education article in constitution

877-757-8189

Student Login

The 14th Amendment Protects the Right to a Public Education

Over the years, the 14th Amendment of the United States Constitution has had an enormous impact on protecting individual rights in public elementary and secondary education. This has occurred through the United States Supreme Court’s interpretation of the Equal Protection Clause, the Due Process Clause, and the incorporation of other rights (like freedom of speech) to the states through the 14th Amendment.

Equal Protection Clause

The Equal Protection Clause of the 14th Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws.” It applies to public elementary and secondary schools, as they are considered to be state actors. In 1954, the Supreme Court interpreted the Equal Protection Clause’s requirements in  Brown v. Board of Education . In perhaps one of the most famous and important cases issued by the Court, it stated:

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs…are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the 14th Amendment.

That language, and the Court’s decision, had a dramatic impact on public education. Schools were required to end the discriminatory practice of segregating students based on race. While segregation was more prevalent in some states than in others, all public schools in all states that had segregated students needed to desegregate, or face claims that they were in violation of the 14th Amendment. What followed was roughly 50 years of desegregation efforts in public schools, and numerous court decisions regarding the constitutionality of those desegregation efforts.

Over time, the focus evolved from ending and remedying the vestiges of discriminatory practices to integration efforts that sought to promote the diversity of the student population in public schools. In some instances, these integration efforts were voluntary, meaning they were done by schools that had not segregated students in the past. These integration efforts continue to this day, and the predominant legal issues revolve around the extent to which race can be used as a factor in the assignment of students to certain schools in order to diversify the student body.

The language, and the logic, of the  Brown v. Board  decision also found its way into other types of Equal Protection claims. For example, in the mid-1970s, students with disabilities challenged their exclusion from public school on equal protection grounds. Two very influential lower court decisions,  PARC v Commonwealth of Pennsylvania , and  Mills v. Board of Education of the District of Columbia , relied on  Brown v. Board  and determined that students with disabilities could not be excluded from public school because of their disabilities.

Those court decisions led to a federal statute that imposed similar requirements on all public schools that accepted certain federal funds. That law turned into the Individuals with Disabilities Education Act (IDEA), which today applies to all public schools. The law requires public schools to provide all students with disabilities with a  Free and Appropriate Public Education (FAPE) . It also prohibits schools from expelling or suspending students with disabilities for longer than 10 days, when the student’s actions are caused by their disability.

Due Process Clause

Due process is another area of the 14th Amendment that has had a dramatic impact on individual rights in public education. The Due Process Clause says that states may not “deprive any person of life, liberty, or property, without due process of law.” The Supreme Court has interpreted this clause to have substantive and procedural protections. With substantive due process, the 14th Amendment protects a parent’s right to direct the educational upbringing of their child. Because of this right, the Supreme Court ruled that a state statute that prohibited the teaching of foreign language, and a state statute that required all students to attend public schools, as opposed to private schools, violated the 14th Amendment. See  Meyer v. Nebraska  and  Pierce v. Society of Sisters . The Court also ruled that a state statute that required Amish children to attend school past the eighth grade violated the substantive due process rights, and the religious freedom rights, of Amish parents to direct the educational and religious upbringing of their children. See  Wisconsin v. Yoder .

As a result of these substantive due process protections, all states currently have exceptions in their state compulsory attendance statutes that require students of certain ages to attend school. The exceptions allow for attendance at private schools, religious schools, and homeschool to meet the compulsory attendance requirements.

The procedural due process protections of the 14th Amendment have also played an important role in public education, particularly in the areas of student discipline and teacher employment. With student discipline, the Supreme Court has ruled that students have a “legitimate entitlement to a public education as a property right.” See  Goss v. Lopez . That right may not be taken away without first providing due process protections, which are generally notice of what the student is accused of doing, and the opportunity to be heard before the student is disciplined.

The required amount of notice and opportunity to be heard increases as the severity of the discipline increases. With minor disciplinary actions, an informal discussion with the principal may be sufficient to meet the requirements. For more severe discipline, such as expulsion, a more detailed hearing is generally required to give the student a chance to present evidence, and to cross-examine witnesses. As a result of these constitutional due process protections, all states have enacted statutes and regulations that provide due process protections for students during the discipline process.

A similar due process right applies to tenured teachers at public elementary and secondary schools. Once a teacher receives tenured status, they have a property interest in their continued employment, and must be provided with notice and a hearing before it may be taken away from them. See  Perry v. Sindermann .

Incorporation

The third area where the 14th Amendment has impacted public schools is in the application of other constitutional rights to the states through the 14th Amendment, via a concept known as  incorporation . Perhaps the biggest impact here has been the First Amendment’s right to free speech, although other protections like freedom of religion have also made their mark on public education.

In the area of free speech, the Supreme Court has said that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” See  Tinker v. Des Moines . While courts do give some deference to school administrators in making decisions about whether to prohibit certain student speech, the First Amendment requires schools to justify their decisions when they infringe on free speech rights. The level of justification required depends on the nature of the speech, and the nature of the restriction.

For example, in  Tinker v. Des Moines , students were protesting the Vietnam War by wearing armbands, and the school disciplined the students for doing so. The Supreme Court ruled that the discipline violated the First Amendment, because the school could not show that the speech could reasonably be expected to cause a substantial disruption with school activities or the rights of others. By contrast, in  Morse v. Frederick , the Supreme Court deferred to a school administrator’s judgment that a sign that said “Bong Hits 4 Jesus” promoted drug use, and upheld the discipline of the students that displayed the sign at a school event.

These are just a few examples of the many ways that the 14th Amendment impacts individual rights in public education. Many of these issues arise on a daily basis in public schools, and the 14th Amendment provides some constitutional protections of individual rights that schools must take into account when addressing them.

Scott F. Johnson

Scott F. Johnson is a Professor of Law at Purdue Global Law School (formerly Concord Law School), where he teaches Education Law and Special Education Law, among other topics. He has written a number of books and articles in the education law area. Professor Johnson’s law practice included education and special education cases, and he currently serves as a special education hearing officer for a state agency.

The views expressed in this article are solely those of the author and do not represent the view of Purdue Global Law School.

Employment and Career Advancement:  Purdue Global Law School cannot guarantee employment or career advancement.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

© 2024, Purdue Global, a public, nonprofit institution.

• Cookie Preferences
• Privacy Policy
• Terms of Use

• Community and Engagement
• Honors and Awards
• Give Now 

Ask the Expert: What Does the Constitution Say About Education? Nothing Explicitly, But That Doesn’t Mean it Can’t Help Provide Students with Equal Educational Access, Says Assistant Professor Jenn Ayscue

This is part of the monthly “Ask the Expert” series  in which NC State College of Education faculty answer some of the most commonly asked questions about education.

The United States Constitution doesn’t explicitly guarantee a right to public education, but that doesn’t mean that it can’t help ensure that all students are able to access an equal educational experience.

Jenn Ayscue, Ph.D. , an assistant professor in the Educational Evaluation and Policy Analysis and Educational Leadership programs at the NC State College of Education, explained that even though education is not directly addressed in the Constitution, the equal protection clause of the 14th Amendment has been applied to educational issues.

It was this clause, she said, that provided the basis for the 1954 Brown v. Board of Education decision that laid the foundation for dismantling racial segregation in schools through a Supreme Court ruling that declared separate educational facilities for black and white students were inherently unequal.

“Within about a decade after Brown v. Board of Education, schools across the nation, primarily in the southeast where they had de jure segregation, began to desegregate,” Ayscue said. “But, the peak of desegregation was in the late 1980s and since that time, we’ve seen quite a bit of resegregation across the nation, including in North Carolina.”

When thinking about equitable educational access for students in modern times, Ayscue — who co-authored a report marking the 65th anniversary of the Brown v. Board of Education ruling — notes that the context has changed.

While Brown v. Board of Education primarily focused on black and white students, the modern school population is increasingly diverse and multi-racial. White children no longer comprise the majority of students in public schools and Latino students are the largest group of students of color.

Ayscue, who studies policies that shape students’ access to diverse and equitable learning opportunities, said that academic integration for these students can be beneficial both academically and socially.

Research shows that students who attend integrated schools have higher levels of academic achievement and improved critical thinking and communication skills. In addition, they demonstrate a reduction in prejudice and belief in stereotypes and an increase in friendships across racial groups.

The impact of attending an integrated school can also extend well beyond graduation, Ayscue said.

“Students who attended integrated schools are more likely to live and work in integrated environments later in their lives. They also have better economic outcomes, with higher status jobs and better paying jobs, and higher levels of civic engagement,” she said. “These students also have lower rates of incarceration and better health outcomes.”

On the other hand, Ayscue says research shows that segregated schools can be systematically linked to unequal educational opportunities and outcomes. Students who attend minority segregated schools tend to have less access to advanced curricular options and rigorous coursework.

In addition, minority segregated schools tend to experience higher rates of teacher turnover and student mobility.

“Therefore, it’s perhaps not surprising that students in these schools have lower levels of academic achievement, higher drop-out rates and lower graduation rates,” Ayscue said.

Ayscue said that many school districts across the nation have begun working on voluntary desegregation plans, and there are several methods used today to address the issue.

She noted that district leaders can use multi-factor student assignment policies that account for the racial composition of a neighborhood when assigning students to schools and magnet schools, which can set diversity goals. In growing school districts, leaders can also actively work to place new schools in areas that would enroll a racially diverse group of students, Ayscue said.

Video by Ryan Clancy

• Research and Impact
• Ask The Expert
• Educational Evaluation and Policy Analysis
• Educational Leadership
• higher education equity
• homepage-news
• Jenn Ayscue

More From College of Education News

#WhyIChoseEducation: 'My Teachers Had a Big Impact on Me, and I Wanted to be That Person for Other Students,' Says Meghan Larson 

My Student Experience: College of Education Students Explore Educational Opportunities in Eastern North Carolina on We Teach for NC Spring Break 

Peyton Pugh '23 Named Wake County Diane Kent-Parker First-Year Teacher of the Year 

Skip to Main Content - Keyboard Accessible

• U.S. Constitution Annotated

The following state regulations pages link to this page.

Is Education a Constitutional Right?

By: Laurence M. Vance | Published on: Oct 25, 2018 | Categories: Education

An article in the September issue of  The New Yorker  makes the case that education is a fundamental right guaranteed by the Constitution.

Public schools in Detroit are failing to educate students. Just like they are failing to do so in many large cities throughout the country. A case in the federal court system,  Gary B. v. Snyder , filed by Public Counsel and Sidley Austin LLP on behalf of a class of Detroit students, argues that students in Detroit public schools who failed to learn how to read were denied their due process and equal protection rights under the Constitution’s Fourteenth Amendment. The case was dismissed by a federal district court in Michigan in June, but has been appealed to the Sixth Circuit Court of Appeals in Cincinnati.

The plaintiffs, as well as the writer of the piece in  The New Yorker  (Jill Lepore) cite the Supreme Court case of  Plyler v . Doe  (1982). In his book  The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind  (Pantheon, 2018), Justin Driver, a law professor at the University of Chicago, maintains that this case “rests among the most egalitarian, momentous, and efficacious constitutional opinions that the Supreme Court has issued throughout its entire history.”

The case came about after Texas education laws were changed in 1975 to allow the state to withhold funding from local school districts to educate the children of illegal aliens. The Court, by a 5-4 vote, ruled that the revised law violated the equal protection clause of the Fourteenth Amendment. The law “severely disadvantaged the children of illegal aliens” by “denying them the right to an education.”

But of course, the law didn’t deny the children of illegals the right to an education; it denied them the right to an education at taxpayers’ expense. Their parents could have educated them at home, hired a tutor, or sent them to a private school. The fact that the parents didn’t have the ability to educate their children at home and couldn’t afford to hire a tutor or send their children to a private school is immaterial.

But regardless of what the Supreme Court said, education is not a constitutional right.

The Constitution doesn’t grant rights; the Constitution guarantees rights. The Constitution specifically guarantees certain natural rights, imposes limits on the government’s power, and explicitly declares that all powers not delegated to the federal government by the Constitution are reserved to the states or the people.

