U.S. Courts--Enemies of Education (from Truthout.org)

So, will it take a legal decision or policy to realize this constitutional principle?--Dr. Louie F. Rodriguez
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U.S. Courts--Enemies of Education

http://www.truthout.org/050809A?n

Friday 08 May 2009

by: David Bacon, t r u t h o u t | Perspective


The first day of desegregated schooling after Brown v. Board of Education, September 8, 1954, depicted here at Fort Myer Elementary School in Virginia. The Supreme Court is still dealing with educational inequality issues. (Photo: Bettmann / Corbis)
Sacramento, California - Is there a "constitutional right to education"?

Legal scholar and civil rights advocate Erwin Chemerinsky says there is. "There has to be a right to education in the Constitution," he declares, "and equal protection is a Constitutional imperative."

But according to Chemerinsky, this right has been fundamentally undermined by the Supreme Court. With the retirement of Justice David Souter, and the possible retirement in the next few years of Justices Ruth Bader Ginsburg and John Paul Stevens, the role of the court in defending the right to education will be thrust into the national spotlight. What role might their replacements play in guaranteeing education to American children, and reversing the conservative momentum of the last three decades?

Chemerinsky believes that without popular pressure and new judicial appointments that reverse the present course, the right to education will be further constricted, and even lost. Education itself in the United States is in greater danger than ever because of the steady "deconstitutionalization" of this right, he asserts. "The Supreme Court has followed a steady course over the last 35 years of undermining the right to education."

Chemerinsky has a long history as a civil rights advocate, which turned his appointment in 2007 as the founding dean of the University of California, Irvine School of Law into a fight. Although the university regents approved him, UCI Chancellor Michael V. Drake, who originally hired him, withdrew the invitation, saying Chemerinsky's views were "polarizing."

While Drake claimed that he had not received any pressure to withdraw the nomination, media reports unearthed efforts by conservative California Supreme Court Chief Justice Ronald George, Los Angeles Supervisor Mike Antonovich and a group of Orange County Republicans to kill the appointment. Although Chemerinsky is of one of the country's most respected constitutional scholars, they cited his opposition to the death penalty and his support for civil rights. In the end, his reputation and his defense by legal authorities nationwide moved UCI to restore the appointment.

In speaking to a meeting of California teachers earlier this year, Chemerinsky gave ample indication of the reasons why some of the most right-wing elements in California politics might not want to see him head one of its most prestigious law schools. He recalled the case of Rodriguez vs. the San Antonio Board of Education, decided in 1973. In that case, he explained, the plaintiffs proved a disparity in funding of 4 or 5 to one, between poor Latino communities and more affluent Anglo ones in that city. In a 5-4 decision, however, the Supreme Court held, in a decision written by Justice Louis Powell, that there is no right to education in the US Constitution. Wealth disparities, therefore, were permissible, even under the equal protection language of the 14th Amendment.

"Many expressed surprise," he noted, "since states require the education of minors in their own Constitutions. But Powell ruled there was no right to this on a federal level." Other similar decisions followed. The funding disparities noted in Texas, he says, are no different from those in California districts.

Chemerinsky connected this philosophy to the Supreme Court's decision upholding the legality of school vouchers. "They have one purpose only," he asserted. "That is to take funds out of the public school system and transfer them to parochial schools. In a 1982 decision, the court found that in Cleveland, where 95 percent of voucher money went to religious parochial schools, the system did not amount to state support of religious instruction. "Fortunately," he said, "the voucher system hasn't caught on, but the court has ruled it legal."

In this legal environment it's no surprise, therefore, that he views political action as necessary to the preservation and extension of civil rights. In fact, while he paints a dark picture of the legal panorama, he sees the main possibility for change arising from the election of the new administration of President Barack Obama. A window for change has opened, but Chemerinsky warns it will not stay open long. He cites the early years of the Clinton administration, which delayed on the appointment of new judges. After two years in office, and the loss of Congress to the Republicans in 1994, that administration began appointing judges as conservative as those appointed by Clinton's predecessor. The appointments were justified as political necessity - only those would "slide through."

Chemerinsky is a legal authority on the impact of race on education, and says that political action in support of desegregation has been integrally connected with extending the right to education. Some people believe, he says, that the watershed Brown vs. Board of Education immediately desegregated schools, thus ensuring the right to equal education for all students. In reality, while the Supreme Court held that segregation, the system of "separate but equal," was unconstitutional in 1954, for the next ten years there was no movement to comply with the decision. It was only after Title 6, the Civil Rights Act, threatened to withhold funds from schools that didn't desegregate that compliance began. "From 1964 to 1988, schools became less racially segregated as a result," he recalled. "But since 1988, they've become more segregated, and at an accelerating rate."

He traced the change to a 1974 case that prohibited the transfer of students between different school districts in order to desegregate schools. "In Chicago, where I grew up, the schools are now 95 percent black and Latino, yet just over the border, they're 95 percent white, and this is true in almost every metropolitan area. Yet the court said there's no remedy for this." This was followed by other decisions in the early 1990's, holding that once desegregation orders had been in effect for a brief time, those orders should end, whether or not the effect of doing so would lead to further resegregation. Then even voluntary desegregation plans that used race as one factor in assigning students were held unconstitutional by further 5-to-4 Supreme Court rulings.

