Archives for category: Democracy

Sheldon Whitehouse, Senator from Rhode Island, gave a masterful presentation on the power of dark money at the confirmation hearings for Judge Amy Coney Barrett. Please take 30 minutes and watch it. If we don’t put a stop to the power of dark money, we will lose our democracy.

Senator Whitehouse names names. He details the “Scheme,” the money trail, the big donors (where they can be identified) who are buying our democracy and choosing Supreme Court Justices.

Their three big legal goals right now: to overturn Roe v. Wade; to overturn the gay marriage decision; to overturn the Affordable Care Act.

The Republicans are rushing through Judge Barrett’s confirmation so that she can be a member of the Supreme Court when Obamacare (the Affordable Care Act) is argued on November 10.

The New York Times published this editorial for its Sunday edition, accompanied by articles detailing the multiple failures of Donald Trump. This is my favorite line: “the lesson of the last four years is that he cannot solve the nation’s pressing problems because he is the nation’s most pressing problem.” The title of the editorial is: “End Our National Crisis: The Case Against Donald Trump.”

Donald Trump’s re-election campaign poses the greatest threat to American democracy since World War II.

Mr. Trump’s ruinous tenure already has gravely damaged the United States at home and around the world. He has abused the power of his office and denied the legitimacy of his political opponents, shattering the norms that have bound the nation together for generations. He has subsumed the public interest to the profitability of his business and political interests. He has shown a breathtaking disregard for the lives and liberties of Americans. He is a man unworthy of the office he holds.

The editorial board does not lightly indict a duly elected president. During Mr. Trump’s term, we have called out his racism and his xenophobia. We have critiqued his vandalism of the postwar consensus, a system of alliances and relationships around the globe that cost a great many lives to establish and maintain. We have, again and again, deplored his divisive rhetoric and his malicious attacks on fellow Americans. Yet when the Senate refused to convict the president for obvious abuses of power and obstruction, we counseled his political opponents to focus their outrage on defeating him at the ballot box.

Nov. 3 can be a turning point. This is an election about the country’s future, and what path its citizens wish to choose.

The resilience of American democracy has been sorely tested by Mr. Trump’s first term. Four more years would be worse.

But even as Americans wait to vote in lines that stretch for blocks through their towns and cities, Mr. Trump is engaged in a full-throated assault on the integrity of that essential democratic process. Breaking with all of his modern predecessors, he has refused to commit to a peaceful transfer of power, suggesting that his victory is the only legitimate outcome, and that if he does not win, he is ready to contest the judgment of the American people in the courts or even on the streets.

[Kathleen Kingsbury, acting editorial page editor, wrote about the editorial board’s verdict on Donald Trump’s presidency in a special edition of our Opinion Today newsletter. You can read it here.]

The enormity and variety of Mr.Trump’s misdeeds can feel overwhelming. Repetition has dulled the sense of outrage, and the accumulation of new outrages leaves little time to dwell on the particulars. This is the moment when Americans must recover that sense of outrage.

It is the purpose of this special section of the Sunday Review to remind readers why Mr. Trump is unfit to lead the nation. It includes a series of essays focused on the Trump administration’s rampant corruption, celebrations of violence, gross negligence with the public’s health and incompetent statecraft. A selection of iconic images highlights the president’s record on issues like climate, immigration, women’s rights and race. And alongside our judgment of Mr. Trump, we are publishing, in their own words, the damning judgments of men and women who had served in his administration.

The urgency of these essays speaks for itself. The repudiation of Mr. Trump is the first step in repairing the damage he has done. But even as we write these words, Mr. Trump is salting the field — and even if he loses, reconstruction will require many years and tears.

Mr. Trump stands without any real rivals as the worst American president in modern history. In 2016, his bitter account of the nation’s ailments struck a chord with many voters. But the lesson of the last four years is that he cannot solve the nation’s pressing problems because he is the nation’s most pressing problem.

He is a racist demagogue presiding over an increasingly diverse country; an isolationist in an interconnected world; a showman forever boasting about things he has never done, and promising to do things he never will.

