The Conservative Assault on the Constitution

Erwin Chemerinsky

• Publisher: Simon & Schuster
• Year: 2010
• Print ISBN: 9781416574675
• eBook ISBN: 9781451606355
• Topic: History
• Subtopic: Public Law
• Index: History

Over the last few decades, the Supreme Court and the federal appellate courts have undergone a dramatic shift to the right, the result of a determined effort by right-wing lawmakers and presidents to reinterpret the Constitution by reshaping the judiciary. Conservative activist justices have narrowed the scope of the Constitution, denying its protections to millions of Americans, exactly as the lawmakers who appointed and confirmed these jurists intended. Basic long-standing principles of constitutional law have been overturned by the Rehnquist and Roberts courts. As distinguished law professor and constitutional expert Erwin Chemerinsky demonstrates in this invaluable book, these changes affect the lives of every American. As a result of political pressure from conservatives and a series of Supreme Court decisions, our public schools are increasingly separate and unequal, to the great disadvantage of poor and minority students. Right-wing politicians and justices are dismantling the wall separating church and state, allowing ever greater government support for religion. With the blessing of the Supreme Court, absurdly harsh sentences are being handed down to criminal defendants, such as life sentences for shoplifting and other petty offenses. Even in death penalty cases, defendants are being denied the right to competent counsel at trial, and as a result innocent people have been convicted and sentenced to death. Right-wing politicians complain that government is too big and intrusive while at the same time they are only too happy to insert the government into the most intimate aspects of the private lives of citizens when doing so conforms to conservative morality. Conservative activist judges say that the Constitution gives people an inherent right to own firearms but not to make their own medical decisions. In some states it is easier to buy an assault rifle than to obtain an abortion. Nowhere has the conservative assault on the Constitution been more visible or more successful than in redefining the role of the president. From Richard Nixon to George W. Bush, conservatives have sought to significantly increase presidential power. The result in recent years has been unprecedented abuses, including indefinite detentions, illegal surveillance, and torture of innocent people. Finally, access to the courts is being restricted by new rulings that deny legal protections to ordinary Americans. Fewer lawsuits alleging discrimination in employment are heard; fewer people are able to sue corporations or governments for injuries they have suffered; and even when these cases do go to trial, new restrictions limit damages that plaintiffs can collect. The first step in reclaiming the protections of the Constitution, says Chemerinsky, is to recognize that right-wing justices are imposing their personal prejudices, not making neutral decisions about the scope of the Constitution, as they claim, or following the "original meaning" of the Constitution. Only then do we stand a chance of reclaiming our constitutional liberties from a rigid ideological campaign that has transformed our courts and our laws. Only then can we return to a constitutional law that advances freedom and equality.

1.
Separate and Unequal Schools

The case attracted no national media attention and is little remembered. But the brief that I was asked to write tells a great deal about what has happened to American public education over the last half century. The litigation involved tremendous inequities in funding the Alabama public schools. As is true in almost every state, there was a vast disparity between the amount spent per pupil in wealthier school districts as compared with poorer ones. For example, the Mountain Brook city school system, which ranked highest in state and local revenues of Alabama’s 129 school systems in the 1989–90 school year, had $4,820 available to spend per pupil. This amount was more than double the resources available to the Roanoke, Alabama, city schools, the lowest revenue system, which had only $2,371 per pupil. On May 3, 1990, the American Civil Liberties Union brought a lawsuit on behalf of the Alabama Coalition for Equity challenging the disparities in school funding as violating the Alabama constitution.

The problem for their lawsuit was that in 1973, in San Antonio Independent School District v. Rodriguez, the U.S. Supreme Court ruled 5–4 that such disparities in school funding do not violate the U.S. Constitution. The Court held that there is no constitutional right to education and thus that differentials in spending between wealthy and poor school districts within a metropolitan area are constitutionally permissible. If I were to list the most important, and the worst, Supreme Court decisions during my lifetime, Rodriguez would be high on this list.

