Cynthia Dunbar’s ‘Parting Gift’

by Dan Quinn

On Thursday outgoing Texas State Board of Education member Cynthia Dunbar, R-Richmond, offered what she called a “parting gift” to fellow board members. Her “gift”: a proposed board resolution attacking federal involvement in education as unconstitutional and calling for state “nullification” of “unconstitutional directives” from the federal government.

Not surprisingly, the resolution reads like a long anti-federal government screed. One section, for example, warns about “the establishment of tyranny” by the federal government. Other examples:

“[A]ny federal legislation that attempts to impact the direction of educational policy is made in excess of Congress’ authority and devoid of any merit.”

“[T]he Department of Education is an unconstitutional bureaucracy…”

“(The) Department of Education shall be put on notice that any such unconstitutional directives given by it to the Texas State Board of Education will be met with the principle of nullification and the clear admonition of ‘Don’t Mess with Texas!'”

Austin American-Statesman reporter Kate Alexander explains:

Nullification is the legal theory that a state may deem invalid any federal law that the state finds unacceptable or unconstitutional. Most legal scholars maintain that nullification is unconstitutional.

Indeed, the U.S. Supreme Court has in a number of cases ruled that determining the constitutionality of laws is the purview of federal courts, not the states or state courts. A few examples: Ableman v. Booth (1858),  Cooper v. Aaron (1958), Bush v. Orleans Parish School Board (1960). [UPDATE: As one of our readers notes, “nullification” is a philosophy that was frequently promoted by southern opponents of the 13th, 14th and 15th amendments to the Constitution — the so-called “Reconstruction amendments” that ended slavery and extended constitutional rights to freed slaves. Opponents of school integration and civil rights in the 1950s an 1960s similarly promoted “nullification” as a right of states.]

Dunbar asked that the state board consider her resolution in January. This month’s meeting was the last for Dunbar and four board members.

You can read Dunbar’s proposed resolution here.