What happens to a dream deferred?: Cleansing the taint of San Antonio Independent School District v. Rodriguez

Duke Law Journal

Volumn 55, Issue 2, 2005, Pages 183-218

  Millhiser, Ian ^a  

^a NONE

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EID: 33744820561     PISSN: 00127086     EISSN: 00127086     Source Type: Journal    
DOI: None     Document Type: Review

References (195)

1. Langston Hughes, Harlem (Montage of a Dream Deferred), in THE COLLECTED POEMS OF LANGSTON HUGHES 426 (Arnold Rampersad & David Roessel eds.5 Alfred A. Knopf 1994) (1951).
2. See Brown v. Bd. of Educ. (Brown I), 347 U.S. 483, 493 (1954) ("[Education is .... a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.").
3. Id.
4. The "Southern Strategy" refers to a Republican campaign strategy to appeal to conservative white voters through a thinly veiled message of anti-black racism. Angela P. Harris, Equality Trouble: Sameness and Difference in Twentieth-Century Race Law, 88 CAL. L. REV. 1923, 2000 (2000).
5. For an insider's view of President Nixon's battle to stack the Court with opponents of civil rights, see generally JOHN W. DEAN, THE REHNQUIST CHOICE (2001). One of then-Assistant Attorney General William Rehnquist's first assignments at the Department of Justice was to provide legal advice to the White House's successful campaign to intimidate liberal Justice Abe Fortas into retirement. Id. at 4-12. In replacing Fortas and other departing Justices, Nixon actively sought "strict constructionist" judges, described by Rehnquist as those who "will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs." Id. at 16.
6. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 37 (1973) (refusing to recognize a fundamental right to education). All four of President Nixon's appointees, Chief Justice Burger and Justices Powell, Rehnquist, and Blackmun, voted to deny relief in Rodriguez. Of the pre-Nixon members of the Court, only Justice Stewart joined the majority.
7. 411 U.S. 1(1973).
8. Id. at 58-59.
9. Id. at 29.
10. See id. at 35 ("Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.").
11. John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 DUKE L.J. 1219, 1221 (1993).
12. 411 U.S. at 41.
13. 198 U.S. 45 (1905). Lochner held that labor protections such as maximum hour laws were subject to the highest level of constitutional scrutiny. Id. at 56. This opinion is now almost universally viewed as "unprincipled judicial overreaching" into an area beyond the judiciary's competence. Neal Devins, The Interactive Constitution: An Essay on Clothing Emperors and Searching for Constitutional Truth, 85 GEO. L.J. 691, 693 (1997).
14. See Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 874-76 (1978) (criticizing Lochner not for "activism" but instead for forbidding the legislature to alter the "existing distribution of wealth and entitlements").
15. W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 399 (1937); see also Sunstein, supra note 13, at 876 (quoting same).
16. U.S. CONST, amend. I.
17. See The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79 (1872) (listing, as among the "Privileges and Immunities" of citizenship, the rights "'to come to the seat of government to assert any claim . . . upon that government, to transact any business . . . with it, [and] to seek its protection") (quoting Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 44 (1867)).
18. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938).
19. U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534-35 (1973); see also Romer v. Evans, 517 U.S. 620, 634 (1996) (forbidding laws that exist for the sole purpose of harming a particular group).
20. See Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 50 (1985) ("In no modern case has the Court recognized the legitimacy of pluralist compromise as the exclusive basis for legislation.").
21. See, e.g., Declaration of Constitutional Principles, 102 CONG. REC. 4460, 4515-16 (1956) (statement of Sen. Walter F. George, widely known as "The Southern Manifesto") ("[T]he decision of the Supreme Court in the school cases [is] a clear abuse of judicial power. It climaxes a trend in the Federal Judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people.");
22. Antonin Scalia, Common-Law Courts in a Civil Law System, in A MATTER OF INTERPRETATION 3, 39-40 (1997) (arguing that the common law method of interpreting law is "not the way of construing a democratically adopted text");
23. John G. Roberts, Jr., Draft Article on Judicial Restraint (1981), http://www.archives.gov/news/john-roberts/accession-60-89-0372/doc006.pdf ("A second means by which courts arrogate to themselves functions reserved to the legislative branch or the states is through so-called 'fundamental rights' and 'suspect class' analyses, both of which invite broad judicial scrutiny of the essentially legislative task of classification.").
24. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).
25. Carolene Prods. Co., 304 U.S. at 153 n.4.
26. Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 715 (1985).
27. Id.
28. Id. at 715-16.
29. Id. at 720. Ackerman's essay goes on to critique this pluralist understanding of the Fourteenth Amendment as insufficient to preserve civil rights in the modern era, but he concedes that this understanding is the "first insight" of the Carolene Products decision and the cases stemming from it. Id. at 740.
30. 411 U.S. at 10.
31. For an excellent discussion of this problem of school funding, see generally JOHN E. COONS ET AL., PRIVATE WEALTH AND PUBLIC EDUCATION 38-199 (1970).
32. See Rodriguez, 411 U.S. at 75-76 (Marshall, J., dissenting) ("[T]he poorest districts tend to have the highest tax rates and the richest districts... the lowest tax rates. Yet, despite the apparent extra effort being made by the poorest districts, they are unable even to begin to match the richest districts in terms of the production of local revenues."); COONS, supra note 28, at 50 (explaining that the problem of poorer districts carrying higher tax burdens and yet receiving fewer funds existed for decades before the Rodriguez decision).
33. Ackerman, supra note 23, at 715.
34. See supra notes 14-16 and accompanying text.
35. MORRIS P. FIORINA, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABLISHMENT 39-40 (1977).
36. See THE FEDERALIST NO. 57, at 352 (James Madison) (Clinton Rossiter ed., 1961) (explaining that the purpose of "frequent elections" is "to support in the members [of Congress] an habitual recollection of their dependence on the people"); see also Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 706 (1990) ("Though our era may not be alone in deploring the lack of mechanisms for holding candidates accountable for the votes they cast, that lack of accountability is one of the major concerns of our time.").
37. See FIORINA, supra note 32, at 40 ("Each of us favors an arrangement in which our fellow citizens pay for our benefits.").
38. See U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES 290 (2000), available at http://www.census.gov/prod/2001pubs/statab/sec08.pdf. The Census Bureau provides the following data on the correlation between education levels and voter turnout: It is possible to read this chart as merely demonstrating increased apathy among less-educated voters and thus to dismiss this problem as less-educated voters simply waiving their right to vote. Even if this is the case, given the intimate connection between education and the ability to intelligently exercise the franchise discussed in Part IV, infra, the state should still be held accountable for a system that encourages voters in one school district to waive their rights, while encouraging the opposite in other districts.
39. See infra notes 151-154 and accompanying text (explaining how modern voting rights jurisprudence protects against laws which create obstacles to the lawful exercise of the franchise).
40. See infra Part IV (explaining why an adequate education is a necessary prerequisite to the fundamental right to vote).
41. See Chas. H. Thompson, Court Action the Only Reasonable Alternative to Remedy Immediate Abuses of the Negro Separate School, 4 J. NEGRO EDUC. 419, 422 (1935) ("[I]t is no longer a question of whether Negroes should resort to the courts as a means of removing present abuses. They must resort to the courts. They have no other reasonable, legitimate alternative.");
42. see also Thurgood Marshall, The Legal Attack to Secure Civil Rights, in THURGOOD MARSHALL: HIS SPEECHES, WRITINGS, ARGUMENTS, OPINIONS, AND REMINISCENCES 90, 95 (Mark V. Tushnet ed., 2001). Justice Marshall viewed the United States Supreme Court as a unique bulwark against racism: The threats of many of the bigots in the South to disregard the ruling of the Supreme Court of the United States in the recent Texas Primary decision has not intimidated a single person. . . . Election officials in states affected by this decision will either let Negroes vote in the Democratic Primaries, or they will be subjected to both criminal and civil prosecution . . . . Id.
43. For an account of the NAACP's legal strategy, see generally MARK V. TUSHNET, THE NAACP'S LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) .