Since Rodriguez, any challenges to disparities in school funding must be brought under state constitutions. States are allowed to provide more rights under their state constitutions than the U.S. Constitution offers, but not fewer. A number of states, including Arizona, California, Texas, and New Jersey, have found that disparities in school funding violate their state constitutions even though Rodriguez concluded that this situation did not offend the U.S. Constitution.

Alabama was not one of these states. Alabama had amended its state constitution by voter initiative in 1956 to declare that there was no right to public education in the state. Amendment 111 stated that “nothing in this Constitution should be construed as creating or recognizing” that education is a right. This was done to allow Alabama public schools to close rather than desegregate. Alabama was so determined to resist the end of Jim Crow education, as decreed by Brown v. Board of Education, that its voters amended their constitution to allow school districts to close all schools to avoid having to desegregate them.

The ACLU’s lawsuit faced a major obstacle: Alabama argued that it did not need to provide public education at all under its state constitution, so it could not be said that inequities in funding were impermissible.

The litigation was being handled for the ACLU by Helen Hersh-koff, a law school classmate of mine (and now a law professor at New York University). Helen asked if I would write a friend of the court brief to the Alabama trial court arguing that the provision in the Alabama constitution violated the U.S. Constitution. But I was stumped as to how to do this because of the Supreme Court decision that there is no right to education under the U.S. Constitution. The Alabama provision declaring that there was no right to education in the state never mentioned race and over several decades the Supreme Court had ruled that such laws that do not mention race can be successfully challenged as violating equal protection only if there is proof that they had both a racially discriminatory impact and a racially discriminatory purpose. There was no doubt as to the latter for the Alabama law, but there was no evidence that the disparities in school funding in the state had a racially discriminatory effect.

After some initial successes for the lawsuit in the Alabama courts, in 1997 the Alabama Supreme Court concluded that there were disparities in school funding, but refused to provide any remedy. In 2002, the same court then dismissed the case. Tremendous disparities in funding in Alabama and across the country remain. At the same time schools across the country are becoming increasingly racially segregated.

Of course, no longer are there laws mandating segregation of the races, but as a result of a series of U.S. Supreme Court decisions, the ability of judges and legislatures to remedy racial separation is very limited. The result is that American public schools are increasingly separate and unequal. The statistics are stark and startling.

Harvard professor Gary Orfield’s study Schools More Separate: Consequences of a Decade of Resegregation carefully documents how during the 1990s America’s public schools became substantially more racially separate. In the South, for example, he shows that “[f]rom 1988 to 1998, most of the progress of the previous two decades in increasing integration in the region was lost. The South is still more integrated than it was before the civil rights revolution, but it is moving backward at an accelerating rate.”

The percentage of African-American students attending majority-white schools has steadily decreased since 1986. In 1954, at the time of Brown v. Board of Education, only 0.001 percent of African-American students in the South attended majority-white schools. In 1964, a decade after Brown, that percentage was just 2.3. From 1964 to 1988, there was significant progress: the percentage rose to 43.5 in 1988. But since then the percentage of African-American students attending majority-white schools has gone in the opposite direction. By 1991, the percentage in the South had decreased to 39.2 and over the course of the 1990s it went down to 32.7 in 1998.

Orfield shows that nationally the percentage of African-American students attending majority-black schools and schools where over 90 percent of the students are black also has increased. In 1986, 62.9 percent of black students attended schools that were 50–100 percent made up of minority students; by 1998–99, this percentage had increased to 70.2.

Orfield’s research, most recently in a report released in January 2009, shows that during the last decade the problem of racially segregated schools has continued to get worse. By 2006–2007, 73 percent of African-American students attended schools that were 50–100 percent minority students; 38.5 percent attended schools that were 90–100 percent minority students. Orfield’s research also shows that the nation’s teaching force, too, is largely segregated; students rarely encounter teachers of races different from their own.

