At a recent event about school funding, someone came up to me and suggested that we should not talk about education as a “right” when we force kids to go. I was sorry not to continue the conversation, because in the United States, like it or not, education is NOT a right. That was determined in the case San Antonio Independent School District v. Rodriguez back in 1972. Mexican-American parents brought a class action suit against the state for financing schools in a way that violated the Fourteenth Amendment’s Equal Protection Clause by failing to distribute funding equally among districts. The Supreme Court decided that it would not examine the system with strict scrutiny because there was no fundamental right to education in the Constitution. Justice Powell, writing for the 5-4 majority, also found that the Equal Protection Clause really didn’t mean “absolute equality.”
So since that time, any such case has been stuck at the state level, because every state constitution has a clause somewhere that guarantees students an education. In NYS, we talk about a “sound basic education.” Other states refer to a “thorough and efficient system of common schools.” Incorporating this right into state constitutions was mandated by the federal government as territories applied for statehood.
Today, not only is litigation about school funding pending in most of the states in the Union, but also certain states (OH, KS) are seeking to remove the right to education entirely from their constitutions.
One of the best resources on current and past litigation is out of Teachers College at Columbia University, where Michael Rebell currently resides. Rebell is the lead attorney in the battle of students v. NYS for adequate funding. This site’s map and some of its material need updating, but it’s a great place to start if you want to see how states are systematically fighting their own people over public education.
Sometimes the people win: Washington courts found the state legislature in contempt for not providing adequate funding for public education. Sometimes they lose, as in the Michigan case. The Teachers College site clarifies the shift between cases that asked for equity and those that request adequacy. Equity cases, brought mostly in the 1970s and 1980s, routinely failed. In adequacy cases, starting in 1989, the plaintiff prevails two-thirds of the time.
This begs the question: Why do the people have to fight so hard to retain a guaranteed right? Anyone viewing this from the vantage point of another country would have to conclude that the United States as a whole values education very little.
“Adequate” is a term Paul likes to use when a waiter asks how a so-so diner meal tastes. It’s not a word I would willingly choose to describe a school system. Yet “adequate” is apparently the best we can do, and many states, including ours, are not even there yet.