A Novel Argument for the Right to Public Education

Mar 30, 2023

Education is not currently recognized as a fundamental right in the United States. In 1973’s San Antonio Independent School District v. Rodriguez, the Supreme Court found that education is not explicitly protected under the U.S. Constitution, and its precedent has remained unchallenged at the Supreme Court for over 30 years. Advocates for the right to public education have offered divergent strategies to overcoming the ruling, but none has found success in federal court.

Vanderbilt Law Professor Matthew Patrick Shaw offers a novel approach to the issue. Rather than advocating for education as a fundamental right or liberty, he submits that the states have created a substantive property interest in education, eligible for Due Process protection under the 14th Amendment. In his paper The Public Right to Education, Shaw lays out a three-step path to realizing constitutional rights to education.

1. Understanding what Rodriguez covers and doesn’t cover

As Shaw notes early on in his paper, San Antonio Independent School District v. Rodriquez remains a hurdle to anyone seeking constitutional relief for educational deprivation.

The case, which involves funding discrepancies tied to property tax-funded school allocations, has left the matter of educational rights in states’ hands. “For half a century, scholars and advocates have marshaled careful, impassioned, and cogent arguments against Rodriguez and argued for creative ways around it, but nothing has changed,” Shaw writes.

However, Rodriguez contemplated education as a “fundamental right or liberty” interest protected by due process. Rodriguez did not engage education as a property interest at all; none of the four opinions issued discussed education in those terms. “The text of the Rodriguez decision does not support the broad reading the federal courts have imposed upon it,” Shaw notes.

2. Public education as a due process-protected property interest

Shaw points to another case, Goss v. Lopez, where the Supreme Court does broach the property interest question. All the Justices agreed that the State of Ohio had created a property interest in public education that was protected by due process. They also agreed that the interest originated not from the Federal Constitution, but state law. What Goss does not address, however, is the nature of education, and what students were entitled to. “The substance of the educational property was not at issue,” Shaw writes.

Other cases – Board of Regents of State Colleges v. Roth and Mathews v. Eldridge – establish that when state law does create expectations for public education then procedural due process is afforded. This, Shaw writes “is insufficient as a safeguard against a state making material changes to the educational entitlement.” States could withdraw an education benefit from a student so long as appropriate procedures were followed. “Only a substantive due process right appears to be able to prevent a state from taking such an action,” he notes. And federal courts have generally been reluctant to expand the scope of that right, for doctrinal and practical reasons.

3. Defining the appropriate scope of substantive due process over educational property

Shaw argues that, in spite of this potential reluctance, education is property and therefore entitled to due process. All states provide public education as a benefit to its school-age residents, who are required to attend school; the rules, regulations, funding schemes, and other measures by which education is governed and delivered “define the dimensions of the state’s educational guarantee and thus the constitutional due process interest.”

Shaw also points to Plyler v. Doe, in which the Supreme Court prohibited the state of Texas from withdrawing its educational entitlement from undocumented migrants. Justice William Brennan described public schools as a “public right” – one that, while not explicitly granted by the constitution, is “a most vital civic institution for the preservation of a democratic system of government.” Justice Powell added that “A legislative classification that threatens the creation of an underclass of future citizens and residents cannot be reconciled with one of the fundamental purposes of the Fourteenth Amendment.”

Therefore, as state-mandated property and a “public right”, Shaw writes that claims regarding public education should be reviewed “under some form of heightened scrutiny that acknowledges the state’s policy authority in education, its substantial interest in public education, and the public’s reliance on the same.”

Shaw concludes that while this “public right” approach is new and different, it is based on matters involving public education and will be an effective resource for governments and members of the public. “This article begins to fill the constitutional void between the protection of fundamental rights and the protection of ordinary state-created benefits.”

The Public Right to Education is published at The University of Chicago Law Review.


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