He has shown no aptitude for building, but he has managed to do a great deal of damage. He is just the man for knocking things down.

As the world runs out of time to confront climate change, Mr. Trump has denied the need for action, abandoned international cooperation and attacked efforts to limit emissions.

He has mounted a cruel crackdown on both legal and illegal immigration without proposing a sensible policy for determining who should be allowed to come to the United States.

Obsessed with reversing the achievements of his immediate predecessor, Barack Obama, he has sought to persuade both Congress and the courts to get rid of the Affordable Care Act without proposing any substitute policy to provide Americans with access to affordable health care. During the first three years of his administration, the number of Americans without health insurance increased by 2.3 million — a number that has surely grown again as millions of Americans have lost their jobs this year.

He campaigned as a champion of ordinary workers, but he has governed on behalf of the wealthy. He promised an increase in the federal minimum wage and fresh investment in infrastructure; he delivered a round of tax cuts that mostly benefited rich people. He has indiscriminately erased regulations, and answered the prayers of corporations by suspending enforcement of rules he could not easily erase. Under his leadership, the Consumer Financial Protection Bureau has stopped trying to protect consumers and the Environmental Protection Agency has stopped trying to protect the environment.

He has strained longstanding alliances while embracing dictators like North Korea’s Kim Jong-un and Russia’s Vladimir Putin, whom Mr. Trump treats with a degree of warmth and deference that defies explanation. He walked away from the Trans-Pacific Partnership, a strategic agreement among China’s neighbors intended to pressure China to conform to international standards. In its place, Mr. Trump has conducted a tit-for-tat trade war, imposing billions of dollars in tariffs — taxes that are actually paid by Americans — without extracting significant concessions from China.

Mr. Trump’s inadequacies as a leader have been on particularly painful display during the coronavirus pandemic. Instead of working to save lives, Mr. Trump has treated the pandemic as a public relations problem. He lied about the danger, challenged the expertise of public health officials and resisted the implementation of necessary precautions; he is still trying to force the resumption of economic activity without bringing the virus under control.

As the economy pancaked, he signed an initial round of aid for Americans who lost their jobs. Then the stock market rebounded and, even though millions remained out of work, Mr. Trump lost interest in their plight.

In September, he declared that the virus “affects virtually nobody” the day before the death toll from the disease in the United States topped 200,000.

Nine days later, Mr. Trump fell ill.

The foundations of American civil society were crumbling before Mr. Trump rode down the escalator of Trump Tower in June 2015 to announce his presidential campaign. But he has intensified the worst tendencies in American politics: Under his leadership, the nation has grown more polarized, more paranoid and meaner.

He has pitted Americans against each other, mastering new broadcast media like Twitter and Facebook to rally his supporters around a virtual bonfire of grievances and to flood the public square with lies, disinformation and propaganda. He is relentless in his denigration of opponents and reluctant to condemn violence by those he regards as allies. At the first presidential debate in September, Mr. Trump was asked to condemn white supremacists. He responded by instructing one violent gang, the Proud Boys, to “stand back and stand by.”

He has undermined faith in government as a vehicle for mediating differences and arriving at compromises. He demands absolute loyalty from government officials, without regard to the public interest. He is openly contemptuous of expertise.

And he has mounted an assault on the rule of law, wielding his authority as an instrument to secure his own power and to punish political opponents. In June, his administration tear-gassed and cleared peaceful protesters from a street in front of the White House so Mr. Trump could pose with a book he does not read in front of a church he does not attend.

The full scope of his misconduct may take decades to come to light. But what is already known is sufficiently shocking:

He has resisted lawful oversight by the other branches of the federal government. The administration routinely defies court orders, and Mr. Trump has repeatedly directed administration officials not to testify before Congress or to provide documents, notably including Mr. Trump’s tax returns.

With the help of Attorney General William Barr, he has shielded loyal aides from justice. In May, the Justice Department said it would drop the prosecution of Mr. Trump’s former national security adviser Michael Flynn even though Mr. Flynn had pleaded guilty to lying to the F.B.I. In July, Mr. Trump commuted the sentence of another former aide, Roger Stone, who was convicted of obstructing a federal investigation of Mr. Trump’s 2016 election campaign. Senator Mitt Romney, Republican of Utah, rightly condemned the commutation as an act of “unprecedented, historic corruption.”

