Educational Environments and the Federal Right to Education in the Wake of Parkland

Abstract

A vociferous debate rages over the measures that should be taken to prevent high profile incidents of mass school shootings like that at Marjory Stoneman Douglas High School or, more recently, that at Santa Fe High School in Texas. Heightened security and surveillance measures, such as metal detectors and closed-circuit television (CCTV) monitoring have been proposed in a variety of school districts; these measures, however, have only been shown to have a deleterious effect on learning outcomes and the relationships students have with teachers and administrators, and may even be hazardous to the physical health of students. Rather than relying on ineffective security measures that, arguably, violate student Fourth Amendment rights, this Article argues that the long dormant federal right to education should once again be enforced to stand in conflict against the increasingly expansive individually-focused Second Amendment right to bear arms. A number of scholars have done important work addressing the failures of tighter security and visual surveillance methods in primary and secondary schools, particularly Professor Jason Nance, who has written a series of papers on the use of surveillance in public schools and the observable effects on students. While these scholars have made excellent recommendations for reform of school security apparatuses they do not make the arguments necessary to connect these reforms to the enforcement of a federal right, making the institution of such reforms much less likely.

The Article argues for the recognition of a historical right to education that originally arose with the readmission of formerly Confederate states into the Union in conjunction with the ratification of the Fourteenth Amendment. This Article takes the novel view that this right to education has been under-enforced and can be revived to take its place among other fundamental rights incorporated against the states in much the same fashion right to bear arms. A recognized right to education would make many of the reforms called for by other education law scholars much easier to implement.

Keywords: Juveniles, Education, Fourteenth Amendment, Second Amendment, Surveillance, Privacy, Search and Seizure, Constitutional Law