New litigation has revived one of the most important questions of constitutional law: Is education a fundamental right? The Court’s previous answers have been disappointing. While the Court has hinted that it might recognize some minimal right to education, it has thus far refused to do so.
To recognize a fundamental right to education, the Court would have to overcome two basic problems. First, the Court needs an originalist theory for why our Constitution protects education, particularly since the word education does not even appear in the Constitution. Second, the right to education implicates complex questions regarding its scope. Those questions would require the Court to determine the quality of education the Constitution requires. Neither litigants nor scholars have seriously grappled with these problems, which explains why the Court has yet to recognize a right to education. This Article cures both problems.
Not only is this Article the first to offer a compelling originalist argument for a fundamental right to education, it demonstrates that the right falls squarely within the Court’s existing precedent. It traces the fundamental importance of education from the nation’s founding principles through the years immediately following the Fourteenth Amendment. Most importantly, it details how, in the years surrounding the final ratification of the Fourteenth Amendment, Congress demanded that states guarantee access to public education in their state constitutions and linked these demands to the Fourteenth Amendment itself. In fact, after the Fourteenth Amendment, no state would ever again enter the Union without an education clause in its constitution. This history, due to its complexity, has quite simply been overlooked.
This Article is also the first to define the scope of a right to education with historical evidence. It demonstrates that the original purpose of public education was to prepare citizens to participate actively in self-government. In the mid-nineteenth century, this required an education that prepared citizens to comprehend, evaluate, and act thoughtfully on the functions and policies of government.
Derek W. Black,
The Fundamental Right to Education,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol94/iss3/2