Education, equality, and national citizenship.

• Author: Liu, Goodwin

ARTICLE CONTENTS INTRODUCTION I. CONCEPTUAL GROUNDWORK A. Citizenship and Equality B. Educational Adequacy for Equal Citizenship II. THE GUARANTEE OF NATIONAL CITIZENSHIP A. The Emergence of National Citizenship B. Securing the Citizenship Guarantee 1. National Citizenship as a Source of Substantive Rights 2. Federal Enforcement Through Primary, Direct Legislation 3. Federal Enforcement as a Constitutional Duty III. EDUCATION AND NATIONAL CITIZENSHIP A. 1866-1870: The Freedmen's Bureau and the Department of Education B. 1870-1871: The Hoar Bill To Establish a National System of Education C. 1872: The Perce Bill To Apply Public Land Proceeds to Education D. 1882-2890: The Blair Bills To Aid Public Schools Through Direct Appropriations from the National Treasury E. Educational Adequacy: Then and Now IV. POLICY IMPLICATIONS A. Education and the Federal Role B. Beyond Education C. Beyond Citizenship CONCLUSION INTRODUCTION

In recent decades, the educational plight of disadvantaged schoolchildren, once an absorbing concern of federal constitutional law, (1) has managed to draw sustained legal attention mainly in the state courts. Relying on education clauses in state constitutions, lawyers working together with school experts have filed suits in forty-five states arguing for fairer distribution of educational opportunity. Educational adequacy claims, in particular, have lately found a receptive audience, (2) and the available evidence shows that successful litigation has resulted in a modest reduction of inequality between school districts within states. (3)

The momentum behind these efforts is a welcome development in education law and policy. But its potential to advance a national goal of equal educational opportunity is limited by a sobering and largely neglected fact: the most significant component of educational inequality across the nation is not inequality within states but inequality between states. As economists Sheila Murray, William Evans, and Robert Schwab have observed, "[D]ifferences in spending between ... New Jersey, California, and Texas are much more important than differences in spending between Trenton, Sacramento, and Austin and their suburbs." (4) Based on school finance data from 1972 to 1992, they found that "roughly two-thirds of nationwide inequality in [district] spending is between states and only one-third is within states." (5) In other words, even if we were to eliminate disparities between school districts within each state, large disparities across states would remain. Moreover, the burden of such disparities tends to fall most heavily on disadvantaged children with the greatest educational needs. (6)

These facts speak clearly to the need for a national approach to the distribution of educational opportunity. Yet our current policies do virtually nothing to ensure adequacy or equality of opportunity according to a national standard. The No Child Left Behind Act of 2001 (NCLB), for example, expressly permits each state to decide what its students should learn and how well they should learn it. (7) Further, as Congress's researchers have observed, "virtually all current debate over school finance equalization in the United States is focused on equalization among [districts] within states, not on expenditure disparities across states." (8)

The lack of policy attention to this problem mirrors the absence of legal theory that treats the national distribution of educational opportunity as a matter of constitutional concern. Given the history of state and local practices relegating minority children to inferior schools, it is unsurprising that lawyers and scholars have often turned to the injunction against officially sanctioned discrimination in the Equal Protection Clause. But equal protection has been less potent in addressing disadvantage that cannot readily be traced to official design or that affects a diffuse or amorphous class. In such circumstances, the "substantive" dimension of disadvantage--the practical importance of an absolute or relative deprivation, apart from its causal origin--has had only a shadowy presence in equal protection doctrine. (9) Although the constitutional text does not compel this result, (10) the Equal Protection Clause is easily read to suggest mere evenhandedness as its core principle. Indeed, Brown v. Board of Education itself stated that educational "opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms" (11)--as if each state were free to decide what level of opportunity, if any, to provide.