Last year, Mr. Trump pressured the Ukrainian government to announce an investigation of his main political rival, Joe Biden, and then directed administration officials to obstruct a congressional inquiry of his actions. In December 2019, the House of Representatives voted to impeach Mr. Trump for high crimes and misdemeanors. But Senate Republicans, excepting Mr. Romney, voted to acquit the president, ignoring Mr. Trump’s corruption to press ahead with the project of filling the benches of the federal judiciary with young, conservative lawyers as a firewall against majority rule.

Now, with other Republican leaders, Mr. Trump is mounting an aggressive campaign to reduce the number of Americans who vote and the number of ballots that are counted.

The president, who has long spread baseless charges of widespread voter fraud, has intensified his rhetorical attacks in recent months, especially on ballots submitted by mail. “The Nov 3rd Election result may NEVER BE ACCURATELY DETERMINED,” he tweeted. The president himself has voted by mail, and there is no evidence to support his claims. But the disinformation campaign serves as a rationale for purging voter rolls, closing polling places, tossing absentee ballots and otherwise impeding Americans from exercising the right to vote.

It is an intolerable assault on the very foundations of the American experiment in government by the people.

Other modern presidents have behaved illegally or made catastrophic decisions. Richard Nixon used the power of the state against his political opponents. Ronald Reagan ignored the spread of AIDS. Bill Clinton was impeached for lying and obstruction of justice. George W. Bush took the nation to war under false pretenses.

Mr. Trump has outstripped decades of presidential wrongdoing in a single term.

Frederick Douglass lamented during another of the nation’s dark hours, the presidency of Andrew Johnson, “We ought to have our government so shaped that even when in the hands of a bad man, we shall be safe.” But that is not the nature of our democracy. The implicit optimism of American democracy is that the health of the Republic rests on the judgment of the electorate and the integrity of those voters choose.

Mr. Trump is a man of no integrity. He has repeatedly violated his oath to preserve, protect and defend the Constitution of the United States.

Now, in this moment of peril, it falls to the American people — even those who would prefer a Republican president — to preserve, protect and defend the United States by voting.

The children of prominent politicians are causing mighty waves. Kellyanne Conway’s daughter Claudia has one million followers on TikTok, Twitter and other social media outlets, where she regularly excoriates Trump and her parents. The niece of Donald Trump, Mary Trump, wrote a bestseller about the dysfunctional family that produced The Donald and regularly appears on cable news to denounce his policies.

But the latest shocker is this article in Vanity Fair by Caroline Rose Guiliani, daughter of Trump’s personal attorney and former Mayor of New York City. She argues with her father’s political views and urges readers to vote for Joe Biden and Kamala Harris. Caroline is a political activist, and she speaks out eloquently against her father and his famous client.

The article is titled: “Rudy Guiliani Is My Father. Please, Everyone, Vote for Joe Biden and Kamala Harris.”

She writes:

I have a difficult confession—something I usually save for at least the second date. My father is Rudy Giuliani. We are multiverses apart, politically and otherwise. I’ve spent a lifetime forging an identity in the arts separate from my last name, so publicly declaring myself as a “Giuliani” feels counterintuitive, but I’ve come to realize that none of us can afford to be silent right now. The stakes are too high. I accept that most people will start reading this piece because you saw the headline with my father’s name. But now that you’re here, I’d like to tell you how urgent I think this moment is.

To anyone who feels overwhelmed or apathetic about this election, there is nothing I relate to more than desperation to escape corrosive political discourse. As a child, I saw firsthand the kind of cruel, selfish politics that Donald Trump has now inflicted on our country. It made me want to run as far away from them as possible. But trust me when I tell you: Running away does not solve the problem. We have to stand and fight. The only way to end this nightmare is to vote. There is hope on the horizon, but we’ll only grasp it if we elect Joe Biden and Kamala Harris.