44. San Antonio Indep. Seh. Dist. v. Rodriguez, 411 U.S. 1, 71 n.2 (1972) (Marshall, J.5 dissenting); see also Erwin Chemerinsky, The Segregation and Resegregation of American Public Education: The Courts' Role, 81 N.C. L. REV. 1597,1600 (2003) ("Desegregation will not occur without judicial action . . . .").
45. See infra Part II.B (advocating the need for an active judiciary as a weapon against reluctant legislatures); see also Chemerinsky, supra note 38, at 1600 ("[D]esegregation lacks sufficient national and local political support for elected officials to remedy the problem.").
46. See, e.g., Ala. Coalition for Equity, Inc. v. Hunt, Nos. CV-90-883-R, CV-91-0117 (Ala. Cir. Ct., Montgomery County, filed Apr. 1, 1993), reprinted in Opinion of the Justices No. 338, 624 So. 2d 107, 110-11 (Ala. 1993) ("[T] he system of public schools fails to provide equitable and adequate educational opportunities to all schoolchildren . . . ."); Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806, 816 (Ariz. 1994) ("[T]he Arizona Constitution requires the legislature to enact appropriate laws to finance education in the public schools in a way that does not itself create substantial disparities among schools, communities or districts."); DuPree v. Alma Sch. Dist. No. 30, 651 S.W.2d 90, 93 (Ark. 1983) ("[T]he educational opportunity of the children in this state should not be controlled by the fortuitous circumstance of residence . . . ."); Serrano v. Priest (Serrano II), 557 P.2d 929, 951 (Cal. 1976) ("[F]or purposes of assessing our state public school financing system in light of our state constitutional provisions guaranteeing equal protection of the laws (1) discrimination in educational opportunity on the basis of district wealth involves a suspect classification, and (2) education is a fundamental interest."); Rose v. Council for Better Educ., Inc., 790 S. W.2d 186, 215 (Ky. 1989) ("[W]e have, by this decision, declared the system of common schools in Kentucky to be unconstitutional. . . ."); Claremont Sch. Dist. v. Governor, 703 A.2d 1353,1354 (N.H. 1997) ("In this appeal we hold that the present system of financing elementary and secondary public education in New Hampshire is unconstitutional."); Edgewood Indep. Sch. Dist. v. Kirby (Edgewood II), 804 S.W.2d 491, 498 (Tex. 1991) ("[W]e therefore hold as a matter of law that the public school finance system continues to violate article VII, section 1 of the Constitution."); Brigham v. State, 692 A.2d 384, 386 (Vt. 1997) (per curiam) ("[T]he current system for funding public education in Vermont, with its substantial dependence on local property taxes and resultant wide disparities in revenues available to local school districts, deprives children of an equal educational opportunity in violation of the Vermont Constitution.").
47. See Liz Kramer, Achieving Equitable Education Through the Courts: A Comparative Analysis of Three States, 31 J.L. & EDUC. 1, 6 (2002) (noting that although Rodriguez-style suits have been brought in at least forty-three different states, only nineteen state courts have ruled in the plaintiffs' favor).
48. DeRolph v. State, 677 N.E.2d 733, 781 (Ohio 1997) (Pfeifer, J., concurring); see also San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 132 (1973) (Marshall, J., dissenting) ("The Court's suggestions of legislative redress and experimentation will doubtless be of great comfort to the schoolchildren of Texas' disadvantaged districts, but considering the vested interests of wealthy school districts in the preservation of the status quo, they are worth little more.").
49. 651 S.W.2d 90 (Ark. 1983). For a helpful summary of Rodriguez-type litigation in Arkansas, see generally David R. Matthews, Lessons From Lake View: Some Questions and Answers from Lake View School District No. 25 v. Huckabee, 56 ARK. L. REV. 519 (2003).
50. 651 S.W.2d at 93.
51. Id at 92.
52. Id.
53. Id at 96 (Hickman, J., concurring).
54. See Lake View Sch. Dist. No. 25 v. Huckabee (Lake View III), 91 S.W.3d 472, 477 (Ark. 2002) ("On November 9,1994, then-chancery judge Annabelle Clinton Imber found that the school-funding system did not violate the United States Constitution, but that it did violate the Education Article (Article 14, § 1) and the Equality provisions (Article 2, § § 2, 3, and 18) of the Arkansas Constitution."). Judge (now Justice) Imber's original opinion is unpublished.
