Stealing an Education: On the Precariousness of Justice


by Clarence Joldersma & Lisa M. Perhamus - 2020

Background/Context: This article examines a 2011 court case in which an Ohio state court convicted and jailed a poor, single, Black mother of two school-aged children for “stealing an education.” Using a false address, the mother, Kelley Williams-Bolar, enrolled her daughters in a public school district that was more privileged and amply resourced than their home district in order to provide her children a “better education.” The court’s ruling and public opinion on this case (as illustrated through media) serve as the context of this article’s analysis.

Purpose: Employing Judith Butler’s concept of precarity, Jacques Derrida’s theory of justice to come, and Hannah Arendt’s and Walter Benjamin’s ideas about state violence, the article offers a conceptual framework of the precariousness of justice to analyze the implications of this case. Through the precariousness of justice framework, the article examines the ways that racial and class societal inequities manifest themselves through the judge’s juridical determination and journalistic expressions of public opinion. The purpose of this article is to explicate the intimate and structural connections between racism, classism, educational policy, and the U.S. court system.

Research Design: As a conceptual analysis, the article theoretically examines the Williams-Bolar court case as a demonstration of the ways in which the juridical apparatus of the state (the court system) and mainstream media (public opinion) divide people by race and class within inequitable societal structures. The article uses the theoretical framework of the precariousness of justice to examine the political implications of the court’s ruling on educational policy regarding school districting.

Conclusions: Findings include that school district enrollment boundaries create borders around people by race and class, and that these educational enrollment borders can lead to people “border-hopping” in an effort to equalize educational access. The court system plays a role in reifying race- and class-based educational boundaries and borders. The concluding analysis situates this case within the context of both state violence and hope.



INTRODUCTION


In 2011, an Ohio state court convicted and jailed a poor, single, Black mother of two school-aged children for “stealing an education.” Claiming that she wanted a better education for her children than their under-resourced neighborhood public school could offer, the mother was not truthful about the children’s home address, using instead one that would allow her children to enroll at a more privileged, amply resourced neighboring district public school.


Local media reported that Akron resident Kelley Williams-Bolar had her daughters attend the Copley-Fairlawn district public schools for two years, 2006–2008 (ABC News, 2011; Folkerth, 2011; O’Malley, 2011). The socioeconomic and racial differences between the districts are stark. The Copley-Fairlawn district is small, with about 3,200 students, and spans the suburb city of Fairlawn and the unincorporated area of Copley Township, both adjacent to the western part of Akron. Currently, Copley-Fairlawn’s population is 80.4% White, with about 44% of the adults holding a college degree. The average household income is $64,000, the median home value is about $177,000, and only 3.5% live below the poverty line (biggestuscities, 2017b). The Akron school district—where, by law, Williams-Bolar’s children were supposed to attend—is much larger, with over 21,000 students. About 19% of the residents have a college degree. The average income per household is less than $38,000, the median home value is $85,000, and over 28% live below the poverty line (biggestuscities, 2017a). Williams-Bolar lived in West Akron, in a census tract that in 2009 was 94% Black, with an average household income of just over $30,000 and a median house value of $79,000 (New York Times, 2010).


The schools her children should have attended during the time in question were Perkins Middle School and Schumacher Academy Elementary School (Karoli, 2011). Perkins, a school with 92.8% of its students in the poverty zone and 92.1% Black, scored 75.4 out of 120 on the state’s performance index, while Schumacher Academy, with 100% of its students in the poverty zone and 93.4% Black, scored 81.0 on the performance index (Karoli, 2011). In her decision to afford her children attendance in the Copley-Fairlawn district, Williams-Bolar stated on the school’s enrollment papers that her children lived with her father, a resident of Copley Township, rather than with her in nearby Akron. In the trial, Williams-Bolar stated that all she wanted was a good education for her two girls, which she felt the Akron schools were not providing. Indeed, in 2007–2008, Akron schools met only five of 30 performance indicators and scored only 83 out of 120 on the performance index (Ohio Department of Education, 2008a), whereas Copley-Fairlawn met all 30 performance indicators, with a performance index of 104.9 (Ohio Department of Education, 2008b). Opting out of the state’s open-enrollment policy because it would be financially disadvantageous to be part of it, the Copley-Fairlawn district instead required either residency or an annual tuition (Rose, 2013).


Over the two years the girls were enrolled in the Copley-Fairlawn schools, officials from that district claimed that it cost them over $30,000 to educate her daughters, and that using her father’s address was an illegal act of falsifying government documents, something in which he was complicit. The cost was deemed to constitute “grand theft,” and two instances of falsifying school documents constituted “tampering with government records,” a felony (Meyer, 2011a). After conviction by jury on the two tampering charges, Judge Patricia Cosgrove deemed that each required the maximum sentence, and gave Williams-Bolar two concurrent five-year terms. The judge later reduced the sentence to 10 days in jail, 80 hours community service, and three years of probation (Gray, 2011; Kavanagh, 2011). Subsequently, Ohio governor John Kasich used his power of clemency to reduce the two felony convictions to misdemeanors (Marshall, 2011).