Around the age of 12, I would occasionally get into debates with my father, probably before I was emotionally equipped to handle such carnage. It was disheartening to feel how little power I had to change his mind, no matter how logical and above-my-pay-grade my arguments were. He always found a way to justify his party line, whatever it was at the time. Even though he was considered socially moderate for a Republican back in the day, we still often butted heads. When I tried to explain my belief that you don’t get to be considered benevolent on LGBTQ+ rights just because you have gay friends but don’t support gay marriage, I distinctly remember him firing back with an intensity fit for an opposing politican rather than one’s child. To be clear, I’m not sharing this anecdote to complain or criticize. I had an extremely privileged childhood and am grateful for everything I was given, including real-world lessons and complicated experiences like these. The point is to illustrate one of the many reasons I have a fraught relationship with politics, like so many of us do.

Even when there was an occasional flash of connection in these disagreements with my dad, it felt like nothing changed for the better, so I would retreat again until another issue I couldn’t stay silent on surfaced. Over the years other subjects like racial sensitivity (or lack thereof), sexism, policing, and the social safety net have all risen to this boiling point in me. It felt important to speak my mind, and I’m glad we at least managed to communicate at all. But the chasm was painful nonetheless, and has gotten exponentially more so in Trump’s era of chest-thumping partisan tribalism. I imagine many Americans can relate to the helpless feeling this confrontation cycle created in me, but we are not helpless. I may not be able to change my father’s mind, but together, we can vote this toxic administration out of office.

Trump and his enablers have used his presidency to stoke the injustice that already permeated our society, taking it to dramatically new, Bond-villain heights. I am a filmmaker in the LGBTQ+ community who tells stories about mental health, sexuality, and other stigmatized issues, and my goal is to humanize people and foster empathy. So I hope you’ll believe me when I say that another Trump term (a term, itself, that makes me cringe) will irrevocably harm the LGBTQ+ community, among many others. His administration asked the Supreme Court to let businesses fire people for being gay or trans, pushed a regulation to let health care providers refuse services to people who are LGTBQ+, and banned trans people from serving their country in the military.

Women, immigrants, people with disabilities, and people of color are all also under attack by Trump’s inhumane policies—and by his judicial appointments, including, probably, Amy Coney Barrett. Trump’s administration has torn families apart in more ways than I even imagined were possible, from ripping children from their parents at the border to mishandling the coronavirus, which has resulted in over 215,000 in the U.S. dying, many thousands of them without their loved ones near. Faced with preventable deaths during a pandemic that Trump downplayed and ignored, rhetoric that has fed deep-seated, systemic racism, and chaos in the White House, it’s no surprise that so many Americans feel as hopeless and overwhelmed as I did growing up. But if we refuse to face our political reality, we don’t stand a chance of changing it.

One week today, I will participate in a statewide Zoom meeting with education activists in Texas, hosted by Pastors for Texas Children.

It is a fundraising event for the important work of Pastors for Texas Children, which is a great friend to the five million children who attend public schools in Texas. PTC has been a powerful force in the effort by parents and civil groups to block vouchers in Texas. They have done this by reminding people that separation of church and state is the best protection of religious liberty and that we all have a civic duty to support our community public schools and make them better for all children. PTC, in addition, has helped to organize similar organizations in other states where public schools are under assault by privatizers.

Jennifer Rubin is a columnist for the Washington Post. I believe she was chosen to express a conservative view but she was quickly repelled by Trump and Trumpism. In this column, she explains how a Democratic Congress can protect progressive policies—by doing their job.

The prospect of Republican senators marching lock-step to confirm a justice — picked precisely because of her hostility to the Affordable Care Act and legal abortion — should help Democrats boost their already commanding position in Senate races. Only by retaking the Senate can a Democratic-led Congress prevent conservative rule by the judiciary.

Come to think of it, wasn’t an overly powerful Supreme Court something Republicans used to worry about? Back when Roe v. Wade was decided, they argued that the political branches of government should determine such issues; now they seek refuge in an uber-conservative Supreme Court out of step with a large majority of Americans on everything from guns to abortion to health care.