The United States was set up as a federal system of government where the states, through the Constitution, granted a limited number of powers to a central government. As James Madison succinctly explained in  Federalist  No. 45:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

There are about thirty enumerated congressional powers listed throughout the Constitution. Most of those powers are found in the eighteen paragraphs of Article I, Section 8. One concerns commerce. One concerns naturalization and bankruptcies. One concerns post offices and post roads. One concerns copyrights and patents. One concerns federal courts. One concerns maritime crimes. One concerns the governance of the District of Columbia. Four of them concern taxes and money. Six concern the militia and the military. The last one—the “elastic” clause—gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

Elsewhere in the Constitution we read that Congress may also admit new states into the Union, propose amendments to the Constitution, regulate national elections, establish courts inferior to the Supreme Court, direct the location of the place for the trial of a crime not committed within a state, declare the punishment for treason, provide the manner in which the public acts and records in each state are accepted by the others, dispose of and regulate the territory or other property of the United States, give the states consent to lay imposts or duties on imports or exports, and provide for the case of the removal, death, resignation, or inability of the president or vice president.

Everything else is reserved to the states—even without the addition of the Bill of Rights and its Tenth Amendment.

But what about the Fourteenth Amendment?

The Fourteenth Amendment, ratified in 1868, says that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

I would ask the same question: What about the Fourteenth Amendment? What does the Fourteenth Amendment have to do with the education of the children of illegal aliens? Absolutely nothing, of course. They are not citizens, they are not being deprived of life, liberty, or property, and they are not being denied the equal protection of the laws.

Although all states have provisions in their constitutions for public education, they do not have to have such provisions. Education is not a natural right. But whether they do or don’t have such provisions, education is strictly and entirely a state matter.

The Constitution doesn’t mention education, public schools, teachers, teachers’ unions, private schools, tutors, students, student loans, FAFSA forms, Pell Grants, Title IX, classrooms, desks, special education, curriculum, Head Start, Common Core, math and science initiatives, the Higher Education Act, the Elementary and Secondary Education Act, school breakfast or lunch programs, teacher education, teacher certification, research grants to colleges and universities, special-education mandates, school buses, bilingual-education mandates, school accreditation, charter schools, educational vouchers, mandatory attendance laws, graduation rates, the No Child Left Behind Act, busing to achieve racial desegregation, Race to the Top funds, or a Department of Education.

And neither does the Constitution authorize the federal government to spend one penny on education.

If there is no constitutional right to receive basic necessities like housing, clothing, and food, then there is certainly no constitutional right to receive a government-provided or government-funded education.

This article was  originally published at LewRockwell.com , and is reposted here under a CreativeCommons 4.0 license .

Tags: Education , rights

• Recent Posts

• The Social Security and Medicare Scams - March 24, 2024
• Johnsoncare, Bushcare, Obamacare, and Trumpcare - February 26, 2024
• What Republicans Aren’t Saying about Food Stamps - April 5, 2023

The 10th 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.”

Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles

Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog

State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report

Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty

maharrey minute

thoughts from maharrey head

other voices

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today

TENTHER ESSENTIALS

Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment

Major Clauses

supremacy clause

commerce clause

general welfare clause

necessary and proper clause

Nullification

Get an overview of the principles, background, and application in history - and today.

nullification

• Search Menu
• Browse content in Arts and Humanities
• Browse content in Archaeology
• Anglo-Saxon and Medieval Archaeology
• Archaeological Methodology and Techniques
• Archaeology by Region
• Archaeology of Religion
• Archaeology of Trade and Exchange
• Biblical Archaeology
• Contemporary and Public Archaeology
• Environmental Archaeology
• Historical Archaeology
• History and Theory of Archaeology
• Industrial Archaeology
• Landscape Archaeology
• Mortuary Archaeology
• Prehistoric Archaeology
• Underwater Archaeology
• Urban Archaeology
• Zooarchaeology
• Browse content in Architecture
• Architectural Structure and Design
• History of Architecture
• Residential and Domestic Buildings
• Theory of Architecture
• Browse content in Art
• Art Subjects and Themes
• History of Art
• Industrial and Commercial Art
• Theory of Art
• Biographical Studies
• Byzantine Studies
• Browse content in Classical Studies
• Classical History
• Classical Philosophy
• Classical Mythology
• Classical Literature
• Classical Reception
• Classical Art and Architecture
• Classical Oratory and Rhetoric
• Greek and Roman Papyrology
• Greek and Roman Epigraphy
• Greek and Roman Law
• Greek and Roman Archaeology
• Late Antiquity
• Religion in the Ancient World
• Digital Humanities
• Browse content in History
• Colonialism and Imperialism
• Diplomatic History
• Environmental History
• Genealogy, Heraldry, Names, and Honours
• Genocide and Ethnic Cleansing
• Historical Geography
• History by Period
• History of Emotions
• History of Agriculture
• History of Education
• History of Gender and Sexuality
• Industrial History
• Intellectual History
• International History
• Labour History
• Legal and Constitutional History
• Local and Family History
• Maritime History
• Military History
• National Liberation and Post-Colonialism
• Oral History
• Political History
• Public History
• Regional and National History
• Revolutions and Rebellions
• Slavery and Abolition of Slavery
• Social and Cultural History
• Theory, Methods, and Historiography
• Urban History
• World History
• Browse content in Language Teaching and Learning
• Language Learning (Specific Skills)
• Language Teaching Theory and Methods
• Browse content in Linguistics
• Applied Linguistics
• Cognitive Linguistics
• Computational Linguistics
• Forensic Linguistics
• Grammar, Syntax and Morphology
• Historical and Diachronic Linguistics
• History of English
• Language Evolution
• Language Reference
• Language Acquisition
• Language Variation
• Language Families
• Lexicography
• Linguistic Anthropology
• Linguistic Theories
• Linguistic Typology
• Phonetics and Phonology
• Psycholinguistics
• Sociolinguistics
• Translation and Interpretation
• Writing Systems
• Browse content in Literature