Williams-Bolar’s father, Edward Williams, also was enmeshed in the story. Media reports say that because he agreed to allow his address to be used, he too was charged with grand theft, with falsifying government documents, and with “aiding and abetting” his daughter (Ali-Coleman, 2014; Folkerth, 2011; Hing, 2012), but was not convicted for any of these charges. Prosecutors subsequently uncovered irregularities concerning his Social Security and welfare benefits, and he was charged and convicted for “grand theft and tampering with records” (Trexler, 2012). Cosgrove gave him a year’s sentence, and while incarcerated he lost his home. Suffering a heart attack while in jail, he died a month before his sentence was fully served. This reveals that Williams-Bolar’s decision to cross school district boundaries adversely affected him as well, perhaps ultimately with a premature death.  


The story attracted national commentary, including mainstream media such as Time, CNN, Christian Science Monitor, and NPR (Gray, 2011; Hing, 2012; Kavanagh, 2011; Khadaroo, 2011; Martin, 2011). The media narrated two competing stories, each centering on justice: one of criminalization, for the law that she broke, and the other of contextualization, for the life-circumstances that would lead her to make this decision for her children.


The criminalization account focused on the crime, the trial, and the sentence. It portrayed this mother as a person who had knowingly broken the law, and it questioned her morals and character. The account circled around her transgressing the law for personal gain (Meyer, 2011b), characterizing her as a lying and deceitful mother who couldn’t be trusted, and deeming her a criminal, rather than considering the possibility that she was a person invoking the civil right to afford her children access to a quality public education (Strauss, 2011). The criminalization story argued that Williams-Bolar had other legal school-choice options, including intra-district and inter-district open-enrollment, charter schools, and vouchers (Partin & Speranza, 2011), although the Copley-Fairlawn district opted out of Ohio’s open enrollment (Rose, 2013). This set of commentaries sided with the court’s decision and the judge’s sentence, arguing that the law was just in protecting taxpayers from illegal district “border-hopping” (Darden, 2014). From the criminalization perspective, the court’s judgment exemplified that justice was done.


By contrast, the contextualization story attended to the particular reasons Williams-Bolar had in choosing to border-hop, focusing on the socio-economic inequities between the two school districts, the institutionalized racism in society, and the right for all children to have access to an equal and fully resourced education (Rose, 2013). Focusing on Williams-Bolar as an individual within a particular context, this interpretive lens included arguments that racial dynamics clouded the issue of justice being done (Ali-Coleman, 2014) and that systemic factors such as housing segregation and poverty should be considered in the discussion of educational quality. The evidence of structural racism, from this perspective, raised questions about whether the law might itself be unjust (Watkins, 2011) and asked whether education was even the sort of thing that one could steal (Spencer, 2015). The contextualization narrative questioned and challenged the law, suggesting that in this case, the law’s enforcement was unjust, and that justice was not done.


Although the two sets of interpretations differed on the propriety of the legal judgment, they largely remained focused on criminal justice. We argue that this hampers a deeper understanding of justice, both as a concept itself and whether justice had been served in this case. Deeper grappling with the concept of justice clarifies the vulnerability and humanity of living in racialized poverty. It helps make explicit the broader racial, social, and economic state violence within which this case is set. And it helps us recognize that honoring our full humanity requires access to quality education. We contend that deep grappling with justice takes us beyond the boundaries of the law and the legal decision of Williams-Bolar’s guilt, requiring an understanding of justice that calls the law itself into question. Only then can we make sense of the legal indictment, “stealing an education.” To wrestle theoretically with the idea of justice, our article draws on Judith Butler’s work on precariousness, Jacques Derrida’s conceptualization of justice, and Hannah Arendt’s and Walter Benjamin’s ideas of state violence. The article combines these into a theoretical framework we call the precariousness of justice, in which we question the legal indictment at the center of this narrative: “stealing an education.”


THE PRECARIOUSNESS OF JUSTICE FRAMEWORK


In order to unpack the complexities of Williams-Bolar’s conviction of “stealing an education,” it is necessary to explicate our theoretical framework: the precariousness of justice. As a first pass, we observe that justice is not always embodied in the laws governing society or in the ways that the courts interpret the law. Justice seems to have a kind of precariousness, an uncertainty of justice being served. Yet, equally, justice ought to be embodied in and enforced via the law.


As a conceptual framework, the precariousness of justice encompasses the ideas and lived realities of precariousness (Butler, 2006b, 2009b), state violence (Arendt, 1969; Benjamin, 1996), and the hope of “justice to come” (Derrida, 1992; Derrida & Caputo, 1997). Butler’s notion of precariousness pertains to the standing vulnerability of all living things. Arendt’s concept of state violence refers to the mechanisms and instruments that enable violence to become a reality. Benjamin’s idea of state violence centers on the instrumentation of the law as being necessarily violent because it is a means to impose a will upon a group of people. Finally, Derrida’s concept of justice to come refers to how the law does not automatically embody justice, but needs to be called to task by the hope of something more just and humane than whatever the current conditions and laws might be. We argue that the distribution of precariousness, the structure of state violence, and the understanding of justice as distinct from the law unsettle the notion that a judge’s decision automatically embodies justice. Our theoretical framework, the precariousness of justice, deepens the capacity to understand what it can mean—how it is even possible—to steal an education.


PRECARIOUSNESS AND STATE VIOLENCE


Butler states that each human life is precarious, openly exposed to harm and demise (Butler, 2006b); each life is dependent upon its conditional surroundings to “render [that] life sustainable” (Butler, 2009a, p. 34). Precariousness exists precisely because being alive matters; life is precarious because human flourishing matters (Butler, 2009a). Her idea of precariousness highlights the notion that societal investments in the conditions for human flourishing are essential for all people to realize their full humanity. Part of each person’s precariousness comes from living in collective conditions, a kind of standing exposure and vulnerability to other people, open to the joys and harms of others. Precariousness thus simultaneously acknowledges that differences in systemic conditions can make human “livability” different among particular populations of people.


