When I was part of a legal team trying to establish that Alabama children in poor school districts had a right to equal educational funding under the state Constitution, we found an unexpected obstacle in our way. In 1956, Alabama had amended its Constitution to say that nothing in it should be construed as recognizing the right to an education. That prevented us from grounding our claim of a right to equal funding in a state constitutional right to be educated.
We persuaded a judge to strike down the 1956 amendment, in large part by describing the bigoted history and rhetoric behind its adoption. The no-right-to-an-education clause had been added in the wake of Brown v. Board of Education, as part of a frenzied racist reaction to the ruling, for the express purpose of trying to prevent Alabama’s segregated schools from being integrated.
For our little public-interest trial team, this legal battle was a pointed lesson in how constitutions are constructed. They may contain abstract assertions of rights (or nonrights), expressed in grandiloquent language, but they are inescapably a reflection of the views and words of the place and time that produced them. Scratch the Alabama Constitution’s bland declaration that “nothing in this Constitution shall be construed as creating or recognizing” the right to an education, and you will find the sort of ugly bombast that culminated in Gov. George Wallace declaring “segregation today, segregation tomorrow, segregation forever.”
