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8/15/10

What Kids Deserve, In Legalese

Although Congress is unlikely to achieve consensus on these complex issues, its duty to enact “appropriate legislation” under Section 5 is best understood as a duty of legislative rationality in construing the Fourteenth Amendment’s substantive guarantees and in choosing the means to effectuate those guarantees. By legislative rationality, I mean something more than what is required under the judicial doctrine of rational basis review, whose undemanding standard serves not as a genuine test of rationality but as a “paradigm of judicial restraint.”

In addressing the questions above, Congress must pursue a deliberative inquiry (through the usual devices of hearings, reports, and public debate) into the meaning of national citizenship and its educational prerequisites, and it must take steps reasonably calculated to ameliorate conditions that deny children adequate opportunity to achieve those prerequisites. Importantly, a legislative commitment to educational adequacy would give priority to the most glaring educational needs over the workaday politics of budget wrangling and special interest accommodation. If educational adequacy for equal citizenship has constitutional stature, then legislative enactment of its essential substance must reflect something more than pedestrian political bargaining. This idea is analogous to notions of legislative duty that state courts have inferred from state constitutions in educational adequacy cases. [emphasis mine]