Precariousness involves inherent exposure to human violence. Butler explains, “Violence is surely a touch of the worst order, a primary human vulnerability to other humans is exposed in its most terrifying way, a way in which we are given over, without control, to the will of another, a way in which life itself can be expunged by the willful action of another” (Butler, 2006b, p. 28). In her characterization, violence is unwilled, being given over to the other’s will, where the other’s unsolicited “touch” can inflict harm to the point of death. Recognizing precariousness means that society is called to invest in the systemic conditions that not only resist violence, but also engender the flourishing of all lives.


While Butler’s depiction of violence is systemic and structural, as well as relational between people, Arendt focuses on the violence perpetuated by the state. She argues that state violence always requires instrumentational implementation as a means to carry out certain ends. She says, “The very substance of violent action is ruled by the question of means and ends” (Arendt, 1969). In her sense, state violence is hierarchical, a means to control—have domination over—individuals and groups (Bernstein, 2011, p. 10). She contrasts this with her concept of power: “Power springs up whenever people get together and act in concert, but it derives its legitimacy from the initial getting together rather than from any action that then may follow” (Arendt, 1969). Power does not involve violence, but is a condition that allows groups of people to speak and act together. Power does not require, nor is it based on, the hierarchy and instrumentality of state violence to enable a group to enact something. Power is the condition that makes joint action possible. Bernstein summarizes, “Power is a horizontal concept: it springs up and grows when individuals act together, seek to persuade each other, and treat each other as political equals” (Bernstein, 2011, p. 10).


In the background of Arendt’s depiction of state violence is Benjamin’s discussion about the violence associated with the law. He, too, suggests that violence is connected to the law as a means to an end (Benjamin, 1996, p. 236), but argues that violence is inherent in law itself. He states, “All [state] violence as a means is either lawmaking or law-preserving. . . . All [state] violence as a means, even in the most favorable case, is implicated in the problematic nature of law itself” (Benjamin, 1996, p. 243). Law-making is based in violence through the binding claim that “this is now the law,” regardless of what certain groups of people might want or think; similarly, law-preserving is implicated by violence through its repeated enforcement of the law without consent, again, regardless of the wishes or impact upon particular groups of people (Butler, 2012, pp. 71–72). In Butler’s summary of Benjamin,


Law-preserving violence is exercised by the courts and, indeed, by the police and represents repeated and institutionalized efforts to make sure law continues to be binding on the population it governs; it represents the daily ways in which law is made again and again to be binding on subjects. (Butler, 2006a, p. 201)


It is this binding-ness that Butler sees as violent.


The specifically legal and legislative distributions of the material conditions that make life differentially unlivable are what Butler calls precarity (Butler, 2009b). This ties in with Arendt’s discussion of the instrumental nature of state violence and Benjamin’s analysis of the entwinement of violence and law. For Butler, precarity refers to the specific, legislatively devised structural conditions that differentially distribute access to the supports for human flourishing. The legal enforcement of precarity entails what Benjamin calls law-preserving state violence, the unwilled coercion of a group of people to comply with laws that enforce differences in supportive conditions for flourishing. Such compliance is enforced through violence legitimated and exercised by the courts and the police, involving institutionalized efforts to make sure the law will continue to be binding on the population it governs. Law-preserving state violence is hierarchical, and its binding nature magnifies the potential for a differential distribution of the devaluation of people. State violence relies on police actions, court decisions, and incarcerations to enact the law’s domination over groups without their consent (Arendt, 1969). State violence is a means to make individuals and groups comply with the legislatively devised conditions that differentially distribute access to vital supports for human livability. State violence that enforces precarity makes justice precarious.


PRECARIOUSNESS AND THE CALL OF JUSTICE TO COME


Distinguishing law from justice affords an opportunity to examine the violence of the law and law-enforced precarity from the perspective of justice. Benjamin states, “The task of a critique of violence can be summarized as that of expounding its relation to law and justice” (Benjamin, 1996, p. 236). It is Benjamin’s distinction between law and justice that Derrida uses to articulate his own idea of justice, which he sometimes names the “call of justice.” While the law is the legislative and legal system that creates and enforces social policies, the call of justice “is what gives us the impulse, the drive, or the moment to improve the law . . .” (Derrida & Caputo, 1997, p. 16). When human beings make new laws, they might do so because they feel that the current laws are unjust. Their sense of what constitutes justice reveals that the law needs to be improved. This sense can be thought of as the call of justice to improve laws. To clarify the idea of justice as a “call,” Derrida sometimes says, “Justice is the relation to the other” (1997, p. 16). By this he means that justice feels like an ethical call that comes through a concrete relation to another person or persons. The call of justice is the call of responsibility for the other’s welfare and flourishing that one hears when listening to another person’s plight and being aware of her circumstances. As a call, justice is what animates human responses. The call of justice is what summons the law to be transformed, improved in a certain direction. Felt as an ethical appeal, the call of justice depends fundamentally on the response of the hearer. Justice, felt as an imperative, is an ethical address to which each has the responsibility to respond in living together, with others.


