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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Sunday, November 26, 2006

Education and National Citizenship

And Also: I'm not exactly sure why retired Justice O'Connor is a member of the Iraq Study Group. Also, per the weekend marathon, Betty Rubble's maiden name is Betty Jean McBricker, though the second live action movie gives it as something else. Don't know why the marathon wasn't on the History Channel.

Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it 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. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

-- Brown v. Bd. of Ed.

IOW, "education is perhaps the most important function of state and local governments." In an unpublished opinion, Justice Jackson noted that once upon a time this would be different -- in the late 19th century, quite arguably, education was not a civil right of such importance. Not in the days when mandatory school laws were often still in their infancy in many locales. And, even the author of "Education, Equality, and National Citizenship" notes that at that time education was not generally held to be a national right of citizenship.

But, as early as 1867, a separate federal department of education was created because "every child of this land is, by natural right, entitled to an education at the hands of somebody, and ... this ought not to be left to the caprice of individuals or of States so far as we have any power to regulate it. At least, every child in the land should receive a sufficient education to qualify him to discharge all the duties that may devolve upon him as an American citizen." Such a department only had a research function, though the Freemen' Bureau and such provided some educational assistance to former slaves, including providing seed money for Howard University.

We heard members of Congress speak of education as a "fundamental civil rights of the citizen," promoting various types of federal funding of education. Thomas Jefferson was perhaps the most famous early promoter of public education as a necessity for educating our citizens, believing one of his three top accomplishments was the founding of the University of Virginia. Education was also an important matter in the Northwest Ordinance, which he too had a role in writing, which created the Old Northwest Territory (Great Lake Area). So, by the 1860s, it was not a great leap to view education as a core part of developing a good citizens.

And, the South seemed particular backward in this respect. Thus, various means in the decades after the Civil War to obtain federal education funding often focused on the South, including by indexing it to illiteracy. Once the fear of integration was avoided by not requiring it for the acceptance of funds, though national control of local concerns was still opposed enough to quash the efforts, there was real bipartisan support for such efforts. President Grant even proposed a constitutional amendment holding that "the States shall be required to afford the opportunity of a good common-school education to every child within their limits." Perhaps its most skilled advocate, Henry W. Blair,* showed the universality of the goal:
I am not willing to stand here and say that the son of a confederate officer or soldier shall not be educated as well as the child of his former slave. Give them both equal privileges in the direction of education, give them both the same chance to prepare for the future of American citizenship.

The aforementioned article saw an important theme in such attempts -- the goal was to secure good citizens, something the national government has the power and duty to legislate upon. This provides a way around San Antonio Independent School District v. Rodriguez, a 1970s ruling that held that education was not a fundamental right, and anyway, it is not the job of the federal courts to guarantee its equal application. "The lesson of these cases in addressing the question now before the Court is plain. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws." Anyway, why stop at education? "Welfare provides the means to obtain essential food, clothing, housing, and medical care."

Justice Brennan noted in a brief dissent that "there can be no doubt that education is inextricably linked to the right to participate in the electoral process and to the rights of free speech and association guaranteed by the First Amendment." Justice White dissented as well, arguing that school funding inequities based on the local tax base is irrational given the supposed aim was local flexibility -- not quite so when some locales did not have the funds to be that flexible. And, Justice Marshall put forth a tome arguing both points in more detail. The ruling was 5-4, but the path was blocked, though later state courts -- using state constitutions -- had some success in this area. [In fact, the majority left open the situation where total denial of education was at issue, a point later relevant.]

First, the Constitution supplies various powers and responsibilities (see, e.g., The Preamble) to Congress that are basically political questions. Thus, though there might be an overriding duty to protect us, the police is given much discretion in determining how to do so. This is seen in the welfare context -- the states and national government does in various respects secure "essential food, clothing, housing, and medical care." Various writers, including Charles L. Black (A New Birth of Freedom) and Cass Sunstein (The Second Bill of Rights), argue that such basic securities are our birthrights.

Second, fundamental rights per se is not the only way to obtain some right to education, in the words of Blair, "commensurate with the character and dignity of the station which [a citizen] occupies by the theory of the government of which [s/he] is a part." The operative word here is citizen. The Fourteenth Amendment clarified national citizenship, which was left somewhat vague by the original Constitution. Such citizenship was now based on birth in the United States or naturalization as long as said person was subject to this country's jurisdiction. State citizenship grows out of state residency. And, such citizenship brings with it various rights and obligations. Blair again:
I say public life with no reference to the incumbency of political office. By the public life of an American citizen I refer to his life as a sovereign; to his constant participation in the active government of his country; to the continual study and decision of political issues which devolve upon him whatever may be his occupation; and to his responsibility for the conduct of national and State affairs as the primary law-making, law-construing, and law-executing power, no matter whether or not he is personally engaged in the public service as policeman or President, as any State official whatever, member of Congress, Chief-Justice of the United States, or a humble justice of the peace. In republics official stations are servitudes. The citizen is king.

