The Constitutional Compromise to Guarantee Education.

• Author: Black, Derek W.

Table of Contents Introduction I. Modern Dilemmas: Localism, Privilege, and Entrenchment A. The Danger of Localism B. Privileging the Majority C. Entrenching Power and Advantage II. The Promises and Pitfalls of Prior Theories and Litigation A. Scholarly Attempts to Rework Rodriguez B. Scholarly Theories to Move Beyond Rodriguez C. New Litigation Claims D. Limits of Current Strategies III. The Fourteenth Amendment's Guarantee: Educated Citizens in a Republican Form of Government A. Constitutionalizing Full Citizenship B. The Meaning of Full Citizenship: Status, Voting, and Education C. Education, Readmission, and the Ratification of the Fourteenth Amendment 1. The educational imperative in the South 2. Conditions on Southern readmission to the Union 3. Education as inherent in a republican form of government 4. The uniform inclusion of education clauses in Southern constitutions 5. A new nationwide consensus of the states emerges 6. The constitutional, structural, and political virtues of an education compromise 7. Why the right has been overlooked IV. Protecting Citizens' Education in a Republican Form of Government A. Education as a Process-Based Constitutional Right B. State Constitutional Efforts to Shield Education from Manipulation 1. Common school funds 2. Isolating education from localized decisionmaking 3. Uniform systems of education C. Identifying Procedural Principles and Protections 1. Unstable funding 2. Political manipulation and targeted disadvantage 3. Systemic disadvantage D. Causes of Action and Congressional Power E. A Response to Doctrinal and Political Reservations Conclusion Introduction

While desegregation, (1) school funding litigation, (2) and federal policy (3) significantly reduced educational inequality during the second half of the twentieth century, that inequality has steadily increased ever since The percentage of intensely racially segregated nonwhite schools, for instance, has more than tripled over the last twenty-five years. (4) In 2013, low-income students became a majority in public schools for the first time in history. (5) The average black student now attends a school where nearly 70% of her peers are poor--almost double the percentage from 1993. (6) To make matters worse, in the past decade, states have drastically cut education funding--by more than 2096 in some states. (7) State supreme courts that previously intervened to block egregious cuts of this sort have largely disengaged in recent years. (8) Even the U.S. Department of Education, once a consistent check on educational inequality, is retreating from its historical role. (9)

Without legal intervention, educational opportunities in disadvantaged communities appear increasingly subject to the whims of political majorities. Political majorities are enacting education policies that serve the interests of some communities while seriously disadvantaging others. (10) Over time, educational disadvantage can become intractable. Some communities are deprived of the education they need to exert themselves in the political process, and others with vested interests have no desire to change the system. (11)

The Supreme Court is not oblivious to these types of problems. Although the Court rejected education as a fundamental right in San Antonio Independent School District v. Rodriguez, (12) in nearly every other case, the Court has gone out of its way to emphasize the importance of education. (13) This emphasis suggests an openness to extending some level of constitutional protection to education or, at least, an unwillingness to foreclose the possibility. (14)

Two new lower court cases may offer the Court a perfect opportunity to finally turn innuendo into doctrine. In the summer of 2016, two different groups filed federal lawsuits, each claiming that the educational inequalities in its state violate the federal Constitution. (15) Both lawsuits emphasize various factual and doctrinal developments since Rodriguez that could provide a basis for recognizing a federal right to education, albeit a more modest educational right than the one the Court rejected in Rodriguez. (16)

To recognize a right of education would represent a significant doctrinal shift from the precedent of the last half-century. Such a shift requires a compelling affirmative constitutional theory. Thus far, that theory is nowhere to be found. (17) Scholars have made modest forays but, for the most part, have made policy-based pleas to overturn Rodriguez. (18) Goodwin Liu offered the most progressive theory, positing that education is a privilege or immunity of national citizenship guaranteed by the Fourteenth Amendment, but acknowledging that the right primarily rests on the good-faith efforts of Congress, not the courts, to support education. (19)

This Article demonstrates that the original intent behind the Fourteenth Amendment included a commitment to guarantee education as a core aspect of state citizenship. This conclusion is grounded in the Amendment's explicit guarantee of state citizenship and the twin pillars of state citizenship at the time: education and voting. (20) Indeed, extensive evidence establishes that education was just as important to securing full citizenship as voting. (21) Simply put, the Fourteenth Amendment guaranteed citizenship, and citizenship required education.