Quite significantly, Orfield shows that the same is true for Latino students. The historic focus for desegregation efforts has been to integrate African-American and white students. The burgeoning Latino population requires that desegregation focus on this minority as well. The percentage of Latino students attending schools where the majority of students are of minority races, or almost exclusively of minority races, increased steadily over the last two decades. In the 2006–2007 school year, 78 percent of Latino students attended schools that were 50–100 percent minority students, and 40 percent attended schools that were 90–100 percent minority students. Orfield notes that “[Latinos] have been more segregated than blacks for a number of years, not only by race and ethnicity but also by poverty.”

The overall statistics for major-city public schools could not be more discouraging for those who believe in desegregation. In Chicago, by the academic year 2002–2003, 87 percent of public school enrollment was black or Hispanic; less than 10 percent of children in the schools were white. In Washington, D.C., 94 percent of children were black or Hispanic; less than 5 percent were white. In St. Louis, 82 percent of the student population was black or Hispanic; in Philadelphia and Cleveland, 79 percent; in Los Angeles, 84 percent; in Detroit, 96 percent; in Baltimore, 89 percent. In New York City, nearly three-fourths of the public school students were black or Hispanic.

The tragic reality is that American schools are separate and unequal. To a very large degree, education in the United States is racially segregated. By any measure, predominantly minority schools are not equal in their resources or their quality. Wealthy suburban school districts are almost exclusively white; poor inner-city schools are often composed exclusively of African-American and Hispanic students. Studies have shown that across the United States significantly more is spent on the average white child’s education compared with the average black child’s schooling. Moreover, disproportionately more white children than minority children attend private schools, with their greater resources and better student-faculty ratios. According to the most recent national statistics, private elementary schools are 86 percent white and private high schools are 87 percent white.

Some question whether desegregation and equal expenditures really matter. They argue that children can learn just as well no matter what the racial composition of the classes and that there is no proof that expenditures make a difference in terms of educational achievement. I believe that both of these arguments are attempts to rationalize what should be a national embarrassment, what Jonathan Kozol expressed in the titles of two books about the American educational system, Savage Inequalities and The Shame of the Nation: The Restoration of Apartheid Schooling in America.

More than a half century ago, in Brown v. Board of Education, the Supreme Court explained why segregation of schools is so harmful. Chief Justice Earl Warren, writing for the Court, said: “Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

Although Chief Justice Warren was speaking of government-mandated segregation, there is significant evidence that racial integration matters in educational achievement. Justice Breyer, in a recent opinion, summarized it this way: “One commentator, reviewing dozens of studies of the educational benefits of desegregated schooling, found that the studies have provided ‘remarkably consistent’ results, showing that: (1) black students’ educational achievement is improved in integrated schools as compared to racially isolated schools, (2) black students’ educational achievement is improved in integrated classes, and (3) the earlier that black students are removed from racial isolation, the better their educational outcomes.”

Even if it cannot be proven that children achieve more in integrated classrooms, the benefits of diversity are enormous. Students learn from each other’s lives and experiences. Students have the chance for interracial associations that can change attitudes and break down stereotypes. Again, Justice Breyer, in his recent opinion, summarized the research:

[O]ne study documented that “black and white students in desegregated schools are less racially prejudiced than those in segregated schools,” and that “interracial contact in desegregated schools leads to an increase in interracial sociability and friendship.” Other studies have found that both black and white students who attend integrated schools are more likely to work in desegregated companies after graduation than students who attended racially isolated schools. Further research has shown that the desegregation of schools can help bring adult communities together by reducing segregated housing. Cities that have implemented successful school desegregation plans have witnessed increased interracial contact and neighborhoods that tend to become less racially segregated.

