In the civil liberties context, ballyhoo about “state’s rights” has always been code for bigotry. It was that way during the 1960s civil rights movement. It’s that way now in the struggle for the civil rights of transgender people.
The official charged with protecting children is the State Superintendent of Public Instruction. Republicans pass the job among themselves and the current office holder is Julian Balow.
Ms. Balow says it’s “critical” that “the uniqueness” of all students be protected. However, she says, the federal government shouldn’t interfere with the rights of school districts to make that choice.
The Governor of budget-busted Wyoming hustled enough money, not only to give his staff huge pay raises, but also to sue the federal government over rules requiring schools to allow transgender students to use restrooms conforming to their gender identity. But then local and state governments never won many “Profiles in Courage” medals for protecting civil rights.
A contemporary example is the Cleveland, Mississippi school board. The U.S. Supreme Court determined racial segregation in schools was illegal in 1954. Cleveland’s school board took the position that civil rights were matters for the local school board to decided. They weren’t about to let little white children sit next to little black children in their schools.
So it went for six decades. Last month the federal court issued its order. Brown v. Board of Education, the 1954 Supreme Court decision integrating schools would finally be enforced as the law of the land even in Cleveland, Mississippi.
President Harry Truman appointed a Civil Rights Commission in 1947. Weeping and wailing was heard across the land. Those with prejudice in their hearts spoke nobly of the rights of state and local governments to decide who could vote, where people of color could eat, sleep or live, and ironically whether bathrooms could be divided between “whites” and “coloreds.”
Truman’s commission listened. They studied the way state and local governments had historically responded. The evidence proved local and state government officials had themselves been the worst perpetrators of the most egregious wrongs.
The commission used language decidedly poignant in the current dispute. “The nation, they announced, “cannot afford to delay action until the most backward community has learned to prize civil liberty.”
It took a while, but the Truman commission’s position eventually became bedrock American law in the Civil Rights Act of 1964. Basic civil rights protections arise first and foremost from federal law, specifically the U.S. Constitution. Someone’s politically convenient view of federalism doesn’t change that. It didn’t then and it doesn’t now.
Look at the history of civil liberties in the United States. Most women and African Americans would not be guaranteed the right to vote if states’ rights were supreme. Basic rights of those accused of crimes would be denied in most states without federal intervention. Many pandering politicians would like to undo marriage equality and allow state legislatures to be a tool of discrimination.
When it comes to civil rights, our history is clear. The government that is closest to the people does not govern best. It doesn’t have the moral wherewithal to stand against popular prejudices. The closeness renders them unable to do so. When asked to protect minorities, it is much easier to listen to the loudest voices of the majority and to pander to them despite their prejudices and ignorance.
You’d think those like Ms. Balow, charged with the quality of education, could muster the courage to educate others about transgender issues. A few minutes spent Googling the term provides facts necessary to alleviate unfounded fears of rational people. That would be courageous. But courage has never been characteristic of state governments in civil rights. It’s always been easier to rattle about “states’ rights.”
That is why the federal Constitution has supremacy in matters of common civil liberties. It’s why “federal bureaucrats,” as Superintendent Balow derogatorily refers to those carrying out the law, have the right to interfere when state politicians find it impossible to do what’s right.