Charter Schools and the Privatization (and Profitization) of Education

By Shawgi Tell

Eleven months ago a critical education case came before the 4th U.S. Circuit Court of Appeals in North Carolina (Peltier v. Charter Day Sch., Inc., 37 F.4th 104, 116, 4th Cir. 2022). A main issue in the case pertains to the dress code at “Charter Day School” in Leland, North Carolina, specifically, whether the privately-operated but publicly-funded charter school had violated the rights of female students by stipulating what they could and could not wear. The ACLU reports that, “Girls at Charter Day School, together with their parents, challenged the skirts requirement as sex discrimination under the Equal Protection Clause of the U.S. Constitution and Title IX.”

For general purposes and for the purpose of this case in particular, it is first important to appreciate that, while all non-profit and for-profit charter schools are privately-operated schools, many, including “Charter Day School,” are also owned-operated by a private educational management organization (EMO).[1] This is another layer of privatization, another level of private ownership and control. In this vein, it is important to grasp that the legal framework that applies to private entities differs qualitatively from the legal framework that applies to public entities. Private actors and state actors operate in different legal spheres. The U.S. Constitution, for example, does not apply to the acts of private entities; it applies mainly to acts of government. Indeed, the private-public distinction shapes the laws and institutions of many countries. As a general rule, no public schools in America are operated by an EMO.

It is also legally significant that the parents of the students suing “Charter Day School” voluntarily enrolled their daughters in the privately-operated charter school. No one is forced or compelled to enroll in a charter school in the United States. Nor is the state compelling, encouraging, or coercing “Charter Day School” to adopt any particular dress code or educational philosophy for students.

As a general rule, privatized education arrangements in America (e.g., private Catholic schools that charge tuition) have always been able to adopt the dress code they want without any government interference. It is generally recognized that, as private schools, they can essentially adopt whatever dress code or educational philosophy they wish to enforce, and that parents are under no obligation to enroll their child in a private school if they do not wish to do so. This has been the case for more than a century. It is one of many expressions of the long-standing public-private distinction in law, education, and society.[2]

It is also important to consider that the capital-centered ideologies of choice, individualism, and the free-market encompass the notion of doing something voluntarily, i.e., willingly and freely. It is the reason why charter school promoters repeat the disinformation that charter schools are “schools of choice” (even though charter schools typically choose parents and students more than the other way around).[3] This neoliberal logic is also consistent with the “free market” notion that parents and students are not considered humans or citizens by charter school operators, they are viewed instead as consumers and customers shopping for a “good” school that won’t fail and close, which happens every week in the crisis-prone charter school sector.[4]

Charter schools, to be clear, represent the commodification of education, the privatization and marketization of a modern human responsibility in order to enrich a handful of private interests under the banner of high ideals. For decades, neoliberals and privatizers have painstakingly starved public schools of funds so as to set them up to fail. Then they have mass-tested them with discredited corporate tests to “show” that they are “failing.” This is then followed by a sustained media and political campaign to vilify and demonize public schools so as to create antisocial public opinion against them, which then eventually “justifies” privatizing public education because “privatization will improve education.” Suddenly “innovative” charter schools appear everywhere, especially in large urban settings inhabited by thousands of marginalized low-income minorities.

The typical consequences of privatization in every sector include higher costs, less transparency, reduced quality of service, greater instability, more inefficiency, and loss of public voice. Privatization essentially undermines social progress while further enriching a handful of people driven by profit maximization. To date, whether it is vouchers, so-called “Education Savings Accounts,” or privately-operated charter schools, education privatization (“school-choice”) has not solved any problems, it has only multiplied them.[5]

With this context in mind, let us return to the court case at hand. In a 10-6 vote on June 14, 2022, the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals, “found that that the dress code [at “Charter Day School”] ran afoul of the U.S. Constitution's 14th Amendment guarantee of equal protection under the law.” Girls at the K-8 charter school, it was concluded, should have the freedom to wear pants and not just skirts because they have “the same constitutional rights as their peers at other public schools - including the freedom to wear pants.”

Marking the first time a federal appeals court has ever done such a thing, the Richmond Court found that “Charter Day School” is a state actor (i.e., it is a public school), which means that the Equal Protection Clause of the 14th Amendment does apply to the school.

Consistent with numerous other court rulings over the years, however, the lawyer for “Charter Day School,” Aaron Streett, maintained that the Richmond court issued a flawed ruling because the Equal Protection Clause of the 14th Amendment does not apply to the charter school because the charter school is a private entity and not a state actor like a public school.

According to legal precedent, as a private actor, “Charter Day School” did not deprive any person of their constitutional rights. This view stems in part from the long-standing premise that charter schools are “independent,” “autonomous,” “innovative” schools under the law, that is, they are deregulated “free market” schools, meaning that they are exempt from most of the laws, rules, policies, and regulations that govern public schools. They do not operate like public schools. They are not so-called “government schools.” They are not arms of the state.[6] They are not connected to state authority in the same way public schools are. They are not governed by elected officials like public schools are. Charter schools operate in their own separate sphere. The fact that many charter schools are also owned or operated by private EMOs only adds an additional wrinkle to the public-private dynamic.

“Charter Day School” is currently appealing the case to the U.S. Supreme Court, which may hear the case this summer (2023).

The issue of whether a charter school is a state actor or not is critical because it hits at the core issue about charter schools. This point cannot be overstated. If it is the case that “Charter Day School” is not a state actor, as the lawyer for the privately-operated school argues, then the Virginia court’s ruling represents a form of “harmful government interference” because the 14th Amendment does not apply to private actors.

