The Right to Equal Education: Merely a Guiding Principle or Customary International Legal Right?

Abstract

In San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), the United States Supreme Court held that wealth discrimination was not illegal discrimination and that the right to be educated was not a fundamental constitutional right. This article contends that international human rights law provides broad authority for a right to equal opportunity to education and is a useful tool for those seeking to develop theories that that right exists under either the state or federal constitutions.

This Article provides a brief introduction to those cases in which courts have been asked to look at international human rights standards for guidance in cases affecting economic, social and cultural right, and it discusses the use of customary international law in the United States. It criticizes the prevailing view in the United States that economic, social and cultural rights are not part of customary international law and provides overwhelming evidence that many of these rights are universally accepted. It examines that body of international human rights law that prescribes, as a basic tenet, equal opportunity to education, it asserts that this tenet has risen to the level of customary international law that is binding on United States, and it argues that international standards should be used to persuade state courts that there is a right to equal opportunity to education under state constitutions. Finally, it examines the theories being developed for establishing a federal right to equal educational opportunity, and it argues that application of international standards would be useful in developing those theories and would yield a different result from that reached in Rodriguez. It maintains that the use of human rights law could help change the focus of the discussion, which up to now has highlighted the right to education rather than the right to equal opportunity to education.

Keywords: San Antonio Independent School District v. Rodriguez, international human rights, customary international law, equal educational opportunity, right to education