And, as suggested by the law article and Brown quote, the role of the public citizen does not just have a political character, but also economic, social, and otherwise. The development of such a citizen, national and state, requires significant education. Not just some minimum amount to learn the three Rs or enough to survive until one graduates. Especially since only about ten percent of the population can afford private tuition or home-schooling (see article), this suggests the responsibility of the government. If the matter is too complicated to be left to the courts, this just leaves the legislature with the duty to formulate the best policy, pushed by the courts in certain cases.

And, given the national citizenship involved, this includes Congress. The power arising out of the "Citizenship Clause" of the 14th Amendment, the fifth section of the amendment which provides enforcement powers (duties?), spending power, and so forth. When a book was written on What Brown v. Board of Education Should Have Said (a worthwhile read), some of the "justices" relied on this very basis -- unequal education violated the privileges and immunities owed to citizens of the United States. There was to be no separate but equal national citizenry. In fact, one conservative legal writer once noted that Brown was wrong, but Congress (per @5) could have mandated its holding.

Congress can help to secure satisfactory education -- not quite the same thing as equal education given the possibility of equality of want -- in various ways. The basic point is that education is an important national issue, arising out of its essential relationship to national citizenship. Of particular note, even the dissenters in Rodriguez had to be limited by state borders. IOW, as with the education bills in the late 19th Century, a national policy would address interstate inequalities. Federal law should also take this issue into mind. Per the law review article:
[T]he federal role in education funding is unguided by any determination of what resources are needed to ensure educational adequacy for equal citizenship. The single largest program of federal education aid - Title I of the Elementary and Secondary Education Act of 1965 - awards funding to each state in proportion to its share of poor children and to its existing level of per-pupil spending. Thus, wealthy, high-spending states receive more Title I aid per eligible child than poor, low-spending states. In 2001, for example, Massachusetts had 33% fewer poor children than Alabama but received 36% more Title I aid; New Jersey had 17% fewer poor children than Arizona but received 52% more aid. The net effect of Title I is to reinforce, not reduce, the wide disparities in educational resources that exist across states, with no formal or informal determination by Congress that the lowest-spending states provide a floor of adequacy. In sum, our current policies treat the nation's school children not as "citizens of the United States" but foremost as "citizens of the state wherein they reside" - an improper inversion of the Fourteenth Amendment guarantee.

There is a clear connection, even though many like to think otherwise for the sake of neatness, to various constitutional commands. Thus, citizenship, equality, and fundamental liberties are all related in the area of education. For instance, various cases show the importance of such things like academic freedom and church/state issues to education. Likewise, the Constitution provides different branches different powers and duties, including in respect to such matters. So, even if the courts have a limited role here, it does not free others of responsibilities. The same applies to acts by state and national governments. Congress surely can concern itself with local control and the like without ignoring the importance of education.

History surely suggests the opposite. As to non-citizens, the author of the piece is working on a separate article covering that, but suffice to say their children would not be deprived as well. A primary reason is that they very well might be future citizens. Likewise, to the extent they too have a role in society, education is essential. And, precedent supports the idea. This too is back up by history, respect for the rights and needs of new immigrants (even Chinese) an ongoing theme. Alienage early on was seen as a sort of "racial" classification worthy of special scrutiny. They might not be treated the same way in all cases, but educational needs must be addressed here as well. See, the opinion of Powell, the author of Rodriguez, here.

And, to the degree there was forces against them -- including Blair-like attempts to keep them out of the country -- it was not truly meeting the spirit of this nation. See, e.g., Lincoln's comments against anti-immigration Know-Nothingism.


* An interesting character: "Besides supporting mainstream Republican policies like high tariffs, the gold standard, and generous pensions for Union war veterans, Blair was an ardent reformer who backed causes such as temperance, the rights of labor, federal aid to education, and women's suffrage." His one problem, however, turned out to be his anti-Chinese protectionism, leading to China rejecting him as our representative to that nation.

A search for books on Blair led me to yet another person of the era, this time related to his women's suffrage interests. Ah well ... onward!