Mehlhorn: Student Rights, Judicial Precedent and Why 2016 Could See a Profound Shift in Education Law

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This essay is the first in a series at The Seventy Four about the shifting winds of American education law.
Can America’s courts deliver better schools for disadvantaged students?

Some students and teachers seem to think so. In Massachusetts, five student plaintiffs who were unable to secure seats in charter school lotteries intend to file a lawsuit challenging the state’s cap on charter schools. In California, veteran teacher Rebecca Friedrichs objected to her annual union dues being used to protect ineffective colleagues; the Supreme Court is hearing arguments in Ms. Friedrichs’ case this week. If Ms. Friedrichs prevails, teachers’ unions will be compelled to better represent the many teachers who want significant changes to the profession.

Do these disparate cases amount to a trend? Some judicial scholars scoff at the idea. After all, judges preserve their authority by deferring to precedent, not by transforming bureaucracies. Education decisions tend to side with school systems, not individual students or teachers. Bureaucratic lawsuits against reform continue to be filed in numerous states.

The optimists, however, may finally be right that the judicial tide is turning. Judges have dealt setbacks to union-backed lawsuits against school reform in FloridaLouisiana, and New York City. Pro-student lawsuits have won surprising victories; for example, nine California students recently won a trial court ruling that public schools unconstitutionally denied them a decent education by assigning them ineffective teachers. After nearly 150 years of anti-student rulings, students have a real shot at legal relief that will not merely defend a few individuals, but improve equity, access and choice to the entire public education system.
American education law: deference to majoritarian oppression
America’s public school system has several distinctive elements. As described in 1971 by the late professor Michael B. Katz, “the American educational system has remained essentially unchanged since about 1885, when it was established as universal, tax-supported, free, bureaucratically organized, class-biased, and racist." This system was pioneered in Massachusetts but spread to every state by the early 1900s.
As with any national movement, this model of public schooling had many backers with diverse motives. Crucially, however, the system was implemented during the racism of the Progressive Era. Political leaders of the time were typically white Anglo-Saxon Protestants who believed in racial eugenics as government policy, and who expressed open contempt for the cultures and capabilities of African AmericansNative AmericansCatholicsJews, and Chinese and ethnic European immigrants. Consistent with these racial beliefs, education leaders designed neighborhood schools to be factories for a race-based system, with outcomes calibrated according to social class. If this seems harsh, recall that the Ku Klux Klan was one of the two most active national lobbies on behalf of this schooling model (the other was the National Education Association). For Native American children, government-funded boarding schools were used to involuntarily immerse students into Anglo-Saxon culture.
This bigoted education movement was not entirely successful in wiping out educational diversity. In Pierce v. Society of Sisters (1925), the Supreme Court considered an Oregon law that prohibited private schooling. Oregon’s law had been opposed by minority and civil rights groups, but narrowly won a 1922 statewide referendum due to backing from public school teachers and the Ku Klux Klan, who argued that “these mongrel hordes must be Americanized.” Similar initiatives, also grounded in white supremacy, were poised to move forward in other states pending the resolution of Oregon’s court battle. Although the Supreme Court affirmed the state’s interest in using education law to “foster a homogeneous people,” the unanimous ruling also decreed that “the child is not the mere creature of the state.” Thus, the Court held that Oregon’s law violated the constitutional rights of parents, students, and private schools.
For parents who could not afford private schools, however, the courts offered little help. On racial issues, Plessy v. Ferguson (1896) approvingly cited Massachusetts in holding that political majorities had a legitimate interest in keeping races separate. The government’s authority to forcibly assimilate Native American children was indirectly established in Lone Wolf v. Hitchcock (1903), in which the Court ruled that “Indian tribes are the wards of the nation” whose “weakness and helplessness” creates a “duty of protection, and with it the power.” In Lum v. Rice (1927), Chinese-American 9-year old Martha Lum was ordered to travel to a “colored school” to meet the state’s compulsory education requirements, as the only nearby school had been reserved for whites.
The dashed promise of the civil rights era  
The Supreme Court famously reversed itself on state-enforced racial segregation in Brown vs. Board of Education (1954). Sixty years later, however, Brown is largely seen as a disappointment for black, Hispanic, and Native American students who still receive substantially inferior educational outcomes compared with white, Asian, and Jewish students.