This Article argues that the Fourteenth Amendment authorizes and obligates Congress to ensure a meaningful floor of educational opportunity throughout the nation. But instead of parsing the Equal Protection Clause, the perspective I aim to develop focuses on the Fourteenth Amendment's opening words, the Citizenship Clause. (12) Before the Fourteenth Amendment mandates equal protection of the laws, it guarantees national citizenship. This guarantee is affirmatively declared; it is not merely protected against state abridgment. Moreover, the guarantee does more than designate a legal status. (13) Together with Section 5, (14) it obligates the national government to secure the full membership, effective participation, and equal dignity of all citizens in the national community. This obligation, I argue, encompasses a legislative duty to ensure that all children have adequate educational opportunity for equal citizenship.

For familiar reasons, the constitutional guarantee of national citizenship has never realized its potential to be a generative source of substantive rights. It was neutered by a reactionary Supreme Court that perverted the essential meaning of the Civil War Amendments and helped undermine Reconstruction. (15) Nevertheless, contemporaneous interpreters beyond the five-Justice majority in the Slaughter-House Cases recognized national citizenship as a font of substantive guarantees that Congress had the power and duty to enforce. Justice John Marshall Harlan elaborated this view in his lone dissent in the Civil Rights Cases, describing the fundamental transformation of nationhood wrought by the Citizenship Clause. (16) Moreover, this understanding of national citizenship undergirded a series of proposals in Congress between 1870 and 1890 seeking to establish a strong federal role in public education that would, among other things, narrow educational disparities among the reunified states. These early proposals, which Congress vigorously debated and nearly passed, illuminate what many leaders of the Framing generation believed to be the scope of federal authority and responsibility to secure full and equal national citizenship. Their perspective bears directly on the maldistribution of educational opportunity across the nation today.

By recovering this strand of constitutional thought, this Article aims to instantiate what William Forbath has called the "social citizenship tradition" in our constitutional heritage. (17) At its core, the tradition holds that there is a "basic human equality associated with the concept of full membership of a community" and that it is the duty of government to ensure the civil and political as well as social and economic prerequisites for the realization of this equality. (18) In pursuit of these commitments, the tradition challenges two aspects of how we typically understand constitutional law.

First, contrary to the conventional wisdom that "the Constitution is a charter of negative rather than positive liberties," (19) the social citizenship tradition assigns equal constitutional status to negative rights against government oppression and positive rights to government assistance on the ground that both are essential to liberty. The concept of positive rights, while disfavored in Supreme Court doctrine, (20) has never been far from the core ideals of the nation's transformative moments. It was part of the ideology of emancipation and Reconstruction. (21) It animated the New Deal constitutional vision and President Franklin Roosevelt's call for a "Second Bill of Rights." (22) And it found brief expression in the fundamental rights strand of equal protection doctrine during the Great Society. (23) Moreover, as Cass Sunstein and David Currie have observed, positive rights to government assistance inhere in a variety of traditionally "negative" constitutional protections, although this reality is obscured by baseline "assumptions about ... the natural or desirable functions of government." (24) Neither the text nor the history of the Constitution forecloses a reading of its broad guarantees to encompass positive rights, and the experiences of other nations suggest that the existence of such rights is compatible with constitutionalism. (25)

The near absence of social and economic rights in our constitutional law implicates a second assumption about constitutional meaning that the social citizenship tradition rejects. The general assumption of lawyers and lay people alike is that the meaning of the Constitution is fixed by the courts. Our legal culture treats constitutional questions as questions of ordinary law, and as such, constitutional questions are quintessentially adjudicative questions, i.e., questions that are emphatically the province and duty of courts to decide. (26) Because the Supreme Court has refused to squarely recognize fundamental rights to education, welfare, and other government aid, we are taught to believe that no substantive obligations exist in these areas.

As a growing body of scholarship suggests, however, it is a mistake to equate the adjudicated Constitution with the full meaning of the Constitution itself. (27) Whatever answer a court might give to whether the Constitution guarantees minimum entitlements to social and economic welfare, it will be encumbered by considerations of judicial restraint arising from the...