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Federal law in the U.S. has never recognized a right to public education. But Congress or the Supreme Court might be sympathetic to an argument for educational rights based on the 14th Amendment’s guarantee of the rights of citizenship.

The right to an education is guaranteed by international law in the Universal Declaration of Human Rights. Similarly, UNESCO’s Constitution sets out the right to an education as necessary to “prepare the children of the world for the responsibilities of freedom.” However — and this might come as a surprise to many Americans — the U.S. Constitution mentions no such right nor has the U.S. Supreme Court recognized one.

A federal or national right to an education certainly could provide a baseline of educational opportunities and legal protections for citizens, though. Many people assume the Supreme Court found a federal right to education in Brown v. Board of Education, 347 U.S. 483 (1954). But the court in that case did not hold that all students had a right to an education. Rather, it held only that where a state makes public education available, it cannot withhold access to education based on race. Further, it espoused — or at least suggested the possibility of — an individual right to an education, stating:

Education is perhaps the most important function of state and local governments . . . In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

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In 1973, the court addressed the issue again in San Antonio v. Rodriguez, 411 U.S. 1, a suit brought on behalf of students claiming that the Texas system of funding public education created districts with unequal access to revenues for schools. In this case, the court found that the state allowed people to be treated differently based on whether they lived in property-poor or property-rich districts — and it upheld this differential treatment. While education is critically important to society, said the court, that does not, in and of itself, support a finding of a fundamental federal right to education. The court did note, however, that education was warranted some judicial protection and may be a corollary to other federal constitutional rights such as free speech.
The court came closer to recognizing a federal right to education in Plyler v. Doe, 457 U.S. 202 (1982). There, the state of Texas had foreclosed public school education for undocumented students, and plaintiffs had made an Equal Protection claim. The court found that even though education was not a fundamental right, the state did not have a sufficient interest to withhold education from students whose parents had brought them to this country illegally:

Public education is not a “right” granted to individuals by the Constitution. But neither is it merely some governmental “benefit” indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions and the lasting effect of its deprivation on the life of the child mark the distinction.

Defining the federal and state roles in education

Since education is not specifically mentioned as a right or a power of the federal government, Congress does not have the authority to directly regulate education. According to the 10th Amendment to the Constitution, powers that are not explicitly given to the federal government are reserved to the states and the people.

Still, the federal government has had an active presence in education throughout the nation’s history, and many federal laws have a significant effect on the public schools. Rather than assuming direct control, though, Congress influences education through its spending authority — when states and local school boards accept federal funds, they must agree to comply with specific programmatic conditions and civil rights laws. (Some well-known examples include the Every Student Succeeds Act, Individuals with Disabilities Education Act, and Title IX of the Civil Rights Act.)

Through its spending authority, then, Congress has provided a federal statutory right to an education for some specific groups of children. For example, both the Individuals with Disabilities Education Act and the McKinney-Vento Homeless Assistance Act provide students within their protection (i.e. students with disabilities and homeless students) a federal right to an appropriate education.

Far more often, though, education is treated as a protected state right. Every state constitution includes language — more detailed in some states than in others — that mandates the creation of a public education system.

Grounded in those state constitutional provisions, many state supreme courts have, typically as part of a decision having to do with school finance litigation, recognized an individual right to education. (See www.schoolfunding.info for a useful summary of state-specific litigation and court rulings.) However, while state courts have often been willing to address funding disparities among school districts, they have no jurisdiction to address spending gaps between states, which tend to be much more stark (as are state-to-state differences in educational standards, requirements, opportunities, and student assessment systems). Even through the implementation of No Child Left Behind, states continued to set their own educational standards, and they continued to fund their schools at very different levels.

Would a federal right to education be warranted?

Although the U.S. Supreme Court has not yet recognized a federal constitutional right to education, there are some theoretical arguments to be made for one. The most common argument is that when states provide their citizens with unequal opportunities for education, they are in violation of the Equal Protection Clause. Second, one might argue that since a minimal education is required to exercise other explicit constitutional rights, education should thus be understood to be an implied constitutional right. How, after all, can people meaningfully exercise their First Amendment rights to free speech and association unless they have sufficient education to understand issues and gather information independently?

In past decades, both of these arguments were raised to the U.S. Supreme Court and did not prevail. However, in addition to protecting due process and ensuring equal protection, the 14th Amendment also guarantees the rights of citizenship. It may be plausible, then, to argue that since individuals need a minimal level of education to be effective citizens, this level of educational opportunity should be recognized as a federal right.

Although the U.S. Supreme Court has not yet recognized a federal constitutional right to education, there are some arguments to be made for one.

Since their inception, public schools have served to develop children’s ability to participate as active citizens in our nation’s democracy. In addition to helping them secure personal gain, prepare for productive work, and accomplish individual goals, education has been expected to create responsible and active participants in American democratic society.

Our nation’s founders believed that the success of American democracy depended on the capacity of its citizens to make informed and reasonable decisions about the public good. In those days, the primary rationale for providing public funds for education was to develop a populace that understood political and social issues, could vote wisely, and serve on juries and deliberative bodies. Even today, the goal is to afford all children an adequate education for equal access to participation in our democratic society.

Currently, we treat students as citizens of the state in which they reside and not as citizens of the larger country. Thus, we allow each state to set the parameters of its investment in children and to set the limits of those children’s opportunities. In today’s world, though, it is becoming increasingly difficult to argue that the education of children in Alabama or Arizona has no significant effect on the people of Mississippi or Michigan, not only insofar as they participate in the larger national economy but also to the extent that their political decisions have implications for the rest of the country. Do we really believe that we can ignore the differences in opportunities provided to individuals just because of their states of residence? Or, given the realities of 21st-century life — at a time when citizens frequently relocate for higher education or work, drive across state borders for dinner, share the same cyberspace, and consume the same media — can we acknowledge that we all have a stake in ensuring that our fellow citizens have the right, as Americans, to an education that allows them to participate in the political process?

JULIE UNDERWOOD (Julie.Underwood@wisc.edu) is the Susan Engeleiter Professor of Education Law, Policy, and Practice at the University of Wisconsin-Madison.

Originally published in February 2018 Phi Delta Kappan 99 (5), 76-77. © 2018 Phi Delta Kappa International. All rights reserved.