For Derrida, the call of justice is felt as a future possibility, and that is why he also often refers to it with the temporal metaphor “justice to come” (Derrida, 1992). However, he maintains that this doesn’t refer to a utopian future state, but to a possibility here and now. Since the law is often not yet just, justice hasn’t yet “arrived,” and thus is still “to come.” At the same time, the metaphor “to come” provides the lens for uncovering tensions and contradictions inside the law, loosening its status quo by revealing it as unjust. The law is disrupted by something that is not the law, namely the call of justice as if coming from the future—justice to come. The arrival of justice fully embodied in a law is not automatic or guaranteed. This means, on the one hand, that human flourishing is continually vulnerable to unjust but legally sanctioned state violence, while on the other, that even though the law might currently not embody justice, there is always room for a continuing hope of justice to come, enacted more fully in the law. The coming of justice is precarious.


For example, if a judge wishes to be just in a ruling on the law, the judge cannot simply act as if the law can merely be algorithmically applied. Rather, she must “reinvent” the law (Derrida & Caputo, 1997, p. 16). “Reinventing” the law represents “the daily ways in which law is made again and again” (Butler, 2006a, p. 201) as it is employed to adjudicate new cases. Law-enforcing is simultaneously always law-making. This “reinventive” law-making even occurs when a judge’s ruling ends up re-enforcing unjust law-preserving state violence. With the idea of reinventing the law, Derrida highlights that laws are always answerable to something ethical, the call of justice as a future possibility. But it also means that justice’s coming is precarious.


The “to come” also reveals an enduring hope structured into the call of justice. In this way, the temporal metaphor indicates a fundamental aspiration. Justice is a societal covenant for something better to come, a socio-political prospect that conceptualizes a time when state violence no longer maintains laws that enforce precarity and silences those who challenge this. Using Butler’s words, the hope of justice to come is an ethical hope, “the hope of a future for the living outside the shackles of coercion, guilt, and accountability that keep the legal status quo unchallenged” (Butler, 2012, p. 85). The hope of justice to come inspires disrupting law-preserving violence. It animates the possibilities in which people kinesthetically and structurally invest in justice-to-come work, in the name of life’s livability. The emphasis on the present-rooted hope for justice to come shapes today’s feelings and actions around the hope of a different tomorrow, wherein living is not compromised by coercive state violence in its preservation of precarity through unjust laws.


Justice to come signals something different, qualitatively deeper, than the existing content codified in current legal frameworks. As an ethical imperative, it signals that the precariousness of living is worth protecting against the oft law-preserving violence that enforces precarity. Justice to come functions as a permanent ethical ground for apprehending life’s value in its precariousness and for criticizing law-preserving state violence.


But this also suggests that there is a standing vulnerability. It is always possible that the legal system will not heed the call of justice, that those in authority will not hear or take responsibility to address the injustices of today’s social structures, particularly the laws governing and distributing life-supporting conditions. The realization of justice itself is precarious. Further, as an ethical call, justice to come inspires the use of non-coercive, non-violent horizontal power (Arendt, 1969; Bernstein, 2011) to develop conditions that support human flourishing for all lives. Since such power doesn’t have the muscular strength to guarantee change for the better, justice cannot be forced to arrive, often remaining on the scene only as a future possibility. Justice is precarious. We use Butler’s notion of precariousness here not only to highlight the uncertainty of the presence of justice, but also to focus attention on joint action animated by the hope of “justice to come.” In demonstrating responsibility for one another, people affirm hearing one another and working together non-violently. However, justice to come not only animates people working together. It is also an ethical force that demands the law to improve. Our precariousness of justice framework acknowledges hopeful possibilities while recognizing the frailty of realizing justice.


LIVING THE REALITY THAT JUSTICE IS PRECARIOUS


The judge declared that Williams-Bolar was “stealing an education.” Education, and in this case, specifically public schooling, can be seen as “stealable” only if it is perceived to be a “thing” of calculable value that belongs exclusively to a person or group of people. This shifts accountability for education away from the collective common good to a private individual choice (Lubienski, 2003). As private choices, education becomes something for which individuals can and have historically been indicted if the individual has gone against an educational law (Iorio, 2016). Williams-Bolar’s case paralleled several other cases where single, minority-status mothers—including Tanya McDowell of Bridgeport, Connecticut; Myrna Winslow of East St. Louis, Illinois; and Yolanda Hill of Rochester, New York (Bernard, 2015)—were found guilty of stealing education because they had sent their children to a school that was not in their home district. Their poverty and minority racial status was consistent through these cases, as was the conceptual and lived reality that school district lines had fragmented the universal idea of “public” and excluded them from quality education. There is no single “public education,” but many public educations, serving many publics—each marked by the lines of distinct school district zones of zip-coded geographic areas. It is this fragmentation that works in the social imaginary to make an individual from one “public” guilty of stealing an education from another “public,” a fragmentation whose fault lines follow racial and socio-economic differences between districts.


BOUNDARIES ENFORCED BY STATE VIOLENCE


The precariousness of justice framework, in its emphasis on the simultaneity of vulnerability to and responsibility for others, allows us to highlight this “public/publics” tension. The idea that there is a structured multiplicity of publics is in tension with the social imaginary that the U.S. has one public education system serving one public. The fragmentation delineated by district zones draws attention to the role of boundaries in distributing goods such as education. Butler’s idea of precarity, which points to the distributed and structured conditions of heightened precariousness for some people, makes visible the differential distribution of the public good of education according to geographically demarcated school district boundaries. In the case of Williams-Bolar, in Akron (like many metropolitan areas) the conditions supporting human flourishing, including quality education, are markedly different from the conditions supporting human flourishing in the Copley-Fairlawn area (like many suburban areas)—same public . . . different publics.


