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An End Run Around The High Court

Legal Affairs


In some schools in Louisiana, Richard Nixon is still President. As recently as last year, science texts were predicting travel to the moon. In nearby Alabama, it's no better. Alice Frizzette Lyles, a mother of four school-age children, says the cash-strapped Choctaw County High School in Butler, Ala., is breaking down. Teachers, including her husband, dig into their own pockets to buy supplies. At the local elementary school, music and art classes don't exist, and books are replaced only every six years. The ceilings leak, the buses break down, and there is no school nurse--an extra burden for Lyles's son Phillip, who has asthma. "We can't expose our children to what others are exposed to," says Lyles. "It's not giving them a fair chance when they go into the marketplace."

Enter the American Civil Liberties Union. The civil rights group is pressing class actions in Alabama and Louisiana on behalf of parents and children, including the Lyles family, challenging the quality of education in the public schools. Supported by some local business leaders, the suits are part of the ACLU's new state-by-state initiative to establish a constitutional right to an "adequate education." The novel cases mark a dramatic shift in strategy for the 70-year-old ACLU. Instead of turning to federal courts to forge new rights under the U.S. Constitution, it uses state constitutions to expand individual liberties.

PATCHWORK. The ACLU is not alone. Faced with a staunchly conservative U.S. Supreme Court, civil rights groups and others are dusting off state constitutions to enforce rights in state courts that would receive a hostile reception at the federal level. "We have embarked on a state constitution strategy," says ACLU Associate Legal Director Helen Hershkoff. "We are not beating a hasty retreat just because we can no longer count on the Supreme Court to protect civil rights."

The strategy, promoted in 1977 by liberal Supreme Court Justice William J. Brennan Jr., is proving a winner. From 1977 to 1986, state courts issued "well over" 200 decisions recognizing state constitutional rights that go beyond the federal Constitution, says the ACLU. State constitutions now provide greater rights than the U.S. Constitution in such areas as education financing and environmental protection (table). The trend is "gathering momentum," says Rodney A. Smolla, a professor at the College of William & Mary School of Law. "There's a lot of pressure in state courts to adopt more liberal rulings."

Conservative and business groups are squawking. To be sure, they're pushing state constitutions as a vehicle to promote specific agendas. But they warn that the rise of state constitutions, with their patchwork of rights and duties, could ultimately prove disastrous for corporations. "The idea that the federal Constitution would be the floor and that business would have to comply with 50 state laws could wreak havoc," says Alan M. Slobodin, a lawyer at the Washington Legal Foundation, a conservative advocacy group. U.S. Chamber of Commerce General Counsel Stephen A. Bokat says business executives would much prefer "national uniformity" over state regulation--even if the federal standards prove tougher than those in some states. The desire for uniformity in part is driving the current push for a federal product-liability law.

FULL CIRCLE. Liberals and conservatives have come full circle since the heyday of the civil rights movement. In the 1960s, the activist Warren Court was the liberals' strongest ally, while the rallyingcry among Southern conservatives was "states' rights." This liberal-conservative, federal-state court split continued through the 1970s, even though Republican nominees dominated the high court.

Ironically, conservatives blame their disillusionment with the states on Ronald Reagan. The former President packed the bench with conservative jurists sharing such a strong commitment to federalism that they have been loath to preempt state laws or second-guess their state-court brethren. At the same time, Reagan stuck to his promise of reducing the federal government's role, leaving the states to jump in. The result: more state regulation and increasingly activist state judges. "In retrospect, certainly, there's some folks in the business community who are thinking that they were too clever by half," Slobodin says.

In many ways, state constitutions can be an even more potent weapon than the federal Constitution. Striking in language and rich in history, state constitutions spell out rights that go unmentioned in the U.S. Constitution. For example, the constitutions of Florida, Hawaii, Missouri, New Jersey, New York, and Puerto Rico include the right to organize and bargain collectively.

NEW ZEAL. State high courts are virtually free to interpret their own constitutions any way they please. The U.S. Supreme Court has limited authority to review decisions based on state constitutional language. In a pair of privacy cases decided in April, New York's top court boldly rejected Supreme Court precedent on warrantless searches. The New York court ruled that citizens "are entitled to more protection" from improper police conduct than the U.S. Supreme Court has allowed. Last year, the Indiana state court, ignoring Supreme Court law, upheld a constitutional right to government-supplied housing.

In its education cases, the ACLU seeks to stretch state constitutions to new limits. All 50 state constitutions include a right to education. In 10 states, courts have read the provisions to require equitable distribution of state aid between rich and poor school districts. Now, the ACLU claims in suits across the country that states also have a constitutional duty to provide an adequate education.

The argument has gained the support of some business and community leaders in Alabama and Louisiana. In April, Washington's Corporation for Enterprise Development announced its annual "report card" on economic performance, business vitality, and development capacity in the 50 states. Louisiana earned the unique distinction of rating all F's. Alabama got two D's and a C--and had the lowest percentage of high school graduates in its work force of any state.

Louisiana hasn't taken a public position on the ACLU suit filed on Mar. 25. Alabama does support education but has fought the class action on the ground that declaring a constitutional right to an adequate education might have unwarranted fiscal consequences. That may be a legitimate fear. But until the U.S. Supreme Court is more willing to embrace individual liberties, that responsibility will continue to fall on the states.AN EXPANDING ROLE FOR STATE CONSTITUTIONS

Faced with a hostile U.S. Supreme Court, advocacy groups are increasingly using

state constitutions to win rights currently unprotected by the federal

Constitution. Here's a sampling:


Courts in 10 states have ruled their state constitutions require equitable

funding for rich and poor school districts, an argument the Supreme Court



Even if the Supreme Court rolls back abortion, the Florida and California state

constitutions have been interpreted to protect a woman's right to end her



Many state constitutions such as that of Illinois protect the right to a

healthy environment. The U.S. Constitution has no such provisions


Michele Galen in New York

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