Brief Updates on Rand & Elizabeth Gurley Flynn Litigation and the U.S. Supreme Court is a Political Body

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Andru Volinsky and his wife, Amy, are pictured feeding their animals in East Concord.

We were in court last week to try to undo the damage caused by the state’s and ConVal plaintiffs’ objection to consolidating the Rand and ConVal cases for trial.

From ‘A Book, an Idea and a Goat,’ Andru Volinsky’s weekly newsletter on Substack is primarily devoted to writing about the national movement for fair school funding and other means of effecting social change. Here’s the link:


That’s right, ConVal didn’t want us in their case even though we filed our suit to compliment their efforts because they decided to forego two key issues on which we were focused: whether the preferences in SWEPT render it unconstitutional and whether differentiated aid for children—which is part of adequacy—is sufficient to meet the needs of kids in poverty or learning English or who qualify for special education. We won the SWEPT challenge in our separate case that is now on appeal. The ConVal plaintiffs did not challenge differentiated aid and this failure to address differentiated aid in the same trial as base adequacy is now one of the grounds the state is pursuing on appeal.

The conclusion that the state’s paltry $4100/per pupil is not enough to fund a constitutionally adequate education is in both the ConVal and Rand cases. Now, the ConVal case is on appeal with the issue of the insufficiency of the $4100 payment front and center and we’re not part of that case. Yes, we can file as an amicus brief, but amici don’t argue the case and the ConVal plaintiffs didn’t seek to recuse Justice Donovan.

Associate Justice Donovan was the state’s lawyer against us in the Claremont and Londonderry cases and he wound up writing the opinion that threw out ConVal’s first win and sent the case back to Judge Ruoff for trial. His opinion, which appeared to invite the state to challenge the underlying Claremont principles, has been heeded by the state and they now have included a challenge that seeks to turn back the clock to pre-Claremont days.

We’ll see in the next few weeks if we get a speaking part in the ConVal appeal. There’s also a chance Judge Ruoff will set us for trial on the differentiated aid question. Our case has been stayed for the last seven months. The SWEPT appeal will also continue. The Supreme Court has not yet ruled on the Coalition’s motion to stay Judge Ruoff’s order that prevents the use of illegal preferences that benefit Coalition Communities. Pursuant to Judge Ruoff’s order, the preferences end on March 31, 2024. We also moved to recuse Justices MacDonald and Donovan from the SWEPT case. Updates to follow.

The Merrimack County Superior Court dismissed the Elizabeth Gurley Flynn suit challenging the removal of the Flynn historical marker because Judge Kissinger concluded my clients, Arnie Alpert and MaryLee Sargent, do not have standing. Standing is the legal entitlement to bring a claim. Without a showing of sufficient legal harm, the merits of a claim aren’t even considered.

One wonders if the judge thinks anyone has standing to challenge the removal. The Governor ordered the Flynn marker uprooted because Flynn was a Communist. Judge Kissinger’s order would appear to insulate the Governor’s decision from legal review no matter the grounds for removal. Could the Governor have removed a marker because its subject was a Jew or a Muslim, because the subject was Black or Brown, or because the topic involved labor or reproductive rights?

We’ll likely file for reconsideration and see where that goes.

Back to the book, Law and Public Policy for Change—The Fight to Fairly Fund Our Nation’s Schools….

Think of the U.S. Supreme Court as a political body and consider some of the implications of that change from an impartial judicial branch to a third political branch. Most courts call “balls and strikes” correcting or refusing to correct alleged legal errors. The U.S. Supreme Court and state supreme courts are different. They make policy and their decisions are political.

The change in constitutional approach to reproductive rights from Roe to Dobbs is just one recent example of how a political Supreme Court makes policy for the country. There was nothing about the 50 year old precedent of Roe that legally required the Court to revisit the constitutionality of abortion in Dobbs. It was just that the members of the Court changed. The personal ideologies of the justices should make little difference in a system based on precedent and rule of law. The goal of a rule of law Democracy is predictability, the antithesis of relying on the personal predilections of the justices who interpret and implement the law.

Dobbs is just a recent example. There are many others. The change from Plessy v. Ferguson (1896), which found Homer Plessy could be denied a train ride as long as he had a “separate but equal opportunity” to catch a ride in Louisiana to Brown v. Board of Education (1954) that rejected the concept of separate but equal is another famous example. A third example is the rejection of the “Lockner doctrine” that was used to shoot down FDR’s New Deal legislation. One justice, Owen Roberts, switched sides in the face of FDR’s threat to pack the court. The change was dubbed the “Switch in Time that Saved Nine.”