If Democrats do go on to win the White House and have comfortable majorities in both chambers, they can begin to defang a Supreme Court that has been stocked with rigid ideologues. Much has been made of the Democratic threat of “court packing” (was it “court stripping” when Republicans decided that eight justices were enough rather than consider the nomination of Judge Merrick Garland?); however, the threat of adding justices to the bench may have its intended effect in curbing the court’s quest to overturn decades of precedent. It is the last card to be played, not the first.

Instead, the first step Congress should take is — get ready! — to legislate. It can pass a federal statute (likely to require the demise of the filibuster if it cannot be accomplished in a reconciliation bill) to codify Roe (which draws more than 60 percent support) and, if lawmakers see fit, stripping out the Hyde Amendment that limits federally funded abortions to cases of rape, incest or cases in which the life of the mother is at risk. In other words, the federal government can decide not only to protect the right to seek an abortion but also to make abortions more accessible to poor women. We can argue whether that is a good or bad policy, but no one can argue that Congress has no prerogative to address the issue. Nor can anyone say that Congress can’t, say, pass a Defense of All Marriages Act, which would secure same-sex marriages.

Congress can also “fix” the Affordable Care Act, which it intends to expand anyway, should the Supreme Court strike the law down on the basis that the tax justification that Chief Justice John G. Roberts Jr. used to uphold the law vanished when the individual mandate fell out.

Call this the Ruth Bader Ginsburg approach. When the Supreme Court refused to extend the statute of limitations in wage discrimination lawsuits, her dissent in Ledbetter v. Goodyearinvited Congress to amend the statue. It did. Much of the anti-democratic, precedent-busting work of a hyperpartisan Supreme Court can be undone by a unified Congress and White House.

Congress can also use its constitutional power to limit the jurisdiction of the court’s appellate power and to limit the terms of justices. If the Supreme Court is to be a partisan outfit, then give it less to do and make each seat less valuable.

Conservatives are rushing through a rock-ribbed conservative with little regard for precedent for one reason: They are watching their electoral majority slip away — and, “worse,” they know their prospects of a comeback are diminishing, given that the electorate is looking more and more like America and that voting is not being suppressed. A court that zigzags its way through the Constitution depending on the policy preferences of the presidents who appointed them is not a court that will engender respect. It is one that needs to be cut down to size.

Ruth Marcus, a writer for the Washington Post, writes that Amy Coney Barrett says she holds the same judicial philosophy as her mentor Justice Antonin Scalia. In this column, she explores Scalia’s legacy.

The best way to predict how Supreme Court nominee Amy Coney Barrett would behave as a justice is to listen to her — and take her words seriously. She hasn’t been mysterious about it: Speaking in the Rose Garden after President Trump announced his selection, Barrett invoked the “incalculable influence” of her “mentor,” Justice Antonin Scalia, adding: “His judicial philosophy is mine, too — a judge must apply the law as written.”


We can, and should, examine Barrett’s record, on the bench and in academia. So Barrett’s decision to sign a newspaper advertisement in 2006 that decried the “barbaric legacy” of Roe v. Wade is instructive — if any more were needed to deduce her inclinations on that case. “You don’t know her view on Roe v. Wade,” Trump lectured Democratic nominee Joe Biden at Tuesday’s debate. “You don’t know her view.”


Oh, please. This from someone who vowed, during a debate with Hillary Clinton four years ago, that overturning Roe “will happen automatically, in my opinion, because I am putting pro-life justices on the court.”


But let’s imagine there’s still some uncertainty here. One way to examine how a Justice Barrett will rule is to examine the jurisprudence of Scalia, for whom she clerked in 1998 and 1999. The late justice repeatedly — and scathingly — made clear that he did not believe in any constitutional protection for abortion rights, and that the court was being cowardly by refusing to fix its error.


In 1989, when Justice Sandra Day O’Connor argued that “a fundamental rule of judicial restraint” required the court to avoid reconsidering Roe, Scalia was dismissive: That position, he said, “cannot be taken seriously.” Three years later, in 1992’s Planned Parenthood v. Casey, when O’Connor and a court plurality reaffirmed the essence of Roe, Scalia said the issue “is not whether the power of a woman to abort her unborn child is a ‘liberty’ in the absolute sense; or even whether it is a liberty of great importance to many women. Of course, it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not.”




