State courts are holding the line on individual rights

Several months ago the high court of Texas held that public schools in Texas shall no longer be funded by property taxes assessed by local school districts. The court ruled that under local funding the children in less affluent communities were not receiving the equal protection of the laws as required by the state constitution. State-wide funding of public schools was ordered.

The Texas court thus became one of a dozen state supreme courts that in recent years have reached similar conclusions.

In 1973 the US Supreme Court held that local funding of schools does not violate the federal Constitution. The contrary results reached later by the several state courts illustrate the important principle that state courts acting under state law may extend civil rights of individuals and minority groups beyond the protection afforded by the US Constitution.

The Supreme Court has recognized that this prerogative exists in cases where the state courts clearly and unmistakably act under state law. Supreme Court Justice William Brennan has said that the federal Constitution provides only a floor for civil rights protection and he has stressed the importance of state ventures above the federal minimums.

The principle has had increasing application in recent years on a wide variety of civil rights cases. Undoubtedly this was caused at least in part by a perception in the states that the Burger and Rehnquist courts have turned away from some of the civil rights decisions of the Warren court.

Between 1970 and 1989, state courts handed down more than 600 decisions in which they relied on their state constitutions to provide individual protections now lacking under the federal constitution.

A few years ago the high court of Massachusetts ruled that a search warrant in a particular case was not based on probable cause and thus was illegal under state law, even though the US Supreme Court had held previously that the warrant in that very case met federal constitutional requirements.

The Massachusetts court in other recent civil rights cases has reached beyond federal protection on such issues as sexual and racial discrimination and harassment, capital punishment, state funding of abortions for indigent women, a patient's right to refuse medical treatment even at the peril of death, a patient's right to refuse antipsychotic medication, the protection of rights of incompetent persons, the right of a political candidate to solicit signatures in a privately owned shopping mall, the sterilization of a retarded and incompetent woman consistently in danger of rape, and the protection of persons in certain occupations against mandatory drug testing.

State courts are said to be "laboratories" for the US Supreme Court on constitutional issues. The Massachusetts and California high courts held under their state constitutions several years ago that challenges to jurors cannot be used in a plan to exclude persons from the jury on account of race, religion or ethnic origin. Later, the Supreme Court, for the first time, held that the federal Constitution prohibits a pattern of challenges aimed at racial discrimination in forming a jury.

It is argued that state courts are the rightful leaders in deciding issues of civil rights because they are closer to the will of the people than are federal judges. This closeness is said to follow from the relative ease with which a state constitution can be amended if the people disagree with their state court. For instance, the people of Massachusetts several years ago voted to amend the state constitution after the Massachusetts high court held that capital punishment was forbidden by it.

Many states, unlike the Massachusetts and federal systems, elect their judges. The election process is said to be another factor that brings the courts closer to the will of the community.

The fact that state courts may reflect the will of the people may not necessarily be supportive of expanded civil rights. Ours is not merely a democracy; it is a constitutional democracy, with a special purpose of protecting individuals and minority groups. But the majority may not always agree that civil rights should be expanded. The closeness of state courts to the will of the people may serve as a restraint upon some state courts on civil rights issues.

There are a few other factors that limit the prerogatives of state courts. Rights of one party under state law may not be advanced if to do so will undercut the federal constitutional rights of another party. In other cases, Congress may have made it clear that federal law is controlling.

The increasing importance of state law may be a mixed blessing. Variance of law from state to state may have divisive aspects. The possibility of new state laws as to abortion is an example. Bitterness on both sides of the controversy may be exacerbated if rights are dependent upon the financial ability of a woman to travel to a state of her choice.

There was intense dialogue not long ago at the confirmation hearings of Justice William H. Rehnquist and Judge Robert H. Bork. The dialogue reflected the concern of some senators that the Supreme Court is increasingly retrenching on civil rights.

Senators and others with such concerns should look homeward to their state high courts, which can move to expand civil rights under state law. This movement, although little publicized, is of great significance. It is a moderating influence against the fear of volatile changes in American law caused by the substitution of a few new faces on the Supreme Court in Washington.

Edward F. Hennessey is the retired chief justice of the Massachusetts Supreme Judicial Court.