Brown set the country on a course to recognize education as an important constitutional right. Chief Justice Earl Warren wrote education is: “… a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education….”

Twenty years later the California Supreme Court and a three-judge federal panel in Texas applied the logic of Brown to overturn school funding systems that discriminated against children based on class and race. The appeal of the Texas decision to the U.S. Supreme Court should have made Brown more of a practical reality because it considered the resources necessary to support equal educational opportunities.

Instead, the Texas appeal ran into the genteel buzz saw of a son of the South, Justice Lewis Powell, Jr. Powell’s firm had directly opposed Thurgood Marshall in the Brown case. Powell was on the Richmond School Board for almost seven years after Brown was decided and during that time only two of the district’s 23,000 Black students made it into white schools. Powell also served on the Virginia State Board of Education where he approved tuition payments for parents who set up white academies to avoid desegregation. This was the beginning of present day vouchers.

Powell also wrote the “Powell Memo” shortly before Richard Nixon appointed him to the Court in 1971. While The New York Times proclaimed Powell a moderate, his confidential manifesto written for the U.S. Chamber of Commerce urged the business community to be “far more aggressive,” to engage in “confrontation politics” and to penalize politically those who oppose business.  The memo targeted Ralph Nader, Charles Reich, Herbert Marcuse, William Kunstler, the ACLU, labor and civil rights groups, and public interest law firms.

Powell devoted special attention to social scientists in his memo. He warned against professors who beguiled their students to despise free enterprise. “Social science faculties (the political scientist, economist, sociologist and many of the historians) tend to be liberally oriented, even when leftists are not present…The social science faculties usually include members who are unsympathetic to the enterprise system….”

Of course, social scientists, public interest lawyers and labor were involved in the Texas and California lawsuits. They were doomed from the start.

Powell’s memo did not become public until a year after he was confirmed. Interestingly, Powell wrote in his memo that he considered the courts “the most important instrument for social, economic and political change.” He noted that left and liberal groups exploited an “activist-minded” Supreme Court, but the business community did not.   Powell urged the U.S. Chamber of Commerce to organize legal teams to respond. We can all see the result of Powell’s memo today.

As Powell’s nomination was paired with the nomination of strikingly conservative William Rehnquist, Powell didn’t garner much scrutiny…and Powell was in just the right place to end the inquiries about the fairness of state school funding systems. He did so by concluding that education is not a fundamental right—which basically left states free to do what they may. Texas, for example, gave more state money to property wealthy, white, privileged school districts than to poorer districts. It was as if the privileged communities owned the legislature.

Powell’s analysis of whether education is a fundamental right involved him putting on his wire rimmed glasses and reading the Constitution and 14th Amendment to see if the word “education” appears. As it did not, he concluded that education wasn’t a fundamental right that could only be compromised for compelling reasons.

It was Justice Marshall who both challenged Powell’s analysis and pointed out that even though the federal constitution did not mention “education,” plenty of state constitutions did. And so began our story of state-based education funding litigation that now has occurred in 45 states.

If the US Supreme Court is a political body, as Powell noted, why do its members serve for life?

Senator Sheldon Whitehouse and Representative Ro Khanna have a bill that requires justices to rotate off the Supreme Court after 18 years. The justices maintain their appointments as judges, they just serve on other less policy making courts. The president at the time of rotation gets to nominate a new justice to serve for 18 years.

Why are Supreme Court arguments not televised? Public proceedings of Congress and the President are broadcast.

If justices need not obey an enforceable system of ethics as the Court currently insists, why are they permitted to avoid answering questions during their confirmation hearings because it would be unethical for them to state a position on an issue that may someday come before the Court? Certainly, their statements during the confirmation process would be tentative and not bind the justice to a particular vote, but wouldn’t it be helpful to the Senators who must confirm to know a nominee’s positions on key issues. Certainly, constituents would like to know. Perhaps detailed questioning would have revealed Powell’s memo or his offer to inform the FBI on those who supported desegregation in Virginia. It may also have come to light that he personally asked J. Edgar Hoover for programming ideas when Powell became the head of the ABA.

NH judicial nominees, by the way, rely on the same ethical rule to refuse to answer questions during their confirmations before the Executive Council. As well, even though the NH court rules provide for the removal of justices when their impartiality may reasonably be questioned, the decision to step off a case is left entirely to the justice whose impartiality is questioned.

Congress and the NH legislature may be unable to agree on responses to problems like those I’ve described, but the ABA can begin the process by calling for appropriate rule making by the US Supreme Court and the NH Bar Association can do the same for the NH Supreme Court.

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