Same-sex marriage leads to charter schools.

Or, at least, that’s what Josh Lipshutz tells me he hopes will happen in a call about Martinez v. Malloy, an ambitious lawsuit he help craft on behalf of several Connecticut families. Lipshutz, along with his law partners Ted Boutrous and Marcellus McRae of Gibson, Dunn & Crutcher, are the masterminds behind an aggressive effort to rethink the Supreme Court’s role in education. If they succeed, they will shake the foundations of more than forty years of Supreme Court precedent, inject the judiciary into one of the nation’s most contentious debates, and, they hope, enable many of Connecticut’s most underserved children to attend far better schools in the process.

Martinez argues that Connecticut violates “the fundamental due process and equal protection rights” of many poor and minority children. That’s not a new claim. In its 1973 decision San Antonio Independent School District v. Rodriguez, the Supreme Court narrowly rejected a similar attempt to label school systems that poorly serve low-income children a violation of “fundamental constitutional rights.” Moreover, as Lipshutz and his partners explain in a court filing, “most states have recognized a fundamental right to education under their state constitutions.”

What is new about Martinez, however, is the remedy it proposes if its plaintiffs ultimately prevail — fewer barriers to charter schools and magnet schools, plus more opportunity for students to attend classes across school district lines.

Martinez and its backers, in other words, hope to achieve one of the great unrealized liberal priorities from the last time America had a left-leaning Supreme Court — a fundamental right to education. They believe that the moment is right for such a decision in no small part because language in the Supreme Court’s marriage equality decision, Obergefell v. Hodges, opens the door to new lawsuits defending the rights of children.

Yet Team Martinez also hopes to wield this right to achieve the kind of outcomes that the Jacobin-reading crowd would deride as “neoliberal.” It openly embraces market-like reforms as the solution to an ailing education system. And this question of how to ensure that every students fundamental right to education is honored could prove to be even more vexing than the question of whether such a right exists.

So What Does Marriage Equality Have To Do With Charter Schools?

Martinez invokes one of the vaguest and most ill-defined legal doctrines that exists in American constitutional law. In addition to the rights specifically enumerated in the Constitution — the right to free speech, the right to practice one’s faith, and so forth — the Constitution also contains several broadly worded passages which allude to unenumerated rights. The Ninth Amendment, for example, provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” while the Fourteenth Amendment prohibits states from abridging “ the privileges or immunities of citizens of the United States.”

Meanwhile, modern Supreme Court doctrine holds that certain unenumerated rights are implicit in the Constitution’s promise that no one will be denied “liberty . . . without due process of law,” and that laws that provide such rights on an unequal basis may violate the constitutional guarantee of “equal protection of the laws.”

Yet, while the Constitution is very clear that certain rights exist which are not identified anywhere in the document itself, it provides hardly any guidance whatsoever on what these rights may be. In some of the Court’s darkest moments, this vagueness has enabled justices to effectively write their ideologies into the law, as they did in the early Twentieth Century with decisions striking down minimum wage laws, laws ensuring that laborers would not be overworked, and laws protecting workers’ right to organize.

Justice Hugo Black in 1970 (CREDIT: AP PHOTO/JOHN DURICKA)

For many years, this dark history led many of the nation’s leading liberal jurists to reject the idea that judges should be messing around with these kinds of unenumerated rights at all. Justice Hugo Black, President Franklin Roosevelt’s first appointment to the Supreme Court, even attributed this appointment to his skeptical approach to unenumerated rights. “I was against using due process to force the views of judges on the country,” Black said in 1967. “I still am. I wouldn’t trust judges with that kind of power and the Founders did not trust them either.”

Six years after Black spoke these words, the Supreme Court handed down its abortion rights decision in Roe v. Wade, and conservatives now had a big reason to fear judges who enforce rights not explicitly mentioned in the Constitution. For many years, the Court’s leading spokesperson against permitting judges to enforce such rights was conservative Justice Antonin Scalia. Indeed, as Scalia wrote in his 2000 dissent in Troxel v. Granville, judges should shy away from doing so even when they agree that such a right exists:

In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all Men … are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be.

