In 1973, the U.S. Supreme Court held that the federal Constitution does not establish a fundamental right to education or to “equal” school funding. In so doing, the court rejected the argument that funding disparities across local school districts should be “strictly scrutinized” under the Fourteenth Amendment’s equal protection clause. That decision, in San Antonio Independent School District v. Rodriguez, has been good law for more than 40 years.
Various commentators and two new lawsuits, however, argue that Rodriguez should be reconsidered. These advocates urge the courts to create a federal constitutional right to education. Although the word “education” appears nowhere in the federal Constitution, advocates for recognizing that such a right is implied typically argue that it would ensure “equal educational opportunity” and foster more effective participation in civil society. These advocates may be well-intentioned, but their arguments rest on shaky legal reasoning and would translate into bad policy.
First, as a matter of constitutional law, Rodriguez was correctly decided. With a nod to Brown v. Board of Education, the Supreme Court’s 1954 decision banning state-imposed racial segregation in schools, the Rodriguez court recognized “the vital role of education in a free society.” But the court also emphasized the restraint inherent in our federal constitutional scheme: “The importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause,” the court wrote in its opinion, and “education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.” And finally, the court noted, “it is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.”
This analysis reflects the fact that the federal Constitution protects us from certain kinds of governmental action—such as state-imposed segregation, prohibitions on free speech, or invasions of personal privacy—but does not create expansive positive rights or guarantee governmental assistance. Federal courts typically refuse to create new substantive rights, and in a 1989 case, DeShaney v. Winnebago County Department of Social Services, the Supreme Court “recognized that the [Constitution’s] Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests.” Declaring education to be an implicit fundamental right would raise difficult constitutional questions about essentials such as food, shelter, and health care—none of which are mentioned in the federal Constitution.
More broadly, the federal government was designed to have limited, enumerated powers, as reflected in the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Regardless of the incentives contained in federal laws like the Elementary and Secondary Education Act, the Supreme Court has repeatedly held that the federal government may encourage but may not simply “commandeer” state governments to implement or enforce federal policies.
These constitutional principles are especially important in the context of education. Historically, responsibility for designing and reforming systems of public education has rested with the states. Unlike the federal Constitution, all 50 state constitutions have provisions that explicitly address education. Many of these provisions speak merely in broad terms, but they still serve as points of reference for state and local governments charged with establishing and maintaining public schools. Legal challenges to a state’s legislative and executive policies on public education necessarily implicate separation-of-powers concerns about the courts’ abilities to answer political questions and resolve policy debates. But at least state courts have an education clause to begin their analysis of any right to education.
By contrast, given the lack of an education clause in the U.S. Constitution, federal courts attempting to define an implicit right to education would need to start from scratch. Without the benefit of any constitutional text or interpretive history to lend meaning to the term “education,” federal courts would be fabricating a new substantive right out of whole cloth.
Misguided Efforts
Yet advocates of a federal right to education continue their efforts to overturn or reinterpret Rodriguez. Within the past year, plaintiffs in Connecticut and Michigan have filed new lawsuits imploring federal courts to recognize a federal constitutional right to education. The Connecticut plaintiffs, in Martinez v. Malloy, hope to expand school-choice options and invoke a “fundamental right to a minimally adequate education.” The Michigan plaintiffs, in Gary B. v. Snyder, challenge alleged deficiencies in the Detroit public schools and contend that “literacy is a fundamental right.”
These attempts to revisit Rodriguez are misguided. For one thing, the Michigan plaintiffs rely on arguments that the Supreme Court has already rejected. Regardless of their contention that literacy is “uniquely significant to American civil life” because of its role in a “well-functioning democracy,” the Rodriguez court held that “the key to discovering whether education is ‘fundamental’ is not to be found in comparisons of the relative societal significance of education”; the question is “whether there is a right to education explicitly or implicitly guaranteed by the Constitution.”
Creating a federal right to education would also force federal courts to take on issues they are not well-equipped to address. School funding cases are complicated enough for state courts, even with state constitutional education clauses to interpret. Indeed, because of differing language in the various state constitutions, state courts have reached a variety of conclusions about their ability to adjudicate claims involving the “equity” or “adequacy” of public school systems. If federal courts undertook a similar journey unmoored from any constitutional text, “it would be difficult,” as the Supreme Court cautioned in Rodriguez, “to imagine a case having a greater potential impact on our federal system.”
The Rodriguez court further recognized that efforts to make education a federal right overlook “persistent and difficult questions of educational policy, another area in which [the federal courts’] lack of
specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels.” And despite 40 years of intervening social-science research, the academic and policy debates described in Rodriguez continue today. Compare the Rodriguez court’s references to a questionable “correlation between educational expenditures and the quality of education” with the following discussion by the Supreme Court of Texas in a 2016 adequacy decision:
Some amici curiae have filed Brandeis briefs citing recent studies going both ways on the issue of whether more spending means a better education. . . . Courts should not sit as a super-legislature. Nor should they assume the role of super-laboratory. They are not equipped to resolve intractable disagreements on fundamental questions in the social sciences. Arthur Miller may have referred to a trial as the crucible, but we doubt he saw it as the best place for reducing scientific truth when the scientific community itself has reached an impasse.