Sociologists have shown how the demographics, poverty, and even violence in U.S. central cities, compared to that of suburban cities, have been shaped by deliberate federal and state policies, as well as legal decisions over the last century (Alexander, 2010; Freund, 2007; Rothstein, 2017; Rothwell & Massey, 2010; Sugrue, 2005). Governmental instrumentalities include the home financing reform of the New Deal and the GI bill passed after WWII, as well as the targeted granting of home rule for small enclaves of homes, allowing them to organize as cities and giving them exclusionary zoning and taxation powers. These government policies were instruments of precarity, designed to differentially distribute and enforce economic conditions for wealth creation (e.g., via home ownership), job creation, and income distribution. As such, those distributions were enforced through instruments of law-preserving state violence.


The differential character of this distribution and enforcement is demonstrated geographically within metropolitan regions. Legislatively, the allocation of resources was enforced along geographic boundaries, determined not only by social class but also by the racial composition of particular communities (Freund, 2007; Rothstein, 2017). Northern cities were relatively “inelastic” in terms of expansion because the metropolitan areas fragmented quickly into central and suburb cities (Ayscue & Orfield, 2015). Ayscue and Orfield argue that the twin processes of “exclusion and recruitment” (p. 7) recreated segregation by race and poverty between central and suburb cities. Exclusion of minorities and poorer classes from suburban cities was accomplished through zoning policies, real-estate practices, and explicit violence. Simultaneously, recruitment of majority-race and wealthier populations to the suburban city was accomplished through providing attractive information about the school district or city.


In northern cities, the push and pull of exclusion and recruitment typically meant poorer minority populations were often forcefully restricted to certain areas of the central cities, while affluent White populations were actively encouraged to move to nearby suburban cities. The result is, by design and in effect, an inter-district redistribution of race and income. Demographic mapping of the two areas, West Akron and Copley-Fairlawn, indicates this racial segregation. In 2010, the city of Fairlawn was 82% white (Fairlawn, OH, n.d.) and Copley Township was 86.6% White (Copley Township, OH, n.d.), while the nearby area of West Akron where Williams-Bolar lived was 94% Black (New York Times, 2010). Williams-Bolar physically resided in West Akron, and experientially lived this differential racial segregation. Studies have demonstrated that the intentionality of such racial divides—the purposeful geographic and economic targeting of Black and Brown neighborhoods—takes a psychic and somatic toll upon the people of color who live with the knowledge of this intentionality (Harrell, Hall, & Taliaferro, 2003; Lott & Bullock, 2007). City borders are boundaries of state violence. We argue that this “boundaried” state violence demonstrates the precariousness of justice. To unify and heal the fracturing caused by the differential distribution of education depends upon the U.S. collective’s hearing an ethical call of responsibility for the welfare and human flourishing of people living in all geographically demarcated areas, in all publics.


Implicated in the deliberate, legislatively induced differential distribution of resources are its effects upon the quality of education (Ayscue & Orfield, 2015). Fragmenting school district boundaries by zip code serves as a form of fencing off access to quality public education (Saiger, 2010). By funding these fragmented districts through locally legislated property taxes, each district becomes an educational island (Wilson, 2014). Suburban city populations then can trust the better quality education of their schools, while central city populations, by contrast, experience “struggling education.” Stressed school districts have fewer resources, higher teacher-turnover rates, and more novice teachers (Goldhaber, Lavery, & Theobald, 2015), with poorer results for students (Reardon, 2016). The boundaries of school districts are thus effectively borders delineating and enforcing differential distributions of educational quality. Together, educational fragmentation and unequal funding become effective instruments of state violence that preserve the legislatively induced precarity of the quality of education between school districts.


State legislation, which governs the way education is allowed to be funded, directly structures the distribution of resources among school districts (Moser & Rubenstein, 2002). The issue of equity in school funding in Ohio has been on the legislative docket for 20 years, ever since the state’s supreme court ruled that the then-current funding model was unconstitutional because of its inequality (Simon, 2015). Obhof (2005) describes the foundational set of four cases collectively known as “DeRolph v State” in which the plaintiff successfully challenged the constitutionality of the unequal quality of education, and its funding, in Ohio. The court ruled in the plaintiff’s favor four times, at one point even detailing what it thought was the best plan for funding action, which the legislature decided not to follow. In the last of its four rulings, the court left it to the legislature to find a solution to the problem.


Rather than addressing the root causes of inequities across neighborhoods, and thus, across school districts, the state legislature decided to enact an enhanced school choice structure, including a more robust voucher system. Rather than creating a funding system that ensured that each school district had equitable resources for providing a quality education, it created another branch of educational options. This left intact the inequities between school districts and across different, racially and socioeconomically segregated neighborhoods. Various researchers have remarked that, despite the stated intent to offer all children access to well-resourced schools through a variety of avenues, Ohio’s legislative solutions continued the funding and quality inequities for students whose zip code determined their school (Simon, 2015), and likely made the funding structure more inequitable and inadequate (Johnson & Vesely, 2017; Sweetland, 2014). The systematic structure linked to this continued differential distribution of quality and funding was not addressed, namely, the continued existence of district boundaries that are maintained precisely to privilege wealthier, mostly White families in the suburban cities (Faw & Jabbar, 2016). So, although Williams-Bolar did have “school choice” options at her disposal, these options didn’t address the underlying inequalities and inadequacies of the distributions of school quality.


