Our Invisible, Very Important State Constitutions

[insert here the usual, “this was written quickly” disclaimer]

Today, a California trial court judge issued a tentative opinion declaring that California’s particular K-12 teacher tenure statutes violate particular provisions of the California state constitution. The opinion won’t be final for 30 days and thereafter will be appealed to both an intermediate appellate court and presumably the state supreme court. Also, even were some version of the ruling to stand, the California legislature can always try to amend the tenure statutes to comport with its requirements (as education historian Ethan Hutt noted on Twitter). So, an end to tenure in California? Not necessarily, and certainly not yet! But certainly an interesting case to continue watching.

Meanwhile, here is how CNN reported the opinion. First there’s this just entirely inaccurate teaser on its homepage:

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Then there’s the actual article, which begins: “A California judge ruled as unconstitutional Tuesday the state’s teacher tenure, dismissal and layoff laws.” Maybe I missed it, but I do not see one place in the entire CNN article where it so much as indicates to the reader, much less clarifies, that the ruling (as almost always with cases involving a right to K-12 education) is rooted in the California state constitution, not the federal Constitution, much less what specific provisions of the California state constitution. So I genuinely don’t know what the operative definition of “unconstitutional” is here. “Offensive to a judge”? “A bad idea”? Certainly I can’t imagine what kind of sense a reader unfamiliar with educational law would make of this article. I suppose the opinion could be confusing on this score because it does reference Brown v. Board and other decisions under the federal Constitution, but mainly rhetorically, not because there are dispositive federal constitutional claims in this case (at least as the opinion is currently framed — and here I should disclaim that I read it quickly, and am not an education law person; but for that, you should definitely bookmark the helpful Education Law Prof blog).

When I first encountered it, the NYT coverage was not much better, although the NYT article appears to have now been updated to reflect that the ruling derives from the “right to an education under the [California] state Constitution,” which is certainly an improvement. The coverage in the Wall Street Journal and USA Today, at least in the iterations I read, doesn’t explain the state constitutional basis of the ruling. NPR makes clear that the issue is “the state’s obligation to provide every child with access to a good education” although I think it could be made clearer that this obligation derives from the state constitution.

I guess I may have completely lost sight of what we are calling expert knowledge these days, but I was genuinely somewhat shocked to see this gap so consistently, especially in the early breaking-news reporting and in the discussion of the opinion on Twitter. Do reporters not know there’s a difference between state and federal constitutional law? Do they assume readers don’t know, and worse, don’t need to know? Justice William Brennan famously worried in 1977 that state constitutions were underappreciated, but I hadn’t realized they were literally invisible.

This lack of explicit, forthright discussion of state constitutions as an important source of rights is troubling if you care about informed democratic deliberation &c., because state constitutions are the source of many positive rights that Americans cherish, such as the right to education; the political scientist Emily Zackin discusses this in her recent book on the subject. Similarly, if you find a Supreme Court opinion troubling for whatever reason, one of your main routes around it is to argue for a different doctrine under equivalent components of your state constitution (or amend your state constitution). Thus, for instance, some states provide more extensive search-and-seizure rights and remedies than the Supreme Court’s interpretation of the federal Fourth Amendment, and the conservative legal movement successfully mobilized in the wake of the Supreme Court’s expansive interpretation of eminent domain, in Kelo v. New London, to enshrine more restrictive eminent domain provisions in state law, including state constitutional law.

In conclusion, coastal pundits often lampoon Americans for being ill-informed but even if said Americans do everything coastal pundits ask of them, such as read the news outlets from which said pundits receive their paychecks, they will often be actively misled away from understanding how American government works.