55. 10 S.W.3d 892 (Ark. 2000). Lake View I was a 1996 Arkansas Supreme Court decision dismissing an appeal for lack of a final judgment. See Tucker v. Lake View Sch. Dist. No. 25, 917 S.W.2d 530, 533 (Ark. 1996) (dismissing an appeal from the Pulaski County Chancery Court for lack of a final order).
56. See 10 S.W.3d at 894 ("[Disparities in per pupil expenditures in the 1992/93 school year ranged from $4, 064 spent per pupil in the Little Rock School District to $2,270 spent per pupil in the Mountain View School District.").
57. 91 S.W.3d 472 (Ark. 2002).
58. See id. at 495 ("[T]he State has not fulfilled its constitutional duty to provide the children of this state with a general, suitable, and efficient school-funding system. Accordingly, we hold that the current school-funding system violates the Education Article of the Arkansas Constitution . . . ."). The court's holding in Lake View III went beyond that of their holding in DuPree. Although DuPree merely held that public school students have an equal protection right to equal funding regardless of district, 651 S.W.2d at 93, Lake View III held both that "the current school-funding system violates the equal-protection sections of the Arkansas Constitution," 91 S.W.Sd at 500, and that "the State has an absolute duty under our constitution to provide an adequate education to each school child," id. at 495.
59. Lake View III, 91 S.W.3d at 497.
60. Id. at 498.
61. Id. at 511.
62. See Matthews, supra note 43. at 540 ("A mandatory injunction ordering the State Treasurer to 'adequately' fund the education system seems a likely prospective remedy.").
63. See Lake View Sch. Dist. No. 25 v. Huckabee (Lake View IV), No. 01-836, 2004 Ark. LEXIS 425, at *40 (Ark. June 18, 2004) ("[W]e release jurisdiction of this case and the mandate will issue.").
64. Id at *35.
65. Id at *40-41 (quotation omitted).
66. Id. at *66-67 (Corbin, J., dissenting) (citation omitted).
67. Robinson v. Cahill, 303 A.2d 273, 294 (N.J. 1973) ("A system of instruction in any district of the State which is not thorough and efficient falls short of the constitutional command.").
68. The New Jersey Supreme Court held: Our Constitution requires that public school children be given the opportunity to receive a thorough and efficient education. . . . It is against that backdrop, and the inescapable reality of a continuing profound constitutional deprivation that has penalized generations of children, that one must evaluate an alternative, "wait and see" approach. . . . In light of the constitutional rights at stake, the persistence and depth of the constitutional deprivation, and in the absence of any real prospect for genuine educational improvement in the most needy districts, that approach is no longer an option. Abbott v. Burke (Abbott IV), 693 A.2d 417, 445 (N.J. 1997).
69. See Guinn v. Legislature of Nev, 71 P.3d 1269, 1276 (Nev. 2003) ("The Legislature must resume its work of funding education and selecting appropriate methods of revenue generation to balance the state's budget.").
70. See Ala. Coalition for Equity, Inc. v. Hunt, Nos. CV-90-883-R, CV-91-0117 (Ala. Cir. Ct., Montgomery County, filed Apr. 1, 1993), reprinted in Opinion of the Justices No. 338, 624 So. 2d 107, 110-11 (Ala. 1993) ("[T] he system of public schools fails to provide equitable and adequate educational opportunities to all schoolchildren . . . .").
71. See ALA. CONST, amend. DLXXXII ("No order of a state court, which requires disbursement of state funds, shall be binding on the state or any state official until the order has been approved by a simple majority of both houses of the Legislature.").
72. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 58 (1973).
73. 402 U.S. 1(1971).
74. Id. at 15.
75. U.S. DEP'T OF JUSTICE, OFFICE OF LEGAL POL'Y, GUIDELINES ON CONSTITUTIONAL LITIGATION 3 (Feb. 19, 1988) [hereinafter GUIDELINES] ("[Government attorneys should advance constitutional arguments based only on [the] 'original meaning.'").
