CT Blue

I’m no longer a practicing lawyer, but I’m still interested in legal developments. We now have a federal court system dominated by ideologues for whom the disinterested application of legal principles is important only insofar as the courts will feel obliged to cloak their decisions in language that they can claim shows said disinterested application, all while they actually disregard the obvious intent and clear language of the laws they are interpreting and disregard the reality of the factual situations before them. They are, in short, skilled in legal obfuscation, something that has always more or less been a requisite for the job, though never more so than now. Well, maybe the Gilded Age has us beat (see below).

Which brings me to this case, discussed recently on Diane Ravitch’s blog.

Peter Greene writes about a charter school in North Carolina that had a strict dress code for female students. Parents sued to overturn the rule as a violation of Title IX. They won. But then a federal appeals court reversed the ruling. The judges reasoned that charter schools are not public schools and not subject to the same laws as public schools.

This from the article by Greene:

The two judges, both Trump appointees, ruled that contrary to the assertion of the lower court, that charter schools should not be considered state actors, and are therefore not subject to the Equal Protection Clause of the 14th Amendment. This is yet another way for the courts to work their way around to declaring that charter schools are free to discriminate in any ways they wish. But it also makes one thing perfectly clear–

Charter schools are not public schools. They are not state actors.

Greene, and apparently Ravitch, seem to believe that there is a silver lining in the court’s ruling and they would be right, except there’s every reason to believe that the two judges referenced in the above quote, and the hundreds like them now infesting the courts, will have no problem finding that charter schools are, in fact, state actors, when it suits the purposes of the schools and the judges. To the untutored mind, it would seem that schools largely funded by state funds, usually existing under state sanction and regulation, and chartered for the specific purpose of providing an alternate means of fulfilling a state responsibility, are so entwined with the state that they should be subject to the limitations to which the state would be subject in like circumstances. But that’s inconvenient when it comes to certain things, like the ability to discriminate on religious, racial, or simply arbitrary grounds. But it might not be inconvenient when those schools line up for their share of educational funds or other state assistance, at which time they will argue that they are serving the essential state function of providing education to that state’s citizens.

The job of the modern federal judiciary is to eschew foolish consistency, that hobgoblin of little minds. We can rest assured that these same judges would have no problem turning some judicial somersaults in order to give charter schools any benefit that they can derive from being acknowledged as entities performing a state function. The right wing has always been good at ignoring or denying the obvious, and the case of charter schools will be no exception. The courts will come up with some distinction between charter schools as non-state entities, and charter schools as state actors, but it will be the classic “distinction without a difference” that we learned about in law school.

Ignoring the obvious has a long and dishonorable history in the federal courts. I’m currently reading The Great Dissenter, a biography of Justice John Harlan by Peter Canellos, and I just finished the chapter about Plessy v. Ferguson. In that case, the court endorsed the separate but equal dodge employed by the racist white governments of the South to relegate black people to segregated schools and facilities. Everyone knew that, besides the fact that such segregation was clearly inconsistent with the clear language of the 14th Amendment, the facilities and schools provided to blacks were anything but equal to those enjoyed by whites. That, after all, was the point. We are now in for a generation of similar decisions, which will not only undermine the rights of black people, but those of the irreligious, gay people, non-Christians, and, ultimately, all but the rich. I wish nothing but ill to Clarence Thomas, but I hope he’s still on the court when he is faced with the task of joining his right wing colleagues in ruling that, while Brown v. Board of Education is good law in state run facilities (at least for now), it is perfectly okay for private schools, places of accomodation, and employers to discriminate along racial lines if their religious beliefs compel such discrimination. That case is coming and our courts are now stocked with judges who will find a way to cast aside precedent and common sense to bring back Jim Crow.

OFF THE SUBJECT A BIT: The Harlan biography is well worth a read. It is actually a dual biography, as it also traces the life of Robert Harlan, the presumed offspring of John Harlan’s father, James, and a slave woman (it’s complicated). Robert was a highly successful entrepreneur in a number of fields, and a leader in the Gilded Age black community. John and Robert were close, and their relationship may have had much to do with John’s ability to distance himself from the racism endemic in his native South and in the post-Reconstruction judiciary. It took about 60 years, but the court ultimately came around to his point of view. Another 60 years have passed, and we are on the cusp of an era in which the court will likely reject those views yet again. That rejection will include not just Harlan’s views on race, but his relatively enlightened views on worker’s rights. We can already see the court chipping away at union rights, so can a revival of Lochner be far away? As in the Gilded Age, and as with the recent decision on union dues (at the link) these decisions will inevitably be disguised as protections of worker’s rights, just as the Lochner case was allegedly a vindication of a worker’s right to bargain to work a 16 hour day.