The Constitutional Compromise to Guarantee Education

103 Pages Posted: 8 Jun 2017 Last revised: 29 Mar 2018

Derek W. Black

University of South Carolina - School of Law

Date Written: June 7, 2017

Abstract

Although the U.S. Supreme Court refused to recognize education as a fundamental right in San Antonio Independent School District v. Rodriguez, the Court in several other cases has emphasized the possibility that the Constitution might afford some protection for education. New litigation is attempting to fill that void. This litigation comes at a perfect time. Segregation, poverty, and achievement gaps are all rising, while state courts and federal agencies have recently retreated from enforcing educational equity.

New litigation, however, has yet to offer a theory of why the Constitution should protect students’ educational rights, relying instead on the fact that the Court has consistently emphasized the importance of education. Prompting a significant doctrinal shift to protect education will require more than laudatory dicta. It will require a compelling affirmative constitutional theory.

This Article offers that theory. It demonstrates that the Framers of the Fourteenth Amendment specifically intended to guarantee education as a right of state citizenship. This simple concept was obscured by the unusually complex ratification of the Amendment. First, the Amendment required the assent of Confederate states that were no longer part of the Union. Second, Congress expressly indicated that it would not readmit those states to the Union until they ratified the Fourteenth Amendment and rewrote their state constitutions. Third, education was part of the deal: Congress permitted states to retain discretion over education but expected state constitutions to affirmatively guarantee education.

Through this process, education became an implicit right of the Fourteenth Amendment’s Citizenship Clause. As a right of state citizenship and consistent with historical practices and goals, this Article argues that the Fourteenth Amendment prohibits states from partisan and other illegitimate manipulations of educational opportunity.

Keywords: fundamental right to education, constitutional right to education, reconstruction, civil war, education, inequality, funding, democracy,republican form of government, citizenship

Suggested Citation

Black, Derek W., The Constitutional Compromise to Guarantee Education (June 7, 2017). Stanford Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2982509

Derek W. Black (Contact Author)

University of South Carolina - School of Law ( email )

Main & Greene Streets
Columbia, SC 29208
United States

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