76. Id. at 118.
77. See Bd. of Educ. v. Dowell, 498 U.S. 237, 247 (1991) (holding that previously segregated schools were free to resegregate once a moment of integration was achieved).
78. 402 U.S. at 13.
79. 347 U.S. 483 (1954).
80. 349 U.S. 294 (1955).
81. Id. at 301.
82. MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 319 (2004).
83. Id.
84. Id.
85. 349 U.S. at 300.
86. KLARMAN, supra note 76, at 319.
87. See id. at 320 ("That Brown II was a mistake from the Court's perspective was quickly apparent.").
88. Id.
89. Declaration of Constitutional Principles, supra note 20, at 4460.
90. See KLARMAN, supra note 76, at 320 ("To say that Brown II was misguided is not to say that the justices calculated foolishly.").
91. Griffin v. County Sch. Bd., 377 U.S. 218, 229 (1964).
92. Milliken v. Bradley (Milliken I), 418 U.S. 717 (1974).
93. Id. at 746-47 ("Unless petitioners drew the district lines in a discriminatory fashion, or arranged for white students residing in the Detroit District to attend schools in Oakland and Macomb Counties, they were under no constitutional duty to make provisions for Negro students to do so.").
94. See id. at 747 n.22 ("[T]he constitutional principles applicable in school desegregation cases cannot vary in accordance with the size or population dispersal of the particular city, county, or school district as compared with neighboring areas.").
95. Milliken v. Bradley (Milliken II), 433 U.S. 267, 279 (1977).
96. Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (Harlan, J., dissenting).
97. 498 U.S. 237(1991).
98. Id at 247.
99. Id at 244.
100. See GARY ORFIELD & SUSAN E. EATON, DISMANTLING DESEGREGATION: THE QUIET REVERSAL OF BROWN V. BOARD OF EDUCATION 19 (1996) ("A court-supervised district that has never been declared unitary is obligated under the law to avoid actions that create segregated and unequal schools. But after a declaration of unitary status, the courts presume any government action creating racially segregated schools to be innocent. . . .").
101. GUIDELINES, supra note 69, at 120.
102. ERICA FRANKENBERG ET AL, A MULTIRACIAL SOCIETY WITH SEGREGATED SCHOOLS: ARE WE LOSING THE DREAM? 37 tbl.10 (2003), http://www.civilrightsproject.harvard.edu/research/reseg03/ AreWeLosingtheDream.pdf.
103. Id. Although the Supreme Court first allowed a "unitary" district to be resegregated in 1991, the process began five years earlier with the Fourth Circuit's decision in Riddick v. School Board of Norfolk, 784 F.2d 521 (4th Cir. 1986). Riddick was the first federal court case to allow a school district, once declared unitary, to return to segregated neighborhood schools. See id. at 535 ("[O]nce the goal of a unitary school system is achieved, the district court's role ends."); ORFIELD & EATON, supra note 94, at xxiii (explaining that Riddick was the first federal case to allow a unitary school district to dismantle its desegregation plan).
104. FRANKENBERG ET AL., supra note 96, at 37 tbl. 10.
105. ORFIELD & EATON, supra note 94, at 20.
106. Price v. Austin Indep. Sch. Dist, 945 F.2d 1307, 1322 (5th Cir. 1991) (Wisdom, J., specially concurring).
107. Id. at 1313-14.
108. ORFIELD & EATON, supra note 94, at 20.
109. Price, 945 F.2d at 1322 (Wisdom, J., specially concurring).
110. JACK M. BALKIN, WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID x-xi (2001).
111. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).
112. See infra Part III (describing the courts' power to impose affirmative duties upon states violating the Constitution).
113. See supra notes 52-60 and accompanying text (chronicling the Arkansas legislature's defiance of a court order).
114. CHARLES J. OGLETREE, JR., ALL DELIBERATE SPEED 124 (2004);
115. see also Chemerinsky, supra note 38, at 1604 ("One must ask whether it would have made a difference had the Supreme Court in Brown II, or [in] a case soon thereafter, imposed timetables and detailed remedies for desegregation.").