Patterned differences of educational quality among fragmented publics and distinct, zip-coded school districts cannot, as noted earlier, avoid being about race. Williams-Bolar is Black, as is much of West Akron’s population, while Copley-Fairlawn is overwhelmingly White. Metropolitan Akron’s division into fragmented school districts reflects more than just city boundary lines, because the boundaries themselves mark historical dynamics about White flight to the suburbs, as well as current (re)segregation patterns (Orfield & Luce, 2008; Siegel-Hawley, 2016). Researchers have shown that there is a positive correlation between school district fragmentation in metropolitan areas and the racial homogeneity within districts (Bischoff, 2008; Orfield, 2015), something the Akron metropolitan area exemplifies (Rose, 2013). This means that not only poverty, but also race is a strong factor in the unjust differences between the districts. When combined with solid empirical data that Black and White students have historically been differentially positioned to access high-quality education (Dumas, 2016), this result shows that race is a central factor in the boundary policing of the quality of education.


These kinds of differential distributions, including unequal access to quality education and educational resources, are at play between the suburban city schools of Copley-Fairlawn and central city schools of Akron. It was this difference that drew Williams-Bolar to enroll her children in the neighboring district, even though it did not have an open-enrollment possibility for out-of-district students (Hing, 2012). Her choice was more complicated than a desire to “cheat the system,” and speaks to the very real socio-political consequences that stressed neighborhood infrastructures have on schools. It speaks directly to the educational dilemma facing Williams-Bolar as she considered the educational experience she wished her children to have—either the politically induced, lesser funded, and lower academically performing schools in Akron, or the law-protected, higher funded, and higher academically performing schools in Copley-Fairlawn.


To summarize, the reality of precarity and the heightened precariousness of living within these conditions is intentional. This intentionality connects with our discussion about the purposeful ways school district boundaries are drawn, matching and reinforcing the patterns of residential segregation by race and poverty across the United States. Living in a neighborhood that is societally devalued, Williams-Bolar chose to jump a district boundary and send her children to a school where society has chosen to invest in human flourishing. Her decision demonstrates Derrida’s insight that the law does not guarantee justice. Rather, the precariousness of justice is a standing vulnerability to state and other violence that enforces inequality. In her case, Williams-Bolar lived with this sort of state violence. Using a different address to gain access to a Copley-Fairlawn school was a risk-taking way of navigating a law aimed to preserve precarity. In determining Williams-Bolar’s conviction and sentence, the judge and jury should have heard the call for justice and, in hearing it, they should have recognized the law-created instrumentalities enforced by state-violence that kept Williams-Bolar’s children from a quality public education.


THE STEALING AND LAW-PRESERVING STATE VIOLENCE


Rather than accepting a plea deal, Williams-Bolar chose to go to court and to be heard by a judge and a jury of her peers. In post-trial interviews, she claimed that she had done nothing wrong. This could mean that she thought she had not broken the law, but it could also mean that she thought that the law was unfair (Williams-Bolar, 2012). From a justice-to-come perspective, viewing the law as unfair and not following the law can be considered as being in the same vein. That she legally defended her position indicates that one way to understand this case is that she had, in fact, not stolen an education, but, rather, that an education had been stolen from her children. Her claim to have done nothing wrong can be conceived as revealing a deeper sense of justice, one that challenges the injustice of state-enforced unequal distributions of quality education inscribed in the law. The trial made visible her ethical challenge of the legal system’s law-preserving state violence, one that protected an unfair differential distribution of the conditions that make life livable, that unjustly construed education to be the property of a school district, and that withheld it from her children. Given the contemporary consumerist realities of public education, our argument about education being stolen from her is an attempt to flip the script of the given field of state violence in which her case was tried.


The broader social situatedness of Williams-Bolar’s precariousness—as shown not only in the differences in race and poverty between city and suburb, but also in the politically induced low quality of education in her area of Akron compared to Copley-Fairlawn—reveals a deep injustice. The possibility of justice to come, by implying that something better might be coming, suggests that something is being withheld from children in the Akron school district. The lens of justice to come brings to light the injustice of this withholding and reveals the plausibility that the residents of Akron are having a certain quality of education stolen from them. The demarcating laws creating these conditions are a form of stealing a public good to which the public has a claim. Although it is systemic rather than episodic, it may not be too strong to say that the predominantly White, more affluent Copley-Fairlawn residents are in fact stealing an education from Williams-Bolar, as well as the rest of those who suffer from educational precarity in the predominantly Black and poorer West Akron area. This systematic stealing occurs precisely by treating the quality of education in their district as something rightly theirs, and theirs alone—a result of fragmenting the public into publics.


We argue that while it remains meaningful to view the courts as a system that affords individuals the right to fight against state violence in the name of justice, it also remains true that the court system, as an apparatus of the state, continually uses law-preserving state violence in the form of legal judgment and sentencing, to uphold unjust laws. Echoes of state violence, with present and future-oriented punitiveness, reverberate in Cosgrove’s comment: “I felt some punishment or deterrent was needed for other individuals who might think to defraud the various school districts” (quoted in Hing, 2012). Employing Arendt’s description of state violence as a hierarchical instrument of coercion and domination, one can view the court as such an instrument, and the judge as an instrumental character. Seen through this lens, Williams-Bolar’s conviction of “stealing an education” is state violence in its enforcing an unjust law. The court is an apparatus of law-preserving state violence in its capacity to render guilty verdicts to those whose actions may be just but remain unlawful.


