Constitutional Officers Should Protect and Defend the Constitution in Cruz-Guzman

In a series of posts, I've been writing about the decision of Governor Dayton, Commissioner Cassellius and Attorney General Lori Swanson to defend the Cruz-Guzman case by claiming that the Courts cannot enforce the rights conferred by Minnesota's Constitutional education clause.  In this post, I write to complain that by undermining our constitutional rights, our constitutional officers are not upholding their constitutional duty to protect and defend the constitution.

In the Cruz-Guzman case plaintiffs are trying to force the state to integrate metropolitan schools using the constitutional education clause that requires the legislature to create a uniform, general thorough and efficient system of public education.   There are many good defenses to this claim.  It is a rather straightforward argument to show that the constitutional education clause does not speak to school integration at all.   But, regrettably, the state defendants, all constitutional officers, Dayton, Cassellius and Attorney General Swanson,  have chosen the defense that would do the most damage to public education and in so doing, have chosen to undermine the constitution that they are sworn to protect and preserve.   They chose to claim that rights conferred by that clause are "not justiciable," which is lawyer's fancy talk for the claim that the right exists in name only, but that the courts cannot enforce them.

In a nutshell, the Attorney General has asked the Supreme Court to rule that only the legislature has the power to protect the constitutional right found in our constitution, Gutting the constitutional protection of public education has far greater long-term implications than the relief sought by plaintiffs in Cruz-Guzman.   Our state’s education clause stands as a constitutional Colossus, warning all three branches of government that they must assure future generations the right to a free, appropriate and adequate, thorough and efficient, system of public education.   Without a role for the judiciary, a constitutional right is not a right at all.  Just imagine what could happen to our first amendment freedoms of expression if the current presidential administration could inflict penalties on newspapers for publishing news that the administration does not like, and yet the Courts could not enforce first amendment freedoms.   Imagine what would happen if the courts ruled that the constitutional protection against search and seizure was “non-justiciable” as Dayton, Casellius and Swanson's position in the Supreme Court suggests for the right to education.   

How could it be that our constitutional officers, sworn to uphold and protect the Minnesota Constitution, could be trying to win a case by undermining the Minnesota Constitution.   For over a century the Minnesota Supreme Court has recognized that the express language of the Constitutional education clause was written in mandatory terms using the words duty and shall.  In its 1913 decision, the Court wrote:

The object of these provisions is ‘to insure a regular method throughout the state, whereby all may be enabled to acquire an education which will fit them to discharge intelligently their duties as citizens of the Republic.’. These provisions were not a grant of power to the Legislature, for all the powers there mentioned would have existed without such grant. They were inserted as a mandate to the Legislature, prescribing as a duty the exercise of this inherent power.  Associated Sch. of Indep. Dist. No. 63 of Hector, Renville Cty. v. Sch. Dist. No. 83 of Renville Cty., 122 Minn. 254, 258, 142 N.W. 325, 327 (1913).

The constitutional protection provided to public education is one of our most sacred and important state rights.  The early Minnesotans who inserted the protection in our constitution realized that our democracy depends upon a strong and vibrant system of public education.  It is not beyond the realm of possibility that a future legislature and governor might attempt to destroy or cripple Minnesota’s system of public education system.   Indeed, shortly after Brown versus Board of Education, some states attempted to close the public school system in their states, in order to circumvent the Brown decision.  In their Amicus brief to the Supreme Court a group of Minnesota constitutional scholars wrote that the position being taken by our State constitutional officers:

…..…..would potentially grant state agencies unfettered discretion over foundational constitutional matters. The notion of granting the political branches any form of unreviewable discretion over the racial composition of schools should unsettle anyone familiar with the legal history of race in education.  It cannot be that, 63 years after Brown v. Board of Education, a plaintiff alleging unlawful and intentional educational segregation has no constitutional pathway into court. It certainly cannot be that the obstacle standing in the plaintiff's way is the unreviewable legislative discretion to operate a purposefully segregated school system.

Our constitutional officers have a duty, first and foremost, to protect and defend the constitution.     In Cruz-Guzman, they have chosen to try to win a case by sacrificing one of Minnesota's important constitutional rights, the right to a free public education.   It would be as if, the Attorney General defended a case alleging that the legislature had infringed the free speech liberty, by claiming that the courts cannot protect free speech, because what is free speech is "not justiciable.  There was no legal excuse for our constitutional officers to try to win this case by gutting the constitutional protection,  Indeed, there are much narrower and less damaging ways to defend the State’s interest at oral argument, Here are some ideas:

• The Minnesota legislature has comprehensively defined an adequate education in legislation.   See Minnesota Statutes §120B.018 subdivision 2, 6 (academic and required standards); §120B.02 (Educational Expectations and Graduation Requirements For Minnesota's Students); §120B.024 (course credit and graduation requirements). Minnesota Rules Part 3505 (academic standards for reading, math, science, and other subjects).  Mn Stat § § 120B.11(c) (world’s best workforce); §125.03 (special education).   The Supreme Court should defer to the legislature’s description of what an adequate education is, unless the legislature’s actions are wholly irresponsible.   The proper defense in Cruz-Guzman is to say that the plaintiffs’ case does not rest on the legislature’s definition of an adequate education.

• The Cruz-Guzman case could have been decided more narrowly focusing on whether the plaintiffs’ attempt to add to the definition of an adequate education finds support in the constitution.  Courts are constrained to avoid deciding issues with sweeping import, when those issues are not necessary to the outcome.  The state's attorneys can argue instead that the Supreme Court should limit its decision to holding that there is no basis for overriding the legislature’s laws on this particular issue.

•   In this connection, the legislature has passed legislation on integration in education.   The legislation called for an administrative rulemaking process.   Before reaching the constitutional issues, the Court should first have deferred to the statute and the rules.   

• Finally, the Attorney General should make it crystal clear that this case involves the integration claim, and only the integration claim, and hence, there is no occasion to re-examine the prior decisions which recognize the enforceability of the constitutional right or to make a sweeping decision impacting issues not currently before the Court.  

Past Series on Education and Constitutional law:

McCleary v. State, Part I   McCleary v State Requires Legislature to Base Funding on Actual Cost
Jvonkorff on Education McCleary v. State, Part II
McCleary v State and Determining the Cost of Education
Jvonkorff on Education McCleary v. State, Part III
 McCleary v. State: what level of scrutiny is appropriate for legislative funding decisions
Jvonkorff on Education McCleary v. State, Part IV
Correlating the cost of education: fund the child.
Jvonkorff on Education  McCleary V. State Part V
Summary of Decision Network for Excellence
Washington Supreme Court Blog  
JvonKorff on Education, The Rose Decision 
Minnesota's School Finance System is Unconstitutional, Part I
Minnesota's School Finance System is Unconstitutional, Part II
Minnesota's School Finance System is Unconstitutional, Part III
Minnesota's School Finance System is Unconstitutional, Part IV