Education Law

Education as a Fundamental Right?

Last week, I had the opportunity to moderate a panel at the Benjamin L. Hooks Institute for Social Change's annual conference, which was on education this year.  My panel was entitled 'May it Please the Court: Legal Challenges and Remedies to Address Deficiencies in Public Education.'  I know, simple topic to cover in 90 minutes.  Anyway, there were 3 speakers and 2 of the 3 primarily advocated for a constitutional amendment making education a fundamental right.  I have discussed this topic in my course as well, providing a copy of the proposed amendment text submitted in Congress in 2009.  As I listened, I was somewhat surprised to find myself wondering, 'What's the point?'  After all, I am critical of the outcome in San Antonio ISD v. Rodriguez allowing for large funding disparities in part because education was deemed to be merely an important right, not a fundamental one.  But, I found myself thinking that maybe the constitutional amendment discussion was a distraction from in the trenches education reform that would impact students.

The conference included other panels on classroom, school, and district restructuring and reform plans; it included in depth descriptions of innovative teacher training and teacher evaluation initiatives; it included an exploration of the role of charters in expanding the availability of quality education.  Each of these other panels seemed to be truly making a difference, but the quest for a constitutional amendment struck me as so divorced from the real life impact on students as to be nearly irrelevant.

One panelist, Lynn Huntley (president of the Southern Education Foundation), made a somewhat compelling case that the quest for the amendment was more important than the amendment itself.  By proposing a constitutional amendment, the argument goes, advocates are able to garner attention in order to make noise about the educational inequities that exist and, having made noise, propose other solutions with substantial impact on reducing disparities.  Another panelist, Gary Williams of Loyola Law School (CA), argued that a movement akin to that which overturned Plessy v. Ferguson should be undertaken in order to overturn Rodriguez.  Inspiring, intriguing, even tempting.  But to what end?  When we get to 'education as a right' in class, my students almost universally express dismay at the thought of having educational decisions being trapped in courtrooms indefinitely even as they recognizing the moral import of classifying education as a fundamental right.  It seems that the long-running legislature-to-court tennis match that happens in state courts where state constitutions provide an affirmative right to some form of education would be replicated on a national scale.  Very messy.  Messiness, of course, is not a reason not to pursue something (like overturning Plessy for example), but the drawbacks of messiness should not be ignored.

Anyway, as is probably evident, I have mixed feelings about this education as a fundamental right thing.  What do others think?  Am I missing something?  [note the irony of my criticism of the amendment path as a distraction from in-the-trenches reform ending with a question inviting others to distract themselves from in-the-trenches reform by commenting on the amendment path – sorry]

Full post as published by Edjurist on April 15, 2010 (boomark / email).