THE SENTENCING AND LAW-MAKING STATE VIOLENCE


Cosgrove originally gave Williams-Bolar two concurrent five-year sentences for stealing an education, which she later reduced to a 10-day term, with community service and probation added. But this reduction, though likely welcomed by Williams-Bolar, did nothing to address the structured precarity that this sentence revealed. Cosgrove could have, in her assessment of the facts, recognized the violence of precarious living in impoverished, racially segregated neighborhoods and the state violence that preserved the inequalities between school districts. She could have acknowledged that society does not infrastructurally invest in all neighborhoods and school districts equally. Mobilized violence such as racism, poverty, and housing segregation differentially values the mattering of people in ways that continue to fragment the notion of public (Perhamus and Joldersma, 2016). Although “justice to come” adds a dimension of hope—that the laws can be improved and that law-preserving state violence can be diminished—such future possibilities simultaneously reveal the present injustice in the judge’s sentence, which reinforced the current differences of investment in conditions for human flourishing.


When the media interviewed her afterwards, Cosgrove stated that she wanted to make an example of Williams-Bolar, to deter others from committing the same sort of crime, and thus gave her the maximum sentence. The judge didn’t just apply the law to an individual, but also made it about a whole group of people: Through this sentencing rationale, the law was reinterpreted—“reinvented”—to be about setting an example for others. Cosgrove, as a character in the court system’s apparatus of state violence, enacted what Benjamin calls law-making violence in connecting the sentence to this broad rationale. In this case, law-making state violence was visible in the declaration of a maximum sentence for Williams-Bolar.


The sentence showed that part of the judge’s law-making was her interpretation of   education as property, belonging to a school district, rather than a common good for all. We argue that this interpretation by Cosgrove was a creative act of law-making, an innovative “reinvention” of the law as a “property-protection device” for the Copley-Fairlawn district, against someone from outside the district. The law, so interpreted, legally constructed education as property that could be stolen. The judge’s sentence was shown to be a security action to protect the education of a particular public from intruders, interlopers who came from other publics. This act of exclusionary protection, based on the fragmentation of publics, assumes and reinforces a we/they binary. It created a “we” who own property in an area and who thus can make claims for protection, and a “they” who don’t own taxable property there and are thereby positioned to threaten stealing propertied public goods and services. In this case, the “we” is constituted by a majority White and affluent collective of Copley-Fairlawn residents thought to need and deserve protection from the threatening “they,” the perceived poorer and majority Black collective of residents of (West) Akron. The law-making state violence constituting the judge’s creative border reinforcement is grounded in a material and conceptual hierarchy between these two populations.


The “we” in this metaphoric and lived binary rests upon the Whiteness and authority of Cosgrove herself, for it is through her alignment with the results of the case that the binary is re-constituted. Williams-Bolar, an Black woman from Akron, is re-entrenched in the “they” population, embodying the person who mainstream society often devalues based on race and class. Williams-Bolar is also re-constituted as a “they” because the judge separated her from law-abiding people. The binary inventively operationalized in the judge’s sentence differentiates people anew, advances state violence, and highlights the precariousness of justice. And so, Cosgrove’s phrase “stealing an education” is effectively a creative policing action to keep Williams-Bolar, and communities of color, from intruding into and threatening the Whiteness as property in Copley-Fairlawn.


As law-making state violence, the perlocutionary effect of Cosgrove’s creative phrase “stealing an education” was hierarchical. It was meant to control not only Williams-Bolar, but all interlopers as well, in order to comply with the legislatively devised conditions to keep people bordered and fenced in. But this act only created anew the differentially distributed access to quality education. Law-making sentences such as Williams-Bolar’s thereby intensify historical patterns of residential and educational segregation. This situates the case against Williams-Bolar, giving its racist individual consumerist mindset a context field within which she was convicted and sentenced for stealing an education. In this sentence, we argue, justice shows its precariousness, for it remains a call unheard.


HOPING FOR JUSTICE TO COME


Our framework of the precariousness of justice emphasizes not only the lived reality of the precariousness of justice in the present, but also the lived hope of justice to come. By going to court rather than settling, Williams-Bolar was enacting the hope of justice to come, however precarious. This “justice to come” seemed to have present value for her. Injustice was being done in the present through the denial of her children’s legal access to a quality, public education. However, it is as if the ethical tenets of the call of justice gave Williams-Bolar the drive to challenge these vectors of history (Butler, 2009b, p. xi). It is as if the hope associated with justice to come animated Williams-Bolar’s challenging the court to allow her to move toward a more livable life, a life where the precariousness of justice emphasizes the possibility of justice, rather than its precarity.


Derrida’s idea of the call of justice makes explicit that judgments made in the name of the law can be responsive to such hope, because doing justice isn’t merely applying laws or algorithmically adjudicating if existing laws are broken (Derrida & Caputo, 1997, p. 15). Derrida’s distinction between law and justice is important in the Williams-Bolar’s conviction. For Derrida, a judge does not merely apply the law by an algorithm, but must reinvent it in every decision, as it aims at justice (1997, p. 16). This reinvention is required each time because the law doesn’t automatically or fully embody justice. Rather, justice remains a (mere) possibility requiring a judge’s fresh judgment. Each case requires a new contextualized decision that, in its concreteness, makes the law anew in its attempt to bring justice. While the judge always has the option of “reinventing” the law by merely reiterating the binding character of the law in its present conventional interpretation, the judge also always has the option of opening up new and innovative interpretations that enact justice in new ways. Derrida’s point is that the latter makes room for the possibility of justice to come, allowing the judgment to respond more responsibly to the call of justice.