Bibliography

• Children's Literature Studies
• Literary Studies (Romanticism)
• Literary Studies (American)
• Literary Studies (Asian)
• Literary Studies (European)
• Literary Studies (Eco-criticism)
• Literary Studies (Modernism)
• Literary Studies - World
• Literary Studies (1500 to 1800)
• Literary Studies (19th Century)
• Literary Studies (20th Century onwards)
• Literary Studies (African American Literature)
• Literary Studies (British and Irish)
• Literary Studies (Early and Medieval)
• Literary Studies (Fiction, Novelists, and Prose Writers)
• Literary Studies (Gender Studies)
• Literary Studies (Graphic Novels)
• Literary Studies (History of the Book)
• Literary Studies (Plays and Playwrights)
• Literary Studies (Poetry and Poets)
• Literary Studies (Postcolonial Literature)
• Literary Studies (Queer Studies)
• Literary Studies (Science Fiction)
• Literary Studies (Travel Literature)
• Literary Studies (War Literature)
• Literary Studies (Women's Writing)
• Literary Theory and Cultural Studies
• Mythology and Folklore
• Shakespeare Studies and Criticism
• Browse content in Media Studies
• Browse content in Music
• Applied Music
• Dance and Music
• Ethics in Music
• Ethnomusicology
• Gender and Sexuality in Music
• Medicine and Music
• Music Cultures
• Music and Media
• Music and Religion
• Music and Culture
• Music Education and Pedagogy
• Music Theory and Analysis
• Musical Scores, Lyrics, and Libretti
• Musical Structures, Styles, and Techniques
• Musicology and Music History
• Performance Practice and Studies
• Race and Ethnicity in Music
• Sound Studies
• Browse content in Performing Arts
• Browse content in Philosophy
• Aesthetics and Philosophy of Art
• Epistemology
• Feminist Philosophy
• History of Western Philosophy
• Metaphysics
• Moral Philosophy
• Non-Western Philosophy
• Philosophy of Language
• Philosophy of Mind
• Philosophy of Perception
• Philosophy of Science
• Philosophy of Action
• Philosophy of Law
• Philosophy of Religion
• Philosophy of Mathematics and Logic
• Practical Ethics
• Social and Political Philosophy
• Browse content in Religion
• Biblical Studies
• Christianity
• East Asian Religions
• History of Religion
• Judaism and Jewish Studies
• Qumran Studies
• Religion and Education
• Religion and Health
• Religion and Politics
• Religion and Science
• Religion and Law
• Religion and Art, Literature, and Music
• Religious Studies
• Browse content in Society and Culture
• Cookery, Food, and Drink
• Cultural Studies
• Customs and Traditions
• Ethical Issues and Debates
• Hobbies, Games, Arts and Crafts
• Lifestyle, Home, and Garden
• Natural world, Country Life, and Pets
• Popular Beliefs and Controversial Knowledge
• Sports and Outdoor Recreation
• Technology and Society
• Travel and Holiday
• Visual Culture
• Browse content in Law
• Arbitration
• Browse content in Company and Commercial Law
• Commercial Law
• Company Law
• Browse content in Comparative Law
• Systems of Law
• Competition Law
• Browse content in Constitutional and Administrative Law
• Government Powers
• Judicial Review
• Local Government Law
• Military and Defence Law
• Parliamentary and Legislative Practice
• Construction Law
• Contract Law
• Browse content in Criminal Law
• Criminal Procedure
• Criminal Evidence Law
• Sentencing and Punishment
• Employment and Labour Law
• Environment and Energy Law
• Browse content in Financial Law
• Banking Law
• Insolvency Law
• History of Law
• Human Rights and Immigration
• Intellectual Property Law
• Browse content in International Law
• Private International Law and Conflict of Laws
• Public International Law
• IT and Communications Law
• Jurisprudence and Philosophy of Law
• Law and Politics
• Law and Society
• Browse content in Legal System and Practice
• Courts and Procedure
• Legal Skills and Practice
• Primary Sources of Law
• Regulation of Legal Profession
• Medical and Healthcare Law
• Browse content in Policing
• Criminal Investigation and Detection
• Police and Security Services
• Police Procedure and Law
• Police Regional Planning
• Browse content in Property Law
• Personal Property Law
• Study and Revision
• Terrorism and National Security Law
• Browse content in Trusts Law
• Wills and Probate or Succession
• Browse content in Medicine and Health
• Browse content in Allied Health Professions
• Arts Therapies
• Clinical Science
• Dietetics and Nutrition
• Occupational Therapy
• Operating Department Practice
• Physiotherapy
• Radiography
• Speech and Language Therapy
• Browse content in Anaesthetics
• General Anaesthesia
• Neuroanaesthesia
• Clinical Neuroscience
• Browse content in Clinical Medicine
• Acute Medicine
• Cardiovascular Medicine
• Clinical Genetics
• Clinical Pharmacology and Therapeutics
• Dermatology
• Endocrinology and Diabetes
• Gastroenterology
• Genito-urinary Medicine
• Geriatric Medicine
• Infectious Diseases
• Medical Toxicology
• Medical Oncology
• Pain Medicine
• Palliative Medicine
• Rehabilitation Medicine
• Respiratory Medicine and Pulmonology
• Rheumatology
• Sleep Medicine
• Sports and Exercise Medicine
• Community Medical Services
• Critical Care
• Emergency Medicine
• Forensic Medicine
• Haematology
• History of Medicine
• Browse content in Medical Skills
• Clinical Skills
• Communication Skills
• Nursing Skills
• Surgical Skills
• Browse content in Medical Dentistry
• Oral and Maxillofacial Surgery
• Paediatric Dentistry
• Restorative Dentistry and Orthodontics
• Surgical Dentistry
• Medical Ethics
• Medical Statistics and Methodology
• Browse content in Neurology
• Clinical Neurophysiology
• Neuropathology
• Nursing Studies
• Browse content in Obstetrics and Gynaecology
• Gynaecology
• Occupational Medicine
• Ophthalmology
• Otolaryngology (ENT)
• Browse content in Paediatrics
• Neonatology
• Browse content in Pathology
• Chemical Pathology
• Clinical Cytogenetics and Molecular Genetics
• Histopathology
• Medical Microbiology and Virology
• Patient Education and Information
• Browse content in Pharmacology
• Psychopharmacology
• Browse content in Popular Health
• Caring for Others
• Complementary and Alternative Medicine
• Self-help and Personal Development
• Browse content in Preclinical Medicine
• Cell Biology
• Molecular Biology and Genetics
• Reproduction, Growth and Development
• Primary Care
• Professional Development in Medicine
• Browse content in Psychiatry
• Addiction Medicine
• Child and Adolescent Psychiatry
• Forensic Psychiatry
• Learning Disabilities
• Old Age Psychiatry
• Psychotherapy
• Browse content in Public Health and Epidemiology
• Epidemiology
• Public Health
• Browse content in Radiology
• Clinical Radiology
• Interventional Radiology
• Nuclear Medicine
• Radiation Oncology
• Reproductive Medicine
• Browse content in Surgery
• Cardiothoracic Surgery
• Gastro-intestinal and Colorectal Surgery
• General Surgery
• Neurosurgery
• Paediatric Surgery
• Peri-operative Care
• Plastic and Reconstructive Surgery
• Surgical Oncology
• Transplant Surgery
• Trauma and Orthopaedic Surgery
• Vascular Surgery
• Browse content in Science and Mathematics
• Browse content in Biological Sciences
• Aquatic Biology
• Biochemistry
• Bioinformatics and Computational Biology
• Developmental Biology
• Ecology and Conservation
• Evolutionary Biology
• Genetics and Genomics
• Microbiology
• Molecular and Cell Biology
• Natural History
• Plant Sciences and Forestry
• Research Methods in Life Sciences
• Structural Biology
• Systems Biology
• Zoology and Animal Sciences
• Browse content in Chemistry
• Analytical Chemistry
• Computational Chemistry
• Crystallography
• Environmental Chemistry
• Industrial Chemistry
• Inorganic Chemistry
• Materials Chemistry
• Medicinal Chemistry
• Mineralogy and Gems
• Organic Chemistry
• Physical Chemistry
• Polymer Chemistry
• Study and Communication Skills in Chemistry
• Theoretical Chemistry
• Browse content in Computer Science
• Artificial Intelligence
• Computer Architecture and Logic Design
• Game Studies
• Human-Computer Interaction
• Mathematical Theory of Computation
• Programming Languages
• Software Engineering
• Systems Analysis and Design
• Virtual Reality
• Browse content in Computing
• Business Applications
• Computer Security
• Computer Games
• Computer Networking and Communications
• Digital Lifestyle
• Graphical and Digital Media Applications
• Operating Systems
• Browse content in Earth Sciences and Geography
• Atmospheric Sciences
• Environmental Geography
• Geology and the Lithosphere
• Maps and Map-making
• Meteorology and Climatology
• Oceanography and Hydrology
• Palaeontology
• Physical Geography and Topography
• Regional Geography
• Soil Science
• Urban Geography
• Browse content in Engineering and Technology
• Agriculture and Farming
• Biological Engineering
• Civil Engineering, Surveying, and Building
• Electronics and Communications Engineering
• Energy Technology
• Engineering (General)
• Environmental Science, Engineering, and Technology
• History of Engineering and Technology
• Mechanical Engineering and Materials
• Technology of Industrial Chemistry
• Transport Technology and Trades
• Browse content in Environmental Science
• Applied Ecology (Environmental Science)
• Conservation of the Environment (Environmental Science)
• Environmental Sustainability
• Environmentalist Thought and Ideology (Environmental Science)
• Management of Land and Natural Resources (Environmental Science)
• Natural Disasters (Environmental Science)
• Nuclear Issues (Environmental Science)
• Pollution and Threats to the Environment (Environmental Science)
• Social Impact of Environmental Issues (Environmental Science)
• History of Science and Technology
• Browse content in Materials Science
• Ceramics and Glasses
• Composite Materials
• Metals, Alloying, and Corrosion
• Nanotechnology
• Browse content in Mathematics
• Applied Mathematics
• Biomathematics and Statistics
• History of Mathematics
• Mathematical Education
• Mathematical Finance
• Mathematical Analysis
• Numerical and Computational Mathematics
• Probability and Statistics
• Pure Mathematics
• Browse content in Neuroscience
• Cognition and Behavioural Neuroscience
• Development of the Nervous System
• Disorders of the Nervous System
• History of Neuroscience
• Invertebrate Neurobiology
• Molecular and Cellular Systems
• Neuroendocrinology and Autonomic Nervous System
• Neuroscientific Techniques
• Sensory and Motor Systems
• Browse content in Physics
• Astronomy and Astrophysics
• Atomic, Molecular, and Optical Physics
• Biological and Medical Physics
• Classical Mechanics
• Computational Physics
• Condensed Matter Physics
• Electromagnetism, Optics, and Acoustics
• History of Physics
• Mathematical and Statistical Physics
• Measurement Science
• Nuclear Physics
• Particles and Fields
• Plasma Physics
• Quantum Physics
• Relativity and Gravitation
• Semiconductor and Mesoscopic Physics
• Browse content in Psychology
• Affective Sciences
• Clinical Psychology
• Cognitive Psychology
• Cognitive Neuroscience
• Criminal and Forensic Psychology
• Developmental Psychology
• Educational Psychology
• Evolutionary Psychology
• Health Psychology
• History and Systems in Psychology
• Music Psychology
• Neuropsychology
• Organizational Psychology
• Psychological Assessment and Testing
• Psychology of Human-Technology Interaction
• Psychology Professional Development and Training
• Research Methods in Psychology
• Social Psychology
• Browse content in Social Sciences
• Browse content in Anthropology
• Anthropology of Religion
• Human Evolution
• Medical Anthropology
• Physical Anthropology
• Regional Anthropology
• Social and Cultural Anthropology
• Theory and Practice of Anthropology
• Browse content in Business and Management
• Business Ethics
• Business Strategy
• Business History
• Business and Technology
• Business and Government
• Business and the Environment
• Comparative Management
• Corporate Governance
• Corporate Social Responsibility
• Entrepreneurship
• Health Management
• Human Resource Management
• Industrial and Employment Relations
• Industry Studies
• Information and Communication Technologies
• International Business
• Knowledge Management
• Management and Management Techniques
• Operations Management
• Organizational Theory and Behaviour
• Pensions and Pension Management
• Public and Nonprofit Management
• Strategic Management
• Supply Chain Management
• Browse content in Criminology and Criminal Justice
• Criminal Justice
• Criminology
• Forms of Crime
• International and Comparative Criminology
• Youth Violence and Juvenile Justice
• Development Studies
• Browse content in Economics
• Agricultural, Environmental, and Natural Resource Economics
• Asian Economics
• Behavioural Finance
• Behavioural Economics and Neuroeconomics
• Econometrics and Mathematical Economics
• Economic History
• Economic Systems
• Economic Methodology
• Economic Development and Growth
• Financial Markets
• Financial Institutions and Services
• General Economics and Teaching
• Health, Education, and Welfare
• History of Economic Thought
• International Economics
• Labour and Demographic Economics
• Law and Economics
• Macroeconomics and Monetary Economics
• Microeconomics
• Public Economics
• Urban, Rural, and Regional Economics
• Welfare Economics
• Browse content in Education
• Adult Education and Continuous Learning
• Care and Counselling of Students
• Early Childhood and Elementary Education
• Educational Equipment and Technology
• Educational Strategies and Policy
• Higher and Further Education
• Organization and Management of Education
• Philosophy and Theory of Education
• Schools Studies
• Secondary Education
• Teaching of a Specific Subject
• Teaching of Specific Groups and Special Educational Needs
• Teaching Skills and Techniques
• Browse content in Environment
• Applied Ecology (Social Science)
• Climate Change
• Conservation of the Environment (Social Science)
• Environmentalist Thought and Ideology (Social Science)
• Natural Disasters (Environment)
• Social Impact of Environmental Issues (Social Science)
• Browse content in Human Geography
• Cultural Geography
• Economic Geography
• Political Geography
• Browse content in Interdisciplinary Studies
• Communication Studies
• Museums, Libraries, and Information Sciences
• Browse content in Politics
• African Politics
• Asian Politics
• Chinese Politics
• Comparative Politics
• Conflict Politics
• Elections and Electoral Studies
• Environmental Politics
• European Union
• Foreign Policy
• Gender and Politics
• Human Rights and Politics
• Indian Politics
• International Relations
• International Organization (Politics)
• International Political Economy
• Irish Politics
• Latin American Politics
• Middle Eastern Politics
• Political Behaviour
• Political Economy
• Political Institutions
• Political Methodology
• Political Communication
• Political Philosophy
• Political Sociology
• Political Theory
• Politics and Law
• Public Policy
• Public Administration
• Quantitative Political Methodology
• Regional Political Studies
• Russian Politics
• Security Studies
• State and Local Government
• UK Politics
• US Politics
• Browse content in Regional and Area Studies
• African Studies
• Asian Studies
• East Asian Studies
• Japanese Studies
• Latin American Studies
• Middle Eastern Studies
• Native American Studies
• Scottish Studies
• Browse content in Research and Information
• Research Methods
• Browse content in Social Work
• Addictions and Substance Misuse
• Adoption and Fostering
• Care of the Elderly
• Child and Adolescent Social Work
• Couple and Family Social Work
• Developmental and Physical Disabilities Social Work
• Direct Practice and Clinical Social Work
• Emergency Services
• Human Behaviour and the Social Environment
• International and Global Issues in Social Work
• Mental and Behavioural Health
• Social Justice and Human Rights
• Social Policy and Advocacy
• Social Work and Crime and Justice
• Social Work Macro Practice
• Social Work Practice Settings
• Social Work Research and Evidence-based Practice
• Welfare and Benefit Systems
• Browse content in Sociology
• Childhood Studies
• Community Development
• Comparative and Historical Sociology
• Economic Sociology
• Gender and Sexuality
• Gerontology and Ageing
• Health, Illness, and Medicine
• Marriage and the Family
• Migration Studies
• Occupations, Professions, and Work
• Organizations
• Population and Demography
• Race and Ethnicity
• Social Theory
• Social Movements and Social Change
• Social Research and Statistics
• Social Stratification, Inequality, and Mobility
• Sociology of Religion
• Sociology of Education
• Sport and Leisure
• Urban and Rural Studies
• Browse content in Warfare and Defence
• Defence Strategy, Planning, and Research
• Land Forces and Warfare
• Military Administration
• Military Life and Institutions
• Naval Forces and Warfare
• Other Warfare and Defence Issues
• Peace Studies and Conflict Resolution
• Weapons and Equipment

• < Previous chapter
• Next chapter >

46 Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship

University of California Santa Cruz

With special thanks to Miles Norman for excellent research assistance.

• Published: 12 November 2015
• Cite Icon Cite
• Permissions Icon Permissions

I. Introduction

In contrast to the constitutions of most countries and all U.S. states, the federal constitution does not include an explicit education clause, right to education, or discussion of educational responsibilities. 1 Nor has the U.S. Supreme Court recognized a fundamental right to education as an implied constitutional guarantee. 2 In addition, most general surveys of American constitutional law provide no focused attention to education. As a result, education and the Constitution may initially seem a narrow or peripheral topic. Nothing could be farther from the case. Educational concerns and controversies have significantly shaped and been shaped by every era of American constitutional development. They have contributed to shifting patterns of federalism and ongoing expansions of national power since the eighteenth-century Founding. They have been catalysts for landmark cases and statutory laws on topics ranging from free speech and religious freedom to affirmative action and sex discrimination. And they have been a source of influential doctrines ranging from substantive due process to reverse incorporation to the Lemon test. 3 Indeed, the complex intersections between education and the Constitution have helped define the contours of American governance, citizenship, civil liberties, and civil society in every era.

II. Education and Constitutional Development: Four Waves of Change in Federalism and National Power

Educational ideals and disagreements weave through early American constitutionalism and patterns of federal-state relations. From the eighteenth to the twenty-first century, we can see four major waves of constitutional development related to education in the United States. The first major institutional actors shaping these developments were not federal courts but state constitutional conventions and legislatures, the U.S. Congress, and presidents who brought their own constitutional understandings and constructions to bear. 4

1. First Wave Developments of the Eighteenth Century Era: Debating the Role of Education in a Republic

In the eighteenth century, American constitutionalism included prominent public concern for education, particularly the idea of educating citizens for a republic. 5 These concerns shaped early governing ideals and legislation, and they contributed to two influential patterns of constitutional development. The first was a pattern of distinct but overlapping federal and state roles in public education that fostered the growth of governmental powers and responsibilities at both levels. A second, related, pattern contributed to debates over constitutional interpretation and federalism.

