By Liza Lawson

The COVID-19 pandemic has ignited passionate education debates about school sports, the risks of the pandemic versus the risks of closed schools, the role of parent or guardian choice in education, mandatory vaccinations, who should determine when schools open, and the disproportionate impact of school closings on racial minorities and women.  These debates regard aspects of education, but do children even have a right to education?

In the U.S., every state constitution references education in some way and many guarantee a right to quality education, but there is no federal right to education.  The current protections under state laws and federal involvement have not been enough to address the vast educational inequalities that fall along racial, economic, and geographic lines.  A federal constitutional right to education will not alone settle the raging education debates, but it could be a crucial step in the right direction – a step the U.S. could take now.

To understand why a constitutional right is needed, it is important to review first, the reason why education has been in the domain of state and local governments and second, how federal policies and courts have failed to establish equitable education.  Despite these failures, though, there is still hope for a right to be established through constitutional interpretation or amendment.

Education in State and Local Government

The absence of any explicit mention of education within the U.S. Constitution coupled with the 10th Amendment’s direction that “powers not delegated to the United States by the Constitution . . . are reserved to the States . . . .” leaves education within the domain of state and local control. Thus, states primarily establish the laws, regulations, and policies regarding public education. State constitutions have also addressed education in a variety of ways that can provide significant benefits to schools.

For example, Arizona’s constitution requires the legislature to make appropriations by taxation that “insure the proper maintenance of all state educational facilities” and “enact such laws as shall provide for the establishment and maintenance of a general uniform public school system . . . .”  These clauses have formed the basis for claims against the state for inadequate public school funding.

California and Florida have established constitutional rights to education, but in different ways.  The Supreme Court of California held in Serrano v. Priest that a state financing system relying on local property taxes violated equal protection of the laws as guaranteed by the California Constitution.  Florida, however, has written an explicit guarantee to education into its constitution stating that education is a “fundamental value” and requiring the state to provide Florida children with “a uniform, efficient, safe, secure, and high quality system of free public schools . . . .”

However, state funding mechanisms have not addressed growing inequalities in funding between districts or states that fall heavily along racial lines. The federal government has tried and failed to address these issues.

How the Federal Government has Failed to Secure Equitable Education

The federal government shapes education through policy directives and funding mechanisms like the National Commission on Excellence in Education which released the 1983 Nation at Risk Report, the Elementary and Secondary Education Act of 1965, the No Child Left Behind Act of 2001, and the Common Core State Standard Initiative of 2010 in conjunction with the Race to the Top Fund.

Additionally, federal courts have weighed in on education, most notably in Brown v. Board of Education where the Supreme Court held that segregated public schools violated the equal protection clause of the 14th Amendment.  The same day, the court held in Bolling v. Sharpe that racial segregation in D.C. public schools was unconstitutional under the due process clause of the Fifth Amendment.  Twenty-two years later, in Runyon v. McCrary, the Court held that segregation in private non-sectarian schools violated the Ku Klux Klan Act and Section 1981 of the Civil Rights Act of 1866.

Although the Supreme Court has held that racial segregation within schools is unconstitutional, the Court held in San Antonio Independent School District v. Rodriguez  that wealth segregation between schools was not unconstitutional.  The Court reasoned that wealth segregation did not require the same level of detailed review as racial segregation.  Even more notably, and sadly, the Court reasoned that although it held that education was “perhaps the most important function of state and local governments” in Brown v. Board, education, was nonetheless, not a fundamental right protected by the Federal Constitution, either explicitly or implicitly.  However, the Supreme Court explicitly acknowledged that some elements of education may be necessary prerequisites in order to exercise other constitutional rights like free speech (1st Amendment), and suffrage (15th and 19th Amendments).

Thus, there are still opportunities to establish a constitutional right to education through the federal judiciary, and the plaintiffs in Gary B. v. Snyder and Cook v. Raimondo are trying to do exactly that.  And, of course, there is always the option to amend the constitution.

The Remaining Paths to a Constitutional Right to Education

Cook v. Raimondo

Rhode Island students and parents in Cook v. Raimondo filed a class action lawsuit against the state claiming that a denial of quality education violates their constitutional rights to free speech and suffrage.  Although the case focuses specifically on civics education, the case could implicate the broader educational needs for students to become “capable citizens.”

In December 2019, the district court heard oral arguments on the defendant’s motion to dismiss and was expected to deliver its decision in the spring of 2020 but has not yet issued it.  Both plaintiffs and defendants wrote letters to the judge after the 6th Circuit ruling in April 2020 from Gary B. v. Snyder discussed below.

Gary B. v. Snyder[1]

In an exciting opinion issued in April 2020, the 6th Circuit held that “the Constitution provides a fundamental right to basic minimum education” under the due process clause of the 14th Amendment.  The court agreed with the plaintiffs that literacy is essential to exercise other fundamental rights such as voting.

The plaintiffs in Gary also claimed that their schools, being “functionally incapable” violated the equal protection clause of the 14th Amendment.  The court, however, affirmed the dismissal of this set of claims for failure to “identify the actions taken or policies implemented by Defendants that treated their schools differently from others in the state and caused the disparities at issue in this case.”

The lead attorney for Gary cautions that the decision poses no immediate obligation on states.  There are several different potential outcomes now that the case has been remanded back to the U.S. district court: (1) plaintiffs could prove literacy education is a constitutionally protected right, (2) the state could request a 6th Circuit en banc review, (3) the state could settle the case, or (4) the state could appeal directly to the Supreme Court.  The outcome could be a “real breakthrough” for Cook.

Constitutional Amendment

If all claims to a right for education were to fail under the existing provisions of the constitution, there is still the option to adopt a constitutional amendment.  The Southern Education Foundation (SEF) released a report in 2009 advocating for a constitutional amendment that could protect vulnerable groups, address intra- and interstate disparities, unify national support for education, and foster a national consensus for educational change.

To meet these goals, the SEF suggests six possible models for an amendment based on different goals for the amendment: adequacy, equitable finance, interstate finance equalization, intrastate finance equalization, international human rights alignment, and civil rights.  The SEF recognizes that the history of educational amendments is bleak, but also knows failed amendments can heighten public awareness.

The Pandemic has Deepened the Need for a Right to Education

Cook, Gary, and the SEF report all predated the current pandemic and the current racial justice protests.  Now, school and government leaders are forced to balance students’ needs with those of teachers, parents, and the health of the community.  As a typical example, Riverside Elementary School’s bond proposal addresses the need for technology, personal protective equipment, training, and space to allow students to return to school safely.

Sadly, the pandemic is likely to “explode” the existing racial and economic achievement gap, perhaps to historic levels.  The CDC recognizes that lack of access to schools affects more than academic growth; schools bolster social and emotional development and provide safety, nutrition, and physical activity for students.  School teachers are also a primary source for recognizing child abuse.  Some students, furthermore, truly need in-person or additional instruction in order to adequately develop,  learn a new language, or to receive adequate support for special needs.  So, if adequate education was problematic before the pandemic, it surely is even more so now.

To address these challenges, schools need technology, additional space, more teachers, and maybe additional time, like Saturday school.  All of these needs cost money and require community support – so if ever there was a time for a constitutional right to education – it is now.  A constitutional guarantee could initiate more federal resources and help to establish a cultural expectation for equitable education.

Yet, there are many ways to support local schools before that right is established.  Attend a local school board meeting and find out how you can help.  Offer virtual tutoring.  Learn about local initiatives and politicians’ education views.  Vote.

[1] Gary B. v. Snyder is now named Gary B. v. Whitmer as Gretchen Whitmer is the current Michigan governor.