This basic concept has gone unnoticed because of the unusually complex ratification of the Fourteenth Amendment. (22) A full understanding of the ratification process reveals how securing public education for all was part of the original intent underlying the Amendment. (23) The Fourteenth Amendment required assent from both Southern and Northern states, but most Southern states had yet to rejoin the Union when the ratification process began. To rejoin the Union, Southern states needed to meet the terms Congress stipulated in the Reconstruction Act of 1867. (24) And those terms included ratifying the Fourteenth Amendment. (25) Thus, Southern readmission and the ratification of the Fourteenth Amendment were deeply intertwined.

This matters because the other terms and processes of Southern readmission came to define the very meaning of the citizenship the Fourteenth Amendment secured. (26) Three particular pieces of evidence support the conclusion that education was part of the Fourteenth Amendment's citizenship guarantee. First, the legislative history of the Reconstruction Act reveals that as a condition of readmission to the Union, Congress expected states to provide for education in their constitutions. Congress considered and nearly included explicit language to that effect in the Reconstruction Act, (27) but an explicit education condition proved unnecessary given that other constitutional and statutory provisions already required the provision of public education. In particular, both the Reconstruction Act and Article IV of the federal Constitution required states to adopt republican forms of government. (28) This meant that Southern states had to rewrite their constitutions and present them to Congress for approval. (29) Members of Congress believed that education was inherent in a republican form of government. (30) Without public education, the masses would lack the capacity to engage in democratic self-government and would instead be subject to domination by the elite class. (31) Thus, any state constitution failing to provide for public education would have been subject to congressional disapproval.

Second, all Southern states seeking readmission took decisive action to comply with Congress's terms and expectations. All of those states changed their constitutions from ones that ignored or merely encouraged education to ones that mandated it. In 1860, not a single Southern state constitution required the provision of education. (32) By 1870, every Southern state that went through Reconstruction made that requirement explicit in its constitution. (33) Importantly, these states implemented education mandates not just because Congress demanded that they do so but also because they too saw education as a pillar of citizenship in a republican form of government. (34) Representatives at state constitutional conventions emphasized that they could not break from the continuing effects of slavery and poverty to operate as functioning democracies unless their new and former citizens received education. (35)

Third and perhaps most telling is Congress's action following the Fourteenth Amendment's ratification in 1868. (36) At that point, three Southern states had yet to rewrite their constitutions and regain admission to the Union: Mississippi, Texas, and Virginia. (37) As to those states, Congress passed new legislation explicitly conditioning their readmission on the equal provision of education to their citizens. (38) In other words, what had all along been implicit in citizenship and readmission became explicit once the Fourteenth Amendment was finally ratified.

These events reveal that at the point in time the Fourteenth Amendment was ratified, education was a right of state citizenship in the constitution of every readmitted state and was thus implicit in the state citizenship requirement set forth in the Fourteenth Amendment. Congress expected education. States responded by providing education. And it was only Congress's and the states' combined action that made the ratification of the Fourteenth Amendment possible. Had states failed to guarantee education in their state constitutions, they would not have been readmitted, and the Fourteenth Amendment would not have been ratified. That states acceded to or agreed with Congress's demands reveals that both Congress and the ratifying states originally understood education to be a right of state citizens in a republican form of government-and the right of state citizenship was one the Fourteenth Amendment, upon ratification, would henceforth protect. In short, although the federal Constitution does not...