Prior to American independence, some colonies had schools, but education was a largely private or religious undertaking, and it was often accessible only to the wealthy. 6 From the Revolutionary Era forward, however, the goal of educating citizens for constitutional self-governance became a prominent theme in public debate and lawmaking. 7 Leaders such as Benjamin Rush, Thomas Jefferson, and James Madison publicly urged that “liberty and learning” were mutually supportive, and many also suggested that some type of public education was necessary to support the experiment in self-rule marked by new constitutions. 8

When states began creating new constitutions in 1776, some included provisions related to public education—education involving a combination of civic ideals, public access, and public financing. 9 One potent illustration is Massachusetts’s constitution of 1780, which expressed the duty of government to support diffusion of knowledge and “spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people.” By the late eighteenth century, education clauses articulating such commitments were a defining state constitutional trend. 10 During this period, states also began using tax powers to promote educational goals, often through special “Literary Funds” and public endowments used to support a patchwork of schools. 11 Although most states would not go so far as to develop free, secular, and extensive public school systems until well into the nineteenth century, this Founding era generated the first attempts to do so, including Thomas Jefferson’s 1779 Bill for the More General Diffusion of Knowledge . 12

At the national level, the Articles of Confederation included no mention of education. Nevertheless, the Confederation Congress acted to promote public education through two landmark laws. The Land Ordinance (1785) launched the first education land-grant mechanism by designating that one lot out of every thirty-six square miles in western territory should be set aside “for maintenance of public schools.” 13 In addition, the Northwest Ordinance (1787), to which some scholars attribute quasi-constitutional status, 14 endorsed educational goals: that “schools and the means of education shall forever be encouraged” in order to further “good governance,” morality, and prosperity in new American communities. After ratification of the U.S. Constitution, Congress reaffirmed the Northwest Ordinance (1789).

These early congressional actions to set aside land for maintaining public schools brought the first school case to the Supreme Court, Springfield v. Quick , 15 in which the Court preserved allocations of education funds to townships. 16 More sweepingly, setting aside a portion of federally granted land for maintaining schools became a requirement in the Enabling Acts that established conditions for admitting all new American states. As a result, even in the absence of an education clause in the U.S. Constitution, thirty states—from Ohio in 1902 to Alaska in 1958—were federally enabled and required to support public schools as a precondition for statehood and entrance into the Union. 17

Concern for promoting education was also raised at the Constitutional Convention, when Madison moved to explicitly empower Congress “To establish an University.” His proposal seemed to have gained support and was sent to the Committee of Detail, where it died. An attempt by Madison and Charles Pinckney to renew the proposal at the end of the Convention was narrowly voted down. 18 The question of a direct national role in education did not end in Philadelphia, however, but continued to inflect constitutional debates of the early republic. 19

The first six presidents endorsed creation of a national university, while taking different views on methods. Washington’s assumption was that Congress was empowered to create a university in the District of Columbia, although subsequent presidents tended to believe the Constitution should be formally amended to do so. 20 From his earliest “Annual Message” to Congress in 1790 until his death, Washington urged that providing education for effective self-governance was a “duty” for a republic and would contribute to “the security of a free Constitution” by “teaching the people themselves to know and value their own rights.” 21

From 1796 on, the House considered memorials and bills to establish a national university to augment states’ educational offerings. 22 These proposals did not succeed, due to concerns over financing and constitutionality. Instead, in 1802 Congress followed Washington’s additional desire to create a different type of national educational institution: a federally supported military academy at West Point. 23 Two decades later, the campaign for a national university launched by Washington met limited success after the plan was narrowed into the congressional chartering of Columbian College, which became the George Washington University (a private institution).

Early disputes regarding the role of federal government vis-à-vis education contributed to rising disagreements about how to construe the general welfare clause. On one side were arguments supporting broad implied national powers. On this interpretation, Congress could create a national educational institution in the capital either through the general welfare and “taxing and spending” clauses, 24 a viewpoint generally supported by Federalists such as Alexander Hamilton, and/or through Congress’s exclusive jurisdiction over the capital district. 25

On the other side were arguments identified with the more Anti-Federalist perspectives of Jeffersonian-Republicans. Their interpretations emphasized the Tenth Amendment, insisting on the enumerated, limited powers of Congress, and read the general welfare clause as conferring no powers but those expressed as specific grants. 26 As president, Jefferson endorsed this view. He voiced public support for a congressional bill to establish a national university and a system of district colleges aimed at “great public purposes of the public education,” but he also argued that these goals required a constitutional amendment. 27 There were a few proposals in Congress for such an amendment, but they were defeated. A much broader proposed amendment to empower Congress to “promote education” as well as internal improvements and colonization was defeated in 1825. 28

2. Second Wave Developments of the Nineteenth Century: The “Educational Reconstruction”

The nineteenth century brought an educational reconstruction that overlapped with broader post–Civil War Reconstruction and catalyzed growth of publicly accessible and publicly supported education. In this era of development, educational concerns brought further conflicts over constitutional interpretation, shifting understandings of federalism, and expansions of national and state governmental powers and responsibilities.

By the mid-nineteenth century, congressional land-grant mechanisms were creating new state-federal partnerships on higher education that went far beyond the eighteenth-century idea of a single national university. Following two major federal land grants for education in the 1840s, the first Morrill Act (1862), provided for sale of federal land to establish colleges and universities in every state. The Bill was initially vetoed by President James Buchanan, who, like many Democrats and Southerners, considered this an unconstitutional use of federal power. Republicans disagreed. They resubmitted it, and, during the absence of seceding Southern senators, it was passed and then signed by Abraham Lincoln. Over time, the Morrill Act launched a federally funded system of more than one hundred state colleges and universities. 29

During this era, abolitionists and the “Common School Movement” had also begun to inspire the earliest efforts to create systems of free public schools—and integrated schools—throughout the country. By 1853, influential reformers such as Horace Mann and Harriet Beecher Stowe and civic groups who embraced their ideals persuaded most Northern states to establish systems of “common schools”—free, accessible elementary education financed by public funds—while the South generally retained older patchworks of limited and private schooling.

In addition, well before the Civil War, African-American reformers such as Benjamin Roberts, and abolitionists, such as Charles Sumner, had begun challenging school segregation at the state level. After first losing a case brought to the Massachusetts Supreme Court, Sumner, Roberts, and other activists persuaded the state legislature to adopt the first ban on segregation. 30

By 1865, these ideals and African Americans’ demands were motivating Sumner and other Republican congressmen to propose universal schooling and desegregation as part of reconstruction. They offered several constitutional proposals based on the argument that it was not sufficient to guarantee civil and political rights for African Americans: it was also necessary to secure educational opportunities. This included a proposed constitutional amendment, supported by President Ulysses Grant, requiring all states to create a system of free public or common schools accommodating all children. It also included attempts to craft the Reconstruction Act to require Southern states to “establish public schools which shall be open to all without distinction of race or color” as a precondition for readmission to the Union. 31 There were also thwarted attempts to include explicit requirements for “universal education”—free, common, integrated public schools—as provisions or addendums to the landmark Civil Rights Acts of 1866 and 1875. 32

Although these efforts failed, the Reconstruction Amendments offered platforms for creating educational opportunities for African Americans and others. As Congress debated the Fourteenth Amendment in 1866, it approved a Freedmen’s Bureau Bill that funded educational programs for freed slaves, arguing that such work was required to carry out the Thirteenth Amendment’s promise of emancipation. And Congress passed this over President Andrew Johnson’s veto asserting the unconstitutionality of such laws. 33 The Bureau made some important educational gains before it was disbanded, including funding more than three thousand new public schools serving more than 150,000 students and supporting several early and influential black colleges and universities, including Howard and Fisk. 34

In addition to working with the Freedmen’s Bureau to create new schools, African Americans’ participation in Radical Reconstruction conventions helped create new state constitutions with far more extensive and inclusive provisions for public education than existed in the antebellum era. 35 As W.E.B. Dubois noted, African Americans launched the “first great mass movement for public education” in the South, but the end of Reconstruction and the rise of Jim Crow soon undermined it. 36

Rather than pursuing racially egalitarian goals, Congress, most states, and the Supreme Court generally accepted de facto or de jure Jim Crow schools during and after Reconstruction. Congress endorsed educational opportunity for African Americans, but primarily by encouraging separate schools. It authorized public maintenance of “colored” public schools in the District of Columbia in 1862 and thereafter 37 and passed a second Morrill Act (1890) that required states with de jure educational segregation to create land-grant colleges for African Americans with equal funding, contributing to the creation of nineteen black colleges. 38 Indeed, the Supreme Court’s decision in Plessy v. Ferguson famously justified the “separate but equal” doctrine by arguing that Congress’s original intentions for the Fourteenth Amendment could not have been to prohibit racial segregation, because it had authorized segregated schools in the District of Columbia. 39 The Court would place a further imprimatur on segregated schools in Gong Lum v. Rice . 40

A further element of educational reconstruction involved moves for a federal role in improving the quality of primary and secondary education. During the same period that Congress passed the first Reconstruction Act, it created a new Federal Department of Education (1866), partly in response to petitions from the National Association of State and City School Superintendents. The proposed role of the first incarnation of this Department was to promote national renewal through “establishment and maintenance of efficient school systems” by collecting and sharing information and statistics about schools and teaching across the country. 41 The second Morrill Act (1890) later gave the then-named Office of Education responsibility for supporting the expanding national system of education.

Echoing early debates over a national university, as well as some debates over the Civil War Amendments, the Morrill Act, Freedmen’s Bureau, and Department of Education were all criticized as unconstitutional overreachings of Congress’s enumerated powers and intrusions on states’ rights. 42 Proponents of educational reconstruction, however, identified constitutional support for these new federal roles through a combination of enumerated and implied powers. In the case of the Freedmen’s Bureau’s programs and attempts for civil rights legislation on education, advocates stressed broad powers conferred by the Thirteenth and Fourteenth Amendments. In the case of the Morrill Act and creation of the Department of Education, advocates emphasized a range of powers related to the property clause, the general welfare taxing and spending clause, and the necessary and proper clause (Article IV, section 3, clauses 3, 1, and 18, respectively).

3. Third Wave Developments in the Twentieth Century: War and Social Upheaval as Impetuses for Educational Opportunity

During a third wave of constitutional developments, Congress expanded educational opportunity through further uses of Article I general welfare and commerce clause powers, as well as the Fourteenth Amendment’s equal protection and Section 5 enforcement clauses. Broad construction of these powers, including tying federal funds to incentives or requirements, became the primary approach to federal involvement in and guidance of education.

After Reconstruction ended, Congress largely turned its back on educational concerns and other efforts to guarantee equal citizenship to African Americans. Instead, World War I and II led Congress to adopt education legislation related to national defense and veteran reintegration. The Smith-Hughes Act (1917) provided federal aid to states for vocational education. Going much further, the G.I. Bill (1944) greatly expanded educational funding and opportunities for a broad class of American men, eventually sending eight million veterans to college. Cold War tensions then stimulated the first comprehensive federal education legislation. Following the launch of Sputnik, Congress passed the landmark National Defense Education Act (NDEA) authorizing federal aid to all levels of education, particularly science, math, foreign languages, and area studies considered central to national security and competitiveness.

The upheavals of the Great Depression and war spurred President Franklin Delano Roosevelt not only to support the G.I. Bill, but to propose a vision of American constitutionalism featuring a New Deal and “Second Bill of Rights,” including a positive national “right to a good education” (as well as other social rights, including employment and medical care) (1944). Harry Truman and Lyndon Johnson also considered creating a national right to education, commissioning studies to consider universal higher education. 43 Although these ideas stalled, they contributed to heightened attention to social gaps and opportunities that became a hallmark of a broad “civil rights revolution” that profoundly shaped educational and constitutional developments.