It is fair, given Barrett’s comments, to ask the nominee: Would a Justice Barrett agree? Is she sure, too?


Barrett’s alignment with Scalia has implications far beyond Roe.


Start with gay rights. Scalia issued a ferocious dissent in Lawrence v. Texas in 2003, when the court overruled its 1986 holding that states could criminalize homosexual conduct. “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are immoral and unacceptable . . . the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity,” Scalia wrote.

He lambasted the ruling as “the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”


A dozen years later, in Obergefell v. Hodges, when the court majority took the step that Scalia had forecast and ruled that the Constitution protects the rights of gays and lesbians to marry, Scalia was even more dismissive. “I write separately,” he observed, “to call attention to this court’s threat to American democracy.” He termed the ruling “a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government,” adding, “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”




Would a Justice Barrett agree? Do states have an interest in making homosexual conduct criminal? Was Obergefell a threat to democracy?


Then there’s Scalia on gender discrimination. When the court in 1996 ruled that Virginia Military Institute’s male-only admission policy violated the constitutional guarantee of equal protection, Scalia was the sole dissenter from Ruth Bader Ginsburg’s opinion for the majority.
The court, Scalia wrote, “enshrines the notion that no substantial educational value is to be served by an all men’s military academy — so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States — the old one — takes no sides in this educational debate, I dissent.”


Would a Justice Barrett agree? Does the constitutional guarantee of equal protection not apply here?
Or Scalia on affirmative action in higher education. In 2003’s Grutter v. Bollinger, when the court narrowly upheld the University of Michigan Law School’s policy that used race as a factor in admissions, Scalia, dissenting, called the approach “a sham to cover a scheme of racially proportionate admissions” — one not permitted by the Constitution. In a 2014 case, he criticized the court’s “sorry line of race-based admissions decisions.”


Would a Justice Barrett agree? Is this impermissible race discrimination?
One thing that’s striking about all four of these areas is that Scalia was in dissent. One thing senators should explore — and that the public should weigh — is what could happen now, when the court’s conservative composition means that his former clerk could translate his angry dissents into controlling law.

The only sure way to guarantee that your vote is counted is to stand in line and vote in person.

Put on your face mask, practice social distancing, and wait your turn.

Trump is trying to discredit mail-in ballots and absentee ballots.

He hopes to throw the election into the courts, where he expects to fare better than with the electorate.

Trump and his hand-picked Postmaster General Louis DeJoy are doing their best to mess up postal service. If you are in a battleground state, bags of mail from certain districts might get “lost.”

Don’t take that chance!

Block that coup!

Show up. Cast your ballot. Vote to save our democracy.

Every vote counts.

Arthur Camins, lifelong educators, knows that teachers can’t change what happens in the next few months, other than by casting their votes. But they can rebuild the foundation of our society by teaching these three things: empathy, ethics, and evidence.

He writes:

My driving force has always been a core assumption: What happens in classrooms has a significant influence on how students think and behave when they emerge into adulthood, and hence when they vote and interact with one another.

I hope students grow up to treat everyone with dignity and respect. I hope they develop the tools to make sense of the natural and social environments in which they live. I hope they develop confidence and passion to act to influence the personal, social, political circumstances around them based on human values.

I know I am not alone in these hopes. I know that most educators are trying. I know most Americans share these hopes. I know that many of us are frustrated and angry that our common dreams for students’ futures are being thwarted. School systems are being diverted from what matters most by persistent inequity and racism, high-stakes testing, efforts to privatize and monetize education, and most recently by pandemic disruption of in-person learning.

I know this: Despite and in response to the challenges, all of us– not just educators and parents– must demand that teaching should focus on what matters most: empathy, ethics, and evidence. Those essential foci cut across all subject areas, all grades, and whether students are engaged at home or in school. Students may lose facts, concepts may fade, and skills may wither but they, like the rest of us, remember how we were treated. In the short term, that influences how, whether, and what students learn. More important, it influences how they will see one another and act as humans for a lifetime.