Giving judges this power, Scalia warned, risked entrenching decisions that were simply wrong. “ I have no reason to believe that federal judges will be better at” defining the scope of rights not mentioned in the Constitution, Scalia wrote, “than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.”

Scalia’s views, however, did not move a majority of his colleagues — which brings us back to the subject of marriage equality.

Obergefell v. Hodges held that marriage discrimination against same-sex couples violates a “fundamental right to marry” implicit in the Constitution’s guarantees of equal protection and due process. In doing so, the Court described this fundamental right in ways that rightfully should give comfort to litigators hoping to enshrine a fundamental right to education into constitutional law.

For one thing, Justice Anthony Kennedy’s majority opinion in Obergefell speaks to his overriding concern for the welfare of children. Marriage, Kennedy wrote, “affords the permanency and stability important to children’s best interests” — and that includes the children of same-sex couples. Without a right to marry, the children of these couples “suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”

Additionally, Obergefell relied in large part on the central role marriage plays in our society. Kennedy labels it “a keystone of our social order.” It gives “character to our whole civil polity.” Without it “there would be neither civilization nor progress.”

Past Supreme Court decisions are riddled with similar quotes about education, many of which pepper the complaint in Martinez. Education, the Supreme Court stated in Plyler v. Doe, “has a fundamental role in maintaining the fabric of our society.” “The importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests,” according to Ambach v. Norwick, “long has been recognized by our decisions.” “It is doubtful,” the Court proclaimed in the hallowed Brown v. Board of Education decision, “that any child may reasonably be expected to succeed in life if he [or she] is denied the opportunity of an education.”

Lipshutz hopes that these two factors, Kennedy’s focus on “the well-being of children in general” and the parallels between how the Court speaks about marriage and education, will be enough to convince Kennedy and four of his colleagues to embrace a fundamental right to education. To make the case for such a right, Lipshutz says, you can take much of the language from Obergefell and “just swap out ‘marriage’ for ‘education.’”

He may be right, but that only takes him and his colleagues part way to their goal. An even harder task is likely to be convincing the Court to embrace the specific remedy Martinez asks it to impose on Connecticut’s education system.

The Battlelines

Broadly speaking, education policy experts break down into two camps. At one end are the traditionalists. Protective of traditional public schools and cautious about proposals that weaken teachers unions, traditionalists argue that atomizing our education system tends to weaken it. They defend unions on the grounds that “disabling or eliminating teachers’ unions removes the strongest voice in each state to advocate for public education and to fight crippling budget cuts.” Traditionalists believe that the way to lift up struggling schools is to lift up struggling schools, rather than focusing on new institutions that may or may not deliver a superior education.

At the other end of the spectrum lie the reformers. More open to market solutions and, often, far more skeptical of unions, reformers frequently hold up charter schools, standardized testing, and, at least at the right end of the spectrum, school vouchers as solutions to what ails our education system. They believe in gathering robust data on student performance, using that data to assess which schools are producing the best results, and, in some cases, shifting students from failing schools into thriving ones.

President George W. Bush signs the No Child Left Behind Act of 2001 into law, as Sen. Edward Kennedy (D-MA) looks on. (CREDIT: AP PHOTO/RON EDMONDS, FILE)

In fairness, there are many grey areas between these two camps, and the traditionalists and reformers do not break down on familiar ideological lines. Republican President George W. Bush partnered with Democratic lion Sen. Edward Kennedy (D-MA) to pass No Child Left Behind, with its web of student assessments championed by reformers. President Barack Obama’s Race to the Top competition builds upon the reforms signed into law by President Bush.

Martinez’s feet, however, are firmly planted in the reformers’ camp. It challenges three provisions of Connecticut state law, which it pointedly labels the “Anti-Opportunity Laws.” The first is an effective moratorium on new inter-district magnet schools. The second are legislatively imposed budget constraints that effectively cap the number of charter schools within the state. The third is a funding scheme that only reimburses public schools that accept students from another district for one-half of the cost of educating that child. Collectively, these three provisions limit the number of slots available to students in low-performing schools who wish to be educated somewhere else.