The civil rights movement and NAACP emphasized education as a site for equal citizenship under the Constitution, sparking a series of Supreme Court decisions and new federal statutes and programs requiring desegregation and anti-discrimination. 44 When the Court endorsed reformers’ interpretation of equal protection in Brown v. Board of Education , 45 this met with “Massive Resistance” and failed to bring widespread change. 46

Further demands for racial integration, access, and equality in schools from the civil rights movement helped motivate the monumental civil rights legislation of the 1960s and 1970s. Several major sections of the 1964 Civil Rights Act and its amendments include a focus on education. They not only enlarge the Brown principle by prohibiting discrimination based on race, color, and national origin in all educational institutions receiving federal funds, but they add protections against religious or gender discrimination and create potent incentives for schools’ compliance by permitting federal agencies to withhold or extend financial assistance. They also empower the U.S. Justice Department to pursue litigation on behalf of racial minorities and authorize national enforcement. 47 The Equal Educational Opportunities Act of 1974 extended these goals by requiring schools to provide equal educational opportunities for all. These federal actions, joined by further Court decisions, helped begin a period of “Massive Integration” and the reshaping of American education around principles of equality.

Heightened concern for educational disparities also fueled Lyndon Johnson’s decision to make education a cornerstone of his “War on Poverty” and Great Society agendas, and motivated new congressional legislation addressing some inequalities. Although the Elementary and Secondary Education Act of 1965 (ESEA) is far less famous than the Civil Rights Act of 1964, it created comprehensive new federal legislation on K-12 education. As part of the “War on Poverty,” ESEA announced the goal of closing education gaps by ensuring “that all children have a fair, equal, and significant opportunity to obtain a high quality education.” To advance these goals, Title I provided aid for programs involving low-income, immigrant, and at-risk children, while Title VII Amendments adopted in 1967 provided aid to bilingual students. The Higher Education Act (1965) also authorized financial aid programs for low-income college students.

During this third wave of constitutional development, which continued under Presidents Richard Nixon and Jimmy Carter, Congress further exerted Article I spending powers to improve educational access for other long ignored disadvantaged groups. This included the 1972 Indian Education Act created the first national legislation supporting American-Indian and Alaskan-Native students’ learning, included recognition of cultural differences. A second set of landmark regulations regarding disability rights also grew out of ESEA, and created the first national requirements for nondiscrimination and accommodation for disabled students in public schools. These included Title VI of ESEA, Section 504 of the Rehabilitation Act (1973), and the 1975 Education of all Handicapped Children Act. The latter Act was updated and amended by the Individuals with Disabilities Education Act (IDEA) (1990) and the Individuals with Disabilities Education Improvement Act (2004), which requires children with disabilities to be afforded a free and appropriate public education.

Finally, to coordinate and oversee these extensive new goals and requirements, Congress created the modern Department of Education by moving it out of the Department of Health, Education, and Welfare and into a separate cabinet-level agency in 1980. This move came to symbolize the greater role national government had assumed regarding education.

4. Emerging Fourth Wave Developments in the Twenty-First Century: Debates over Educational Quality, Choice, and Standards

The twenty-first century is already marked by several major trends contributing to educational and constitutional developments. These include continued issues of educational access, quality, and equality, recurring clashes over federalism and national power, and new reform movements. 48

In recent decades, many states began moving away from the public school model of the twentieth century in favor of experiments with school choice, charter schools, vouchers, and home schooling. These experiments raise new questions for state and national constitutions. In 2002, the Supreme Court upheld the constitutionality of publicly funded voucher programs that permit parents to choose private and parochial schools. 49 Moreover, the Supreme Court generally affirmed the constitutionality of tax credits supporting private school tuition, holding that state tax payers lack standing to bring federal lawsuits against such programs by claiming general harm. 50 Thus far, the Court has not considered whether there is a general “right to home school” under the U.S. Constitution, although it suggested some right to religiously based exemptions from compulsory school education in Wisconsin v. Yoder . 51

In a second trend, Congress’s first major educational legislation of the twenty-first century, the No Child Left Behind Act (NCLB) of 2001, advanced by the Bush administration, became a political and constitutional lightning rod. 52 NCLB responds to new concerns regarding the quality and equality of education by emphasizing national standardized tests and creating punitive and restructuring provisions for schools that fail to progress toward goals. In 2005, state legislatures began challenging the constitutionality of NCLB. The National Conference of State Legislatures (NCSL) issued a statement, signed by all fifty states, warning that the NCLB seemed to violate the Tenth Amendment, and to overstep “general welfare” spending powers in Article I as interpreted by the Court in South Dakota v. Dole . 53 Soon after, Connecticut and the National Education Association launched unsuccessful lawsuits against the U.S. Department of Education asserting the unconstitutionality of NCLB. 54 The federal courts ruled that NCLB does not impermissibly coerce states because it involves conditional federal spending that is more akin to “reimbursement” than to regulation. Some, however, believe NCLB’s constitutionality remains unclear, particularly after the Supreme Court ruled in 2012 that Congress may not coerce states by threatening to withhold federal funding that comprises a significant portion of a state’s budget ( National Federation of Independent Business v Sebelius . 55

A new Common Core State Standards Initiative yielded similarly heated responses. First emerging as a set of voluntary state standards from the National Governors Association and the Council of Chief State School Officers, the Common Core Initiative became part of the Department of Education’s major “Race to the Top” (2009) grant program advanced by the Obama administration. This brought criticisms and charges of unconstitutionality similar to those lobbied against NCLB. More than a dozen state legislatures have discussed measures to reject, delay, or defund Common Core standards and assessments, and several have passed such measures.

II. The Court Enters the Thicket: Education Cases and Controversies over Fundamental Rights and Civil Liberties

The Supreme Court did not play a leading role in education until the twentieth century. It did not hear any education cases until 1859, and issued fewer than ten education decisions prior to 1920. As it became more involved in this arena, the Court began to acknowledge the importance of education, consider questions of fundamental rights and civil liberties pertaining to education, and subject many educational policies and practices to constitutional scrutiny and judicial oversight. Since then, the Supreme Court and other federal courts have considered a growing range of questions regarding education, including questions concerning pluralism, secularism, and religious beliefs and practices. As a result, not only have many educational issues been debated and defined in constitutional terms, but the boundaries of many constitutional rights and liberties have been defined partly through their roles in educational arenas.

1. Educational Education Controversies as Arenas for Identifying Fundamental Rights: Substantive Liberty and Due Process, Privacy and Autonomy, but No Fundamental Right to Education

Educational cases planted the seeds of modern substantive due process and fundamental rights doctrines. In Meyer v. Nebraska (1923), the Court identified an unenumerated right for parents to guide their children’s upbringing and education—including foreign language instruction—under the Fourteenth Amendment’s due process clause. 56 Two years later, in Pierce v. Society of Sisters , the Court similarly held that parents have a fundamental right to a type of autonomy in choosing their children’s education. 57 These cases are key precedents for a number of unenumerated rights related to privacy and autonomy.

Yet while the Supreme Court has identified unenumerated fundamental rights through education cases, and periodically acknowledges the critical role of education for democratic citizenship and life opportunities, it has stopped short of finding a constitutional right to education. In Brown v. Board of Education , for example, Chief Justice Warren argued that:

…education is perhaps the most important function of state and local governments… It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship… In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms . 58

Given that all states do provide education—and are generally required to do so by state constitutions—this argument could be construed as the basis for a radical new doctrine that educational resources must be substantially equal. Although at least one federal court suggested this interpretation of the Fourteenth Amendment even before Brown , the Supreme Court has not adopted it. 59 Instead, in San Antonio v. Rodriguez (1973), the majority, noting that education is “not among the rights afforded explicit protection under our Federal Constitution,” went on to proclaim that it was not “implicitly so protected.” 60

This leaves education with an odd status in the American constitutional framework. Although Tocqueville suggested that widespread education was a distinctive “precondition” for the emergence of American democracy, and the UN Declaration of Human Rights pronounced education a fundamental human right needed for all other rights in 1948, the United States remains the only wealthy Western country that does not recognize a national constitutional right to education. 61 Moreover, the Court basically announced in San Antonio that it would be institutionally indifferent to inequality of educational resources per se.

However, since Brown the guarantee of education in state constitutions has provided the basis for litigation in more than forty states. This has often had significant results, including twenty state supreme courts striking down school funding schemes involving inqualities in school resources. 62 Thus, the nexus between national and state constitutions plays a crucial role in the contemporary educational landscape. 63

In the mid-twentieth century, debates over education and religion moved into the national constitutional arena. Previously, education-related religious conflicts were settled through state legislatures or state courts interpreting state law, but they now began to include claims regarding the First Amendment’s free exercise and religious establishment clauses. The Court’s role in these debates contributed to two broad patterns of modern constitutional development. The first requires public schools to provide many exemptions or accommodations for students and families whose religious views prevent them from participating in specific programs and activities. The second contributes to secularizing trends by requiring public schools to shift away from religious incorporation of Christian prayer and scripture in school settings.

In a series of civil liberties cases, the Supreme Court became a key actor in post–World War II secularization by emphasizing the need for separation between church and state. Education was one of the earliest contexts for this trend, and was the springboard for the Court’s adoption of the influential—and controversial—three-part “Lemon” test for identifying violations of the establishment clause (whether a law or policy that comes under challenge (1) serves a secular legislative purpose, (2) has a principal or primary effect that neither advances nor inhibits religion, and (3) creates no excessive government entanglement with religion). 64

The Court’s applications of the Lemon doctrine and its earlier precursors led to constitutional prohibitions on many types of prayer in school-related settings, ranging from graduation ceremonies to football games, as well as prohibiting public schools from engaging in Bible-reading or displaying the Ten Commandments. 65 The Court also weighed into debates over creationism by striking down laws preventing the teaching of evolution and by prohibiting the required teaching of creationism in public schools. 66

In other important early education cases, however, the Supreme Court helped define and guarantee rights to free exercise of religion in relation to education. This began with upholding parents’ rights to choose private religious education and parochial schools’ liberty to provide compulsory education in Pierce (1925). Pierce created a “compulsory education with choice” constitutional standard that shaped educational development.

The Court’s forays into free exercise claims also involved weighing religious objections to school policies requiring participation in patriotic activities such as the Pledge of Allegiance. Although the Court first accepted these policies, it soon reversed itself by rejecting the legitimacy of “compelled speech” rather than relying on the free exercise clause. 67 In other cases, however, the Court began to rely explicitly on free exercise rights to authorize public schools to provide various types of religious accommodations and exemptions. This included “release time” programs by which students were excused from schools to attend religious instruction. 68 It also included permitting parents to exempt children from aspects of compulsory education, such as allowing Amish parents to withdraw their children from schools after age fourteen. 69

However, the Court has placed some limits on the types of religious exemptions schools can seek from valid general laws. Bob Jones v. United States rejected a private religious college’s attempt to gain favorable tax treatment even though it violated federal legislation prohibiting racial discrimination (by prohibiting students from interracial dating and marriage). 70

Supreme Court jurisprudence on religious establishment also shaped school funding, choice, and vouchers. The Court’s involvement began with a series of cases that, often using the Lemon doctrine or a similar approach, generally declined to use public tax funds to subsidize general services and programs at religious schools, ranging from textbooks, to teacher salaries, to busing. 71 However, since the 1970s, the Court has often permitted public funding of everything from general purpose funds to supplementary programs, such as remedial and special education programs, at parochial schools. 72

In addition, the twentieth-century Court, supported by congressional legislation passed in 1984, 73 has endorsed “equal access” to education facilities and resources for religious groups. It construed a religious group’s free exercise rights as including uses of public schools for after-hours religious activities, as well as uses of university facilities and funds when these are made broadly available to other groups or involve a type of “public forum.” 74 But the Court has permitted states to limit access to public scholarship funds to students pursuing secular majors and degrees. 75

Early twenty-first-century cases, such Mitchell v. Helms 530 U.S. 793 (2000), suggest a trend toward greater accommodation of parochial schools and their students and families. Moreover, as noted above the Court furthered its accommodationist stance toward religion by permitting publicly funded vouchers for use at parochial schools when this results from “true private choice.” 76 The Court identified criteria for school choice programs to avoid violating the establishment clause: they must have a secular purpose, may only indirectly aid religious schools, must be available to a broad class of beneficiaries, must not favor religious over secular schools, and must ensure adequate non-religious options.

