Anna Marie Smith (Cornell University - Department of Government) has posted Reading Thurgood Marshall as a Liberal Democratic Theorist: Race, School Finance, and the Courts (Education, Justice, and Democracy, ed. Danielle Allen and Rob Reich, Chicago: University of Chicago Press, 2012 (Forthcoming)) on SSRN. Here is the abstract:
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An interpretation of Justice Thurgood Marshall’s theory of liberal democracy, drawn principally from his dissenting opinions in two landmark education cases: Milliken v. Bradley (1974) and San Antonio v. Rodriguez (1973). Milliken held that because the white-majority suburban districts in the greater Detroit area had not engaged in proven de jure racial discrimination, the federal court could not impose a multi-district remedy upon them. In his dissent, Marshall argues that the Milliken decision represents a “giant step backwards,” away from the desegregative and egalitarian orientation of Brown v. Board of Education (1954.) Marshall recites Brown’s holdings on violative stigmatic injury, and reasons that the multi-district remedy would have provided relief to Detroit’s African-American schoolchildren. Although Rodriguez dealt with the constitutionality of state school funding scheme, rather than racially segregative public school policies, Marshall sounded similar themes in his 1973 dissent. In Rodriguez, the Court decided that the Texan scheme met its rational basis test since it promoted “local control,” a permissible governmental purpose. Marshall reasoned that the Texan law was impermissibly arbitrary: its heavy reliance on property-tax based local contributions meant that the pupils living in property-poor districts were denied equal educational opportunity. Marshall argues that the right to education is implicitly guaranteed by the federal constitution, given the fact that access to an adequate education is indispensable for the exercise of protected political rights, including free speech and voting. Marshall defines education rights as an entitlement to a unique public good, insofar as securing access to an adequate and equitably funded education for the least advantaged children places them on the path to equal citizenship. Extending beyond Marshall’s actual opinions, the chapter argues that Marshall would argue that Parents Involved v. Seattle School District (2007), which struck down voluntary integrative pupil assignment, was wrongly decided. However, the spirit of Marshall’s theory lives on in the state courts’ decisions favoring the plaintiffs in state school finance case. There are particularly close parallels between Marshall’s discourse and the New York state court decision, Campaign for Fiscal Equity (2003), given the latter’s definition of the adequate education guaranteed under the New York constitution with reference to the high school graduate’s preparation for voting and jury service.