Under U.S. law, “state action” is defined as “an action that is either taken directly by the state or bears a sufficient connection to the state to be attributed to it.” Another source states that a state actor is “a person who is acting on behalf of a governmental body, and is therefore subject to regulation under the United States Bill of Rights, including the First, Fifth and Fourteenth Amendments, which prohibit the federal and state governments from violating certain rights and freedoms.”[7]

However, as private actors charter schools are not in fact “acting on behalf of a governmental body.” Private actors are not controlled or directed by the state, at least not in the way agencies and arms of the state are, which means that the actions of privately-operated charter schools cannot be called actions taken directly by the state. State action doctrine holds that government is not responsible for the conduct of a private actor.

Even most of the entities that authorize charter schools are not public or governmental in the proper sense of the word. Many charter school authorizers are operated or governed by unelected private persons. Many of the wealthy individuals who operate or govern such entities are hand-picked by wealthy governors. The public, as a matter of course, is omitted in these arrangements. The public has no meaningful say in any part of this set-up. This is on top of the fact that charter schools themselves are not governed by publicly elected citizens either, whereas public schools are. Unelected private persons governing a deregulated private entity (which may also be owned by another private entity) is not the same as elected public school officials governing a public school that serves no private interests, admits all students at all times, has unionized teachers, can levy taxes, and is accountable only to the public.

Unlike charter schools, regular public schools, which have been around for 180 years and educate 90% of America’s youth, are in fact state actors; they are political subdivisions of the state because they not only carry out a public function but are also explicitly delegated authority by the state to carry out various public responsibilities. “Function” and “authority” are not synonyms; they are different concepts. Carrying out a role is not necessarily the same thing as having power to carry out that role. A role can be carried out by a person or entity that derives its responsibility from a higher political power. Its role can be delegated by a more influential power.

Properly speaking, charter schools are not exercising state prerogatives. Nor do they enter into what may be called a symbiotic relationship with the state. Unlike public schools, they are not state agencies proper, which explains why the state does not coerce, encourage, or compel charter schools to act in the same way it coerces, encourages, or compels public schools to act. The state has more influence and control over public schools than it does over privately-operated “free-market” charter schools. In this neoliberal legal setup, the state is not responsible for the policies and operations of deregulated charter schools; charter schools can do as they please; “no rules;” “laissez-faire;” “hands-off,” “autonomy.”  This usually means no meaningful accountability.

Charter schools are intentionally set up to operate outside the parameters and framework governing public schools. This is what makes them “innovative,” “independent,” and different. It is worth stressing again that, in the case of “Charter Day School,” the state played no direct role in creating, directing, or shaping the dress code being challenged by parents who voluntarily enrolled their children in the school. The charter school’s dress code policy was not therefore an expression of state action.

Unlike public schools, charter schools fall under private law, specifically contract law. Charter, by definition, means contract: a legally-binding agreement between two or more parties to do or not do something in a specified period of time with associated rewards and punishments. For state action doctrine this means that just because a private entity has a contract with the government that does not mean that the actions of private contractors like charter schools can be attributed to the state. Simply “partnering” with the state does not make the conduct of a private entity a form of state action. A private actor does not become public, does not become a state actor, just because it contracts with the state.

The issue of whether a charter school is public or not is often confusing to many because there is relentless disinformation from charter school promoters that charter schools are public schools when in reality they are privatized independent entities. Charter schools remain private, independent, deregulated, segregated entities even though they receive public money, are often called public, and ostensibly provide a service to the public. Interestingly, when asked what they think a charter school is, most people say they are not really sure or they think that charter schools are some sort of private school. The average person rarely thinks charter schools are public schools.

To be sure, charter schools cannot be deemed public just because they are called “public” 50 times a day. Under the law, this is not what makes an entity public. Simply labelling something a specific thing does not automatically make it that thing. In the U.S. legal system, merely labeling private conduct “public” does not make it a form of state action. Moreover, receiving public funds does not spontaneously make an entity pubic under the law. Thousands of private entities in the U.S. receive public money, for example, but they do not suddenly stop being private entities.[8]

Only narrow private interests benefit from obscuring the distinction between public and private. Public and private mean the opposite of each other. They are antonyms. They should not be confounded.

Public refers to everyone, the common good, all people, transparency, affordability, accessibility, universality, non-rivalry, and inclusiveness. Examples include public parks, public libraries, public roads, public schools, public colleges and universities, public hospitals, public restrooms, public housing, public banks, public events, and more. These places and services are available to everyone, not just a few people. They are integral to a modern civil society that recognizes the role and significance of a public sphere in modern times.

Private, on the other hand, refers to exclusivity, that is, something is private when it is “designed or intended for one's exclusive use.” Private also means:

• Secluded from the sight, presence, or intrusion of others.

• Of or confined to the individual; personal.

• Undertaken on an individual basis.

• Not available for public use, control, or participation.

• Belonging to a particular person or persons, as opposed to the public or the government.

• Of, relating to, or derived from nongovernment sources.

• Conducted and supported primarily by individuals or  groups not affiliated with governmental agencies or corporations.

• Not holding an official or public position.

• Not for public knowledge or disclosure; secret; confidential.

In its essence, private property is the right to exclude others from use of said property; it is the power of exclusion;[9] it is not concerned with transparency, inclusion, the common good, or benefitting everyone. This is why when something is privatized, e.g., a public enterprise, it is no longer available to everyone; it becomes something possessed and controlled by the few. This then ends up harming the public interest; it does not improve efficiency, strengthen services, lower costs, increase accountability, or expand democracy.

Charter schools are labeled “public” mainly for self-serving reasons, specifically to lay claim to public funds that legitimately belong to public schools alone. If charter schools were openly and honestly acknowledged as being private entities they would not be able to place any valid claim to public funds and they would not be able to exist for one day. This presents a contradiction for defenders of charter schools who want to “have it both ways,” that is, be public when it suits them and act private when it serves them. This is the definition of arbitrary and irrational.

