressed fear about attending and participating in school altogether because it could subject their mother to additional harm and humiliation. This shift in school climate and connectedness was particularly damaging and harmful for Destiny and her children, and transformed their educational experience profoundly. Left unchecked, these assertions of racialized economic power destabilize and limit Black resources and opportunities by predicating the right to full participation in public schools implicitly and explicitly on the ability to pay.

To approach U.S. education through the framework of racial capitalism this Article is structured in three parts. Part I introduces the theoretical dimensions of racial capitalism with specific attention on synthesis of current explorations in education. Part II turns its attention to a specific systemic site of racial capitalism--Pennsylvania schools. It brings three forms of racial capitalism (accumulation/dispossession, resource extraction/debt creation, and punishment/containment) in direct conversation with a specific modality (fines and fees) through first-hand accounts of Education Law Center-PA clients and analysis of more than seven hundred published and publicly-available and searchable individual public school, charter school, cyber charter school, district handbooks, and codes of conduct which define the rules that public school children must follow or can face discipline and removal including up to permanent expulsion. From this original dataset, this Article tells a story of racial economic injustice as a central and reproductive fixture in public schools in a manner that neither the poverty law, education law, nor civil rights law fields have done thus far. Recognizing that dismantling a deep-rooted enterprise of control in U.S. education is a formidable task, even in times of racial progress, Part III outlines federal and state mechanisms and protections that civil rights education attorneys could employ to protect Black students and families and halt a reproduction of inequalities. Although such legal tactics can support and protect individuals in moments of urgency, it will only be through repeated resistance to racial capitalist conditions and mythologies of racial beneficence of education that it will be possible to counterbalance growing retributive, exclusive, antidemocratic, and authoritarian currents.

[. . .]

Working with the concept of racial capitalism in U.S. education law and policy brings into focus the distortion of how modern American schools coercively force engagement in extractive and violent formulations of capitalism in a free, yet compulsory, public system. Given this reality, our coupling of education and the concept of racial capitalism is simultaneously analytic and pragmatic in its aim. At an analytic level, it is necessary to reimagine racialized inequities in education through new concepts and perspectives. We are not asking whether race or economy function to produce and sustain education inequities, but how the racialization of capitalism's key features has migrated across and within public systems. Thus, racial capitalism offers a striking perspective on education that in many ways is consistent with critical race theory approaches to education. Yet, it is additive to a new ecosystem of analyses. A racial capitalism mapping of fines and fees, for example, reveals how they operate as a form of compulsory capitalism, e.g., participatory debt, for Black students and families.

On a practical side, this Article aims to shed light on a critically overlooked area of education policy and practice, openly calling for the abolition of all forms of economic extraction in public education. This Article should not be misinterpreted as speaking solely to the civil rights education law movement. On the contrary, we intend it to provoke attention from the economic justice, poverty law, and law and political economy fields, in particular those at the vanguard of anti-fines-and-fees activism in other systems that rely on Black dispossession. It is essential to bridge disciplinary divides that have limited collective imaginations for a racially and economically just future. The pursuit of a new normative vision of economic justice has yielded substantive legal reforms across multiple public systems and diminished the reliance on strategies of subordination and regimes of punishment. We seek the same for the American public education system. As Angela Harris observes, “[j]ust as [Critical Race Theory], moving through capillaries within and outside law, has made intersectionality a common word, a racial capitalism literature that engages with law may help advocates dream into being new forms of governance adapted to a more just and sustainable future.”

Abolishing a hidden feature of racial capitalism in education--what this Article systematically identifies as a fines and fees regime--is one step towards dismantling a co-productive relationship of white supremacist racial hierarchy. Legal scholars argue that “the insights racial capitalism brings to the study of the past are also crucial for envisioning the future. If race came into being to justify the social dynamics of capitalism, then racial justice cannot thrive under capitalism.” Understanding the limits of academic scholarship, even at their most activist formulations, this Article is but one of multiple interventions to achieve this goal. This is particularly important because, as acknowledged in other work, the impact of education laws and policies are “not [a] single axis; rather, they are multi-axial and exist within a larger ecosystem of control and punishment that criminalizes Black people--whether they are students or not.” Confrontations against such an ecosystem must likewise be multi-axial and unearth hidden architectures of one of many systems built, nourished, and sustained by white supremacy and anti-Black racism. As Saidiya Hartman argues,

The possessive investment in whiteness can't be rectified by learning 'how to be more antiracist.’ It requires a radical divestment in the project of whiteness and a redistribution of wealth and resources. It requires abolition, the abolition of the carceral world, the abolition of capitalism. What is required is a remaking of the social order, and nothing short of that is going to make a difference.

Professor of Law and Harry & Lillian Hastings Research Chair; Co-Director of the Center for Racial and Economic Justice at the University of California College of the Law, San Francisco.

Staff Attorney at the Education Law Center-PA, where she represents students, conducts trainings, and advocates to address the individual and systemic educational barriers facing students in Pennsylvania.