By Mike Xidis
Education is the foundation upon which our society is
built. It teaches our citizens not only
the facts of history, math, and other subjects, but how to act in society and
what behaviors are acceptable. These
norms may not be taught in the classroom, but they are certainly gained from
the experience. It is understandable
then that the Supreme Court grants special protections to government schools
that often limit the freedom of the students within those schools. However, understanding the rationality behind
why the Supreme Court decides what it decides does not make those decisions any
more correct or legal. Often, the
rationality tests that the Court creates in order to justify these decisions
are simply excuses that allow extra-Constitutional powers to government
schools. First, I will establish a Constitutional limit of what kind of things
can be controlled by the national and state governments as it relates to
education. Then I’ll look at previous Court
decisions and apply that limit to reimagine what government schools would look
like if treated as any other government agency ought to be treated. Finally, I will show that the national
government[1] is
unfit to run any type of school in it’s current state, and suggest a possible
remedy.
It is clear at the drafting and ratifying of the Constitution
that the Federal government was to have no part in administering
education. James Madison, while speaking
on the general welfare clause said, “If Congress can employ money indefinitely
to the general welfare, and are the sole and supreme judges of the general
welfare, they may take the care of religion into their own hands; they may appoint teachers in every state,
county, and parish, and pay them out of the public treasury; they may take
into their own hands the education of children, establishing in like manner
schools throughout the Union; they may assume the provision for the poor; they
may undertake the regulation of all roads other than post-roads; in short,
everything, from the highest object of state legislation down to the most
minute object of police, would be thrown under the power of Congress.”[2]
Clearly, Madison, as well as many of the drafters and ratifiers of the
Constitution understood that the education of children was a power left to the
states or the people as outlined in the 10th Amendment. The Constitution was never meant to apply to
an educational system and allowing governments bound by the Constitution to do
so creates a poor system of education.
If the original position was that a Constitutionally bound
government was not meant to administer education then what could current
politicians and justices claim as a basis for interfering with local control of
education? One must look no further than the Reconstruction and Civil Rights
Eras. The Fourteenth amendment granted
all citizens of the United States equal protection of the laws regardless of
the level of government within the United States. This gave Congress and Federal judiciaries the
Constitutional power to interfere with what was before a purely local or state
power, administering education. Don’t
get me wrong, the federal branch did not administer the education. However, the judiciary began to determine
which local practices were violations of what were previously only national
rights.
This new interference is evident in many cases but I’ll pick
one: Davis v. Monroe County Board of
Education.[3] The Court held that Title IX, which puts
strings on Federal education money, implies a private right to education. The Ninth Amendment supports this kind of thinking. However, one must
understand that there is a difference between positive and negative rights and
then must logically discern which positive rights immorally interfere with the
negative rights of others.[4] While the Ninth amendment can protect
positive rights, it “protects ‘positive rights’ that ha[ve] their source in the
common, constitutional, and statutory law of the States.”[5] That is, it was originally
meant to protect the sovereignty of the people and the States from infringement
of the Federal government. The amendment was written by Madison as an
appeasement to anti-federalists who feared the Federal government would “fill
in the blanks” that the Constitution did not expressly fill. It was not meant to imply justification for
positive rights that infringe on the property or the negative rights of other
individuals. A right to education
implicitly requires the state to take wealth or property[6] from individuals to
provide. If this power were to be under
the purview of the Federal government, would not the framers have expressly
said so as they did with such trivial things as the Incompatibility Clause?[7]
If it is true that the original intent of the Constitution was
to leave education to the States or localities before the 14th Amendment
incorporated the Bill of Rights on the state level, I imagine it was done for a
reason. If those Constitutional qualifications kept the Federal government from
competently running an educational system[8], then applying them to the
states and localities would keep those entities, which previously enjoyed broad
police powers, from competently doing the same.
Let’s look at some cases and see where pre-14th Amendment Federalism
would have helped the Supreme Court reach good decisions.
