Equity & Diversity Opinion

Should an Adequate Education Be a Fundamental Right?

By Robert Rothman — July 18, 2018 4 min read
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In late June, a federal district court judge in Michigan dismissed a lawsuit filed by Detroit parents that had charged that the decrepit conditions in Detroit schools--overwhelmingly attended by students of color--violated students’ constitutional rights by denying them “access to literacy.” In their suit, lawyers for the parents argued that literacy is necessary to function in higher education, the workforce, and democratic citizenship, but that the state denied them the opportunity to develop those necessary skills by maintaining schools that were “schools in name only, characterized by slum-like conditions and lacking the most basic educational opportunities that children elsewhere in Michigan and throughout the nation take for granted.”

Judge Stephen J. Murphy III agreed that literacy is essential. However, he concluded that access to literacy is not a fundamental right under the U.S. Constitution, and thus that the state did not violate students’ rights by failing to provide a minimally adequate education. As he stated:

The conditions and outcomes of Plaintiffs’ schools, as alleged, are nothing short of devastating. When a child who could be taught to read goes untaught, the child suffers a lasting injury--and so does society. But the Court is faced with a discrete question: does the Due Process Clause demand that a State affirmatively provide each child with a defined, minimum level of education by which the child can attain literacy? Based on the foregoing analysis, the answer to the question is no.

The decision, while disappointing, is not surprising. More than 40 years ago, the U.S. Supreme Court, in a 5-4 decision, ruled that education is not a right guaranteed by the Constitution. In the wake of that decision, parents and advocates challenging inequitable conditions in schools sought remedies in state courts, arguing that state constitutions mandated a thorough and efficient education.

The record in state courts has been mixed. In many cases, though not all, state courts have ruled that state funding formulas were inadequate and inequitable and deprived students of a thorough and efficient education. However, legislatures have not always provided the resources necessary to meet the courts’ remedies; in Kansas, for example, a court has found that a recent increase in state funding is $348 million short of what is needed.

But the Detroit case raises an important point: what is a “minimally adequate education”? And who is responsible for providing it?

The lawsuit offered one answer to the first question. The suit states:

Experts agree that in the twenty-first century, literacy means having the ability to encode and decode language so as to access knowledge and communicate. Literacy means not only the ability to recognize or pronounce a written word, but the ability to use language to engage with the world--to understand, analyze, synthesize, reflect, and critique. Literacy development is progressive and cumulative, and literacy instruction must therefore extend throughout both primary and secondary education.

Not bad--except that, by that definition, most U.S. schools are failing to provide a minimally adequate education. According to the National Assessment of Educational Progress (NAEP), 37 percent of fourth graders read at the proficient level, meaning that they can “integrate and interpret texts and apply their understanding of the text to draw conclusions and make evaluations.” A similar proportion of eighth graders read at that level, which indicates that they “should be able to make and support inferences about a text, connect parts of a text, and analyze text features.”

Who should be responsible for remedying that? As the NAEP results show, the state-by-state approach has been inadequate. And as the Detroit case showed, courts continue to close the door to a federal solution.

Maybe it’s time to change that. Maybe it’s time for a constitutional amendment to make education a fundamental right.

This isn’t a new idea. In 2013, the Leadership Conference Education Fund recommended that “the U.S. Constitution should be amended to comport with international human rights law by guaranteeing the right to an education that will prepare each and every child for postsecondary education, a career in a field that pays a living wage, and civic participation.” Other organizations have made similar proposals.

Of course, this would not be an easy road. The amendment would have to be approved by Congress by a two-thirds vote in each chamber--never easy, especially now in this polarized environment. Then it would have to be ratified by 38 states. And even if it is approved, someone would have to file a lawsuit, like the one in Detroit, and courts would have to agree that a student’s fundamental rights were violated. Then Congress would have to provide a remedy.

But a campaign to start the process might start a long-needed national dialogue. The conditions described by the Detroit parents are indeed horrifying. It is long past time for districts and state--and the federal government--to be accountable for ensuring that all young people can succeed.

Who’s with me?

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