To be clear, the relationship between the state and charter schools is not the same as the relationship between the state and public schools. This is one reason why the rights of students, teachers, and parents in charter schools differ from the rights of students, teachers, and parents in public schools. Thus, for example, while the vast majority of public school teachers are unionized, about 90% of charter school teachers are not unionized. Charter schools are notoriously anti-union. They energetically fight efforts by teachers to unionize to defend their rights. Teachers in charter schools are considered “at-will” employees, meaning that they can be fired at any time for any reason. This is not the case in public schools where due process, tenure, and some collective security still exist. Conditions are more humane and more pro-worker in public schools, even when these chronically-underfunded and constantly-vilified schools face one neoliberal assault after another. This is also linked to why many charter schools across the country can legally hire numerous uncertified and unlicensed teachers.

Another profound difference between charter schools and public schools is that the former cannot levy taxes while the latter can. A tax, as is well-known, can only be laid for a public purpose, which means that charter schools do not possess the characteristics of a political subdivision of the state; they are not fully exercising a public function.

Many other legal differences could be listed.

It would be more accurate to say that charter schools resemble traditional private schools far more than they resemble regular public schools, yet they continue to be mislabeled “public schools.”[10] In practice, charter schools are quintessentially private schools. See Outlaw Charter Schools: Can A Charter School Not Be A Charter School? for additional analysis of these themes.

The question of whether a charter school is a state actor or not also has big implications for thousands of other organizations (e.g., hospitals, utility companies, colleges, etc.) across the country because various constitutional provisions typically do not apply to private entities and businesses. This case is therefore of national importance. The public-private distinction at stake in this education case goes beyond the issue of the dress code at “Charter Day School.”

The “Charter Day School” case is currently in the hands of the U.S. Supreme Court. The issue at stake—the public-private distinction—is so significant that, on January 9, 2023, the U.S. Supreme Court asked President Joe Biden’s administration to give their view on the case. The U.S. Supreme Court States that the key issue at stake is: “Whether a private entity that contracts with the state to operate a charter school engages in state action when it formulates a policy without coercion or encouragement by the government.” This move is seen by charter school promoters as a positive sign that the highest court in the land is willing to consider the case.

In the final analysis, with or without a ruling from any court, as privatized, marketized, corporatized arrangements that celebrate consumerism, competition, and individualism, charter schools have no legitimate claim to the public funds, facilities, resources, and authority that belong only to public schools. No court ruling, one way or the other, will change this fact. Claiming that charter schools are public schools for the purpose of laying claim to public wealth that belongs solely to public schools, damages public schools, the public interest, the economy, and the national interest. It does not help low-income minority youth or close the long-standing “achievement gap” rooted in poverty, racism, inequality, and disempowerment.

Charter schools do not raise the level of education or improve society. Thirty plus years of evidence shows that charter schools mainly enrich narrow private interests. Without charter schools, public schools would have tens of billions of additional dollars to pay teachers and improve learning for all students, especially low-income minority students enrolled in urban schools. This would make a huge difference. No charter schools would also mean that thousands of students, teachers, and parents would no longer have to feel angry and abandoned by charter schools that close every week (often abruptly).

Neoliberals have never cared about public schools or the public interest; they are masters of disinformation and self-serving to the extreme. Neoliberals have worked ceaselessly over the last few decades to methodically privatize public education in America under the banner of high ideals while actually lowering the level of education, increasing chaos in education, and enriching a handful of people along the way. The so-called “school choice” political-economic project has little to do with advancing education and improving opportunities for millions of marginalized youth and more to do with profit maximization in the context of a continually failing economy. “School choice” has brought immense suffering to public education and the nation. “School-choice” does not have a human face.

The only sense in which charter schools may be called state actors is that they are neoliberal state actors because they are actively organized by wealthy individuals and groups that control and influence many state positions, levers, institutions, and individuals. In this sense, charter schools are indeed acting on behalf of the neoliberal state and are therefore neoliberal state actors. This is bound to happen in a society where Wall Street and the state become indistinguishable.

About 3.5 million students are currently enrolled in roughly 7,600 charter schools in 45 states, the District of Columbia, Puerto Rico, and Guam.

Shawgi Tell, PhD, is author of the book “Charter School Report Card.” His main research interests include charter schools, neoliberal education policy, privatization and political economy. He can be reached at stell5@naz.edu.

Notes

[1] It is also worth recognizing that the non-profit/for-profit distinction is generally a distinction without a difference, that is, both types of charter schools engage in enriching a handful of private interests under the veneer of high ideals; profiteering takes place in both types of schools.

[2] See the works of Jürgen Habermas for further discussion and analysis of the origin and evolution of the public sphere in the Anglo-American world.

[3] See School’s Choice: How Charter Schools Control Access and Shape Their Enrollment (Teachers College Press, 2021).

[4] See 5,000 Charter Schools Closed in 30 Years (2021). This is a high number of charter school closures given that there are only about 7,600 charter schools operating in the U.S. today.

[5] See The Privatization of Everything: How the Plunder of Public Goods Transformed America and How We Can Fight Back (2023).

[6] In March 2023, in a separate case, the US Court of Appeals for the Fifth Circuit affirmed that IDEA, a charter school operator, is not an arm of the state.

[7] The phrase “state action” does not appear in the U.S. Constitution.

[8] As a matter of principle, no public funds should flow to any private organization because such funds are produced by working people and belong rightfully to society as a whole.

[9] The right to exclude is “one of the most treasured” rights of property ownership.

[10] In Rendell-Baker v. Kohn, 457 U.S. 830 (1982), the court held that “Even when a private school is substantially funded and regulated by the state, it is not a state actor if it is not exercising state prerogatives.”

