Doctrine, Politics, and the Limits of a Federal Right to Education
A Federal Right to Education: Fundamental Questions for Our Democracy (Kimberly Jenkins Robinson, ed., 2019 NYU Press)
30 Pages Posted: 9 Mar 2018 Last revised: 8 Jun 2020
Date Written: December 15, 2017
This chapter argues that a federal constitutional right to education is both unnecessary and insufficient, regardless of whether that right is developed through constitutional interpretation by federal courts or through constitutional amendment by Congress and the states. It is unnecessary because the goals that advocates have for a constitutional right to education can already be accomplished through ordinary legislation using Congress's powers under the Constitution's Spending Clause. It is insufficient because having a constitutional right to education would not remove practical limits on Congress and federal courts in ensuring its implementation. While there is an argument that building a movement for a constitutional right to education would itself create change, there are downsides to that work, from breeding cynicism about government (if the constitutional right is declared but fails to achieve its goals in practice) to furthering a destructive politics (if, as is more likely, the movement to achieve a constitutional right fails while creating conflict and reducing the possibility of finding common ground on smaller reform projects). Advocates and scholars ought instead to focus on education reform opportunities with greater chances of success.
Keywords: education law, rights, constitutional law, social change, Congress, courts
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