The first case I want to analyze is probably the most
effective at proving my point. United
States v. Virginia[9]
centered on the Virginia Military Institute’s policy of being exclusively
male. This was held as a long-standing
tradition and Virginia, as a response to a Federal Circuit court ruling,
created a parallel school for women. The
Supreme Court ruled that Virginia’s admissions policy was unconstitutional
because it violated the 14th Amendment by needlessly discriminating between men
and women. I agree. However, Justice
Scalia’s dissent brings up the issue that the Supreme Court just can’t
remedy. How does the Court justify applying
strict scrutiny for cases involving race, but only mild scrutiny for cases
involving gender? Imagine if the Court
applied this type test to the Third Amendment: “We shall allow the government
to force you to quarter soldiers in your living room on your hide-a-bed, but
they may not enter your bedchamber.” or “You must quarter national
guardsmen(and women) but it is clearly unconstitutional to quarter a full-time
soldier.” These types of tests leave too much wiggle room for legislatures and
the judiciary to just ignore the Constitution altogether and make up their own
rules as the social standards or political necessity dictates.
One of Virginia’s arguments is centered on the idea that the
all-male policy was absolutely necessary. Several members of the School and the
Military felt that this was true.[10] Let’s
assume for the moment that their claim is correct. In their view it is necessary to clearly
violate the 14th Amendment to properly educate the people that they will
eventually hire. In our hypothetical situation the VMI would by necessity need
to privatize in order to keep providing the high quality education for which it
had become known. The Supreme Court applied strict scrutiny and ruled that the
VMI could not discriminate because they had not provided “substantial proof”
that the discrimination was necessary.
What Constitutional clause allows the Supreme Court to protect civil
rights strictly in some cases and not so strictly in others? Is it becoming
apparent how the Constitution and providing education could be considered
incompatible? The Court could have
resolved the important arguments from both parties by forcing any institution
bound by the Constitution from funding the VMI or other institutions that
violated the Constitution.[11] [12] If
this were the case, the school could continue providing the type of students that
so many military industry people wanted while stopping the Constitutional
violation.
Let’s look at Brown v.
Board of Education.[13] It seems pretty cut and dry. Black children were denied admission to
schools with white children because of laws that established segregation. The facilities were in a theoretical sense
equal, but Justice Warren and the Supreme Court decided that the long held
belief of ‘separate but equal’ was inherently unequal when it comes to public
education. I believe the Court got the principle of the decision correct. However, they applied remedial force in the
wrong direction.[14] Instead of declaring that the schools could
no longer be associated with any government that is bound by the Constitution,
they forced the schools to desegregate.
The 14th Amendment prohibits government institutions from
being exclusively established for one race or another. The guiding principle is that the government
must treat citizens as citizens regardless of their race, religion, etc. The Court established that this prohibition
on discrimination only applies to the public realm, which means public
government institutions as well as private goods that exist to service the
broad public, in The Civil Rights Cases.[15] I
don’t see any valid Constitutional reason, outside of convenience, that allows
the Supreme Court to extend discrimination protection to some privately held
goods and services and not to other privately held goods and services. If I own a bus company and I don’t like
people that are taller than six feet, then I should be able to prevent them
from boarding my buses. There’s nothing prohibiting the people taller than six
feet from starting their own bus company, and chances are I’ll lose too much
money to keep discriminating and stay in business. While ignoring that practical argument, there
is still no Constitutional justification to protect some, and not all, private
property in favor of discrimination.
One may ask, “What does this have to do with education?” These
cases show that the judiciary has taken the power upon itself to decide when
the Federal government, or more localized governments violate the individual
rights of others. However, many of these
decisions are based on the idea that the Court knows “the good,” and applies that
standard to schools. However, “the good”
is not a uniform experience and cannot be taught uniformly through
education. “The good” is a personal view
of how one wishes to live one’s life in order to pursue happiness; and it is a
parent’s right to pass on that view even if it involves traditions that society
has determined are taboo.[16] [17] Public education under the Constitution
simply does not allow some of the individuals involved to practice their view
of “the good”; it was the original intent of the Founding Fathers[18] to
allow as many people as possible to continue practicing individual views of
“the good” while still creating a federal state that would be strong enough to
unite the States in areas like defense and trade. That original view cannot be ignored when
making decisions about government institutions of education.
