Education as a Fundamental Right?

Last week, I had the opportunity to moderate a panel at the Benjamin L. Hooks Institute for Social Change’s annual conference, which was on education this year.  My panel was entitled “May it Please the Court: Legal Challenges and Remedies to Address Deficiencies in Public Education.”  I know, simple topic to cover in 90 minutes.  Anyway, there were 3 speakers and 2 of the 3 primarily advocated for a constitutional amendment making education a fundamental right.  I have discussed this topic in my course as well, providing a copy of the proposed amendment text submitted in Congress in 2009.  As I listened, I was somewhat surprised to find myself wondering, “What’s the point?”  After all, I am critical of the outcome in San Antonio ISD v. Rodriguez allowing for large funding disparities in part because education was deemed to be merely an important right, not a fundamental one.  But, I found myself thinking that maybe the constitutional amendment discussion was a distraction from in the trenches education reform that would impact students.

The conference included other panels on classroom, school, and district restructuring and reform plans; it included in depth descriptions of innovative teacher training and teacher evaluation initiatives; it included an exploration of the role of charters in expanding the availability of quality education.  Each of these other panels seemed to be truly making a difference, but the quest for a constitutional amendment struck me as so divorced from the real life impact on students as to be nearly irrelevant.

One panelist, Lynn Huntley (president of the Southern Education Foundation), made a somewhat compelling case that the quest for the amendment was more important than the amendment itself.  By proposing a constitutional amendment, the argument goes, advocates are able to garner attention in order to make noise about the educational inequities that exist and, having made noise, propose other solutions with substantial impact on reducing disparities.  Another panelist, Gary Williams of Loyola Law School (CA), argued that a movement akin to that which overturned Plessy v. Ferguson should be undertaken in order to overturn Rodriguez.  Inspiring, intriguing, even tempting.  But to what end?  When we get to “education as a right” in class, my students almost universally express dismay at the thought of having educational decisions being trapped in courtrooms indefinitely even as they recognizing the moral import of classifying education as a fundamental right.  It seems that the long-running legislature-to-court tennis match that happens in state courts where state constitutions provide an affirmative right to some form of education would be replicated on a national scale.  Very messy.  Messiness, of course, is not a reason not to pursue something (like overturning Plessy for example), but the drawbacks of messiness should not be ignored.

Anyway, as is probably evident, I have mixed feelings about this education as a fundamental right thing.  What do others think?  Am I missing something?  [note the irony of my criticism of the amendment path as a distraction from in-the-trenches reform ending with a question inviting others to distract themselves from in-the-trenches reform by commenting on the amendment path – sorry]

Comments

[Jenna McWilliams]

I don't know much about the legal distinction that separates "important rights" from "fundamental rights," but it does seem that as a culture we've kind of come to a general consensus that education is a basic human right--that education, empowerment, opportunity, and dignity are linked. Of course, believing in something is not the same thing as putting it into practice, and we also hold onto prejudiced belief systems that lead to inequities in how we provide education to our children. This is how we're able to argue that everybody has a right to an education while also believing that if minority children, for example, tend to struggle in school it's probably their fault and therefore not our problem.

I don't think that legally fixing education as a fundamental human right will solve the racism, classism, and sexism that lead to educational inequity, but I do agree that having a conversation about whether to do so can be extremely productive.

[Justin Bathon]

I think I'm probably close to where you are Daniel. My lean, though, is probably heavily toward focusing on other things in the interim. It is going to take a very large political movement to make a Constitutional Amendment happen and if we were not talking about an Amendment in this latest election cycle when the country was so ready for big, liberal ideas, then it is probably not all that close as a concept.

I'm also mixed on what to do with the states and their constitutions. Having diversity in education provisions in the state constitutions I do think has some value (Justice Brandeis' laboratory of ideas concept). I think the federal government too frequently gets entrenched on particular concepts and finds it difficult to move to new positions (see, healthcare). So, when folks propose Constitutional amendments, I guess my typical reaction is exactly what would we say in that Constitutional amendment? What language precisely, because as the state education provisions have shown, the language would matter a great deal because updating that language would be near impossible.

In the near term, I would like to see us sign the UN Convention on the Rights of the Child. I hate having to try to explain to my international friends why we have not signed that convention (which the US helped to draft). Just a couple weeks ago a prominent South African educator was at our shop and was in utter disbelief that the U.S. has not signed. President Obama has said that our failure to ratify is an embarrassment. I am definitely not an expert on International Law or UN Conventions, but all the fear that signing this would bind us to following it even if it conflicted with our existing Constitution is nonsense. Thus, I think it is a step in the right direction, but one that wouldn't fundamentally change education law in the U.S. like a Constitutional Amendment would. That's both good and bad, of course, but in the near term I think it is much more palatable and realistic.