116. See OGLETREE, supra note 108, at 125 ("[F] Freedom-of-choice plans emerged as the most common response to Brown. These plans repeatedly failed to yield any significant desegregation."). Freedom-of-choice plans allowed black children to choose to attend historically white schools, but did not mandate integration. See Briggs v. Elliott, 132 F. Supp. 776, 777 (E.D.S. C. 1955) (per curiam) (upholding South Carolina's freedom-of-choice plan). Shortly after Brown, many federal district courts engaged in tenuous legal arguments to justify their constitutionality. See, e.g., id. ("[N]o violation of the Constitution is involved even though the children of different races voluntarily attend different schools, as they attend different churches."). These plans were eventually declared unconstitutional where they failed to effectively bring about integration. Green v. County Sch. Bd., 391 U.S. 430, 440 (1968) ("'Freedom of choice' is not a sacred talisman; it is only a means to a constitutionally required end .... If the means prove effective, it is acceptable, but if it fails to undo segregation, other means must be used to achieve this end.'" (quoting Bowman v. County Sch. Bd., 382 F.2d 326, 333 (4th Cir. 1967) (Sobeloff, J., concurring) (footnote omitted))).
117. See OGLETREE, supra note 108, at 130 (describing the Southern interposition movement, which claimed that states had the authority to protect their citizens from unjust actions by the federal government).
118. See id. at 128-29 (describing the two governors' use of segregation as the focal point of their election strategy). As Professor Ogletree explains, both Wallace and Faubus "began as moderates on race issues, but later found that the key to success lay in vehemently opposing integration." Id. at 128. When Wallace lost his 1960 bid for the Democratic gubernatorial nomination in Alabama, he famously "declared that he would never be 'outniggered' again." Id.
119. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28 (1971).
120. See Chemerinsky, supra note 38, at 1601 ("Four Justices appointed by President Richard Nixon are largely to blame for the decisions of the 1970s . . . .").
121. See supra notes 42-65 and accompanying text.
122. Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).
123. See Chemerinsky, supra note 38, at 1620 (suggesting that if the Court had provided more aggressive remedies in the years between Brown and Swann, desegregation might have occurred more quickly).
124. Cf. Green v. County Sch. Bd., 391 U.S. 430, 437-38 (1968) ("School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.").
125. See U.S. CONST, art. Ill, § 2, cl. 1 ("The judicial Power shall extend to all Cases . . . arising under this Constitution . . . ."); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.").
126. See supra notes 86-103 and accompanying text (explaining that Court's refusal to grant meaningful remedies in the Bradley and Dow ell cases).
127. Marbury, 5 U.S. (1 Cranch) at 179.
128. See supra notes 15-16 and accompanying text (arguing that the courts should remain active in areas that cannot be effectively governed by the other branches).
129. 372 U.S. 335 (1963).
130. See id. at 344 (holding that a fair trial cannot be achieved "if the poor man charged with crime has to face his accusers without a lawyer to assist him").
131. Id at 343 (quoting Johnson v. Zerbst, 304 U.S. 458, 462 (1938)).
132. Id at 344.
133. 470 U.S. 68 (1985).
134. See id. at 74 ("[W]hen a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one.").
135. Id at 76.
136. 384 U.S. 436 (1966).
137. Id at 468.
138. Id. at 467-74. Admittedly, the constitutional status of Miranda has fluctuated. In Michigan v. Tucker, 417 U.S. 433 (1974), the Court held that Miranda warnings "were not themselves rights protected by the Constitution," but rather were designed "to provide practical reinforcement for the right against compulsory self-incrimination." Id. at 444. In Dickerson v. United States, 530 U.S. 428 (2000), however, the Court reaffirmed that Miranda was "constitutionally based." Id. at 440.
139. 403 U.S. 388 (1971).
140. Id. at 391-92; see also Carlson v. Green, 446 U.S. 14, 17-18 (1980) (holding a right to sue to be implicit in the Eighth Amendment); Davis v. Passman, 442 U.S. 228, 248-49 (1979) (holding a similar right to sue to be implicit in the Fifth Amendment).
141. Bivens, 403 U.S. at 409-10 (Harlan, J., concurring in the judgment).
142. 462 U.S. 367 (1983).