The Court has had to flatten diversity[19] in education in order to
protect civil rights. As a result
society has flattened too. The Court has
taught our students through holdings and rulings in public education cases
involving civil rights and the policies that were adjusted to abide by those
rulings, which behaviors are the social version of “the good” and which
behaviors should be shunned. The Supreme
Court is exercising an Ex Post Facto[20] power of education over an
extended period of time by arbitrarily protecting civil rights in government
schools. This is not true in other
public areas involving consenting adults like government forums or public
services like defense.
The special function of educational institutions acts as a
catalyst and morphs the Court’s decisions into a type of governmental
power. Developing young people’s minds
while adhering to the Supreme Court’s decisions in the “flattening” civil
rights cases teaches young people what is socially accepted, and while that may
be beneficial to developing a more liberal and accepting society, parents have
a right to rear their children as they see fit.[21] For example, the Court determined in the Civil Rights Cases that the government cannot
regulate private discrimination. So what allows the government to educate
discrimination away?
Let’s look at one more example before we try and remedy the
problem. Northside Independent School
District (NISD), located in San Antonio, Texas, created a tracking program to ensure
that enrolled students were actually on school grounds. The school district’s
motivation is financial; since most of its funding is provided by the state on
a per-student basis, they have a substantial interest proving that their
students actually attend during school hours.
So they “began
issuing the RFID-chip-laden student-body cards when the semester began in the
fall. The ID badge has a bar code associated with a student’s Social Security
number, and the RFID chip monitors pupils’ movements on campus, from when they
arrive until when they leave.”[22] This is a clear violation of the students’
privacy under the Constitution and would be declared unconstitutional if any
other governmental agency were practicing a mass-tracking system like that of
the NISD. However, the school district
may have a good case if they appeal to the Supreme Court.
In Board of Education v.
Earls the Court ruled on privacy in schools saying that a school can
require drug testing on all students because it serves the school’s important interest in detecting and preventing drug
use among its students.[23] Once again the Court
created a test that allows a government institution to violate civil rights
based on “substantial interest.” What, other than an arbitrary Supreme Court
distinction, makes preventing drug use more of a substantial interest than
securing proper funding? It seems apparent that the Supreme Court decided that drug
use was not “the good.” Therefore it should not be allowed in schools at all
even though teaching this requires a clear violation of privacy. I am not espousing the use of drugs; I am
simply showing that an individual’s civil rights under the Constitution prevent
schools from pursuing “substantial interests.” The Supreme Court has remedied
this dissonance by allowing schools to violate the Constitution as long as it’s
not completely nuts.[24] However, as I inferred at
the top of this rant, ruling rationally does not always equate to ruling
Constitutionally.
It would seem that this conundrum must continue to occur. It is apparent that the sole body that has
been self-charged[25] with
determining the constitutionality of governmental acts will continue to allow
rationality to govern schools while arbitrarily ignoring the Constitution. We must turn elsewhere, then, to resolve this
riddle. Perhaps the States could reassert their rightful place in administering
education by invoking the nullification doctrine. Nullification is the principle by which
States can prevent the Federal government from instituting clearly
unconstitutional laws and mandates by legislative resolution. Most legal scholars giggle a bit whenever
somebody mentions the principle seriously, but that doesn’t change the fact
that most of the Founding Fathers, especially Thomas Jefferson, supported
nullification.[26]
Nullification stems from the Contract Theory of Constitutional
history. That is the States were
sovereign entities prior to the ratification of the Constitution. They expressly ceded a portion of their
sovereign power to the Federal government by means of a written Constitution;
therefore, the Federal government cannot legally exercise any power that is not
expressly written in the Constitution.
If the Federal government did exceed its expressed powers in any way, it
would be the primary responsibility of the States, the creators of that
government, to reign in that government. That act could be accomplished through
a resolution in a State Legislature stating that a Federal Act or exercised
power is clearly unconstitutional and should not be recognized by the citizens
or agents of the State.
