For Black men in the contemporary age of mass incarceration, the consequences of functional illiteracy are devastating. 70% of America’s adult incarcerated population and 85% of juveniles who interface with the juvenile court system are functionally illiterate, which extends beyond the ability to read and includes the development of problem-solving and critical-thinking skills one needs to access knowledge, communicate, and participate effectively in political processes, the economy, higher education, and other 21st century exercises of democratic citizenship. Following decades of lawsuits seeking vindication of fundamental education rights through the Fourteenth Amendment’s Equal Protection Clause, the nation’s racialized illiteracy crisis persists and spurs little policy action. Mourning the dead horse but seeing no point in continuing to beat it, this Article argues that a different provision of the Fourteenth Amendment—the Citizenship Clause— authorizes and mandates Congress to guarantee a meaningful floor of adequate functional literacy instruction nationwide.
Coupled with Section 5 of the Amendment, the Citizenship Clause obligates the federal government to ensure that all national citizens have equal, full membership and the ability to participate in the national society. Grounding this inquiry into accountability, the case study of Madison, Wisconsin, demonstrates how the racialized illiteracy crisis precludes those without access to adequate functional literacy instruction from their constitutionally guaranteed national citizenship, particularly because early illiteracy leads to cyclical and accumulating negative outcomes that skyrocket the risk of incarceration and subsequently of disenfranchisement from voting and political processes.
This Article marries California State Supreme Court Justice Goodwin Liu’s account of “the social citizenship tradition in our constitutional heritage” with the seminal contemporary case Gary B. v. Snyder, wherein plaintiffs file federally and pick up the Equal Protection mantel to advance a fundamental right of access to functional literacy, and ultimately suggests that the country’s historic understanding of national citizenship and its substantive rights triggers a Congressional duty to ensure adequate access to functional literacy as a part of equal, national citizenship.
For in cities like Madison, reputationally progressive jewel of the state that denied Dred Scott his citizenship and citizen rights nearly two centuries ago, so too does the racialized illiteracy crisis lawfully disparage young Black men to non-citizen subjects and deny their access to democratic society today. If this academic year mirrors the past 12 in Madison, at least 85% of Black fourth graders currently attending the city’s public schools are four times more likely than their peers to drop out, and 2/3 will end up in prison or on welfare. If this academic year mirrors the past 12 in Madison, the vast majority of the 166 Black boys who began fourth grade in the city this past fall are now members of a discrete class that is more likely to spend time incarcerated than to become functionally literate in school. Coining this the age of the mass and disparate illiteracy-to-incarceration pipeline, this Article reinforces the reality that we have not ended the subjugation of Black men in America, we have merely found yet another away to disguise it.