143. Id. at 368, 370.
144. See id. at 388 ("The question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system . . . should be augmented by the creation of a new judicial remedy for the constitutional violation at issue.").
145. 487 U.S. 412 (1988).
146. See id. at 424-29 ("Congress is ... charged with making the inevitable compromises required in the design of a massive and complex welfare benefits program. Congress has discharged that responsibility to the extent that it affects the case before us, and we see no legal basis that would allow us to revise its decision." (citation omitted)).
147. 391 U.S. 430 (1968).
148. Id. at 437-38.
149. 402 U.S. 1(1971).
150. See id. at 29-31 (1971) (upholding mandatory busing of white students to traditionally black schools and black students to traditionally white schools).
151. 489 U.S. 189 (1989).
152. Id. at 196.
153. Id. Professor Steven Heyman, in an article published shortly after the Court's decision in DeShaney, argues that Chief Justice Rehnquist mischaracterized history in asserting that affirmative rights are inconsistent with the Framers' intent. See Steven J. Heyman, The First Duty of Government: Protection, Liberty and the Fourteenth Amendment, 41 DUKE L.J. 507, 509 (1992) ("[T] he congressional debates on the Fourteenth Amendment show that establishing a federal constitutional right to protection was one of the central purposes of the Amendment.");
154. see also Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong. 113 (1987) (statement of Judge Bork) ("Any judge who thought today he would go back to the original intent really ought to be accompanied by a guardian rather than be sitting on a bench.").
155. 489 U.S. at 198.
156. Id.
157. Id. at 199.
158. Id. (quotations omitted).
159. See Bush v. Gore, 531 U.S. 98, 104 (2000) ("When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter."); Harper v. Va. Bd. of Elections, 383 U.S. 663, 665 (1966) ("[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment."); Reynolds v. Sims, 377 U.S. 533, 555 (1964) ("[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote justas effectively as by wholly prohibiting the free exercise of the franchise.").
160. See, e.g., Richardson v. Ramirez, 418 U.S. 24, 56 (1974) (allowing a state to disenfranchise convicted felons); Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 53-54 (1959) (allowing a state to disenfranchise individuals who fail a literacy test).
161. An "adequate education" as used here is defined as an education which provides those skills necessary to the intelligent exercise of the franchise. Part V, infra, provides a methodology for determining which skills fit this criteria.
162. Voting Rights Act of 1965, 42 U.S.C. § 1973aa(a) (2000) ("No citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election conducted in any State or political subdivision of a State.").
163. Letter from James Madison to W.T. Barry (Aug. 4, 1822), reprinted in THE COMPLETE MADISON 337 (Saul K. Padover ed., 1953).
164. See Illinois ex rel. McCollum v. Bd. of Educ, 333 U.S. 203, 214-15 (1948) (Frankfurter, J., concurring) (describing the birth of the secular public school and Horace Mann's role in its inception).
165. HORACE MANN, THE REPUBLIC AND THE SCHOOL: HORACE MANN ON THE EDUCATION OF FREE MEN 63 (Lawrence A. Cremin ed., Teachers Coll. Press 1957) (1846).
166. Rosemary C. Salomone, Common Schools, Uncommon Values: Listening to the Voices of Dissent, 14 YALE L. & POL'Y REV. 169, 174 (1996).
167. 406 U.S. 205 (1972).
168. Id. at 221.
169. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36 (1973).