The Rodriguez court anticipated this problem when it held that federal judges should “refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.” Rodriguez thus belongs to a long line of federal cases emphasizing the value of state and local control over public education. Even in the desegregation context—where state actions are subject to strict scrutiny under the Fourteenth Amendment—the Supreme Court held in Freeman v. Pitts that “returning schools to the control of local authorities at the earliest practicable date is essential to restore their true accountability in our governmental system.”
Hence, the lack of supporting constitutional text, principles of federalism, and the doctrine of stare decisis (which lends stability to the law by encouraging courts to stand by their prior decisions) all militate against the creation of a federal constitutional right to education or to supposedly equal school funding. Plaintiffs who are unable to achieve their policy goals through state and local political processes should not be allowed to impose their preferences by federal judicial fiat.
Unanswered Questions
But even if Rodriguez had been wrongly decided, defining a federal right to education in a way that guarantees “equal educational opportunity” would be no easy task and would raise more questions than it answered.
For example, should equality be gauged by the financial resources made available to public schools? How far would states have to go to equalize these educational inputs? Would providing greater base funding suffice, or would states have to go further to prohibit additional “unequal” spending by local school districts? Would the federal government have its own affirmative duty to provide additional federal funds—which currently make up less than 10 percent of all nationwide funding for K–12 education? And would Congress need to equalize spending across states?
Arguments to equalize funding ignore the reality that in many places, schools with concentrations of poor or academically struggling students already receive at least as much funding per pupil as other schools. Even the Education Law Center, an advocacy organization that supports plaintiffs seeking “fair” (that is, more) public-education funding, recently reported that two-thirds of the states provide equal or “progressive” funding for high-poverty school districts. Particularly in large urban districts, funding levels for disadvantaged or struggling students are often more than equal. Should those targeted funding differences be held unconstitutional? Or would “equal educational opportunity” require even more unequal spending, as Professors Ogletree and Robinson argue in their companion essay?
If equalized funding is not the answer, should states instead be forced to equalize student outcomes? Setting aside practical and policy questions about how to accomplish that goal, serious questions about the proper “aims of education” cited by Ogletree and Robinson remain unsettled. Which outcomes should be measured, and how “equal” must they be? Should courts consider test scores, classroom grades, or graduation rates? If the stubborn achievement gaps that exist in every state could prove a violation of federal equal-protection rights, would federal courts have to monitor every state’s education policies and spending decisions?
Asking federal courts to wade into these thickets is a mistake. State officials and courts have already grappled with many of these issues, and creating a federal right to education would destabilize policies and decisions that have shaped local school systems for generations. On this point, the Rodriguez court observed that the school-funding systems in Texas and “virtually every other state [would] not pass muster” under strict federal judicial scrutiny. “Nor indeed,” the court explained, “in view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense.”
Proponents of a federal right to education presume that federal judges would succeed where local policymakers have supposedly failed. But the federal judiciary lacks the capacity and expertise to solve entrenched problems like the achievement gap from the bench. Federal judges are not school superintendents, education experts, or central planners. What evidence shows that federal courts would produce better results than the state and local governments that have been designing and experimenting with education policy for years? And what benchmarks would allow the federal courts to decide when they had achieved the amorphous goal of “equal educational opportunity”? Numerous racial-desegregation cases, in which the goal of integration to remedy intentional discrimination is relatively clear, have lasted for decades. Adding constitutional equity and adequacy claims to the federal dockets, in the service of an implicit right to education, could lead to an era of federal judicial supervision with no end in sight.
It may well be the case that additional funds devoted to particular policies could improve certain facets of American public education. But the Rodriguez court correctly held that because “the Constitution does not provide judicial remedies for every social and economic ill,” broad educational goals are “not values to be implemented by judicial intrusion into otherwise legitimate state activities.” Given the substantial risks (and uncertain rewards) of federal judicial intervention, any acknowledgment of constitutional rights to education should be left to the states.
This is part of a forum on the San Antonio Independent School District v. Rodriguez. For an alternate view, see “Inequitable Schools Demand a Federal Remedy,” by Charles J. Ogletree Jr. and Kimberly Jenkins Robinson.
This article appeared in the Spring 2017 issue of Education Next. Suggested citation format:
Ogletree Jr., C.J., Robinson, K.J., Lindseth, A.A., Testani, R.E., and Peifer, L.A. (2017). Rodriguez Reconsidered: Is There a Federal Constitutional Right to Education? Education Next, 17(2), 70-77.
