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- Title
FEDERALISM AND FEDERAL RIGHTS MINIMALISM: OVERLOOKED EFFECTS ON STATE COURT EDUCATION LITIGATION IN WISCONSIN.
- Authors
HERSHKOFF, HELEN; YAFFE, NATHAN D.
- Abstract
In 1973, the U.S. Supreme Court in San Antonio Independent School District v. Rodriguez held that education is not a fundamental right under the Fourteenth Amendment and that the Equal Protection Clause did not bar the state of Texas from using a system of school funding that produced radically unequal educational opportunities for students in low-wealth communities relative to those in more affluent districts. Federal defeat is said to have incentivized advocates seeking to improve and equalize public schooling to turn in their litigation efforts from federal court to state courts and from the Federal Constitution to state constitutions, which contain explicit provisions for education. Four decades later, an emergent scholarly movement now celebrates--or, at least, gives two cheers to--the Supreme Court's rejection of education as an unenumerated federal constitutional right on the view that it opened up space for local solutions and increased self-governance, pointing to the dozens of state court decisions that have recognized or sought to enforce state constitutional rights to education not available under federal law. This Essay sounds a cautionary note about today's "New 'New Judicial Federalism,'" questioning its descriptive foundation and its normative conclusions. In particular, we look at state constitutional education litigation in Wisconsin as a case study that challenges the purported benefits for education rights of the earlier so-called New Judicial Federalism. We make three claims. First, rather than opening up political space in Wisconsin for equalizing and improving public schools, the Supreme Court narrowed democratic options by "Lochnerizing" local control and enabling the Wisconsin court to hard wire that concept into the Wisconsin Constitution despite its absence from the state education provision. Second, the Court's rights-negating decision in Rodriguez (followed by others likewise rejecting education as fundamental) mobilized local opposition in Wisconsin against state education equalization efforts, giving these groups jurisprudential leverage to block democratic reforms that could have improved public schooling for Black, Brown, and poor children. Finally, Rodriguez and its progeny enabled the Wisconsin court to treat public schooling as a mere policy concern, rather than as a constitutional commitment, and thus as a matter that could be left to politics and ultimately to the market--which, in our view, served to erode the democratic foundation of public schooling in the state. We then examine the harmful educational trends that followed in the wake of Rodriguez and the Wisconsin court's education decisions. We conclude with reflections on an alternative theory of federalism that would treat states as partners both with the federal government and with social movements in the construction of a robust right to education under both state and federal law.
- Subjects
WISCONSIN; EDUCATION lawsuits; FEDERAL government; RIGHT to education; PUBLIC schools
- Publication
Wisconsin Law Review, 2021, Vol 2021, Issue 5, p1011
- ISSN
0043-650X
- Publication type
Article