Reconstituting the Right to Education

65 Pages Posted: 8 Jan 2016 Last revised: 26 Oct 2017

See all articles by Joshua E. Weishart

Joshua E. Weishart

West Virginia University - College of Law

Date Written: January 7, 2016


Confronting persistent and widening inequality in educational opportunity, advocates have regarded the right to education as a linchpin for reform. In the forty years since the Supreme Court relegated that right to the domain of state constitutional law, its power has surged and faded in litigation challenging state school finance systems. Like so many of the students it is meant to protect, however, the right to education has generally underachieved, in part because those wielding it have not always appreciated its distinctive forms and function.

Deconstructed, the right to education held by children has been formulated doctrinally as both a claim-right, imposing affirmative duties on the state to act, and an immunity, disabling certain state action. These two strands — oft-manifested as the claim-right to educational “adequacy” and an immunity entailing “equality” of educational opportunity — once considered irreconcilable are actually interlocked by the right’s core, historical function to protect children’s liberty and equality interests.

And yet the right to education is ill-equipped to fulfill its protection function. Education clauses in state constitutions do not fix the standards for mutually enforcing equality and adequacy. This encumbers already-reluctant courts in addressing educational disparities and emboldens legislative resistance when they do. Appreciating that the right to education has a protection function entailing equality and liberty interests nevertheless suggests that it can be adjudicated in a way that unifies the demands and guarantees of substantive due process and equal protection. That union holds the potential to ameliorate the enforcement standards thereby reconstituting the right to education as a mainstay of reform.

Keywords: right to education, equality, adequacy, equal protection, due process, Hohfeld, school finance, state constitution, equity, equal educational opportunity

JEL Classification: K19, K39, I21, I22, I28, H72, H73, H41, H42

Suggested Citation

Weishart, Joshua E., Reconstituting the Right to Education (January 7, 2016). Alabama Law Review, Vol. 67, 2016, WVU Law Research Paper No. 2016-3, Available at SSRN:

Joshua E. Weishart (Contact Author)

West Virginia University - College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506
United States

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