Traditional liberals, especially those whose research funding depends upon public sector unions, argue that Brown failed because of insufficient public funding. Richard Rothstein of the Economic Policy Institute, for example, wrote a report titled “Brown v. Board at 60: Why Have We Been So Disappointed?”, a question he answers with the claim that America did not spend enough money. Rothstein’s line of thinking, while popular, suffers from deep flaws. For one thing, per-pupil spending has increased roughly four-fold in real dollars since Brown was decided, but the bulk of those funds have been absorbed by school bureaucracies rather than spent on behalf of students. It strains political credulity to imagine that American taxpayers would be willing to double or triple spending yet again, or to imagine that bureaucrats will suddenly deploy resources selflessly when they have failed to do so for decades. Additionally, in the absence of structural reform, it is hard to see how disadvantaged students will gain power over a legal system that was, throughout the 1960s and 70s, used to block African Americans from achieving wealth in housing markets or exerting local control over schools. Furthermore, as prominent civil rights commentators have noted, integration is at best only one possible means to the end of school quality for all.
The true failure of Brown and subsequent decisions is that courts never directly empowered disadvantaged students and their families, either through legal standing to sue for better schools, or through financial freedom to leave low-performing schools. Beginning in 1976, state courts overwhelmingly held that students could not sue schools for educational malpractice. Courts also rejected arguments that school choice could be a solution to a legacy of discrimination (1968), or that suburbs should be required to offer buses for urban students to attend successful suburban schools (1974). As former Georgetown Law Center Dean Judith Areen wrote in 1973, education law decisions treated schools as a vehicle for other issues, such as racial politics, rather than protecting students as individuals. As she wrote, “No decisions to date have gone to the heart of the problem of providing a better education for a given child in a particular classroom, a better teaching situation for most teachers, or a more responsive school administration for most parents.”
As recently as the fall of 2015, Washington State’s Supreme Court invalidated the state’s network of charter schools just after the school year had started, creating chaos for the 1,200 students who were enrolled in those schools. Tellingly, the court’s decision was based upon a controversial reading of a 1909 precedent.
In light of these decisions, it is not surprising that education scholar Larry Cuban concludes that educational reforms over the past century “have seldom altered substantially or permanently classroom regularities and low-income students’ academic achievement.”
Why this time might be different
Despite their limited impact, enlightened rulings over the past century have laid useful foundations. The question is whether the current Supreme Court will build upon such foundations to defend the interests of disadvantaged students.
Advocates for low-income families might expect little help from a Court often described as politically conservative. This pessimism misunderstands the way the Court works. For one thing, doctrinal changes often confound “liberal” or “conservative” labels. More than other government agents, courts observe the effects of prior decisions as society evolves. New facts, business models, technologies, and political movements expose flaws in prior precedents. Judges and justices try to adapt the prior frameworks to fit new realities, but pressure builds. When courts, especially the Supreme Court, decide that the old frameworks are unworkable, they have authority to change everything from individual contracts to national law. Furthermore, today’s Court tends to be balanced between the so-called “conservative” faction (Samuel Alito, John Roberts, Antonin Scalia, and Clarence Thomas) and the so-called “liberal” wing (Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor), with the deciding vote cast by swing Justice Anthony Kennedy. Thus, although Kennedy is not the Chief Justice, the outsized importance of his views has led many observers to describe the current court as “the Kennedy Court.”
This matters because Justice Kennedy has favored interpretations of the Fourteenth Amendment and First Amendment that could revolutionize education law.
Consider first the Fourteenth Amendment, which anchored Justice Kennedy’s majority opinion in Obergefell v. Hodges (2015) requiring every state to recognize same-sex marriages. As New York University Professor Kenji Yoshino noted, Justice Kennedy’s Obergefell ruling extends his own prior jurisprudence, as well as that of prior justices such as John Marshall Harlan, to combine the Equal Protection and Due Process Clauses of the Fourteenth Amendment into a strong defense of the rights and equality of subordinated groups. The Obergefell decision applied this reasoning with a fact-based analysis of what would be best for children and for society.
Such thinking, applied to education law, would help discard many ugly and unworkable definitions of the rights and responsibilities of the state, teachers, parents, and students, especially those from disadvantaged backgrounds. Indeed, in some cases, it already has. For instance, as Harvard Law School Dean Martha Minow explained in a recent book, the Equal Protection language of Brown v. Board of Education inspired lawyers to use school choice as a vehicle for child-centered advocacy. Furthermore, Equal Protection language was vital to the court’s decision in Vergara v. California to hold the existing bureaucracy accountable for failing to provide excellent schools to students of color. These trends suggest that courts may finally be answering the call from Georgetown’s Professor Areen, back in 1973, to provide “fresh judicial support for parental rights in education to serve as a counterweight to the almost unchecked power now possessed by state and local officials to operate schools.”
