The Constitution of Opportunity

In this chapter, Rachel F. Moran explains that equal educational opportunity is essential to prepare students for civic duties, but significant inequalities inevitably result from sorting students for jobs. In recent years, efficiency has become a driving force behind school reform, one that subordinates equal citizenship to the demands of a global economy. These tensions are most evident in school finance reform as calls for equal education devolve into demands for adequate education. Despite state court victories, disparities in per-pupil resources remain severe, threatening to deprive disadvantaged children of any meaningful opportunity to approximate the accomplishments of their privileged peers. In Moran’s view, reformers must craft a right to education that guarantees every child a fair opportunity to compete. Only then will disadvantaged students have authentic pathways to civic participation and upward mobility, pathways that can make the American dream feel like a real promise rather than a remote possibility.

Education for Sovereign People

In chapter 6, Peggy Cooper Davis notes that in a democratic republic, the people are sovereign and must be free and educated to exercise that sovereignty. She contends that the history of chattel slavery’s denial of human sovereignty in the United States, slavery’s overthrow in the Civil War, and the Constitution’s reconstruction to restore human sovereignty provide a basis for recognizing that the personal rights protected by the United States Constitution, as amended on the demise of slavery, include a fundamental right to education that is adequate to enable every person to participate meaningfully as one among equal and sovereign people.

Assuring Essential Educational Resources through a Federal Right to Education

In this chapter, Linda Darling-Hammond confronts the question of what floor of educational opportunity a federal right to education should guarantee. Darling-Hammond considers research regarding the resources that students need to receive an excellent and equitable educational opportunity, including high-quality teachers and principals as well as access to a rigorous curriculum and the course materials and technology needed for a modern education. She argues that a federal right to education should guarantee these resources for all children as the nation strives to eliminate educational opportunity and achievement gaps.

A Congressional Right to Education

In this chapter, Kimberly Jenkins Robinson identifies the challenges and benefits of Congress adopting a federal right to education. She notes that the current backlash against the federal role in education and the lack of political will for greater federal involvement in education will forestall calls for a congressional right to education in the near future. Nevertheless, Congress possesses numerous strengths to recognizing a federal right to education over the federal courts that make it a forum worthy of serious consideration in the decades ahead. Robinson contends that Congress should adopt an incremental approach to recognizing a federal right to education that begins with incentives that set the stage for a federal right and that culminate with a federal law that requires states to provide equal access to an excellent education.

Doctrine, Politics, and the Limits of a Federal Right to Education

In this chapter, Eloise Pasachoff offers an array of arguments against a federal right to education. She argues that a federal constitutional right to education is both unnecessary and insufficient, regardless of whether that right is developed through constitutional amendment by Congress and the states or through constitutional interpretation by federal courts. She contends that it is unnecessary because the goals that advocates have for a constitutional right to education can already be accomplished through ordinary legislation using Congress’s powers under the Constitution’s Spending Clause. She argues that it is insufficient because having a constitutional right to education would not remove practical limits on Congress and federal courts in ensuring its implementation. While there is an argument that building a movement for a constitutional right to education would itself create change, Pasachoff highlights the downsides to that work, from breeding cynicism about government (if the constitutional right is declared but fails to achieve its goals in practice) to furthering destructive politics (if, as is more likely, the movement to achieve a constitutional right fails while creating conflict and reducing the possibility of finding common ground on smaller reform projects). She concludes that advocates instead should focus their energy on reforms that have a greater likelihood of success.

The Inadequate Right to Education

In this chapter, Kristine Bowman continues this volume’s exploration of why a federal right to education would be beneficial. She explores state-level obstacles to closing educational opportunity gaps that explain why the United States should not solely rely on state courts or legislatures to remedy inequitable and inadequate state education systems. At the state level, weak or unenforceable rights to education, limited fiscal capacity, and the absence of sufficient political will too often intersect in ways that undermine educational opportunity and leave many schoolchildren without an effective avenue for relief. Bowman focuses on Michigan as a case study to understand these dynamics and also situates Michigan’s experience in a national context that sheds light on the limitations of state reform.

Protecting a Federal Right to Educational Equality and Adequacy

In this chapter, Joshua E. Weishart notes that courts have resolved lawsuits invoking state constitutional rights in ways that have subdued the tension between two principles of justice: equality and liberty. The equality versus adequacy debate in school funding challenges at first stoked that tension until court decisions gradually demonstrated their potential interrelation. State constitutions, however, do not fix standards for the mutual enforcement of educational equality and adequacy, and thus, courts have struggled with remedies that serve both aims. Weishart contends that reconciliation ultimately must come through reconceptualizing children’s equality and liberty interests as an integral demand for equal liberty, one that treats differently situated children according to their needs so as to cultivate positive freedoms for equal citizenship. A federal right to education can elucidate this demand and facilitate its enforcement, aligning with the newly professed synergy between equal protection and substantive due process.

No Time to Lose

In this chapter, the Southern Education Foundation (SEF) make the case for an Education Amendment to the United States Constitution. SEF begins with an examination of why a high-quality education is vital to US national interests and contends that it is time for a fundamental change that embraces a federal guarantee of a high-quality education. SEF acknowledges the positive impacts of equity and adequacy litigation, while also noting that this litigation is unable to address radical inequality in the willingness or capacity of states to provide equitable and adequate resources for a high-quality education. SEF argues that an Education Amendment is the best approach for reducing radical disparities in the opportunity to learn and for ratifying public support for national leadership in education. An Education Amendment also would help to build public consensus for effective reform. SEF concludes by explaining why an effort to pass such an amendment would have a positive impact even if the effort was unsuccessful.

Implying a Federal Constitutional Right to Education

In this chapter, Derek W. Black surveys the various litigation, judicial, and scholarly theories through which courts might recognize a right to education under the United States Constitution. He begins by sorting those theories into their major doctrinal categories and subcategories and explaining their basic arguments, including substantive due process, equal protection, privileges and immunities, citizenship, and originalism. Black then critically evaluates those theories, examining both the positives and negatives of the leading theories. He concludes that while a number of theories are plausible, scholarly theories have tended toward originalism in recent years and are the most likely to be successful before the courts.

Introduction

In this introduction, Kimberly Jenkins Robinson explains that despite some gains from state school finance litigation, educational opportunity and achievement gaps remain prevalent throughout the United States. To address these enduring gaps, many scholars have argued that the United States should recognize a federal right to education, despite the United States Supreme Court’s refusal to recognize this right in San Antonio Independent School District v. Rodriguez. It also is important to note that after decades in state court litigation, advocates have recently returned to federal court to argue for a federal right to education. Therefore, this introduction outlines that the book takes up three timely and essential questions regarding a federal right to education: Should the United States consider recognizing a federal right to education? How could the United States recognize such a right? And what should the right guarantee? The introduction concludes with a summary of each chapter.