David Bacon Stories & Photographs

By David Bacon
TruthOut Perspective, 5/8/09


Is there a “constitutional right to education”?

Legal scholar and civil rights advocate Erwin Chemerinsky says there is. “There has to be a right to education in the Constitution,” he declares, “and equal protection is a Constitutional imperative.”

But according to Chemerinsky, this right has been fundamentally undermined by the Supreme Court. With the retirement of Justice David Souter, and the posible retirement in the next few years of Justices Ruth Bader Ginsburg and John Paul Stevens, the role of the court in defending the right to education will be thrust into the national spotlight. What role might their replacements play in guaranteeing education to American children, and reversing the conservative momentum of the last three decades?

Chemerinsky believes that without popular pressure and new judicial appointments that reverse the present course, the right to education will be further constricted, and even lost. Education itself in the United States is in greater danger than ever because of the steady “deconstitutionalization” of this right, he asserts. “The Supreme Court has followed a steady course over the last 35 years of undermining the right to education.”

Chemerinsky has a long history as a civil rights advocate, which turned his appointment in 2007 as the founding dean of the University of California, Irvine School of Law into a fight. Although the university regents approved him, UCI Chancellor Michael V. Drake, who originally hired him, withdrew the invitation saying Chemerinsky’s views were "polarizing."

While Drake claimed that he had not received any pressure to withdraw the nomination, media reports unearthed efforts by conservative California Supreme Court Chief Justice Ronald George, Los Angeles Supervisor Mike Antonovich and a group of Orange County Republicans to kill the appointment. Although Chemerinsky is of one of the country’s most respected constitutional scholars, they cited his opposition to the death penalty, and his support for civil rights. In the end, his reputation and his defense by legal authorities nationwide moved UCI to restore the appointment.

In speaking to a meeting of California teachers earlier this year, Chemerinsky gave ample indication of the reasons why some of the most right wing elements in California politics might not want to see him head one of its most prestigious law schools. He recalled the case of Rodriguez vs. the San Antonio Board of Education, decided in 1973. In that case, he explained, the plaintiffs proved a disparity in funding of 4 or 5 to one, between poor Latino communities and more affluent Anglo ones in that city. In a 5-4 decision, however, the Supreme Court held, in a decision written by Justice Louis Powell, that there is no right to education in the U.S. Constitution. Wealth disparities, therefore, were permissible, even under the equal protection language of the 14th Amendment.

“Many expressed surprise,” he noted, “since states require the education of minors in their own Constitutions. But Powell ruled there was no right to this on a Federal level.” Other similar decisions followed. The funding disparities noted in Texas, he says, are no different from those in California districts.

Chemerinsky connected this philosophy to the Supreme Court’s decision upholding the legality of school vouchers. “They have one purpose only,” he asserted. “That is to take funds out of the public school system and transfer them to parochial schools. In a 1982 decision, the court found that in Cleveland, where 95% of voucher money went to religious parochial schools, the system did not amount to state support of religious instruction. “Fortunately,” he said, “the voucher system hasn’t caught on, but the court has ruled it legal.”

In this legal environment it’s no surprise, therefore, that he views political action as necessary to the preservation and extension of civil rights. In fact, while he paints a dark picture of the legal panorama, he sees the main possibility for change arising from the election of the new administration of President Barack Obama. A window for change has opened, but Chemerinsky warns it will not stay open long. He cites the early years of the Clinton administration, which delayed on the appointment of new judges. After two years in office, and the loss of Congress to the Republicans in 1994, that administration began appointing judges as conservative as those appointed by Clinton’s predecessor. The appointments were justified as political necessity – only those would “slide through.”

Chemerinsky is a legal authority on the impact of race on education, and says that political action in support of desegregation has been integrally connected with extending the right to education. Some people believe, he says, that the watershed Brown vs. Board of Education immediately desegregated schools, thus ensuring the right to equal education for all students. In reality, while the Supreme Court held that segregation, the system of “separate but equal,” was unconstitutional in 1954, for the next ten years there was no movement to comply with the decision. It was only after Title 6 the Civil Rights Act threatened to withhold funds from schools that didn’t desegregate that compliance began. “From 1964 to 1988 schools became less racially segregated as a result,” he recalled. “But since 1988, they’ve become more segregated, and at an accelerating rate.”

He traced the change to a 1974 case that prohibited the transfer of students between different school districts in order to desegregate schools. “In Chicago, where I grew up, the schools are now 95% Black and Latino, yet just over the border, they’re 95% white, and this is true in almost every metropolitan area. Yet the court said there’s no remedy for this.” This was followed by other decisions in the early 1990s, holding that once desegregation orders had been in effect for a brief time, those orders should end, whether or not the effect of doing so would lead to further resegregation. Then even voluntary desegregation plans that used race as one factor in assigning students were held unconstitutional by further 5-to-4 Supreme Court rulings.

In California, Chemerinsky described a similar impact from Proposition 209, which he campaigned unsuccessfully to defeat. He cites the disparity in racial diversity between private law schools, which are not constrained by Proposition 209’s prohibition on affirmative action, and public law schools, which are. “Five years afterwards, the Stanford Law School had 9.5% African American students, and USC 11%. UC Berkeley’s Boalt Law School had 3% and UCLA 2%. One student told me that in her three years at Boalt she never had a Black student in her class. The Supreme Court” he warned, “is likely soon to constitutionalize Prop 209.”

Even the erosion of academic freedom, Chemerinsky asserts, is connected to court decisions undermining the right to education and desegregation. He cited the Supreme Court’s decision in the Garcetti case in Los Angeles, holding that public employees have no First Amendment protection for speech on the job, even when they’re fired for carrying out their responsibilities. The court has similarly eroded the rights of students to free speech, he says. “How can you teach students about the First Amendment if the people teaching them, and they themselves as students, have no First Amendment rights?” he asks.

“This can be changed, however, and it must be changed,” he concludes.

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