The constitutional right to education is long overdue

Public school funding has shrunk over the past decade. School discipline rates reached historic highs. Large achievement gaps persist. And the overall performance of our nation’s students falls well below our international peers.

These bleak numbers beg the question: Don’t students have a constitutional right to something better? Many Americans assume that federal law protects the right to education. Why wouldn’t it? All 50 state constitutions provide for education. The same is true in 170 other countries. Yet, the word “education” does not appear in the United States Constitution, and federal courts have rejected the idea that education is important enough that it should be protected anyway.

After two decades of failed lawsuits in the 1970s and ‘80s, advocates all but gave up on the federal courts. It seemed the only solution was to amend the Constitution itself. But that, of course, is no small undertaking. So in recent decades, the debate over the right to education has mostly been academic.

The summer of 2016 marked a surprising turning point. Two independent groups – Public Counsel and Students Matter – filed lawsuits in Michigan and Connecticut. They argue that federal law requires those states to provide better educational opportunities for students. In May 2017, the Southern Poverty Law Center filed a similar suit in Mississippi.

At first glance, the cases looked like long shots. However, my research shows that these lawsuits, particularly in Mississippi, may be onto something remarkable. I found that the events leading up to the 14th Amendment – which explicitly created rights of citizenship, equal protection and due process – reveal an intent to make education a guarantee of citizenship. Without extending education to former slaves and poor whites, the nation could not become a true democracy.

Why a federal right to education matters

Even today, a federal constitutional right to education remains necessary to ensure all children get a fair shot in life. While students have a state constitutional right to education, state courts have been ineffective in protecting those rights.

Without a federal check, education policy tends to reflect politics more than an effort to deliver quality education. In many instances, states have done more to cut taxes than to support needy students.

And a federal right is necessary to prevent random variances between states. For instance, New York spends US$18,100 per pupil, while Idaho spends $5,800. New York is wealthier than Idaho, and its costs are of course higher, but New York still spends a larger percentage on education than Idaho. In other words, geography and wealth are important factors in school funding, but so is the effort a state is willing to make to support education.

And many states are exerting less and less effort. Recent data show that 31 states spend less on education now than before the recession – as much as 23 percent less.

States often makes things worse by dividing their funds unequally among school districts. In Pennsylvania, the poorest districts have 33 percent less per pupil than wealthy districts. Half of the states follow a similar, although less extreme, pattern.

Studies indicate these inequities deprive students of the basic resources they need, particularly quality teachers. Reviewing decades of data, a 2014 study found that a 20 percent increase in school funding, when maintained, results in low-income students completing nearly a year of additional education. This additional education wipes out the graduation gap between low- and middle-income students. A Kansas legislative study showed that “a 1 percent increase in student performance was associated with a .83 percent increase in spending.”

These findings are just detailed examples of the scholarly consensus: Money matters for educational outcomes.

The new lawsuits

While normally the refuge for civil rights claims, federal courts have refused to address these educational inequalities.  In 1973, the Supreme Court explicitly rejected education as a fundamental right. Later cases asked the court to recognize some narrower right in education, but the court again refused.