Corporate Personhood, Monopoly Capital, and the Precedent That Wasn't: The 1886 "Santa Clara" Case

By Curry Malott

Republished from Liberation School.

Editor’s note: Beginning with overturning Roe v. Wade, the ultra right-wing Supreme Court continues to attack hard-won and elementary democratic rights in the United States, from affirmative action to the Indian Child Welfare Act. The following article is the third in our series “Crimes of the Supreme Court,” which demonstrates the fundamentally reactionary and anti-democratic nature of the Supreme Court. By examining key decisions in the Court’s history, we explain their historical and political context, the legal concepts and frameworks used to justify their decisions, and lay out their implications for later cases. This entry focuses on an 1886 Supreme Court ruling that is often cited as the precedent guaranteeing corporations the same protections as “natural persons,” although it did no such thing. Nonetheless, this case and several preceding ones demonstrated how the struggle for corporate personhood—particularly under the “Equal Protection Clause” of the 14th Amendment—was intimately bound up in the transition to U.S. monopoly capitalism.

How do the actual people in charge of corporations manage to remain protected from the consequences of the countless crimes they commit year after year? How is it that when CEOs make clear and obvious decisions that habitually violate every existing worker-won regulation, from the Clean Air Act to the Civil Rights Act, with very few exceptions, they charge the corporation—the “artificial” or “unnatural” person—instead of the CEO—the actual, “natural person” who made those decisions?

The legal grounds that corporations have the same protections and rights as “natural persons” is commonly justified by the 1886 Supreme Court ruling in Santa Clara County v. Southern Pacific Railroad Company. As we’ll see, the Court’s decision in the case didn’t establish any precedent for corporate personhood, nor did the Court make any ruling on it. To the extent that the Supreme Court even debated “artificial,” “corporate,” and other kinds of personhood, they did so to facilitate the transition from “free competition” to monopoly capitalism in the country.

In this article, we explore the Santa Clara case before turning to debates within the institutions of power in the U.S. over the Equal Protection Clause of the 14th Amendment. These debates can only be understood if situated within their historical, political, and economic context: the transition to monopoly capital in the U.S. To conclude, we explore the case’s destructive legacy, or the way it was illegitimately used to set precedent for the growth of monopoly capital.

The facts and outcome of the case

During the 1878-79 California Constitutional Convention, the state enacted a new tax code that, in part, prevented railroad corporations from factoring existing debts and mortgages into their total taxable value. The Southern Pacific Railroad Company, along with the Central Pacific Railroad Company, refused to follow the new code. They did not pay the additional tax, nor did they pay the back taxes they subsequently owed.

The first point of contention were back taxes—including the interest on them—that railroad companies refused to pay in California, specifically the taxes being levied on the fencing along the railroads’ right-of-way. Among the handful of complaints brought forth, lawyers representing the railroads argued that it was the county and not the state that should have assessed the value of the fencing. As Thom Hartmann points out, “the railroad was refusing to pay taxes of about $30,000,” which is “like having a $10,000 car and refusing to pay a $10 tax on it—and taking the case to the Supreme Court” [1].

Faced with the loss of revenue, a number of counties in California, including San Mateo County, filed suit against the railroad companies in an attempt to collect the taxes that the railroads refused to pay. According to Southern Pacific’s executives, they were being treated unfairly relative to “legal” or “natural” persons who could deduct debts and mortgages from their taxable income or value. The cases were consolidated before reaching the California Supreme Court, which ruled mostly in favor of the counties and against the railroad companies. The one exception concerned the fences constructed around the railroads. The Court affirmed that the fences “were improperly included by the State Board in its assessments” and, as a result, there was no legal basis for the counties to collect additional taxes [2].

The origins of corporate personhood?

Interestingly, however, the Santa Clara decision is rarely remembered for the issue of taxation and, more specifically, the role of railroad monopolies, and is instead mostly cited as the first instance of the Supreme Court upholding “corporate personhood.”

One of the railroad’s defenses at the Supreme Court hearing included arguing that the “Equal Protection Clause” of the 14th Amendment applied to corporations, so therefore the state couldn’t tax them differently from other citizens. Yet this was only a minor point among the six arguments presented by the railroads.

Moreover, it seems Chief Justice Morrison Waite quickly dismissed the argument in the case by stating that it is a general, agreed upon principle that the clause applies to corporations.  According to the ruling’s “headnote,” Waite stated the Court would not even consider “whether the provision in the 14th Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does” [3].

Did the Supreme Court, then, establish a legal precedent that corporations have the same legal protections as natural persons? Despite the Supreme Court citing it as precedent for a century, and despite that it was routinely taught to law students as precedent, the ruling did no such thing.

Waite’s comment above was not part of the official ruling. Instead, it was included in a headnote written by the Court’s Reporter of Decisions, journalist J.C. Bancroft Davis, former president of the Newburgh and New York Railway Company. Headnotes are introductory summaries of cases added to Court rulings to make it easier for legal professionals and others to sift through cases.

Headnotes, therefore, are not legally-binding and hold no legal authority. It wasn’t until the 1906 ruling in United States v. Detroit Lumber Co. that the Supreme Court officially ruled in its majority opinion that headnotes aren’t part of the Court’s rulings or findings. As then-Chief Justice David Brewer wrote, “the headnote is not the work of the court, nor does it state its decision… it is simply the work of the reporter, gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports” [4]. This, however, hasn’t prevented the U.S. courts in general, and the Supreme Court in particular, from citing the headnote as precedent.

The headnote is significant in a few ways. First, the report of Waite’s comments didn’t include any legal or constitutional justification; it was a mere assertion. As a result, since 1886 the status of corporations as “people” protected under the Constitution has been a source of controversy. Moreover, “the concept of the corporate person lacks a principled definition and, therefore, seems to expand, or contract, depending on the circumstances and on the personal predilections of the speaker” [5].