Former federal court of appeals judge Nathaniel Jones was correct when he coined the phrase “green follows white.” What he meant by this comment was that there will always be more money and more resources for predominantly white schools than for schools made up mostly of minority students. The only way to ensure equal educational opportunity, or even adequate resources for students of color, is to have them educated in the same school system as whites. The Supreme Court in Brown got it exactly right when it said that separate can never be equal.

Admittedly, there is an endless debate over the relationship of expenditures to educational achievement. After having read so many of these articles and studies, I am left to shrug and ask whether poorer students shouldn’t have the same chance to be disappointed by expenditures of money for schools as wealthier students. Money matters in terms of class size, student-faculty ratios, classes like art and music, Advanced Placement classes, libraries, facilities, guidance counselors, and so much else. In selecting schools for their children, these are the factors all parents look to if they can make choices. No one was surprised that Barack and Michelle Obama sent their daughters to private schools in Chicago and the District of Columbia rather than to local public schools. They made the same choice so many parents with the means to do so make: selecting the schools with more resources, smaller classes, better student-faculty ratios, higher graduation rates.

Separate and unequal schools have a dramatic effect on society. In 2006, 28.4 percent of white Americans reported having graduated from college, compared with 18.5 percent of blacks and 12.5 percent of Latinos. Unemployment rates for African-Americans and Latinos are far greater than for whites. Every study shows that average income levels rise and chances of unemployment fall as education increases. Education always has been the vehicle for social mobility, and educational opportunities in this country depend enormously on the race and wealth of the student.

There are undoubtedly many causes for the failure to achieve equal educational opportunity in the United States. None of the recent presidents—not Reagan, nor either Bush, nor Clinton, nor even Obama so far—has done anything to advance desegregation. None has used the powerful resources of the federal government, including the dependence of every school district on federal funds, to further desegregation or equality in education. “Benign neglect” would be a charitable way of describing the attitude of recent presidents to the problem of segregated and unequal education; there has been neglect, but there has been nothing benign about it. The only major education initiative in recent decades, President Bush’s “No Child Left Behind,” sought neither to advance desegregation nor to equalize funding among schools in the same metropolitan area. The Bush plan sought to improve education but made no effort to deal with the two crucial underlying problems in American education: the racial separation of students and the great inequities in educational expenditures.

Nor has the federal government, or for that matter state or local governments, acted to deal with housing segregation. In a country deeply committed to the ideal of the neighborhood school, residential segregation often produces school segregation. But it has been decades since the last law was enacted to address housing discrimination, and efforts to enhance residential integration seem to have vanished.

The fact that American public schools are increasingly separate and unequal is in large part a product of the conservative assault on the Constitution. Like so much in this book, it is a story that begins with Richard Nixon, specifically with his campaign for the White House and with the four justices that he appointed to the Supreme Court. A series of decisions from the Supreme Court, with the Nixon, Reagan, and Bush appointees in the majority, has gone a long way to ensuring racial segregation of students and inequity in American public education.

Barry Goldwater carried only six states in 1964 and five were in the Deep South. Southern states that had voted consistently Democratic since the Civil War and the Republican presidency of Abraham Lincoln. Kevin Phillips devised a “southern strategy” for Richard Nixon to win the presidency in 1968. Key to this strategy was an appeal to white voters on the issue of race.

Nixon’s opposition to school desegregation was a central aspect of the strategy. No area of desegregation had proven more controversial or more difficult than education. There had been massive resistance throughout the South to efforts to eliminate segregated schools. During the 1968 campaign, Nixon strongly opposed fo...

Table of contents

• Cover
• Front Flap
• Title Page
• Contents
• Introduction: The Constitution Touches Everyone
• 1: Separate and Unequal Schools
• 2: The Imperious Presidency
• 3: Dismantling the Wall Separating Church and State
• 4: The Vanishing Rights of Criminal Defendants
• 5: The Erosion of Individual Liberties
• 6: Closing the Courthouse Doors
• Conclusion: Reclaiming the Constitution
• Acknowledgments
• Notes
• Index
• Back Flap
• Back Cover