A Common Law Constitutionalism for the Right to Education

Abstract

This Article makes two claims, one descriptive and the other normative. The descriptive claim is that individual rights to education have not been realized under state constitutions because the currently dominant structure of education reform litigation prevents such realization. In state constitutional education clause claims, both pleadings and adjudication generally focus on the equality or adequacy of the system as a whole, rather than on any particular student’s educational resources or attainment. The Article traces the roots of the currently dominant systemic approach, and finds these roots in federal institutional reform litigation. This systemic focus leads to a systemic, rather than an individual, approach to remediation, which ultimately subverts any individual interests or rights that might have given rise to the claims in the first place. The systemic approach also sets up judicial-legislative conflicts over statewide policy making that need not arise, and these inter-branch conflicts sometimes prevent judicial review of education claims altogether. State courts’ responses to these conflicts have made the systemic approach the largest obstacle currently preventing state courts from recognizing individual rights to adequate education under state constitutions. The normative claim is that state courts should adjudicate individual educational adequacy claims not systemically, but individually. The theoretical and operational grounding for such an individualized approach lies in common law constitutionalism. The article shows that an incremental, common law constitutionalist approach focused on individual, rather than systemic claims, has the potential to finally realize — and to define through enforcement — a right to education under state constitutions.

Keywords: right to education, state constitutions, institutional reform litigation, public law litigation, rights and remedies

JEL Classification: K10