Equal Liberty in Proportion

85 Pages Posted: 5 Jul 2017 Last revised: 29 Mar 2019

See all articles by Joshua E. Weishart

Joshua E. Weishart

West Virginia University - College of Law

Date Written: June 30, 2017


As federal law continues to devolve more education policymaking to states, state courts will remain a primary forum for settling education rights. State fora do not inspire confidence, however, because their doctrine is so uncertain. A majority of state supreme courts do not specify a level of scrutiny and at times seem to be improvising judicial review. The resulting decisions can exhibit a troubling lack of foresight. Most notably, while federal doctrine increasingly reveals the interrelation of liberty and equality claims, state courts have failed to capitalize on that point—even though their decisions were among the first to concede it. Too often, instead, they pigeonhole education claims into one category or the other when the claims should fit in both.

This Article proposes that courts analyze the state constitutional right to education as a claim for “equal liberty” and subject it to a new standard of review. State court adjudication of the right to education over the past five decades reflects ambivalence with heightened scrutiny in favor of an ad hoc means-ends review. That review confers substantial deference to legislative judgment and has excused persistent educational disparities based on the “reasonableness” of legislative efforts. To overcome these shortcomings and lingering justiciability concerns, courts need a principled methodology for reconciling liberty and equality interests.

Against tradition calling for these interests to be “balanced,” I contend that equality and liberty can yet maintain a positive, directly proportional relationship in the law. Applying direct-proportionality review, the judicial lens should focus on whether the state’s actions advance both equality and liberty interests in tandem and whether the margin between these ends is proportional so as to protect children from the harms of educational disparities. Reviewing the proportionality of these constitutional interests is urgently needed as public schooling endures chronic inequitable and inadequate funding while our highest elected officials question its value.

Keywords: right to education, equity, adequacy, education, standard of review, equal liberty, proportionality, school finance, equal protection, due process, judicial review, educational justice, equality, liberty

Suggested Citation

Weishart, Joshua E., Equal Liberty in Proportion (June 30, 2017). William & Mary Law Review, Vol. 59, 2017, Available at SSRN: https://ssrn.com/abstract=2995655

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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