Rethinking Education Theft Through the Lens of Intellectual Property and Human Rights
Columbia Law Review, Vol. 123, 2023, Forthcoming
Texas A&M University School of Law Legal Studies Research Paper No. 23-04
39 Pages Posted: 5 Jan 2023 Last revised: 16 Feb 2023
Date Written: January 5, 2023
Written for the Property and Education Symposium, this essay problematizes the increased propertization and commodification of education and calls for a rethink of the emergent concept of "education theft" through the lens of intellectual property and human rights. This concept refers to the phenomenon where parents, or legal guardians, enroll children in schools outside their school districts by intentionally violating the residency requirements.
This essay begins by revisiting the debate on intellectual property rights as property rights. It discusses the ill fit between intellectual property law and the traditional property model as well as the impediments this law has posed to public access to education. The essay then outlines select reforms advanced by courts, policymakers, and commentators both inside and outside the property regime to improve such access.
This essay then turns to the debate on property and education in the human rights context. The human rights forum is selected for two reasons. First, the norms and practice relating to the human right to education provide important insights into this debate. Second, because the human rights forum is accustomed to clashes between competing interests cloaked in rights, the discussion will help evaluate the effectiveness and limitations of reforms calling for the introduction of positive rights to foster public access to education.
This essay concludes by applying the insights gleaned from the debate on property and education in the intellectual property and human rights contexts to the phenomenon surrounding so-called "education theft." Specifically, the essay calls for the development of a more sophisticated understanding of property rights in their historical and socio-economic contexts, a careful evaluation of the expediency of criminalization of residency requirement violations, and an exploration of potential technological solutions to address problems raised by these violations.
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