The headnote is especially significant because of Waite’s sweeping acceptance that corporations are protected by the Equal Protection Clause of the 14th Amendment. This differs from a previous Court ruling in the 1873 Slaughterhouse Cases that made their way to the U.S. Supreme Court after an 1869 Louisiana legislature decision to issue a charter confining slaughterhouse operations in New Orleans to a single corporate entity, the Crescent City Live-Stock Landing and Slaughter-House Company.

Crescent City’s charter required the company to run its waste downstream, ordered other slaughterhouses, most of which were much smaller, to close, and forbid the establishment of any new slaughterhouses in the area for the next 25 years. In effect, the legislature produced a monopoly on slaughterhouses for the time period. This meant that all workers, including butchers, had to work for Crescent or find work elsewhere. As a result, hundreds of members of the Butchers’ Benevolent Association, which represented smaller or independent slaughterhouses, filed suit in the Louisiana Supreme Court on the basis that the monopoly violated the 13th and 14th Amendments by forcing butchers into “involuntary servitude” and taking away their property without compensation or due process.

When the U.S. Supreme Court took up the cases, the majority opinion explicitly stated that the Amendments did not apply in this instance. The dissenting opinion by Justice Stephen Field proposed a broad definition of the Amendments at stake, one that would become more expansive as the overthrow of Reconstruction solidified. The crucial issue, he stated, was “whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation.” Field closed the dissenting opinion by asserting that the 14th Amendment applies to corporations and monopolies. He wrote that the Amendment “does afford such protection, and was so intended by the Congress which framed and the States which adopted it” [6].

Between his time on California’s Ninth Circuit Court and the Supreme Court, “Field worked tirelessly to expand the 14th Amendment to include the rights of corporations.” He was driven by careerism and a desire to reach the country’s highest court and maybe even the presidency “with the support of railroad money” [7].

In his dissenting opinion in a related railroad case, Fields expressed his outrage that the Court was neglecting the crucial question, which was if “an unlawful and unjust discrimination was made . . . and to that extent depriving it of the equal protection of the laws” [8].

Whether or not the original drafters of the post-Civil War amendments explicitly considered if and how the 14th Amendment—or the 13th— could apply to corporations or any group other than Black people is unclear. Based on available records, some argue that Congress may indeed have considered or intended for corporations to be included in the 14th Amendment, as the original drafters “were inundated with petitions from insurance companies and railroads complaining about protectionist state measures” [9]. That the 14th Amendment makes a distinction between “persons” and “citizens” is also significant, as the former “are entitled to due process and equal protection” while the latter are only “guaranteed the privileges and immunities of national citizenship” [10].

What is certainly true, however, is that almost none of the 14th Amendment cases heard by the Supreme Court concerned the rights of Black people. The Supreme Court itself affirmed this in 1938. In his dissenting opinion on Connecticut Gen Life Ins C. v. Johnson, Justice Hugo Black cited Miller’s majority opinion in the 1873 Slaughterhouse cases, doubting that the 13th and 14th Amendments would include anyone except Black people. “Yet,” he continued, “of the cases in this Court in which the 14th Amendment was applied during the first fifty years after its adoption, less than one-half of 1 per cent. invoked it in protection of the negro race, and more than 50 per cent. asked that its benefits be extended to corporations” [11].

Further, recent history affirms that the U.S. ruling class considers and treats corporate entities much more humanely than they treat Black people.

Corporate personhood and a new phase of U.S. capitalism

The period leading up to the 1886 case was characterized by monumental shifts in the political, social, economic, and racial order of the U.S. This included the heroic Reconstruction era as well as its tragic defeat and the rapid growth of monopoly capital in the country.

In the decade leading up to Santa Clara case, railroad barons emerged as a new faction of the capitalist class that provided the model for monopoly capital. This is why, just before the 1878-79 California Convention, California allowed the Southern Pacific Railroad Company to absorb several other corporations. Prior to that, Congress granted 11 million acres of land to Southern Pacific, although for their expansion the company acquired additional debts through a mortgage on its construction, equipment, railcars, and so on. Southern Pacific was also granted the legal authority to construct a line connecting San Francisco to Texas.

The trend toward monopoly predated the Civil War and coincided with the ongoing conquest of the continent. Large corporations, with state funding, facilitated the expanding interstate commerce through railways and canals, which in turn led to a larger and more integrated national economy. Federal and state legislatures promoted this centralization of capital insofar as it took the economic burden off the state while still allowing the state to use the new networks for postal and military purposes.

The pressing question for the U.S. ruling class was whether or not the government-backed monopolists would ultimately represent a unique and temporary phenomenon or provide a model for capital as a whole.

There was a clear struggle between the ideologues of small enterprises that formerly dominated the economic landscape and operated similarly to the idealistic “free competition” phase of capitalism and those of monopoly capital, where the various enterprises dispersed throughout different entities were consolidated into large ones.

As Morton J. Horowitz details in his account of how legal structures raced to keep up with the latest changes in capital, in the 1880s there wasn’t any precedent about “natural” or “corporate” persons because these categories threatened individualism and free-market competition. By the turn of the century, however, the struggles over “political economy between small entrepreneurs and emergent big business over the legitimacy of large scale enterprise” erupted [12].

The debates taking place within the ruling class had to do with whether or not there was an inherent tendency for capital to centralize. At the time, most political economists didn’t give credence to the inevitability of monopolization, seeing the railroads as exceptional. It didn’t take long until politicians, bourgeois economists, and others rightly interpreted the railroad’s economic trajectory as a precursor to a coming phase of industrial monopolization.

