The Federal Right to an Adequate Education

66 Pages Posted: 15 May 2013

See all articles by Barry Friedman

Barry Friedman

New York University School of Law

Sara Aronchick Solow

Independent

Date Written: May 14, 2013

Abstract

Common wisdom has it that there is no federal constitutional right to an education; indeed, under our charter of negative liberties the common understanding is that there are no positive rights at all. This Article challenges common wisdom, arguing that there is in fact a federal constitutional right to a minimally adequate education. In doing so it calls into question the value of long-standing debates about the proper way to interpret the Constitution and suggests an alternative — not a new one, but a time-honored methodology. While theoretical battles about interpretation rage, judges (on both the right and left) continue to interpret the Constitution in much the same way: by looking at text, framing intentions, pre-ratification practice, judicial precedents, and subsequent practice by the state and federal governments. Particularly in Due Process cases, this is how judges discern the “history and traditions of the American people.” Employing this methodology, the case for a federal right to a minimally adequate education is remarkably compelling. This analysis also raises interesting questions about the possibility of finding other positive rights in the Constitution.

Suggested Citation

Friedman, Barry and Solow, Sara Aronchick, The Federal Right to an Adequate Education (May 14, 2013). George Washington Law Review, Vol. 81, 2013; NYU School of Law, Public Law Research Paper No. 13-27. Available at SSRN: https://ssrn.com/abstract=2264863

Barry Friedman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
Room 317
New York, NY 10012-1099
United States
212-998-6293 (Phone)
212-995-4030 (Fax)

Sara Aronchick Solow

Independent ( email )

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