A well-educated citizenry is essential to democracy. The Education Law Center reports good news for the schools and students of Illinois:

On September 30, the Illinois Supreme Court agreed to hear an appeal in Cahokia Unit School District No. 187 v. Pritzker, a case challenging inadequate and inequitable school funding that could potentially alter the landscape of school funding jurisprudence in the state.

The plaintiffs in the Cahokia lawsuit are twenty-two, low-wealth school districts across the state. They filed their lawsuit in 2018, charging that the State of Illinois has persistently underfunded their schools, depriving their students of their right to a high quality education under the Education Clause of the Illinois constitution.

The plaintiffs are represented by Thomas Geoghegan of the law firm Despres, Schwartz & Geoghegan, Ltd. in Chicago.

In 1996, in Committee for Educational Rights v. Edgar, the Illinois Supreme Court ruled that the Education Clause was a non-justiciable political question because the “quality of education” was not “capable of or properly subject to measurement by the courts.” The Court held that defining the quality of education was a matter for the State Legislature.

In the ensuing years, the Legislature took up that mantle, adopting the Illinois Learning Standards, which detail the specific educational experience to which all students in Illinois are entitled. The State also adopted tests to measure students’ progress on the Learning Standards.

In 2017, in response to intense political pressure, the Legislature enacted the Funding Act of 2017, designed to provide the resources essential for all students to achieve the State’s Learning Standards. In 2018, the State Board of Education determined, pursuant to the Funding Act’s criteria, that an additional $7.2 billion was required to provide adequate and equitable resources for all students. The Funding Act established a deadline of 2027 for full funding of the adequacy amount.

However, even in the first year of the Act’s decade-long phase-in to full funding, the state failed to provide the requisite installment of state school aid. This failure lies as the heart of the Cahokia lawsuit, in which the plaintiffs contend that the State is already so far behind on funding the new formula that full funding will not be achieved even by 2047.

The Cahokia plaintiffs presented data establishing a correlation between inadequate State and local per-pupil funding and failure rates on state assessments. The plaintiffs also demonstrated a wide disparity in passing rates on state assessments between students in low-wealth districts, which are inadequately funded, and in affluent districts.

In July 2018, the State defendants moved to dismiss the lawsuit, contending that the case was beyond the reach of the courts, or “not justiciable,” based on the Supreme Court’s 1996 Edgar ruling. The trial court agreed and dismissed the complaint. In April 2020, in a split decision, the Appellate Court of Illinois affirmed the dismissal, noting that the Legislature’s enactment of the Illinois Learning Standards did call into question the holding in Edgar. However, the appeals court also ruled that overturning this precedent is the exclusive province of the Illinois Supreme Court.

Appellate Court Justice Milton S. Wharton filed a vigorous dissent, asserting that the court has a duty to address the issues in the case “instead of ignoring or postponing this critical issue of utmost urgency and importance to our citizens and our State with an overly broad application of Edgar ‘s holding.” Justice Wharton concluded that since Edgar, the Legislature has “determined the education students must receive” and, as a result, “courts no longer need to make that determination in order to resolve claims that students in under-resourced districts are not receiving the high quality education mandated by our State constitution.”

The Cahokia plaintiffs filed a petition for leave to appeal in the Illinois Supreme Court in July. The Supreme Court’s decision to accept the case provides the opportunity to revisit its decision in Edgar in light of the Legislature’s actions since 1996 that have defined the substantive contours of a quality education for Illinois public school students.

In 2017, in a case very similar to Cahokia, the Pennsylvania Supreme Court reconsidered its previous ruling that constitutional education adequacy claims were non justiciable. In William Penn School District, et al., v. Pennsylvania Department of Education, et al., the Pennsylvania Supreme Court held that the plaintiffs (a coalition of school districts, parents, children and advocacy groups) were entitled to proceed to trial on their school funding claims. The Court declined to follow its earlier decision, now holding that it was possible to devise a judicially enforceable standard of educational adequacy. The Court further held that failure to adjudicate school funding claims would make a “hollow mockery of judicial review.”