2. Education and Freedom of Expression

Since the 1940s, education cases have also been key sites for constitutional developments involving free speech and press. This began with the Barnette case, noted above, which extended civil liberties by prohibiting compelled speech in school (and overruled the less protective Gobitis decision, announced prior to America’s entry into a war that exposed the danger of thought control). Conflicts over the Vietnam War formed the context for the Court’s explicit identification of student speech rights in Tinker v. Des Moines . 77 This established a two-prong “Tinker test” protecting student speech (in that case, wearing black armbands) unless it either substantially disrupts the school’s learning environment or infringes upon other students’ rights.

Later courts, however, were often less protective of student speech in other K-12 contexts, most notably in Bethel School District v. Fraser 78 and Morse v. Frederick , 79 which allowed schools to discipline students who made speeches involving sexual innuendos or who expressed drug-related ideas outside a school. The Court has also permitted some types of school censorship of student papers by finding in effect that school administrators have the right of newspaper publishers to dictate what goes in “their” newspapers. 80 Such cases demonstrate that the Court is not immune from broader societal clashes when it weighs student speech rights against the right of school administrators to impose discipline and order. At some point, one can expect the Supreme Court to weigh in on cases involving student hate speech and uses of new social media that administrators find problematic.

III. Equal Protection and Equal Opportunity in Education Contexts

By the mid-twentieth century, the civil rights movement’s calls for equal opportunity began to influence constitutional constructions emerging from the Court as well as Congress and presidents. With Brown , education became a major site for a heightened role of federal courts in social policy, including advancing rights related to race, gender, bilingualism, disability, and other concerns in educational contexts. Moreover, as Abram Chayes 81 argues, Brown seemed to usher in a new model of judicial involvement in public policies, generally, as judges began to issue more complex “institutional” or “structural” injunctions not only in schools but in other public institutions, including prisons and mental health facilities.

1. Education and Race

Although the Brown decision is often perceived as offering a novel constitutional interpretation, the Court’s arguments reflected perspectives on equality and citizenship that African American activists had urged even before the Civil War. 82 Moreover, Brown followed several cases in which the NAACP pushed the Court to develop jurisprudence opposing segregation in colleges, universities, and professional schools. 83 In Brown , the Supreme Court announced its farther-reaching decision that racial segregation in K-12 schools violated the Fourteenth Amendment’s guarantee of equal protection. Notably, in Bolling v. Sharpe , decided the same day, the Court also struck down school segregation in the District of Columbia through substantive due process (launching the new doctrine of reverse incorporation in the process).

In subsequent cases, the Court sought to combat states’ intransigence, foot-dragging, and patterns of “massive resistance.” 84 The Court went on to declare it unconstitutional to maintain segregation or prevent desegregation by closing public schools 85 or by devising special “transfer” programs, 86 or “freedom of choice” plans. 87 As the Civil Rights Act of 1964 helped spur desegregation, the Court’s most thorough discussion of specific standards for integration came in Swann v. Charlotte Mecklenberg Board of Education . 88 This case outlined a series of remedies that could be taken into account by federal district courts overseeing integration, including racial balance, once-race schools, attendance zones, and transportation or busing. (Busing was so controversial that it provoked more than fifty proposed constitutional amendments in opposition.)

In subsequent cases, the Supreme Court extended concern for racial opportunity to private schools. In Runyon v. McCrary , 89 the Court held that civil rights legislation passed under the auspices of the Thirteenth Amendment 90 prevents private schools from denying admission to African American children. The Court rejected arguments that parents could claim rights to free association or privacy rights in education that would exempt them from this civil rights requirement.

But the Supreme Court has not gone so far as to press for racial integration in all public schools. Instead, it limited constitutionally mandated integration and federal oversight situations of “state-imposed” or de jure segregation involving “purpose” or “intent” on the part of government officials. 91 As a result, schools have been permitted to maintain de facto segregation that exists as a result of residential patterns or factors not tied to intentional government action. 92 Moreover, the Court has rejected some non-court-mandated or voluntary school integration efforts involving race-based school assignments, despite holding that promoting diversity and avoiding racial isolation in schools can be compelling state interests. 93

In 1978, the Supreme Court turned to new educational controversies over governmental distinctions based on race: affirmative action. In Regents of the University of California v. Bakke , 94 a plurality of the Court found consideration of race in state medical school admissions constitutionally permissible, while a separate plurality held that racial quotas violated Title VI of the Civil Rights Act of 1964. In subsequent cases, the Court upheld admissions programs that treat race as a “plus factor,” while striking down those that automatically assign a specific number of positive points to racial minorities. 95 The Court has also upheld state bans on using race as a criterion for admissions. 96

2. Education, Poverty, and Unequal School Funding

As noted above, the civil rights movement and the War on Poverty helped bring attention to problems of economic inequality in educational opportunities and spurred landmark legislation. Civil rights advocates also began pressing the Supreme Court to find education a fundamental constitutional right, and to find that wide disparities in school funding violated equal protection guarantees. Instead, the Court dashed these efforts in San Antonio v. Rodriguez (1973) (although some litigants began to obtain favorable interpretations of state constitutional guarantees from state courts, as previously indicated).

3. Equal Educational Opportunity and Gender

By the 1970s, education was also becoming an important site for national debates over gender equality as a constitutional and civil rights issue. Although women’s rights activists did not succeed in their major effort to secure a national Equal Rights Amendment, they pushed Congress to adopt a number of national anti-sex-discrimination laws covering education through the Civil Rights Act of 1964 and its Title IX amendments.

In subsequent cases, the Supreme Court also struck down some types of public single-sex schools as violations of Fourteenth Amendment equal protection guarantees, including an all-female nursing school 97 and an all-male military academy. 98 The majority decisions in these cases were written, respectively, by the first and second women appointed to the Supreme Court, Sandra Day O’Connor and Ruth Bader Ginsburg. They endorsed constitutional views long urged by women’s rights advocates: that laws reflecting stereotyped gender roles deny women full citizenship status by denying them “equal opportunity to aspire, achieve, participate in and contribute to society.” 99

4. Equal Educational Opportunity, Alienage and Citizenship Status

In 1982, after surges of workers from Mexico led some states to attempt to exclude undocumented immigrants from public education and other services, the Court entered this debate. In Plyler v Doe , 100 the Court responded to a class-action suit launched by students born in Mexico by finding that the equal protection clause prohibits states from entirely denying public education to undocumented children. Justice William J. Brennan Jr. urged that exclusion from education denies “the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.” Although the twenty-first-century Court may not have reached the same 5-4 decision, Plyler remains the last word on this issue. Older students have fared less well, however. States have been allowed to prohibit undocumented students from benefitting from in-state tuition at public colleges and universities. 101 In addition, Congress’s 1996 Illegal Immigration Reform and Immigrant Responsibility Act called for restrictions on the eligibility of undocumented persons to federally insured student loans. In a countervailing trend, at least twelve states have passed versions of a “DREAM Act” to provide equal access to their colleges and universities. 102

IV. The Constitution and Civic Education: “Constitutional Education” in the Conventional Classroom and Beyond

A final set of questions involve civic and constitutional education: what is taught about the Constitution, how it occurs, and why it matters. 103 This has been an ongoing concern in the United States. In his second inaugural, for instance, Thomas Jefferson urged Americans that “the essential principles of our government” in the Constitution “should be the creed of our political faith, the text of our civic instruction.” 104 Although there is still much reverence for the Constitution, many people have little knowledge of its provisions or its role in American history and politics. 105 Moreover, just as Jefferson’s particular constitutional views clashed with those of nineteenth-century federalists, the Constitution has been claimed and disputed by a wide range of groups, from slaveholders to abolitionists, suffragists and their opponents, champions of laissez-faire capitalism, and economic progressives. It is not surprising then, that there are continued disagreements over how the Constitution is portrayed and studied in a variety of contexts, including both more formal school settings and broader civic life.

1. “Civics” and Constitutional Education in Elementary and Secondary Schools

Since the eighteenth century, a variety of leaders and scholars have endorsed notions of civic education tied to constitutional principles in order to foster goals such as respect for civil rights and liberties and informed participation in self-governance. 106 Since the late nineteenth century, most states have mandated that schools teach about the Constitution, usually through “civics,” social studies, and government courses. In the late twentieth century, there has been a rise of national testing of civics knowledge, including knowledge of the Constitution and “foundations of the American political system” through the National Assessment of Educational Progress (NAEP). 107 Various studies reveal problems with current approaches to civic learning, however, including low overall levels of civics knowledge and a serious “civic achievement gap” between white and nonwhite students. 108 Other studies of NAEP standards and high school civics textbooks raise concerns that concepts related to citizens’ legal rights and liberties receive far more emphasis than attention to concepts of political participation, aside from voting, and that there is little emphasis on civic contributions of minorities or women. 109 Some of these concerns have contributed to revived attention to civic education, including a “Campaign for the Civic Mission of Schools” and attempts to promote a “Common Core.” 110

Although there is considerable support for the general idea of learning about the Constitution as part of civic education in K-12 settings, there are disagreements about what this learning should involve. Both the NAEP standards and the new Common Core standards reflect fairly conventional learning goals about the Constitution’s text, institutional arrangements, and historical events and cases. But there are also many calls to reform and broaden civic education. Some encourage promoting a more historically contextualized and culturally complex “constitutional literacy.” They would “teach the conflicts” through a range of Supreme Court cases that showcase public controversies over assimilation and dissent, religious and ideological pluralism, and equality of educational opportunity. 111 Others urge reforming civic education to place more emphasis on types of learning that can help foster civic and political engagement and reduce the “civic empowerment gap” affecting poor and minority students. 112

In addition to states’ mandates regarding civic and constitutional instruction, in 2004 Congress passed the first national legislation requiring some type of constitutional education. Constitution and Citizenship Day, requires publicly funded schools to provide a learning program about the Constitution each September 17. This has spurred a wide range of new Constitution-themed activities, such as video games designed to allow students to participate in “Constitutional Duels,” or to consider “A Day without the Bill of Rights.” 113 But Constitution Day has also spurred criticism, especially at colleges and universities. Not surprisingly, some question its very constitutionality as “compelled speech”. 114

2. Constitutional Education in Colleges and Law Schools

Although most focus on civic and constitutional education remains on K-12 settings, there is a growing interest in college settings, as reflected in Constitution Day requirements, recent studies, and a report commissioned by the Department of Education, A Crucible Moment: College Learning and Democracy’s Future. 115 There is also growing interest in how higher education, law schools, and scholars study and teach about the Constitution. This includes a body of work from law professors who consider how teaching future lawyers and judges about the Constitution shapes their understandings and future legal developments. 116 Some have criticized traditional methods of law school instruction, which over emphasize the importance of courts and legal cases and underemphasize key constitutional topics, such as slavery. 117 Michael Kent Curtis, 118 for example, worries about “what gets left out” of many casebooks, which typically include little treatment of broad historical episodes or aspects of popular involvement in constitutional development.

3. Constitutional Education beyond the Classroom: The Constitution in Civic Life and Culture

Constitutional learning is not limited to classrooms, but also occurs in civil society and broader culture—through public debates involving constitutional controversies, media coverage of Supreme Court decisions, public celebrations, and so on. 119 Some scholars urge greater public attention to Supreme Court opinions as vital texts of “national teaching” about the Constitution, suggesting, for instance, that they are interpreting “principles of fact and value, not merely in the abstract, but also in their bearing upon the concrete, immediate problems which are, at any given moment, puzzling and dividing us.” 120 The influential philosopher John Rawls 121 identified the Supreme Court’s practice of judicial review as an educative model of the type of public reasoning and deliberation all citizens should pursue.

