Scholars Offer Vigorous Debate Over a Federal Constitutional Right to Education

By Mark Walsh — January 25, 2019 4 min read
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Nearly a half century ago, the U.S. Supreme Court held that education was not a fundamental right under the U.S. Constitution.

The 5-4 decision came in 1973 in San Antonio Independent School District v. Rodriguez, which rejected a 14th Amendment equal-protection clause challenge to Texas’ school funding system by residents of a small, property-poor school district, the Edgewood Independent School District, which covers part of San Antonio.

But in recent years, in both the legal academy and in the courts, thinkers and advocates have been pushing a revival of the idea that there is an implied fundamental right to education in the Constitution.

At a Jan. 24 event in Washington, the right-leaning American Enterprise Institute held a debate on the proposition that the Supreme Court was wrong on Rodriguez and that there should be recognition of a federal right to education.

“This issue is considered settled by some, but there are recent lawsuits in Connecticut, Michigan, Mississippi, and one that’s gearing up right now in Rhode Island that [are] asking the courts again to approach this issue,” said Nat Malkus, a resident scholar and deputy director of education policy at AEI, who moderated the debate.

Arguing for the motion were Derek W. Black, a law professor at the University of South Carolina, and Kimberly J. Robinson, a law professor at the University of Richmond and currently a visiting professor at the University of Virginia law school.

Robinson is the editor of a forthcoming book, Thoughts on a Federal Right to Education, that will argue for such a right and explore how it might be achieved and defined.

“The court in Rodriguez relied on the laboratory of the states to address inequality in spending and educational opportunity,” Robinson said at the AEI debate. “The court was very clear that there needed to be greater opportunity and there needed to be school funding reform. But it said the states should be the ones to address that. Well, almost 50 years later, we’ve had some improvement ... in narrowing opportunity gaps. However, the laboratory of the states has been largely ineffective in ensuring that all students have an excellent education.”

Black is the author of a 2018 article in the Stanford Law Review, “The Constitutional Compromise to Guarantee Education,” which argues that the framers of the 14th Amendment, after the Civil War, intended to guarantee education as a right of state citizenship. He points to the requirement that Confederate states seeking readmission to the Union were required to rewrite their state constitutions to affirmatively guarantee education.

“From the beginning, public education has been bound up in the very idea of our democracy,” Black said in the debate, citing the Northwest Ordinance of 1787, the 14th Amendment, and the 1954 decision in Brown v. Board of Education of Topeka.

Speaking against the motion were Earl Maltz, a law professor at Rutgers University who has written prominently on constitutional law and the Brown case; and Ilya Shapiro, the director of the Levy Center for Constitutional Studies at the libertarian Cato Institute in Washington.

“Derek argues that we should interpret the 14th Amendment by reference to what was required of the Southern states,” said Maltz. “The problem with that is, some things that were required of the Southern states were clearly not covered by Section One” of the amendment, which includes the due process and equal protection clauses and pertained to the nation as a whole.

Shapiro said the notion of a federal right to education was a “Utopian abstraction.”

“If we establish, either constitutionally or statutorily, a federal right to education, well then what about things that seem even more important than education—food, health care, shelter, clothing,” he said. “Education is important, very important, but these things are probably even more important. So it really open’s a Pandora’s box.”

The hourlong debate moved breezily through a range of subjects, from relatively obscure provisions of the Constitution to the effects of school spending to what a federal right to education might entail.

Robinson said equitable funding, well-qualified teachers, and a guarantee of citizens who are prepared to be engaged in democracy would be among the “building blocks” of a federal right.

Shapiro said such a right would inevitably lead to more lawsuits over education and a “lawyers’ full employment act.”

One thing the two sides seemed to agree on is that the Supreme Court as currently constituted would likely be unreceptive to recognizing a federal right to education.

Maltz said the chances of the current court overturning the holding in Rodriguez that there is no fundamental right to education in the Constitution would be “less than zero.”

“I agree that the current [Supreme] Court is not going to recognize a right to education,” said Robinson. “There may be a future [composition of the] court that could do so. The return to federal court is an indication that state courts are not providing the remedies that communities need.”

The debate drew a large in-person crowd to the AEI’s Washington headquarters, as well as a web audience. Both were asked at the outset to vote on the proposition, and to vote again at the end of the debate.

At the beginning, 57 percent of respondents said they agreed there should be a federal right to education, while 17 percent said no and 26 percent were undecided.

By the end, 64 percent said yes, 30 percent said no, and 6 percent remained undecided. While that is a healthy proportion in favor of a federal right, the no side was deemed to be the victor of the debate, since it gained more of the undecided vote than the yes side did—plus-13 percentage points for no versus plus-7 points for yes.

A version of this news article first appeared in The School Law Blog.