A similar decision by the Illinois Supreme Court would allow the plaintiffs to proceed to trial to prove their case and would finally provide, as Justice Wharton declared, “an avenue [for] under-resourced school districts like the plaintiffs to insist on funding that is adequate to serve their students” in the manner to which they are entitled under the Illinois constitution.

Education Law Center is providing assistance to the Cahokia plaintiffs’ attorneys and working with the Chicago Lawyers Committee for Civil Rights Under Law on an amicus brief before the Illinois Supreme Court.

Press Contact:
Sharon Krengel
Policy and Outreach Director
Education Law Center
60 Park Place, Suite 300
Newark, NJ 07102
973-624-1815, ext. 24
skrengel@edlawcenter.org

If you are looking for a book that explains why public schools are foundational to democracy, Jan Resseger writes, read Derek Black’s Schoolhouse Burning: Public Education and the Assault on American Democracy.

Resseger writes:

On Monday, this blog examined Derek Black’s important new book, Schoolhouse Burning: Public Education and the Assault on American Democracy. Black, a professor of constitutional law at the University of South Carolina, threads together the history of an idea first articulated in the Northwest Ordinances of 1785 and 1787, threatened again and again throughout our nation’s history, but persistently revived: that our system of public schools, where all children are welcome and where their fundamental right to education is protected by law, is the one institution most essential for preserving our democratic society…

Derek Black names several problems at the heart of today’s threat to public education: the expansion of school privatization via charters and vouchers, massive fortunes invested by far-right libertarians to attack so-called ‘government schools,’ attacks on school teachers and their unions, and persistent tax cutting by state legislatures and the consequent ratcheting down of state funding for public education: “Before the recession of 2008, the trend in public school funding remained generally positive… Then the recession hit. Nearly every state in the country made large cuts to public education. Annual cuts of more than $1,000 per student were routine.” But the recession wasn’t the only cause of money troubles for public schools: “(I)n retrospect…. the recession offered a convenient excuse for states to redefine their commitment to public education… By 2012, state revenues rebounded to pre-recession levels, and a few years later, the economy was in the midst of its longest winning streak in history. Yet during this period of rising wealth, states refused to give back what they took from education. In 2014, for instance, more than thirty states still funded education at a lower level than they did before the recession—some funded education 20 percent to 30 percent below pre-recession levels.” (Schoolhouse Burning, pp. 31-33) Black cites research demonstrating that states have reneged on their public education promise particularly in areas where the public schools serve poor children: “(W)hen it comes to districts serving primarily middle-income students, most states provide those districts with the resources they need to achieve average outcomes… But only a couple states provide districts serving predominantly poor students what they need. The average state provides districts serving predominantly poor students $6,239 less per pupil than they need.” (Schoolhouse Burning, p. 241)..

All during the recent decade, the federal government’s education policy has also promoted school privatization. During the Trump administration, Betsy DeVos’s efforts to promote vouchers, her lifelong cause, have been well known. But the effort has been bipartisan: “Obama… tapped Arne Duncan… someone whose track record in Chicago involved substantially expanding charters… For the next several years, the federal government promoted and sometimes forced charter school expansion… The Obama administration basically condoned everything states were doing with school funding and made it a little worse. Federal funding for public schools remained flat while the federal budget for charter schools increased by nearly 20 percent between 2008 and 2013. President Obama called for another 50 percent increase for charters on top of that in 2016 (though he didn’t get it). The real surprise, though, is how much Duncan managed to accomplish through administrative action… His biggest coup was the process he set up for doling out innovation funds during the recession. As part of the economic recovery legislation, Congress had set aside a substantial chunk of money for education innovation but didn’t specify exactly what schools could spend it on. Duncan, however, told states that if they wanted access to the money, charter schools had to be part of the mix. States that ‘put artificial caps on the growth of charter schools,’ he said, ‘will jeopardize their grant applications.’… The overall result of these state and federal actions was stark—nearly 40 percent growth in the number of charter schools and 200 percent growth in their enrollment.” (Schoolhouse Burning, pp. 36-37)

Black reminds us that an attack on public schools is an attack on democracy.