There was a shift in power and influence within the capitalist class from the old “free enterprise” capitalists to the new monopolists:

“By the late nineteenth century in America, fundamental changes had already taken place in the legal treatment of the corporation. First, and by far the most important, was the erosion of the so-called ‘grant’ or ‘concession’ theory of the corporation, which treated the act of incorporation as a special privilege conferred by the state for the pursuit of public purposes. Under the grant theory, the business corporation was regarded as an ‘artificial being’ created by the state with powers strictly limited by its charter of incorporation. As we shall see, a number of more specific legal doctrines were also derived from the grant theory in order to enforce the state’s interest in limiting and confining corporate power” [13].

From this point of view, the rise of monopoly capitalism, or the centralization of larger and larger sectors of the means of production into fewer and fewer hands, is driven by the self-expansive and competitive nature of capitalist production. The Supreme Court provided the legal grounds for facilitating this transformation.

Legacy of the case

In the immediate aftermath of Santa Clara, “the Court did away with 230 state laws that had been passed to regulate corporations” [14]. It was clear evidence monopoly capital was in control of politics. Supreme Court decisions in the years between 1908 and 1914, often citing corporate personhood, struck down minimum-wage laws, workers’ compensation laws, utility regulation, and child labor laws—every kind of law that a people might institute to protect its citizenry from abuses” [15].

For over a century now, the state has continued to take power and rights away from working and oppressed people and transferred it to capital. They have even perverted the hard-won gains won by people’s movements into justifications for increasing corporate power, perhaps none more disgusting than the misuse of the 14th Amendment.

While even to this day there is no clear legal basis for corporate personhood, that hasn’t stopped the Supreme Court from waging class war against the people on behalf of corporations. Because the nine unelected judges determine the law, they can legally justify whatever tactics they deploy against us.

The misuse of Santa Clara’s headnote has not only severely inhibited the ability to regulate corporations, but it has created a space for CEOs and shareholders to operate with near impunity. For example, Joel Bakan notes that “corporate illegalities are rife throughout the economy…By design, the corporate form generally protects the human beings who run corporations from legal liability, leaving the corporation, a ‘person’…the main target of criminal prosecution” [16].

The Supreme Court was created to serve the interests of the capitalist class. Its very existence stands as a barrier to the working and oppressed peoples’ desire for a true democracy. As the Supreme Court unleashes its most current wave of attacks on our basic democratic rights, we will continue to fight for a new system.

References

[1] Thom Hartmann,Unequal Protection: How Corporations Became People–and How You can Fight Back(San Francisco: ‎ Berrett-Koehler Publishers, 2010), 18.
[2] Santa Clara County. v. South Pacific Railroad, 118 U.S. 394 (1886), 411. Availablehere.
[3] Ibid., 396.
[4] United States v. Detroit Lumber Co., 200 U.S. 321 (1906). Availablehere.
[5] Malcolm J. Harkins III, “The Uneasy Relationship of Hobby Lobby, Conestoga Wood, the Affordable Care Act, and the Corporate Person: How a Historical Myth Continues to Bedevil the Legal System,”Saint Louis University Journal of Health Law & Policy7, no. 2 (2014): 204.
[6] Ibid.
[7] Nicholas S. Paliewicz, “How Trains Became People: Southern Pacific Railroad Co.’s Networked Rhetorical Culture and the Dawn of Corporate Personhood,”Journal of Communication Inquiry43, no. 2 (2019): 204-205.
[8] Cited in Ibid.
[9] Matthew J. Zinn and Steven Reed, “Equal Protection and State Taxation of Interstate Business,”The Tax Lawyer41, no. 1 (1987): 89-90.
[10] Ibid., 90.
[11] Connecticut General Life Ins. Co v. Johnson, 303 U.S. 77 (1938). Availablehere.
[12] Morton J. Horowitz, “Santa Clara Revisited: The Development of Corporate Theory,”West Virginia Law Review88, no. 2 (1986): 187.
[13] Ibid., 181.
[14] Howard Zinn,A People’s History of the United States(New York: Perennial Classics, 1980/1999), 261.
[15] Hartmann,Unequal Protection, 24.
[16] Joel Bakan,The Corporation: The Pathological Pursuit of Profit and Power(New York: The Free Press, 2004), 75-79.

DeRay Mckesson's Misguided Case for Hope

By Devyn Springer and Zellie Imani

There are two histories which have always battled each other, publicly and loudly: domination's history-the history of the class in position to dominate the masses-and the people's history, which is the history of colonized and oppressed peoples struggling and triumphing from the ground up. Between these two histories, narrative and autobiographical writings have been a key tool in correctively challenging the historical narratives placed onto oppressed and colonized people, from the era-defining writing found in Malcolm X's autobiography, to the consciousness-shaping contours of Assata Shakur's Assata. And still, one must wonder if such a definitive, important piece of autobiographical writing has come from our generation yet, or if any attempts have been made. However, as we move into a new generation characterized by celebrity activists steeped in social media rather than intellectual study, it seems domination's recent history finds a comfortable bedfellow in the work of some high-profile activists, including activist DeRay Mckesson's On the Other Side of Freedom: The Case for Hope.

Who Is DeRay Mckesson?

In an incredibly short time, DeRay Mckesson - in his branded blue vest - has become almost synonymous with the Black Lives Matter movement for many outside observers.

Mckesson is, as Mychal Denzel Smith recently put it , a frustrating figure. To people on almost all places on the political spectrum, aside from the liberal center, he is controversial. On the left he's often described as a "neoliberal" whose entanglement with celebrities and Hollywood signify a covert love affair with capitalism, and whose oversimplification of inequalities seems to be designed to cater to white liberals. In addition, those on the left have critiqued Mckesson's practice of consistently perching himself above the Ferguson Uprising, contrary to the wishes of Ferguson residents . For those on the right, DeRay's very existence as a Black, gay activist speaking against police violence has opened him up to the violence of racist trolls, harassment and ad hominem diatribes.