This opening revolves around an important difference between law and justice. The law is a generalization (universalization). It speaks in generalities or universals—“the speed limit is 60 mph,” or “tax incentives are allowed for new buildings in the suburbs.” Because the law is blind in this way, it seems ready-made for equal treatment for each and all, and could be perceived as just (Derrida & Caputo, 1997, p. 130). But the call of justice, according to Derrida, speaks up for “the singular,” the uniqueness of the individual (case, situation, person), without the singular being subsumed under the general or universal (Derrida & Caputo, 1997, p. 135). The singular situation always defies simply being put under the law’s generalities, and this makes any ruling by a judge something more than merely an algorithmic application of a (general) law. Instead, this difference requires the judge to take responsibility: In rendering a judgment, the judge “reinvents” the law or “makes the law anew” for that particular case. And hopefully, in such reinvention, the judge will move the law a bit closer toward enacting justice.


Derrida’s distinction between the law’s universality and the call of justice’s singular focus means that a judge’s decision itself is always up for criticism, for the inescapable decision might well reiterate injustice, or move the law farther away from justice. That is, although for Derrida the law’s reinvention is itself inevitable in any judicial ruling, not all judgments equally move the law toward the enactment of justice. This puts a new angle on Williams-Bolar’s court case. Through a Derridean lens, we argue that Cosgrove, in her judgment, “reinvented” the law by interpreting it as justifiably maintaining the inequitable distributions of resources across district boundaries, rather than reinterpreting the law to enact the possibilities of justice to come. Rather than hearing the call of justice coming through Williams-Bolar’s precariousness and accepting responsibility for this call of justice, Cosgrove’s reinvention was really an unjust reinforcement of existing borders and a disregard of Williams-Bolar’s unjust treatment by society.


In the Williams-Bolar case, by separating the call of justice from the existing laws under which she was charged, we can see that the law-making sentence, which re-enacted protection of the Copley-Fairlawn school district’s educational system as property, did not embody a responsiveness to the call for collective justice. A deeper sense of justice in this case, which the precariousness of justice theoretical framing reveals, uncovers questions about the kinds of conditions that make it possible for anyone to be found guilty of stealing an education, and about the kinds of conditions that make it possible to be responsible to the call of justice to come. Under what conditions does hope factor into justice in ways that allow a judge to render justice in the judicial sentence? Justice to come is the hope for a different set of laws, or new interpretations of existing laws, that are more responsive to justice—laws that would equally value, support, and hear all people, addressing the unjust disparities in educational quality whose fault lines currently follow racial and socioeconomic segregation. To bear the fruition of the hope of justice coming, judges and other authority figures of the law should hear the demand of justice as a critique of the law. They should feel that taking responsibility to “make the law anew” requires making judgments in a direction of a deeper sense of justice.


Justice to come is future-oriented—promising a different social imaginary, one in which all children actually receive a high-quality education regardless of zip code, where racist segregation and bordering no longer exists, and where poverty and social class do not determine the infrastructure of neighborhoods of which schools are a part. Public education, when not fragmented into differentiated publics, can be understood in Arendtian terms of power—a collective of people working in concert for the purpose of educating all students equally and with quality—and exemplifies such hope. We argue that horizontal power is a condition that allows for a better response to the call of justice to come, a condition that inspires such joint action, in which each person treats others as equals. It is through such power that Williams-Bolar subsequently founded the Ohio Parents Union, which empowers parents and provides resources to families to advocate for their children’s rights. “No longer should parents with children trapped in failing schools be left without rational options,” she says in describing the motivation for the Union (Williams-Bolar, 2012). As a felt imperative, the hope of justice expressed in Arendtian power is revealed in such joint actions to improve the law. These actions create alternatives to law-making and law-preserving state violence, alternatives that strive toward equalizing the distributions of conditions for human mattering.


CONCLUSION


The theoretical framework of the precariousness of justice affords insights into the Williams-Bolar case that deepen an understanding of the precarity within which she made her choice to “border-hop.” The framework enriches the concept of justice with a deeper nuance, situating the idea of the call for justice to come within the context of both state violence and hope. Within enduring social boundaries and the ongoing differential distributions of life-mattering infrastructures, the Williams-Bolar court case serves as a kind of case study about the ways in which the United States continues its fragmentation of its public. The case is an intimate demonstration of the ways in which the juridical apparatus of the state (the court system) and mainstream media (public opinion) divide people within inequitable structures into multiple publics.  


At the same time, the precariousness of justice lens underscores a sensibility of hope within precarity and the violence of the law. It is on this note of hope, this call of a justice to come, that we wish to conclude. The Williams-Bolar case represents a racialized educational segregation that this article tries to interrupt. It does so by developing a novel analytic lens that remains grounded in the realities of structural oppression, including the law and the court system, while simultaneously viewing the law with a hope that justice might come to fruition if the response of the hearer is bearing witness and taking action. Education, rather than being “stealable,” could, perhaps, be disentangled from fracturing boundaries in its juridical mobilization and, in so doing, we could make education more about how people collectively hear and educatively respond to one another.


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Cite This Article as: Teachers College Record Volume 122 Number 2, 2020, p. 1-24
https://www.tcrecord.org ID Number: 23034, Date Accessed: 12/3/2021 8:07:39 AM

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