170. Roth v. United States, 354 U.S. 476, 484 (1957).
171. See Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 52 (1959) (arguing that the ability to understand "newspapers, periodicals, books, and other printed matter" may be essential to exercising the franchise). A recent University of Maryland study highlights the crucial import of training voters to select from the cacophony of news sources. See STEVEN KULL ET AL., PROGRAM ON INTERNATIONAL POLICY ATTITUDES, MISPERCEPTIONS, THE MEDIA AND THE IRAQ WAR 7, 12-20 (2003), http://www.pipa.org/OnlineReports/Iraq/Media 10 02 03 Report.pdf (2003). The Kull study asked respondents whether they believed in the veracity of three false statements: (1) "Evidence of links between Iraq and al-Qaeda have been found"; (2) "Weapons of mass destruction have been found in Iraq"; and (3) "World public opinion favored the US going to war with Iraq." Id. at 7. Although only 23 percent of persons who were primarily informed by PB S or NPR believed one or more of the (incorrect) statements, 55 percent of CNN and NBC watchers were victims of misinformation, and 80 percent of FOX News viewers were misinformed regarding the Iraq war. Id. at 13. These misperceptions had a strong correlation with respondents' political preference. Although supporters of President Bush had a 45 percent chance of believing each of the false statements, supporters of the Democrats had only a 17 percent chance of believing each false statement. Id. at 18. This data suggests that some news sources better inform their consumers than others, and that those consumers must possess a baseline of knowledge to distinguish between good, bad and intentionally misleading journalism.
172. 360 U.S. 45 (1959).
173. Id at 52.
174. 42 U.S.C. § 1973aa(a) (2000).
175. 377 U.S. 533 (1964).
176. Id at 562.
177. See supra note 35 and accompanying text.
178. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36-37 (1973).
179. This question was originally posed as, "Why education and not golf?" in Professor Frank Michelman's seminal article on the Constitution and the poor. Frank I. Michelman, The Supreme Court, 1968 Term-Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7, 59 (1969).
180. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
181. Professor Cass Sunstein argues that the very purpose of the Due Process Clause is to prevent radical actions by single states:
182. From its inception, the Due Process Clause has been interpreted largely (though not exclusively) to protect traditional practices against short-run departures. The clause has therefore been associated with a particular conception of judicial review, one that sees the courts as safeguards against novel developments brought about by temporary majorities who are insufficiently sensitive to the claims of history.
183. Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. CHI. L. REV. 1161, 1163 (1988).
184. 539 U.S. 558 (2003).
185. Id. at 570.
186. 536 U.S. 304 (2002).
187. See id. at 315-16 ("[T]he large number of States prohibiting the execution of mentally retarded persons. . . provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal.").
188. Roper v. Simmons, 125 S. Ct. 1183, 1194 (2005) ("A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment."). Admittedly, Roper and Atkins provide less support for the argument that the Court should seek guidance from the states in educational civil rights cases than does Lawrence because the Eighth Amendment has long been interpreted to consider "'evolving standards of decency.1" Id. at 1190 (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1985)).
189. See 20 U.S.C. § 631 l(b)(l)(C) (Supp. I 2001) ("The State shall have . . . academic standards for all public elementary school and secondary school children ... [and such standards] shall include the ... knowledge, skills, and levels of achievement expected of all children.").
190. See id. § 631 l(b)(2)(A) ("Each State plan shall demonstrate that the State has developed and is implementing a single, statewide State accountability system . . . ."). Statewide standards and assessments were common in many states long before No Child Left Behind became law. See Jennifer R. Rowe, High School Exit Exams Meet IDEA-An Examination of the History, Legal Ramifications, and Implications for Local School Administrators and Teachers, 2004 BYU EDUC. & L.J. 75, 89-95 (chronicling the history of high school exit exams from the 1970s to the present).
191. See Jaime Escalante & Jack Dirmann, The Jaime Escalante Math Program, 59 J. OF NEGRO EDUC. 407, 407-08 (1990) (explaining the success of the "Escalante Math Program," which teaches calculus to nearly two hundred inner city students each year);
192. Peter H. Gibbon, A Teacher's Tough Model, WASH. POST, Oct. 12, 2004, at A23 ("[The teacher] .... moved to Hobart Elementary School in Los Angeles to teach students who lived in poor neighborhoods and knew little English. . . . His students read 'The Adventures of Huckleberry Finn' and The Crucible. They play Vivaldi, perform King Lear and outperform other students on standardized tests.");
193. Lynn Rosellini Getting Young Lives in Line, U.S. NEWS & WORLD REP., Mar. 22, 2004, at 87 ("Most KIPP students are poor and enter with reading and math skills well below grade level. Yet the schools have consistently taken disadvantaged children and dramatically boosted their academic achievement.").
194. See supra note 181 and accompanying text.
195. See supra notes 69-71 (describing the Guidelines' view of equitable relief).