In the thick aftermath of the Ferguson uprising, Mckesson and other celebrity activists like Shaun King and Johnetta Elzie became online beacons who shared images, videos and articles related to protests taking place around the country. As their followings grew, organizers around the country waited for something; a manifesto, a plan, a political framework, a radical beginning. Years later, upon the announcement of the publication of On the Other Side of Freedom: The Case for Hope, many believed this would be it - an etching of futures imagined.

The False Dichotomy of Reform vs. Revolution

Black resistance has occurred at every stage in American history. Liberty, the right to act according to one's own will, was denied to Black people, and the conditions Black people suffered from the state during the periods of slavery and its afterlife have developed radical tendencies within our community. As C.L.R. James said, "What Negro, particularly below the Mason-Dixon line, believes that the bourgeois state is a state above all classes, serving the needs of all the people? They may not formulate their belief in Marxist terms, but their experience drives them to reject this shibboleth [principle] of bourgeois democracy." Ultimately, the Black Experience is one which constitutes an ongoing struggle by Black people to both ideologically and physically challenge and free themselves from exploitation and domination. The goal of many social struggles is freedom, but, for McKesson, the "goal of protest" is simply "progress."

In his collection of essays, McKesson limits the radical capacity of protest by merely defining it as an activity that "creates space that would otherwise not exist, and forces conversations and topics into the public sphere that have been long ignored." But protest, or more accurately direct action, is more than that. Direct action can refer to various forms of activities that people themselves decide upon and through which they organize themselves against injustice and oppression. They are processes of self-empowerment and self-liberation. Through direct actions individuals collectively seek to end, or at the very least, reduce harm inflicted by oppression and exploitation. For example, what W.E.B Du Bois described as a "general strike against slavery" was not an attempt to create space for further national debate on the humanity of enslaved Africans, but an extraordinary attempt by enslaved Africans to be actors in their own liberation. The Harlem rent strikes of 1934, the Montgomery Bus Boycott and the Mississippi Summer Project were not about forcing conversations, but forcing concessions and transformations of society.

Unfortunately, McKesson consistently both romanticizes and ill-defines protest. By narrowly reducing direct action to "protest" and divorcing it from its rich legacy of revolutionary theory and tactics, he boldly makes assertions that are at odds with both history and reality.

In the essay, "Taking the Truth Everywhere," Mckesson confuses criticisms of reformism with criticisms of reforms. He first claims his more radical opponents "decry reform as a weakening of the spirit of protest." He then goes on to say, "A radicalism that at its heart is about dismantling the status quo in favor of an unimagined 'better future' is not in fact radicalism but a cold detachment from reality itself."

However, the struggle around immediate issues and reforms is not the same as reformism. Within both the Marxist and broad anarchist traditions are views that stress the necessity of creating popular movements built through struggles around reforms: concrete changes in policy and practices that improve people's lives and mitigate harm. Reforms that are won from below can not only improve popular conditions, but also strengthen radical mass movements by developing confidence and building capacity among individuals and political organizations. Nineteenth-century Italian anarchist Errico Malatesta said, "We shall carry out all possible reforms in the spirit in which an army advances ever forwards by snatching the enemy-occupied territory in its path." Revolution isn't a spontaneous event. It's a process of self-realization, self-organization and self-liberation through education, community building and direct action. The pursuit of incremental reforms absolutely has a place in radical activism.

Not only does he seem to intentionally misunderstand the concepts of protest and "radicalism," Mckesson also seeks to utterly delegitimize the entire idea of revolution or revolutionary action. By painting an image of the left that sets up a false dichotomy between leftist organizing and reforms, he makes the opposite of reformism seem idealistic, unrealistic, sophomoric. The distinction he misses, however, is simple: to support immediate reforms is not the same as being reformist.

In the recent nationwide prison strike, for example, the most vocal and ardent supporters of the strike were prison abolitionists such as ourselves who are against the notion that prisons can be reformed in a way that would turn them into a positive force. Instead, we struggle to win what abolitionist scholar Ruth Wilson Gilmore calls non-reformist reforms - reforms that produce "systemic changes that do not extend the life or breadth of deadly forces such as prisons."

As abolitionists, we also understand the need to meet the immediate needs of those facing the brunt of violence from the prison machinery, and thus we support each demand from the prison strike organizers while knowing we must continue to build momentum toward its abolition.

The Choreography of Racism Is Structural, Not Just Interpersonal

The book, which is a collection of mostly brief essays composed into chapters, covers a wide range of subjects in a surprisingly narrow scope, with personal experience rather than researched analysis guiding each topic. Throughout its entirety, glaringly oversimplified and intentionally reductive descriptions are put forth on several key topics.

"I understood whiteness before I had the language to describe it," Mckesson states early into the book. However, most of what follows shows the opposite. He describes whiteness as an "idea made flesh", and confers that the lifeblood of this "idea" is situated within a power dynamic. Moreover, even while mentioning the idea of whiteness being sustained by "manipulating systems and structures," Mckesson promotes a notion that whiteness, and thus race, are mostly a relation of individual problems and choices.

This "understanding" of whiteness leads to Mckesson reducing the entirety of whiteness to one main point: white privilege. Whiteness, for Mckesson, is a set of mostly interpersonal privileges manifest in communities that sets white people as "the norm" and others as deviation from that norm. Using an analogy of purchasing rulers for a middle school classroom to describe how whiteness "perpetuates harm," Mckesson illustrates a story of two sets of kids in the same classroom: those who had defective rulers, and those who had the correct ones. From there, he moves on to portray racial economic or social gaps as a case of happenstance or accidental defectiveness rather than intentional alignment of oppressive structures. This analogy, one of many throughout the book, simply falls flat, and we're shown a fatally flawed understanding of whiteness as something that is personal and possibly even coincidental, not structural or oppressive.