Additional doctrinal opportunities come from the First Amendment, where Justice Kennedy’s vote is even more frequently decisive than in other areas. Dr. Kevin Johnson, a member of the faculty at California State University and an executive with the NAACP, has explained that Justice Kennedy is especially skeptical of local authorities with regards to First Amendment freedoms in educational settings.  This matters greatly because, as Amherst Professor Stephen Arons has explained, First Amendment ideals could extend Pierce v. Society of Sisters to strike down much of the current standardized, compulsory education bureaucracy. The crux of this argument is that the current bureaucracy gives too little weight to the constitutional interests of families and students to obtain differentiated instruction that is better tailored to them.  Although Arons’ article is now 40 years old, his argument is becoming increasingly relevant in the context of new research about customizing education to the needs of diverse students.
Another First Amendment pathway to reform comes in the tension between the First Amendment’s “Establishment Clause” (which prevents the government from “establishing” a religion), and the “Free Exercise Clause” (which allows citizens to practice their religions free from government interference). Traditionalists have long argued that the Establishment Clause bars public funds from being used to subsidize religious education. For Catholic families, however, this creates a financial burden, as they must pay taxes to fund public secular schools while also paying private tuition for their children’s parochial schools. Although courts have declined to hold that the Free Exercise clause creates an obligation for the public to fund religious schools, the Supreme Court held in Zelman v. Simmons-Harris in 2002 that because of the tension between the two clauses, private schools do not violate the federal Constitution. As the libertarian view of the First Amendment gains more authority with the current Court, school voucher advocates are seeking Supreme Court review of state constitutional provisions barring vouchers. As summarized recently by Notre Dame Professor Nicole Garnett, plaintiffs argue that such so-called Blaine Amendments were impermissibly animated by anti-Catholic bias. This argument may be tested in a Colorado case from Douglas County, in which the local school district has appealed to the Supreme Court to be allowed to continue to provide vouchers for students to attend parochial schools.  
A third possible route for the First Amendment to drive reform is how the Friedrichs case might change union politics.  As noted earlier, Rebecca Friedrichs wants to be able to withhold her dues from the California Teachers Association because she does not agree with the CTA’s lobbying positions regarding teacher accountability.  As I have documented elsewhere, substantial numbers of public school teachers agree with Rebecca Friedrichs. The teachers who feel most threatened by school choice and accountability, however, tend to turn out more often for internal union elections.  With turnout hovering at around 20%, the teachers’ union electorate is far more hostile to reform than most teachers. This matters because the teachers’ unions have an annual budget of over $2.2 billion, of which their annual advocacy budget amounts to roughly $700 million. The union leaders who spend these budgets have strong incentives to protect low-performing teachers from the consequences of parent choice or teacher accountability, creating an enormously powerful political force against the interests of students.
If union leaders have to appeal to all teachers in order to obtain dues, however, their political positions will be forced to become more nuanced, opening up the opportunity for pro-reform union leaders to obtain more influence.  Although the Friedrichs decision has not yet been handed down, the Supreme Court’s previous opinions have expressed suspicion of coerced speech, and were widely seen as an invitation by the Court for the arguments of pro-reform teachers in the Friedrichs case.  
Child-centered education law
Decades from now, might we look back at 2015 education law as brutally archaic, especially as viewed from the perspective of children from disadvantaged groups? The United States spends more on primary and secondary public schools than any society in human history, with an annual budget of over $600 billion. These funds are mostly controlled by administrators and teachers who are highly educated, reasonably compensated, and over 80% white, but are distributed for the benefit of public school students who are mostly not white and whose parents mostly do not have a four-year college degree. Parents of color have sought greater control over their children’s education both through choice and local control, but have been repeatedly rebuffed. More power in the hands of families of color would jeopardize the economic interests of a powerful, mostly-white interest group.
The political and financial muscle of the unions, however, matters little to the courts. Indeed, an enlightened judiciary would shift the power balance away from the education bureaucracy, towards those teachers, parents, and students who are currently being marginalized. Successful lawsuits for educational malpractice; activist teachers refusing to pay union dues; and students leaving the system (and taking their public subsidies with them) would all force the system to pay much greater attention to these students’ preferences and outcomes. This, in turn, would redirect America’s $600 billion annual public K-12 budget towards achieving results, turning our schools into hotbeds of innovation that capitalize on the diverse cultures and capabilities of America’s students.

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