But the idea of treating the Court’s opinions as the foremost source of perspectives on the Constitution is questioned by scholars on a number of grounds. Some, for instance, emphasize greater public attention to the crucial roles of other political leaders and civic groups in shaping constitutional law and development. 122 Others criticize the extensive emphasis placed on the aspects of the Constitution that spark the most debate and litigation, such as the First and Fourteenth Amendments. This tendency obscures other aspects, such as the “Constitution of settlement” and the generally “undemocratic” provisions that are more “hard-wired” rules and institutions, such as the Electoral College, the Senate, and Article V amendments processes, which can greatly constrain possibilities for democratic politics. 123

Given that American culture includes considerable reverence for the symbol of the Constitution, it is somewhat surprising that it was not until the twentieth century that Congress authorized a Constitution Day and an official National Constitution Center. 124 The Center opened in 2003 as a museum, “national town hall,” and civic education platform that features a “signer’s hall” and “The Story of We the People.” Although it has many fans—and over three million visitors annually—there are also criticisms. These include concerns that the Center strives to avoid stirring controversy and sometimes seems to provide a “flat depiction of constitutional history” that undercuts conditions for meaningful political exchange. 125

There are also many civic groups and associations that develop and share various learning materials and resources. Much of this work is geared toward students and classrooms, but there are also other types of educational programs for young people and adults, such as the American Bar Association’s “Civics and Law Academies” for high school students. Some of these programs, such as former justice Sandra Day O’Connor’s “iCivics,” are avowedly nonpartisan or attempt political impartiality. Others, such as those offered by the Tea Party, the Federalist Society, the American Constitution Society, and the American Civil Liberties Union explicitly promote particular constitutional views and interpretations associated with conservative or liberal political ideologies.

V. Conclusion

Though the centrality of educational concerns and controversies to the U.S. Constitution often goes unnoticed, these concerns have profoundly shaped every era and nearly every major facet of American constitutionalism. As a result, examining education and the Constitution not only offers a crucial lens on constitutional law and development, it also provides a powerful lens on the dynamic relation between constitutional governance and civic life itself.

Abernathy, S , No Child Left Behind and the Public Schools ( 2007 ).

Google Scholar

Google Preview

Addis, C , Jefferson’s Vision for Education, 1760-1845 ( 2003 ).

Ames, H (ed), The Proposed Amendments to the Constitution of the United States during the First Century of Its History, 1789 to 1880 ( 1897 ).

Balkin, J (ed), What Brown v. Board of Education Should Have Said ( 2001 ).

Balkin, J , Constitutional Redemption: Political Faith in an Unjust World ( 2011 ).

Beaumont, E , The Civic Constitution: Civic Visions and Struggles in the Path toward Constitutional Democracy ( 2014 ).

Berube, M , American Presidents and Education ( 1991 ).

Butts, R , Public Education in the United States: From Revolution to Reform ( 1978 ).

———. The Civic Mission in Education Reform ( 1989 ).

Carleton, D , Landmark Congressional Laws on Education ( 2002 ).

Chayes, A , ‘ The Role of the Judge in Public Law Litigation ’ ( 1976 ) 89 Harvard Law Review 1281.

Colby, A , Beaumont, E , Ehrlich, T and Corngold, J , Educating for Democracy: Preparing Undergraduates for Responsible Political Engagement ( 2007 ).

Conant, J , Thomas Jefferson and the Development of American Public Education ( 1962 ).

Corwin, E , ‘ The Constitution as Instrument and Symbol ’ ( 1936 ) 30 American Political Science Review 1072–1085.

Cremin, L , American Education: The National Experience, 1783-1876 ( 1980 ).

Curtis, M , ‘ Teaching Free Speech from an Incomplete Fossil Record ’ ( 2000 ) 34 Akron Law Review 231.

Dahl, R.   How Democratic Is the American Constitution ? ( 2001 )

Eastman, J , ‘ When Did Education Become a Civil Right? An Assessment of State Constitutional Provisions for Education 1776–1900 ’ ( 1998 ) 42(1) American Journal of Legal History 1–34.

Finkelman, P , ‘ Teaching Slavery in American Constitutional Law ’ ( 2000 ) 34 Akron Law Review 261.

Finn, J , ‘The Civic Constitution: Some Preliminaries’ in Barber, S and George, R (eds), Constitutional Politics: Essays on Constitution Making ( 2001 ).

———. Peopling the Constitution ( 2014 ).

Gutmann, A , Democratic Education ( 1999 ).

Hellenbrand, H , The Unfinished Revolution: Education and Politics in the Thought of Thomas Jefferson ( 1990 ).

Kammen, M , A Machine That Would Go of Itself: The Constitution in American Culture ( 2006 ).

Levin, D , Representing Popular Sovereignty: The Constitution in American Political Culture ( 1999 ).

Levinson, M , No Citizen Left Behind ( 2012 ).

Levinson, S , Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) ( 2006 ).

———. Framed: America’s 51 Constitutions and the Crisis of Governance ( 2012 ).

Massaro, T , Constitutional Literacy: A Core Curriculum for a Multicultural Nation ( 1993 ).

Meiklejohn, A , Free Speech and Its Relation to Self-Government ( 1948 ).

Morris, R.C.   Reading, ’Riting, and Reconstruction: The Education of Freedmen in the South, 1861–1870 ( 1981 ).

Murphy, W , ‘ Who Shall Interpret? The Quest for the Ultimate Interpreter ’ ( 1986 ) 48(3) Review of Politics 401–423.

Nahmod, S , ‘Constitutional Education for The People Themselves ’ ( 2006 ) 81 Chicago-Kent Law Review 1091.

Onuf, P , Statehood and Union: A History of the Northwest Ordinance ( 1987 ).

Rawls, J , Political Liberalism ( 1993 ).

Redd, K , ‘ Historically Black Colleges and Universities: Making a Comeback ’ ( 1998 ) 26(2) New Directions for Higher Education . 33–43.

Reilly, E , ‘ Education and the Constitution: Shaping Each Other and the Next Century ’ ( 2000 ) 34 Akron Law Review 1.

Roosevelt, F , ‘State of the Union Address to Congress’ January 11, 1944, http://www.fdrlibrary.marist.edu/archives/address_text.html

Sherry, S , ‘ Responsible Republicanism: Educating for Citizenship ’ ( 1995 ) 62 University of Chicago Law Review 131.

Siegel, R , ‘ Text in Contest: Gender and the Constitution from a Social Movement Perspective ’ ( 2001 ) 150 University of Pennsylvania Law Review 297.

Souder, J and Fairfax, S , State Trust Lands: History, Management, and Sustainable Use ( 1996 ).

Taylor, H , The Educational Significance of the Early Federal Land Ordinances ( 1922 ).

Thomas, G , The Constitution of Mind: The National University and Building the American Constitutional Order ( 2014 ).

Tractenberg, P , ‘Education’ in Tarr, G A and Williams, R (eds), State Constitutions for the Twenty-First Century: The Agenda of State Constitutional Reform ( 2006 ) Vol 3, chapter 9: 241–306.

Tushnet, M.   The NAACP’s Legal Strategy against Segregated Education, 1925-1950 . ( 1987 ).

———. Taking the Constitution Away from the Courts ( 2000 ).

Tyack, D and Lowe, R , ‘The Constitutional Moment: Reconstruction and Black Education in the South’ in Tyack, D , James, T , and Benavot, A (eds), Law and the Shaping of Public Education, 1785-1954 ( 1987 ).

van Geel, T , ‘ Citizenship Education and the Free Exercise of Religion ’ ( 2000 ) 34 Akron Law Review 293.

Whittington, K , Constitutional Construction: Divided Powers and Constitutional Meaning ( 1999 ).

Zackin, E , Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights ( 2013 ).

Zeisberg, M , ‘ A New Framing? Constitutional Representation at Philadelphia’s National Constitution Center ’ ( 2008 ) 6(3) Perspectives on Politics 553–568.

General References

Alexander, K , and Alexander, M , American Public School Law ( 2005 ).

Carleton, D   Landmark Congressional Laws on Education ( 2002 ).

Zirkel, P , Richardson, S and Goldberg, S (eds), A Digest of Supreme Court Decisions Affecting Education ( 2002 ).

For a list of the education clauses included in constitutions around the world, see www.constituteproject.org . For a discussion of education clauses included in U.S. state constitutions, see Tractenberg (2006) .

San Antonio v. Rodriguez , 411 U.S. 1 (1973).

Lemon v. Kurtzman , 403 U.S. 602 (1971).

See, e.g., Murphy (1986) and Whittington (1999) on constitutional construction beyond the Supreme Court.

See, e.g., Butts (1978) ; Cremin (1980) ; Finn (2014) ; Thomas (2014) .

Butts (1978) 3–6 .

Cremin (1980) 103 .

See, e.g., Rush, B , Of the Mode of Education Proper in a Republic (1798) 19 ; Franklin, B , ‘Proposals Relating to the Education of Youth in Pennsylvania’ (1749), in Labaree, L et al. (eds), The Papers of Benjamin Franklin (1961) Vol 3: 388 ; Jefferson, T , ‘Autobiography’ (1821) in Ford, P (ed), The Works of Thomas Jefferson (1905) ; Webster, N , A Collection of Essays and Fugitive Writing, on Moral, Historical, Political and Literary Subjects (1790) 3–4, 14–19, 22–26 . On leaders’ concerns for education, see Hellenbrand (1990) 11–12 ; Berube (1991) 13–14 ; and Thomas (2014) .

Butts (1978) 4.

Eastman (1998) . Pennsylvania, North Carolina, Georgia, Massachusetts, New Hampshire, and Vermont (whose status as a state was initially disputed) all adopted constitutions with public education provisions from 1776 to 1784, whereas others followed later. For discussions of education and the right to education in state constitutions, see Eastman (1998) and Zackin (2013) chapter 3 .

Connecticut created the first literary fund in 1795; by 1825, twelve states had literary or school funds. See Knight, E , Public School Education in North Carolina , chapter 6, “The Literary Fund,” 84–111, esp. 84–88 .

To his dismay, Jefferson’s Bill failed twice in the Virginia Assembly, largely due to disdain for taxes. Benjamin Rush proposed a similar system of free public schools in Pennsylvania.

Souder and Fairfax (1996) ; Taylor (1922) .

The U.S. Constitutional Convention adjourned to permit a quorum of the Continental Congress to adopt the Northwest Ordinance. For arguments that the Northwest Ordinance has a type of quasi-constitutional status, see Onuf (1987) xviii . See also Finn (2014) 6 n,37, 48 .

63 U.S. 56 (1859).

The Court again considered and upheld these mechanisms of school finance in Davis v. Indiana , 94 U.S. 792 (1876).

Carleton (2002) 6 .

See Farrand, M , The Records of the Federal Convention of 1787 , Vol 2: 325, 615, 639 .

Thomas (2014) .

Berube (1991) 14–15 .

Madison, for instance, proposed a national university to Congress in four of his annual messages, and described the goal as “super-adding to the means of education” already being provided within states. See Madison’s Second Annual message, December 5, 1810, and Berube (1991) 16 .

For Jefferson and others whose interpretations of federalism stressed enumerated bases of congressional power, creating a national military academy could fall under “necessary and proper” powers to carry out Article 1, section 8 powers to “raise and support armies” and “provide for organizing, arming, and disciplining, the militia.” For Jefferson’s views toward education, see Conant (1962) 24–25 and Addis (2003) .

Article I, section 8, clause 1.

Article I, section 8, clause 17. Hamilton’s views of unenumerated powers included the assertion that “whatever concerns the general interests of learning” (as well as agriculture, commerce, and other concerns) “are within the sphere of the national councils, as far as regards the application of money.” Hamilton, 1791 Report on Manufactures, quoted in Haubenrich (2012) 447.

Jefferson (1806) in Conant (1963) 24). Presidents James Madison and James Monroe took a similar stance toward endorsing the ideal of a national university while suggesting the need for constitutional amendment to achieve it.

Ames (1897) 274–275 .

Carleton (2002) 27–40 .

Roberts v. Boston , 59 Mass. (5 Cush.) 198 (1850).

Ames (1897) 275 ; Tyack and Lowe (1987) 140–142 .

See, e.g., the proposed amendments from Representatives Delano, Kelso, and Ashley, and from Senator Stewart from 1865 to 1874 ( Ames (1897) ), as well as Sumner’s 1871 arguments for an educational addendum to the1866 Civil Rights Act in Congressional Globe , 42nd Cong., 2nd sess., December 2, 1871, pp. 241–244. On education and reconstruction more generally see Tyack and Lowe (1987) 133–135, 140 , and Foner (1989) 96–118, 144–154, 320–322, 364–372.