When I talk with Lipshutz, a former law clerk to Justice Scalia, he speaks of these challenged provisions as if they disturb the natural order. The laws are “distorting the marketplace,” Lipshutz says, adding that his clients are seeking a “right against government intrusion” into the opportunities that should be available to them.

That’s a bit of a stretch. Public schools, magnets, and charter schools are all either creations of the government or private/public partnerships which rely upon state funds to thrive. In a society free from “government intrusion” into education, wealthy children would attend private schools and some others may get swept up in schools run by churches or charities, but enormous swaths of the nation would remain uneducated.

Nevertheless, Lipshutz says, in modern American society you “have to assume a public education system.” Team Martinez’s goal is not some libertarian dystopia where knowledge is doled out by the market’s invisible hand. They fully embrace the idea that every child has the right to an adequate education and offer something that looks more like a marketplace for government-funded education as the means to achieve this goal.

Nor is Martinez their first rodeo. The team of Lipshutz, Boutrous, and McRae, along with a handful of their fellow Gibson, Dunn attorneys, also litigated Vergara v. California, an ultimately unsuccessful challenge to California’s teacher tenure laws. Both cases are backed by Students Matter, a non-profit founded by the tech entrepreneur David Welch.

But Team Martinez also comes to this fight with much more than a favorable recent decision, a committed backer, and dedication to one particular side of a roiling policy debate. They also come to court with the most powerful weapon in an education reformer’s arsenal, data.

Justice Powell’s Challenge

Recall that, in 1973, the Supreme Court narrowly rejected another ambitious case claiming that the Constitution protects a fundamental right to an education in San Antonio v. Rodriguez. Rodriguez challenged a Texas’ school finance scheme that tied much of a school district’s funding to local property values. Under this scheme, the wealthiest school district in San Antonio spent about 167% as much per student as the poorest student. They sought a system that did not impose such a disadvantage on poor children.

A major thrust of Justice Lewis Powell’s majority opinion rejecting this challenge was that the nuances of education policy are simply too contentious and too complicated to be resolved in litigation. Rodriguez, Powell wrote, “involves the most persistent and difficult questions of educational policy, another area in which this Court’s lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels.” Experts on education policy divide “on even the most basic questions.” And good answers to many vexing questions were “not likely to be divined for all time even by the scholars who now so earnestly debate the issues.”

Under these circumstances, “the judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.”

Courts, in other words, lacked competence to set education policy. Even subject-matter experts struggled to reach objective conclusions about how best to educate children. Like Scalia, Powell feared that the court could entrench an education system that simply did not work.

Powell, however, wrote Rodriguez during a very different time in America’s debates over education. Though the federal government started to promote standardized testing in the 1960s, the more comprehensive and sophisticated testing regime created by laws like No Child Left Behind did not yet exist. Experts in Powell’s time divided even on basic questions because they often lacked the data needed to determine the correct answer.

Much of Team Martinez’s argument can be summarized in three words: data changes everything.

A word that shows up over and over again in the Martinez complaint is “aware.” The state is “acutely aware” that many of its schools are failing. It is “well-aware” that low-income and minority students are especially likely to wind up in poor-performing schools. It is “fully aware” that charter schools, magnets, and open enrollment can provide students with a superior education. And it is aware of these facts because of data.

Martinez attempts to turn the state’s own data against its policies. “In a recent multi-year longitudinal study,” the complaint states, the State Department of Education “sought to answer the following question: Are Connecticut’s Choice programs — consisting of inter-district magnet schools, public charter schools, and the Open Choice enrollment program — succeeding in helping urban students close the achievement gap by enabling them to make greater academic gains, compared to their peers in traditional public schools?”

The answer, according to data from that study included in the complain, appears to be “yes.”