In California, Chemerinsky described a similar impact from Proposition 209, which he campaigned unsuccessfully to defeat. He cites the disparity in racial diversity between private law schools, which are not constrained by Proposition 209's prohibition on affirmative action, and public law schools, which are. "Five years afterwards, the Stanford Law School had 9.5 percent African-American students, and USC 11 percent. UC Berkeley's Boalt Law School had 3 percent and UCLA 2 percent. One student told me that in her three years at Boalt she never had a black student in her class. The Supreme Court," he warned, "is likely soon to constitutionalize Prop 209."

Even the erosion of academic freedom, Chemerinsky asserts, is connected to court decisions undermining the right to education and desegregation. He cited the Supreme Court's decision in the Garcetti case in Los Angeles, holding that public employees have no First Amendment protection for speech on the job, even when they're fired for carrying out their responsibilities. The court has similarly eroded the rights of students to free speech, he says. "How can you teach students about the First Amendment if the people teaching them, and they themselves as students, have no First Amendment rights?" he asks.

"This can be changed, however, and it must be changed," he concludes.

Hispanic immigrant college students impacted by court ruling

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Hispanic immigrant college students impacted by court ruling
MALDEF URGES CALIFORNIA SUPREME COURT REVIEW OF IN-STATE TUITION RULING
AB 540 Still Remains in Effect Pending Final Resolution
Press Release

LOS ANGELES, CA - Yesterday, a California Appellate Court issued a ruling that calls into question the continued validity of California’s AB 540. AB 540 is a California law which provides a waiver of the out-of-state tuition fees at California’s public colleges and universities for any student – regardless of immigration status – who has completed three years at a California high school and has attained a high school diploma.

Specifically, the Court of Appeal held that under AB 540 eligibility for in-state tuition is based on residency and therefore violates federal law. The Court so ruled despite the fact that eligibility is based on attending a California high school and receiving a high school diploma, criteria that are unrelated to residency. The case likely will be resolved through an appeal to the California Supreme Court.

“Yesterday’s appellate decision must not close the door to higher education for undocumented immigrant students in California. They are graduates of our public schools and they, and their parents, have paid taxes to the state. California needs them for our future and ignoring their California ties makes us all poorer,” said MALDEF Western Regional Counsel Nancy Ramirez.

AB 540 remains in effect, and will likely continue to remain in effect until there is a final resolution of the case. In the meantime, students who are eligible should continue to receive the tuition waiver. If AB 540 is ultimately overturned, undocumented students who would have been eligible for the AB 540 tuition waiver will still be allowed to attend California public colleges and universities but will be required to pay out-of-state rather than in-state tuition.

The decision is yet another reason for the next President and Congress to fulfill their constitutional authority by enacting comprehensive immigration reform. Many of these students and their parents work in the most dangerous and difficult jobs in our state and country. Their hard work and aspirations for higher education can not be ignored.

“We will continue this fight in the California Supreme Court, if need be. Current AB 540 students, the vast majority of whom are United States citizens, must not be discouraged. Their place in college remains intact,” said Cynthia Valenzuela, MALDEF’s Director of Litigation.

MALDEF sought to intervene at the trial level and filed an amicus brief with the appellate court. MALDEF will work with legislators, state officials, students and the community to permit AB 540 students to remain and pay in-state tuition.

Founded in 1968, MALDEF, the nation’s leading Latino legal civil rights organization, promotes and protects the rights of Latinos through litigation, advocacy, community education and outreach, leadership development, and higher education scholarships. For more information on MALDEF, please visit: http://www.maldef.org/.

Other states look to California on how to educate growing Latino population

Other states look to California on how to educate growing Latino population
SHARON NOGUCHI - MediaNews
Article Launched: 08/27/2008 01:32:18 AM PDT

Latinos make up nearly half of California's K-12 public school students, and their numbers are surging across the country, underscoring a growing challenge for educators who are looking to the Golden State for ways to adapt to the changing face of America's classrooms.
Almost one in three of the country's Latino students go to school in California. But the numbers, revealed Tuesday in one of the first comprehensive looks at Latinos in public schools, show Latinos now make up the largest minority student group in 22 states.
Since 1990, the number of Latino school-age children nationwide grew 94 percent and now is projected to swell 166 percent through 2050. By contrast, whites, blacks, Asians and other non-Hispanics in K-12 edged up just 9 percent in the same 16 years, and will slow to 4 percent growth through 2050, according to the Pew Hispanic Center.
The changing dynamics are playing out in California, where educators are struggling to address an academic achievement gap between Latinos and blacks and their higher-performing Asian and white peers.
In Santa Cruz County, where Latinos make up 48 percent of 38,000 total public school students, Superintendent Michael Watkins of the County Office of Education said the challenges of addressing the needs of English learners is nothing new.
"In this county, we've been immersed in that reality for a number of years now," he said. "We have ongoing ways to refine our efforts in ensuring that the equity is there for all students."
At the Two-Way Immersion Program at DeLaveaga Elementary in Santa Cruz, teachers offer instruction in both Spanish and English. Migrant Head Start, run by the county office, provides childcare and education for more than 700 children of agricultural workers.
The numbers of Latinos nationally who identified themselves as fluent in English were surprising. While 70 percent of Latino students speak a language other than English at home, 82 percent speak English fluently, according to the Pew report.
But the low education level of Latino parents is putting a greater burden on schools to guide students toward college and career tracks, experts say.
Without parents who understand the school system, "they are at a startling disadvantage," said Richard Fry, one of the authors of the Pew study. At Harbor High in Santa Cruz, parents can take a course in Spanish designed to help them navigate their children's preparation for college. But the biggest challenge for schools is still educating immigrant students, especially those who start school at an older age. Students who don't become fluent in English are more likely to drop out.
Sentinel staff writer J.M. Brown contributed to this report.