The Constitutionally Anomalous Right to Education

Abstract

This chapter clarifies the nature of right to education in the United States. It analyzes constitutional text and the judicial decisions from the past half-century to identify the right’s form, function, and scope. These interrelated, constitutive parts reveal (i) the duties and freedoms conferred by the right, (ii) the purpose and content of those educational entitlements, (iii) the conditions by which the right can be vindicated in courts, and (iv) the range of potential remedies. Properly construed and exercised, the right to education carries the political and legal force to compel the state to protect children from the harms of educational deprivations and disparities.

Keywords: right to education, constitutional law, education law, educational equity, educational adequacy, educational entitlement, rightsholder, immunity, claim-right, form of right, function of right, scope of right, state constitution

JEL Classification: I22, I24, I29, K39, K41