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Editorial: Is Virginia violating the 14th Amendment? One legal scholar thinks so.

Editorial: Is Virginia violating the 14th Amendment? One legal scholar thinks so.

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From the moment that Robert E. Lee inked the surrender papers at Appomattox, the United States faced a question it had never dealt with before: How should states of the now-former Confederacy be restored to the Union?

The story we were taught in school leaves out an important detail that remains keenly relevant to the present day, says Derek Black, a law professor at the University of South Carolina. Before we get to that, we must first dig deeper into history.

The short version is that the former Confederate states had to ratify the 14th Amendment, which guaranteed citizenship to former slaves, and take care of some other paperwork issues before they could be readmitted. It’s those other paperwork issues that we’ve overlooked, and which Black says is what we should be focused on today. In a 101-page article earlier this year in the Stanford Law Review, he detailed just what Congress had on its mind.

Some in Congress, he wrote, “believed that the war had been caused by more than slavery alone and thus wanted to require changes beyond abolition.” Specifically, those congressmen — led by Sen. Charles Sumner, R-Massachusetts — believed the problem was the pre-war Southern states weren’t really democracies and thus violated the constitutional guarantee that each state have “a republican form of government.”

Instead, Sumner and many other Republicans in Congress believed that the South was an oligarchy run by wealthy elites who had shut everyone else out of the political process. Poor whites were often barely literate and disenfranchised. Now those states were expected to take into account freed slaves — which antebellum laws had made it illegal to educate. The only way for “a republican form of government” to function in the post-war South, Congress believed, was for both poor whites and newly-freed slaves to be educated.

Before the Civil War, not a single Southern state had a public school system. Congress set out to fix that. Before former Confederate states could be readmitted to the Union, they had to re-write their constitutions. Black says Congress expected those new constitutions to require a public school system. So Southern states complied. In time, Congress decided to make that implicit expectation an explicit one.

The last three states to be readmitted were Mississippi, Texas and Virginia. When Congress voted to readmit Virginia in 1870, it attached a condition that “the constitution of Virginia shall never be amended or changed as to deprive any citizen or class of citizens of the United States of the school rights and privileges secured by the constitution of said State.” Congress soon did the same for Mississippi and Texas.

Black says this provision has powerful implications today that few have recognized, because it creates not just a state guarantee of education, but also a federal guarantee. He goes on to argue that this federal guarantee isn’t simply by statue, but is implicit in the 14th Amendment, because Congress clearly intended that universal education was the only way to guarantee free governments in the South. At this point, we’re getting deep into some constitutional theory. Before we get lost in that legal thicket, let’s back up to what Black says is the main point. The Virginia Constitution doesn’t require a public system simply because Virginia thought that was a good idea; the state Constitution requires it because that was a federal condition of Virginia’s readmission to the Union.

Why is that important today? After all, nobody’s talking about shutting down the state school system. It’s important, Black says, because “Virginia’s constitution includes one of the strongest endorsements of public education you can find.” Not only does the state constitution meet the minimum requirement of providing a public school system, it goes further and declares that the state “shall seek to ensure that an educational program of high quality is established and continually maintained.” Courts have ruled that the “shall seek to ensure” phrase makes that sentence about “high quality” an unenforceable aspiration, and not a command. Still, the state Constitution goes on to empower the state Board of Education with defining what quality is, “subject to revision only by the General Assembly.”

In the early 1990s, a coalition of mostly rural school systems — including Radford and Pulaski County — sued the state, alleging that Virginia’s system of financing created an unconstitutional disparity between affluent school systems and poorer ones. The Virginia Supreme Court ruled otherwise in 1994, saying while the state Constitution requires a public school system, it does not require equal funding. Ever since then, the assumption has been that the state Constitution offers no help to those concerned about the disparities between mostly rural schools and suburban ones.

Now, two legal experts have said in recent weeks that those 1990s plaintiffs made the wrong argument. First it was David Sciarra, of the Education Law Center at Rutgers University. Now it’s Black, who elaborated on this recently on the Education Law Prof Blog. Sciarra and Black say that instead of arguing for equal funding, rural schools should be arguing that Virginia has failed to meet its constitutional duty to provide schools of “high quality.”

It’s unclear, of course, whether this would be a winning argument — Virginia has no standards for school buildings, for instance, so it may be difficult to argue that even the ones in use that have been declared “functionally obsolete” violate any legal standard. Still, it’s a different argument than what’s been employed in the past. And Black points out that the plaintiffs not only have the state Constitution on their side, but the federal law readmitting Virginia to the Union and perhaps even the 14th Amendment. The legal theory: The disparity between poor schools and affluent ones is evidence that Virginia is violating the federal mandate not to “deprive any citizen or class of citizens” of the state constitution’s guarantee of a “high quality” education.

Why didn’t anyone cite this when some Virginia localities shut down their schools rather than integrate in the 1950s? Black speculates that civil rights lawyers in those pre-internet days simply didn’t know about this little-known provision. But they know about it now. A lawsuit challenging Mississippi’s school funding formula reaches back to cite that state’s Readmission Act. The question is: When will anyone in Virginia go to court and cite the same law?

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