How does nullification
apply to Supreme Court rulings? Didn’t Jefferson and others use it as a tool to
override Federal legislative
acts? Earlier I showed that the Court
was exercising a power of social
education by forcing educational institutions to abide by some of its civil
rights decisions. By identifying long
term social education as a governmental power, and showing that the Federal Supreme
Court was exercising that power without Constitutional authorization, a State
could nullify those decisions within the boundaries of that State. I recognize that this might only be tricky
wording to justify greater State’s rights, but aren’t Supreme Court rationality
tests simply tricky wording to justify greater Federal control over State
institutions?
In summary: Individuals have a right to discriminate, or a
right to privacy, or any of the other civil rights that the Supreme Court
protects. Parents have a right to teach
their children what “the good” life is according to their individual
conscience. The Supreme Court infringes
upon that parental right when it flattens public schools through some of its
civil rights rulings. The Supreme Court
also exercises a long-term power of social education by forcing government
educational institutions to follow the Court’s desired view of “the good.” States can resist this by recognizing a
governmental power of long-term social education and nullifying the Federal
exercise of it in State legislatures. I
understand this might cause mass confusion as to what government can do what,
but I believe it’s about time we asked that question again. Don’t you?
[2] Woods. Jr., Thomas E.
(2010-06-23). Nullification: How to Resist Federal Tyranny in the 21st Century
(p. 23). Perseus Books Group. Kindle Edition.
[4] Positive rights are usually rights
to receive some benefit, such as a right to an education or accessible health
care (both of which are controversial types of positive rights). Positive rights differ substantially from
negative rights. First, negative rights
are usually based on something about the bearer. Humans have a negative right to autonomy
because humans are the sorts of creatures that make choices that matter to
them. But positive rights are often not
based on things about the bearer. Some
positive rights, like a right to be paid for work that you do, are based on
agreements. Other positive rights are
based on idealized conceptions of human interaction, such as a right to health
care or clean water. (Source: http://everyday-ethics.org/2009/05/positive-and-negative-rights-what%E2%80%99s-the-difference-and-why-does-it-matter/)
[5] Conley, Patrick T., and John P. Kaminski. "The Bill of Rights and
the States." The Bill of Rights and
the States: The Colonial and Revolutionary Origins of American Liberties.
Madison, WI: Madison House, 1992. 509. Print.
[7] “No Senator or Representative shall, during the Time
for which he was elected, be appointed to any civil Office under the Authority
of the United States, which shall have been created, or the Emoluments whereof
shall have been encreased during such time; and no Person holding any Office
under the United States, shall be a Member of either House during his
Continuance in Office.”
[10] Amstein, Julie M. "UNITED STATES v. VIRGINIA:
THE CASE OF COEDUCATION AT VIRGINIA MILITARY INSTITUTE." American University. Washington College
of Law, n.d. Web. 10 Nov. 2012. <http://www.wcl.american.edu/journal/genderlaw/03/amstein.pdf>. pgs. 100-105
[11] The VMI contemplated
privatization after this ruling, but decided the Federal dollars were too sweet.
[12] Again, this would not be a
problem had the 14th Amendment not incorporated Constitutional limits on State
governments.
[14] I know race is not the best
subject to argue this point on, but facing the problem at its subject of origin
helps us get to the root of the problem instead of always dealing with the
politically correct branches that came later. That, and I like coming off like
a complete jerk.
[17] Like racism, sexism, or
just a general attitude of hate, like that old man in the neighborhood who
turns his hose on children at play...
[22] Kravets, David. "Student Suspended for Refusing
to Wear a School-Issued RFID Tracker." Wired.
N.p., 21 Nov. 2012. Web. 22 Nov. 2012.
<http://www.wired.com/threatlevel/2012/11/student-suspension/>.
[24] Does this remind anyone
else of the Supreme Court rulings on the Administrative Procedure Act (APA
1966)?
[26] Jefferson, Thomas. "Kentucky Resolutions of
1798." The Tenth Amendment Center.
N.p., n.d. Web.
<http://tenthamendmentcenter.com/kentucky-resolutions-of-1798/>.
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