It’s a brilliant move by the Martinez legal team, because it answers Justice Powell’s challenge head on. Whatever else can be said about the virtues of charters, magnets, and open enrollment programs, this data shows that here in the actual world, students who take advantage of these schools and programs are outperforming their peers.

That alone will not take Martinez to the goal line. It is possible that the success of these programs cannot be scaled. Or that students who are already likely to perform well in school self-select into charters, magnets, and open enrollment programs. If the state has evidence suggesting that its own data does not tell the full story, it will have an opportunity to present that evidence to the court.

Yet, if the state wants to effectively rebut Team Martinez’s empirical claims, it will need to do so with empirical data of its own. At the very least, Martinez takes education litigation out of the realm of unanswerable questions that Justice Powell warned about, and attempts to place it into the realm of data against data. That’s much more favorable territory for lawyers who hope to convince a court to wade into this space.

What Comes Next?

If this article has, at times, seemed conflicted about the merits of Martinez, that is not an accident. On the one hand, it is difficult to tell a child that they must languish in a failing school — and suffer the life-long consequences such an inferior education will bring — because of some abstract theory about judicial restraint. The elected branches have not succeeded in providing every child with an adequate education. And empirical studies show that, when courts have intervened to solve this problem in the past, they have made improvements.

On the other hand, Justices Black and Scalia had a point when they warned of how quickly American democracy can go off the rails if there are not clearly defined limits on where judges should intervene. Perhaps education reformers are right about how to close the education gap — and I personally tend to agree with many of their prescriptions. But if a judge can decide today that more charter schools are the solution to a school system’s failures, that judge needs to draw a clear line which explains why they cannot decide tomorrow that a lower minimum wage or weaker unions is the solution to unemployment.

What makes Martinez compelling is that it does appear aware of the tension between the desire to do good and the need to constrain unelected officials. Its data-driven approach offers a formidable answer to the questions Justice Powell raised in Rodriguez. Perhaps that, combined with the Supreme Court’s history of praise for the essential role education plays in our society, are enough to prevent a victory in Martinez from opening the door to rule by judges.

If nothing else, however, cases like Martinez are likely to raise hard questions for a wide range of political factions. For liberal traditionalists, who have spent decades waiting for another shot to convince the Supreme Court to declare education a fundamental right, Martinez forces them to consider whether they want to achieve their longtime goal in this particular way.

For principled conservative reformers, who are likely to see the Supreme Court drift towards the left in the near future, the case asks whether they should accept the bargain offered by Team Martinez rather than fight what could be a losing battle to retain Scalia’s vision of the law.

For more partisan conservatives, who abandoned judicial restraint at about the same time President Obama placed his hand on a Bible on a cold January day in 2009, Martinez’s call for a fundamental right to an education is a warning. Having abandoned the principled stance against a too-powerful judiciary Justice Scalia articulated in Troxel and elsewhere, these conservatives no longer have the moral authority to complain when litigants bring aggressive claims to a newly liberal Supreme Court. The partisans’ seemingly endless, increasingly ridiculous challenges to Obamacare have sown the wind. And these partisans have lost their right to complain about the whirlwind.

I haven’t forgotten about what I said in this book.

And, finally, for liberal reformers who felt boonswaggled by the Roberts Court’s love affair with conservative judicial activism — and I count myself among them — Martinez asks us whether we are willing to trust the courts again. More importantly, it asks whether we can find principled ground that enables us to cheer for the Martinez plaintiffs without giving up our own moral high ground should the Court lurch to the right once again. We, too, must be careful not to sow the wind.

The luxury of being a judge in the minority is that you do not need to answer many of these difficult questions, you can just say no to plaintiffs who ask for things you do not believe they are entitled to under the law, and take solace in the fact that your dissenting opinion is not the law. Liberals are likely to lose that luxury in the very near future. It is a good problem to have, but it still requires some deep introspection. And we won’t have long to conduct this introspection before our avatars on the Supreme Court need to make some important decisions.

It probably will not be long before Team Martinez asks the justices to take up their case.