The most basic look into the works of David Roediger, W.E.B Du Bois, bell hooks, Theodore W. Allen and Nell Irvin Painter, as well as Toni Morrison and James Baldwin (names that appear in any serious inquiry into whiteness studies), will elucidate the many flaws with understanding whiteness in these terms. Whiteness is not just an idea, nor is it the phenomenal response to a set of choices; it's a construct rooted in the legacies of Western colonization, chattel slavery and capitalism. If those are the sets of choices Mckesson vaguely refers to when he says that "white people benefit from a set of choices in the past that still have an impact today," then the lack of mention of what those "choices" actually were, is wildly belittling. Moreover, speaking of such grand and oppressive structures such as chattel slavery and colonization in terms of "choices" reduces the harm of these things to the level of personal guilt and eclipses the fact that these were not chosen options but rather the bases our entire current capitalist state is built on. Above all else, whiteness is a relation to the means of production - the mechanisms, land, capital and resources to produce goods - and a more distant proximity to state violence. As intellectual Theodore W. Allen put it, whiteness is a "ruling class social control formation," not just a "privilege." Why are these terms all missing from his text?

In one of the more lucidly misguided moments of the text, Mckesson bases his definitions of racism and white supremacy on this (mis)understanding of whiteness. He states that racism is "rooted in whiteness," while rejecting the notion that class interests could play a chief role in racism's roots.

To assert that racism is rooted in whiteness is to completely misunderstand both the beginning and current reasons of racism. As Mckesson previously states, whiteness is situated within a power dynamic. Under capitalism, what is the actual "power" of that dynamic? Capital. Racism is not "rooted in whiteness." It is rooted in exploitation and domination, which are predicated on capital. As historian Walter Rodney put it, "it was economics that determined that Europe should invest in Africa and control the continent's raw materials and labor. It was racism which confirmed the decision that the form of control should be direct colonial rule."

Troublingly, Mckesson flat-out denies the instance of "self-interest or economics" as being foundational to white supremacy or racism. He states:

"There was a time when I believed that racism was rooted in self-interest or economics-the notion that white supremacy emerged as a set of ideas to codify practices rooted in profit. I now believe that the foundation of white supremacy rests in a preoccupation with dominance at the expense of others, and that the self-interest and economics are a result, not a reason or cause. I believe this because of the way that white supremacy still proliferates in contexts where there is no self-interest other than the maintenance of power."

Mckesson attempts to define the large ideas of racism and whiteness without interrogating the decades of work that has been done in this field. Discussing structures of oppression without mentioning their roots in capitalism-while simultaneously mentioning "power dynamics" and perpetually unnamed "systems"-is both bewildering and dishonorable.

First is the notion that racism and white supremacy act independent of class, which is simply untrue. To mention the maintenance of "power" under capitalism is to mention class; to mention a claim to domination is to mention class interests. The places where Mckesson engages with terms like "economics," "self-interest" and "power" could be instances of insight, but instead intentional vagueness takes place. He never names what racism's "power" actually is under capitalism, which is to own property, to own capital, to exploit workers, to dispose of or "disappear" those deemed as surplus laborers, and to define and name violence. As revolutionary writer Frantz Fanon once put it, racism's power is in its ability to achieve "a perfect harmony of economic relations and ideology."

Second, the omissions in the approach to these passages on race and racism are glaring. The truth is that there exists a wealth of work that Mckesson never cites, engages, or even challenges. While reading, one wonders why the crucial works of so many activists, authors, scholars and thinkers who've struggled in this field of work over the years have been completely disregarded by Mckesson.

So why, then, is Mckesson fixated on the notion that racism is a purely individual set of choices rather than an intentional division of class and tool of social control? Racism is a potent means of codifying the interests of white capital, and white people are "preoccupied with dominance" because dominance carries social and financial benefits. However, the wages of whiteness are that, even when it defies the class interests of the ones seeking to uphold it, it will still be maintained; white people will vote and act against their own class interests for the sake of maintaining whiteness, as seen in the last presidential election.

Hope for What?

The most frustrating part of the book may be the constant pithy messages of hope and liberation. Not that hope is a bad thing, and that optimism of the will, as Antonio Gramsci once stated, shouldn't be the founding blocks of our political organizing. What does become apparent throughout the entire book, though, is that Mckesson doesn't quite know what he's "hoping" for, if anything at all. "The case for hope" remains a vague, aimless case that he never articulates beyond self-aggrandizing Instagram-caption-friendly lines.

Hope, as a vehicle for change, as an organizing tool, as a rallying cry and connecting force, is only as powerful as it is defined and aimed. Some are organizing for socialism, others specifically for a living wage, prison abolition, ending US imperialism, free education or health care, environmental justice, and so forth. So, what is it that Mckesson's "case for hope" is aiming toward?

In the chapter, "The Problem of Police," a well-written and standout chapter in the book, we're given a detailed look into Mckesson and others' work chronicling instances of police violence into a national database, and we're shown the massive faults of our policing system, from body cameras to a lack of a database for recording instances of police violence or a mandatory process for reporting them. Still, the essay ends with a message on "making different choices" and no mention of abolition, or even any relevant reforms to the policing system Mckesson spent the previous pages dissecting.

Is this the future of our movements? Naming problems without creating solutions and calling for hope, but a hope that is empty - void of optimism, of the will to do, to change? Maybe Mckesson doesn't name what he is "hoping" for because he's afraid it will alienate some portion of his massive-and growing-following. Maybe what he is hoping for is too radical for many, or too reformist for many others. Either way, if this book was meant to outline the "other side of freedom" as the name entails, it misses the mark by a long shot.

This article was originally published at Truthout . Reprinted with permission.