Article

Constitutional Privileging

“Constitutional privileging” occurs when courts treat the constitutional status of a legal claim as a reason to afford it specialized procedural or remedial treatment—in effect providing to that claim a greater degree of judicial care and attention than its nonconstitutional counterparts receive. Though seldom scrutinized by courts and commentators, this practice occurs within a variety of doctrinal settings. For example, a stricter standard of harmless error review governs constitutional claims; district court findings of facts (and mixed findings) are subject to a stricter form of appellate review in constitutional cases; collateral relief from federal court judgments is more easily obtained in connection with constitutional claims; and so on. In these and other contexts, the Constitution counts as not just supreme law, which is lexically prior to nonconstitutional law, but also “preeminent law,” which deserves especially meticulous implementation and especially vigorous enforcement.

In this Article, I question both the conceptual soundness and practical desirability of constitutional privileging. I first propose and reject several theories of “intrinsic” constitutional preeminence, each of which identifies a distinctive (or seemingly distinctive) feature of the constitutional form as mandating the privileging of constitutional over nonconstitutional claims. I then outline an alternative, “extrinsic” defense of constitutional privileging, which characterizes the practice as a pragmatic response to the objective “importance” or “fundamentality” of many constitutional rules. Although this defense cannot be definitively rebutted, I suggest that it too is unpersuasive. I also draw attention to the problematic tendency of constitutional privileging to undermine the “passive virtues” of judicial decision-making, especially the familiar norm that calls for avoiding unnecessary adjudication of constitutional questions. Finally, I propose several doctrinal reforms, aimed at reducing courts’ reliance on the variable of constitutional status in the privileging of legal claims.

Originalism and the Other Desegregation Decision

Critics of originalist approaches to constitutional interpretation often focus on the “intolerable” results that originalism would purportedly require. Although originalists have disputed many such claims, one contention that they have been famously unable to answer satisfactorily is the claim that their theory is incapable of justifying the Supreme Court’s famous 1954 decision in Bolling v. Sharpe. Decided the same day as Brown v. Board of Education, Bolling is the case that is most closely associated with the Supreme Court’s so-called “reverse incorporation” doctrine, which interprets the Due Process Clause of the Fifth Amendment as if it effectively “incorporates” the Fourteenth Amendment’s Equal Protection Clause against the federal government. The presumed inability of originalism to justify Bolling and reverse incorporation has left originalists open to the charge that their theory would leave the federal government with unfettered discretion to discriminate against racial minorities or anyone else it chooses. 

This article challenges the conventional wisdom regarding Bolling’s assumed originalist indefensibility by recovering the original meaning of the Fourteenth Amendment’s Citizenship Clause, which declares all persons born or naturalized in the United States and subject to its jurisdiction to be citizens of the United States. Although sometimes viewed by modern commentators as an inconsequential “afterthought,” this article contends that the Citizenship Clause was widely perceived by members of the enacting generation as a central focus of the Fourteenth Amendment’s Section One and that the provision constitutionalized a longstanding American political and legal tradition linking the status of “citizenship” with the entitlement to Equal Treatment at the hands of government. Drawing on pre-Fourteenth Amendment understandings of “citizenship,” and the conceptions of citizenship reflected in the framing and ratification debates and in early interpretations of the Amendment, this article contends that the Citizenship Clause provides a historically and textually defensible basis for a legally enforceable equality guarantee applicable to federal conduct that is at least as broad as the equality guarantee made applicable to the states by the Equal Protection Clause.

The New Education Malpractice Litigation

In recent years, a growing body of evidence has confirmed what personal experience and intuition have long suggested: the quality of a child’s teacher has a profound and lasting impact on the child’s academic achievement. According to one expert, replacing just the least effective five percent of America’s teaching force with average teachers could catapult our nation’s K-12 education system from its current place among the worst performing in the developed world to among the top. Yet for complex reasons related to school culture, administrative inertia, and the time and cost associated with dismissing a teacher for poor performance, schools across the country continue to subject students to chronically ineffective teachers in considerable numbers. 

In this Article we revive the argument, first raised in courts in the 1970s and 80s, that children assigned to ineffective teachers should be able to sue school districts under elementary principles of tort law, seeking relief in the form of reassignment to an adequate teacher and remedial education services. Courts initially rejected this “educational malpractice” theory of litigation due to the plaintiffs’ inability to establish basic elements of the negligence tort, pointing in particular to the lack of a workable standard of reasonable care (since little consensus existed regarding appropriate pedagogical methods) and problems showing proximate cause (since the effects of teacher quality on student learning were so difficult to prove). 

The common law of torts, however, is designed to be judicially responsive to changing times and public policy considerations. And times have certainly changed: School officials today operate with access to unprecedented amounts of data concerning teacher effectiveness and teacher impacts on student learning that was wholly absent decades ago. These modern advances demand re-examination of the old reasons that courts provided for rejecting educational malpractice claims. To date, however, the academy has failed to undertake any such analysis.

This Article seeks to fill that gap. We argue that the recent advances in educational data substantially undermine the basic rationales offered by courts for dismissing the original educational malpractice lawsuits. In particular, unlike the initial era of educational negligence claims that proceeded principally under the theory that a school district should be liable for the negligent teaching practices of its teachers, we argue that a plaintiff student may state a claim against a school district for its negligence one step earlier: in its decision to assign the student to a classroom taught by a teacher whom school officials know to be chronically ineffective based on extensive statistical data concerning the teacher’s performance. For instance, schools now know with some degree of certainty, over a period of years, whether a particular teacher typically improves her students’ academic ability by more or less than a full grade level’s worth of gains. The worst teachers, it turns out, tend to produce paltry gains year-after-year. This data offers both an eminently workable standard of care for determining whether a school has been negligent in subjecting students to an incompetent teacher (indeed, some states such as New York require schools to classify teachers as “ineffective” on the basis of the student learning data), and also an evidentiary link establishing that the teacher is a proximate cause of the child’s lack of attainment. 

In addition to setting the groundwork for this new educational malpractice claim, the Article also explores potential policy responses on the part of school districts who may seek to head off costly litigation brought by plaintiff students who have been assigned to inadequate teachers. We suggest that some schools may respond proactively in precisely the fashion that the plaintiffs and school reformers have long desired, by voluntarily dismissing and replacing their least effective teachers. Others may attempt to evade liability without acting to remove ineffective teachers, for example by foreclosing public access to teacher effectiveness data or reducing their own reliance on such data in the first moment. In all events, however, we think this much is for certain: a new era of educational malpractice litigation may well be on the horizon.

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