Federalism, the protection of liberty through the dispersion of power among different levels of government, has been close to dead for decades in the United States. But now it’s a little closer, thanks to the U.S. Supreme Court.
In a five-to-four decision, the Court ruled that since schools accept money under a federal law guaranteeing “equal access” to education, school districts can be held liable when they ignore sexual harassment inflicted on one student by another. The majority decision equated sexual harassment with sex discrimination, enabling the justices to bring the case under Title IX of the Education Amendments of 1972.
But the further incursion by the federal government into what traditionally have been regarded as local matters bothered the dissenters. Justice Anthony Kennedy wrote in his dissenting opinion, “Perhaps the most grave, and surely the most lasting, disservice of Monday’s decision is that it insures the court’s own disregard for the federal balance soon will be imparted to our youngest citizens.” He predicted, “Federal influence will permeate everything from curriculum decisions to day-to-day classroom logistics and interactions.”
Unfortunately, it is a bit late for Justice Kennedy to be voicing such concerns. In recent years Washington’s influence has become more pronounced in virtually every aspect of education. This case appears as just another logical extension of the malignant principle that the national government may define its own powers. We long ago lost sight of the reason that the framers of the Constitution set up a federal system. The purpose was to protect individual liberty by preventing the concentration of political power that had led to tyranny wherever it had occurred. Today federalism, like any limits on Washington’s power, is regarded as an outmoded remnant of a bygone day. But it is just as important in limiting government power as ever-more important! Besides, the principle is still in the Constitution. The central government was accorded powers that are, in Madison’s phrase, “few and defined.” And the Tenth Amendment then reserved all other rights to the people and the states. But who reads the Constitution nowadays? Studying it in school would be downright subversive.
Washington’s regulation of local government schools is bad enough. But it is nothing more than an outgrowth of any government involvement in education. Once the principle is established that the political authorities should control schools, it is mere quibbling which level should have the upper hand. The logic of the premise will tend to push control to the highest political authority.
Thus, the real problem is not Washington control of schools. It is government control of schools. Unlike the justices, the mother of the girl whose harassment produced this case seemed to grasp the key point, “They make you send your kids to school, right? So don’t you think they should protect them while they’re there?” Exactly! They make you send your kids. Schools that get their students and money by compulsion will tend not to be responsive to the needs of the unique individuals they ostensibly serve. As the mother said, “But they didn’t have any kind of respect for my child.”
Like any bureaucracy, government schools exist for the people who run it. Can you imagine a private school permitting a girl to be tormented over a long period? That school would know that her parents were free to yank the girl and their money at a moment’s notice. Try that with your local government school.
The way to make children safe in school is not to expand the powers of Washington (or to pass useless gun laws), but to let parents again make the decisions about their children’s education. That authority and responsibility were usurped more than a 150 years ago when state governments systematically conquered a highly successful free market in education. It’s been downhill ever since. That children can’t even be safe in the government’s schools has been driven home in a horrifying manner lately.
For our children’s sake, we must separate school and state.
