Okay, that’s not completely true. My family, like many across America, rejoiced in the ruling itself, and not just because we have a gay child. We celebrated the wisdom of the five Justices who carefully balanced states’ rights with equal protection, exhilarated by Justice Kennedy’s pronouncement that “while the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.” Heck, we practically draped ourselves in American flags.
But I just can’t stop myself. The nation’s long-running debate over same-sex marriage has focused on the balance between federal “equal protection” laws (embodied in the 14th Amendment, passed in 1868 after the Civil War, and the basis of Brown v. Board of Ed, the case that dismantled racial segregation in schools) and the rights of states to set their own rules. One area of dissent over a reauthorized ESEA is the proper balance between federal oversight — equal protection of all students, regardless of state of residence — and the rights of states to decide independently how to manage chronic underperformance of schools and cohorts of students.
Consider the parallels. Justice Kennedy,writing for the majority, notes that same-sex couples have been “consigned to an instability many opposite-sex couples would find intolerable.” Just like children in chronically underperforming schools, particularly those from impoverished families, are consigned to an instability that many wealthier families would find intolerable. Same-sex couples and their children, posits Justice Kennedy, have been “denied the constellation of benefits that the States have linked to marriage.” Just like children, mostly minority ones, are denied the constellation of benefits that many non-minority children have access to through high-performing schools. The inequality and lack of access to the institution of marriage, says Justice Kennedy, has subjected to the LGBTQ community to “a grave and continuing harm.” Just like the grave and continuing harm endured by students consigned to failing schools.
The ruling cites one state’s 1971 law that legislated that “the husband is the head of the family and the wife is subject to him.” Should women, then, await state action to gain equal rights? No, the ruling says: “when new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” And, while the Constitution contemplates that “democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.”
That’s the ESEA dispute in a nutshell. While the current draft requires each state to publish gaps in achievement between different groups of children (low-income, minority, special education), it completely eliminates any requirements to address the problems it identifies. States and districts would be free to ignore achievement gaps and low graduation rates while still receiving federal funds aimed at closing those gaps. Students would be denied a fundamental right while awaiting state legislative action.
It’s like same-sex marriage before Friday. The federal government was able to take certain circumscribed actions. President Obama repealed “don’t ask, don’t tell” and decided not to defend the “Defense of Marriage Act,” but no act of federal law could force state legislatures to accord gay couples access to the institution of marriage, even when certain state laws rendered to them grave and continuing harm.
It’s no accident that some of the primary advocates for a stronger federal role in education are civil rights leaders. Under the current draft of ESEA, states have to identify subgroups of children underserved by schools but they don’t actually have to do anything about it. Here they are, a state could confess: low-income children in this school district or this school demonstrate unequivocable achievement gaps. Lah di dah.
Is it federal overreach to require action? Is it a denial of states’ rights to proscribe specific forms of remediation? How long do harmed individuals — in this case, our neediest children — have to wait for state legislative action before the federal government steps in?
This s the balance that Congress weighs as we approach a vote on ESEA. The Supreme Court did the right thing on Friday. Let’s hope we celebrate Congress’s wisdom too.