Justice Scalia’s successor will matter more.
The Senate confirmation process for President-elect Donald Trump’s Secretary of Education nominee, philanthropist Betsy DeVos, figures to be a battle royal early in the New Year.
The teachers’ unions, ever influential with Democratic Party politicos, will be gunning big time for DeVos, because of her steadfast advocacy of vouchers and charter schools, which she and millions of others believe will give families alternatives to government monopoly schooling. Grassroots anti-Common Core organizations will also be leading the charge against DeVos, unwilling to forgive her for her close ties to big-time foundations that teamed with the feds to push the nationalized curricular standards. Few anti-Core crusaders will care DeVos has tweeted that she is “no supporter” of Common Core.
For certain, DeVos has impressive accomplishments and influential supporters to bolster her confirmation chances. As just one example, National School Choice Week has blossomed under her chairmanship of the nonprofit American Federation for Children into a huge bipartisan celebration of all kinds of choice, both public and private, during the final week of January. (In January 2016, there were some 16,745 events held in all 50 states.)
After all the political tumult and shouting, the new Education Secretary — whether Betsy DeVos or someone else — will not affect the direction of education in America nearly as much as will Trump’s choice of successor to Antonin Scalia, the late Supreme Court justice, or the ensuing confirmation battle over that nominee.
Following Scalia’s death in February, Senate Republican leadership refused to consider President Barack Obama’s nomination of Merrick Garland, insisting instead the vacancy should be filled after voters picked a new president. With that uncommon show of resolve, the GOP leaders won a high-stakes gamble. President Hillary Clinton could have selected a jurist who regards the Constitution as a wholly elastic document supporting collectivism over individual rights. Instead, Trump has pledged to name a jurist in the mold of Scalia, a brilliant defender of individual liberty.
One of the first cases that could matter with a Scalia replacement breaking the current 4–4 Supreme Court deadlock is an obscure-sounding but significant case from Missouri titled Trinity Lutheran Church v. Pauley. The dispute in that case arose because the State of Missouri awards grants to schools for rubber paving to enhance playground safety, but it denied this aid to a Lutheran-affiliated preschool. The divided Supreme Court decided to postpone consideration of the case until it was back to full strength, which should happen sometime in 2017.
Scalia stood squarely against state-mandated religious discrimination. As Betsy McCaughey reasonably concluded in The American Spectator on November 30, “Trump’s new justice will shift the court to allow religious institutions and the faithful to be treated equally with everyone else.”
Such a precedent, should it be on the side of liberty and religious tolerance, could be decisive when challenges to state constitutions’ 19th-century Blaine Amendments, which were motivated by anti-Catholic bigotry when they were first enacted, inevitably reach the nation’s highest court. Enemies of educational choice have encouraged state courts (with limited success) to interpret Blaine as forbidding parents from using public scholarships (vouchers) to freely choose religiously oriented schools for their children. A U.S. Supreme Court decision true to Scalia’s dedication to the right of people to be free from religious discrimination could topple this last remaining barrier to school choice.
The new Court could also help remove the dead weight of the national teacher unions from public education. In Friedrichs v. California Teachers Association, a 4–4 vote of the High Court on March 29, 2016, left in place the laws of 20 states that allow the unions to collect compulsory dues (so-called “agency fees”) from non-union teachers. The decision not to hear the case meant a new precedent was not set. The expectation is in a future case raising this issue a jurist in the Scalia mold would tip the scales in favor of teachers who view forced union dues as a violation of their First Amendment rights.
In the next few years, other cases could go before the Supreme Court challenging the unions’ ability to impose policies that put protected seniority over the right of children to have access to the strongest possible teaching such as tenure and last-hired/first-fired layoff rules. The landmark Vergara decision (2016), handed down by a Los Angeles judge, voiding California’s tenure system came close to surviving the state appeals process. It is likely a future challenge will make it to the U.S. Supreme Court.
All this is not to say the Supreme Court will be the sole entity responsible for shaping the future of education in the United States. Although the Constitution empowers the judiciary to determine the constitutionality of laws, it does not provide for Congress, the White House, or federal agencies to control education by statute or regulation. Under the Tenth Amendment, sway over education is left to the states and to the people.
The strongest step the Trump Administration could take on behalf of real choice in education would be to devise a plan for dismantling or phasing out the U.S. Education Department (USED), which came into being in 1980 as President Jimmy Carter’s payoff to the largest teacher union, the National Education Association, for supporting his election campaign. USED has done nothing but impede educational progress with senseless No Child Left Behind edicts and costly Race to the Top boondoggles.