Democratizing Education Rights

69 Pages Posted: 12 Oct 2020 Last revised: 24 Oct 2020

See all articles by Joshua E. Weishart

Joshua E. Weishart

West Virginia University - College of Law

Date Written: October 12, 2020


If the United States is to reverse its creeping, illiberal descent, generations of youth must emerge from this tribal, post-truth, pandemic-shattered era to mend democracy. Hope for that uncertain future lies in re-engineering how schoolchildren learn democracy—not from a civics textbook but by experiencing it in the classroom. The sad irony is that we still lack a knowledge base, grounded in research, for that type of democratic education. Nearly two and a half centuries into the republic’s existence, our commitment to democratic education is honored more in the breach than in observance. And our uninformed, polarized, and disaffected electorate is no happy coincidence.

As calls to “reimagine education” mount in the time of coronavirus, this Article is the first to propose a constitutional remedy—an individualized education plan (IEP)—for all schoolchildren to bring democracy directly to the classroom. This IEPs-for-all remedy animates an affirmative duty long neglected but firmly established in the text, history, and precedents of state constitutions: the duty to educate democratically. This Article is the first to distinguish this duty apart from constitutional obligations of equality and adequacy, contending that the duty to educate democratically guarantees public schooling for and through democracy.

Borrowing a process from its namesake in special education law, the IEPs-for-all remedy signals that all education is special by giving students a voice in their own education and teachers more autonomous choices over how to address their students’ needs, capacities, and interests. Such forms of democratic participation can empower teachers to teach and students to learn democracy through experience. Retooled for data collection, the IEP can also amass a knowledge base about educational needs, interventions, and effective instructional practices to inform democratic decision-making—locally at first in the classrooms, schools, districts, and then eventually in the states charged with the constitutional duty to educate democratically.

Keywords: democratic education, state constitution, citizenship education, civic education, civics, special education, equity, adequacy, individualized education

JEL Classification: I21, I22, I24, I29, K10, K30, K40

Suggested Citation

Weishart, Joshua E., Democratizing Education Rights (October 12, 2020). William & Mary Bill of Rights Journal, Vol. 29, Issue 1 (2020 Forthcoming) , WVU College of Law Research Paper No. 2020-013, Available at SSRN: or

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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