See Senator Lyman Trumbull’s speech on the Freedmen’s Bureau Bill, Congressional Globe , 39th Cong, 1st sess., January 19, 1866, p. 322.

Morris (1981) .

Tyack and Lowe (1987), 145–146 .

W.E.B. Dubois also believed “The greatest success of the Freedmen’s Bureau lay in the planting of the free school among Negroes, and the idea of free elementary education among all classes in the South.” ‘The Freedmen’s Bureau, Part II’ (March 1901) 87(519) The Atlantic 360 (repr in The Souls of Black Folk ).

In Acts passed May 21 and July 11, 1862, Congress established a “Board of Trustees of Schools for Colored Children” to control tax funds and assume “supervision over the Colored Schools.” A further Act (July 23, 1866), authorized payments to the Trustees of Colored Schools. See Acts of Congress concerning Public Schools in Washington. For a competing view, see Michael McConnell’s arguments regarding segregation of D.C. schools in Balkin (2001) 168 .

Redd (1998) 34 .

163 U.S. 537 (1896).

275 U.S. 78 (1927).

Representative (General) Garfield, Congressional Globe, 39th Cong., 2nd sess., June 5, 1866, p. 2966.

See, e.g., Representative Rogers, Congressional Globe, 39th Cong., 2nd sess., June 5, 1866, pp. 2968–2969.

Berube (1991) 34–35 .

Tushnet (1987) .

347 U.S. 483 (1954).

See, e.g., Rosenberg (1991) 50, Table 2-1 ; Klarman (2006) .

Title IV, Title VI, and Title IX of the Education Amendments (1972).

For an overview of policy debates and constitutional questions surrounding education, see Reilly (2000) .

Zelman v. Simmons-Harris , 536 U.S. 639 (2002).

Arizona Christian School Tuition Organization v. Winn , 562 U.S. 2011 (2010).

406 U.S. 205 (1972).

Abernathy (2007) . NCLB is the most recent reshaping of the ESEA, occurring through its periodic reauthorization.

483 U.S. 203 (1987).

See Connecticut v. Spellings , 549 F. Supp. 2d 161, 161 (D. Conn. 2008); Connecticut v. Duncan NAACP CT , No. 08-2437-cv (2d Cir. 2010), and Pontiac School District v. Spellings , No. 90-345, 2005. The NLCS report/statement can be found at http://www.hartfordinfo.org/issues/documents/education/nclb.pdf (last visited January 7, 2014).

567 U.S. ___ (2012).

262 U.S. 390 (1923).

268 U.S. 510 (1925).

Emphasis added. Brown seems to leave open the question of whether states could choose to withdraw from providing education, and some counties did so. In 1964, however, the Supreme Court prohibited closing public schools—and providing vouchers to segregated private academies—as an unconstitutional attempt to avoid integration ( Griffin v. School Board of Prince Edward County , 377 U.S. 218 (1964)). Moreover, the education clauses in many state constitutions require them to offer “a system of public schools” or a “public schools system.”

See Carter v. School Board of Arlington County , 182 F.2d 531 (4th Cir. 1950)).

In the same period, the Court also declined to recognize fundamental rights to housing, healthcare, and food under the U.S. Constitution.

See Tocqueville, A, Democracy in America , Vol. I, chapter 17 : ‘Principal Causes Which Tend to Maintain the Democratic Republic in the United States.’

Ryan, J , ‘Schools, Race, and Money’ (1999) 109 Yale Law Journal 249, 266–269 ; Reed, D, On Equal Terms: The Constitutional Politics of Educational Opportunity (2001) ; Paris, M , Framing Equal Opportunity: Law and the Politics of School Finance Reform (2009) .

See also Zackin (2013) .

Lemon v Kurtzman , 403 U.S. 602 (1971).

See Engel v. Vitale , 370 U.S. 421 (1962); Lee v. Weisman , 505 U.S. 577 (1992); Santa Fe School District v. Doe , 530 U.S. 290 (2000); Abington School District v. Schempp , 374 U.S. 203 (1963); Stone v. Graham , 449 U.S. 39 (1980).

Epperson v. Arkansas , 393 U.S. 97 (1968) and Edwards v. Aguillard , 482 U.S. 578 (1987).

Compare Minersville School District v. Gobitis , 310 U.S. 586 (1940) with West Virginia State Board of Education v. Barnette , 319 U.S. 624 (1943).

Zorach v. Clauson , 343 U.S, 306 (1952).

Wisconsin v. Yoder , 406 U.S. 205 (1972). In other cases, most notably Mozert v. Hawkins County Board of Education , 6th Cir., 1987, some federal courts have found that parents could not always “opt out” of curricular programs based on free exercise claims. Their reasoning is partly that values of public school teaching, such as tolerance of viewpoints, are essential for a democratic society.

461 U.S. 574 (1983).

See, e.g. Everson v. Board of Education , 330 U.S. 1 (1947); Lemon v. Kurtzman 1971.

See, e.g., Roemer v. Maryland Public Works Board , 426 U.S. 736 (1976); Agostini v. Felton , 521 U.S. 203 (1997).

The Equal Access Act (1984), Title VIII, Public Law 98-377, 20 U.S.C. Section 407174 (2015).

See Board of Education v. Mergens , 496 U.S. 226 (1990); Lamb’s Chapel v. Center Moriches Union , 508 U.S. 384 (1993); Widmar v. Vincent , 454 U.S. 263 (1981); Rosenberger v. University of Virginia , 515 U.S. 819 (1995).

Locke v. Davey 540 U.S. 712 (2004).

Zelman (2002).

393 U.S. 503 (1969).

478 U.S. 675 (1986).

551 U.S. 393 (2007).

Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988).

Chayes (1976) .

See, e.g., Beaumont (2014), 119–121, 137–146 .

Tushnet (1987) . These included Missouri ex rel Gaines v. Canada , 305 U.S. 337 (1938); Sipuel v. Oklahoma Board of Regents , 332 U.S. 631 (1948); Sweatt v. Painter , 339 U.S. 629 (1950); and McLaurin v. Oklahoma State Regents 339 U.S. 637 (1950).

See, e.g., Cooper v. Aaron , 358 U.S. 1 (1958).

Griffin v. County School Board (1964).

Goss v. Board of Education , 373 U.S. 683 (1963).

Green v. County School Board , 391 U.S. 430 (1968).

402 U.S. 1 (1970).

427 U.S. 160 (1976).

42 U.S.C. section 1981 (2015).

Keyes v. School District , 413 U.S. 189 (1973); Columbus Board of Education v. Penick , 443 U.S. 449 (1979).

See, e.g., Milliken v. Bradley , 418 U.S. 717 (1974); Board of Education of Oklahoma City v. Dowell (1991).

Parents Involved in Community Schools v. Seattle School District , 551 U.S. 701 (2007).

438 U.S. 265 (1978).

Gratz v. Bollinger , 539 U.S. 244 (2003) and Grutter v. Bollinger , 539 U.S. 306 (2003).

Schuette v. Coalition to Defend Affirmative Action 572 U.S. ___ (2014).

Mississippi University for Women v. Hogan , 458 U.S. 718 (1982).

United States v. Virginia , 518 U.S. 515 (1996).

See, e.g., Beaumont (2014) 163–169, 184–193 .

457 U.S. 202 (1982).

Toll v. Moreno , 458 U.S. 1 (1982).

See http://www.immigrationpolicy.org/just-facts/dream-act (last visited March 10, 2014).

See, e.g., Nahmod (2006) 1099 . For recent discussions of civic education and American constitutionalism, see Fleming and McClain (2014); Finn (2014) ; Thomas (forthcoming).

Jefferson (March 4, 1800).

Kammen (1986) ; Levin (1999) .

See, e.g., Sherry (1995) ; Gutmann (1999) .

The first National Assessment of Educational Progress Test was created in the 1960s. Under No Child Left Behind (NCLB), states that wish to receive Title I educational grants under ESEA are required to participate in some NAEP Assessments, while other participation remains voluntary. See http://new.civiced.org/standards?page=stds_toc_intro (last visited February 10, 2014).

Niemi and Junn (1998); see also M. Levinson (2012) .

Gonzales, M , Riedel, E , Avery, P , and Sullivan, J , ‘Rights and Obligations in Civic Education: A Content Analysis of the National Standards for Civics and Government’ (2001) 29(1) Theory and Research in Social Education 109–128 ; Gonzales, M , Riedel, E , Williamson, I , Avery, P , Sullivan, J and Bos, A ‘Variations of Citizenship Education: A Content Analysis of Rights, Obligations, and Participation Concepts in High School Civic Textbooks’ (2004) 32(3) Theory and Research in Social Education 301–325 .

The Campaign for the Civic Mission of Schools emerges from a coalition of educational and philanthropic groups. See http://www.civicmissionofschools.org/the-campaign (last visited March 15, 2015).

Massaro (1993) .

M. Levinson (2012) .

See, e.g., the interactive games at the Bill of Rights Institute, https://billofrightsinstitute.org/resources/educator-resources/constitution-day-resources/ (last accessed March 15, 2015).

See, e.g., Greenfield, K , ‘Happy Illegal Holiday!’ op-ed New York Times , 17 September 2011 .

For recent studies and reports, see, e.g., Colby et al. (2007) , ‘Higher Education: Civic Mission and Civic Effects’ 2006 and CIRCLE http://www.civicyouth.org/ (last visited March 15, 2015).

See the symposium on the Constitution and education introduced by Reilly (2000) .

See, e.g., Finkelman (2000) .

Curtis (2000) .

Kammen (1986) ; Nahmod (2006) .

Kammen (1986) ; Meiklejohn (1948) 32 .

Rawls (1993) .

See, e.g., Whittington (1999) ; Tushnet (2000) ; Finn (2001)   2014 ; Siegel (2001) ; Balkin (2011) ; Beaumont (2014) .

Levinson (2006) , 2012 ; see also Dahl (2001) .

Corwin (1936) ; Kammen (1986) .

Zeisberg (2008) 555–556 .

• About Oxford Academic
• Publish journals with us
• University press partners
• What we publish
• New features  
• Open access
• Institutional account management
• Rights and permissions
• Get help with access
• Accessibility
• Advertising
• Media enquiries
• Oxford University Press
• Oxford Languages
• University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

• Copyright © 2024 Oxford University Press
• Cookie settings
• Cookie policy
• Privacy policy
• Legal notice

This Feature Is Available To Subscribers Only

Sign In or Create an Account

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

Find anything you save across the site in your account

Is Education a Fundamental Right?

By Jill Lepore

Before sunrise on a morning just after Labor Day, 1977, Humberto and Jackeline Alvarez, Felix Hernandez, Rosario and Jose Robles, and Lidia and Jose Lopez huddled together in the basement of the United States Courthouse in Tyler, Texas , the Rose City, to decide just how much they were willing to risk for the sake of their children, for the sake of other people’s children, and for the sake, really, of everyone. Among them, the Alvarezes, Hernandez, the Robleses, and the Lopezes had sixteen children who, the week before, had been barred from entering Tyler’s public schools by order of James Plyler, Tyler’s school superintendent. On the first day of school, Rosario Robles had walked her five children to Bonner Elementary, where she was met by the principal, who asked her for the children’s birth certificates, and, when she couldn’t provide them, put her and the kids in his car and drove them home.

This hadn’t been the principal’s idea, or even Plyler’s. In 1975, when Texas passed a law allowing public schools to bar undocumented immigrants, Plyler ignored it. “I guess I was soft-hearted and concerned about the kids,” he said. Also, there weren’t many of them. About sixteen thousand children went to the schools in the East Texas city of Tyler, which considered itself the rose-growing capital of America and was named for John Tyler, the President of the United States who had pushed for the annexation of Texas in 1844, which led to a war with Mexico in 1846. Of those sixteen thousand students, fewer than sixty were the children of parents who had, without anyone’s permission, entered the United States from Mexico by crossing a border established in 1848, when the war ended with a treaty that turned the top half of Mexico into the bottom third of the United States. Jose Robles worked in a pipe factory. Humberto Alvarez worked in a meatpacking plant. They paid rent. They owned cars. They paid taxes. They grew roses.

Nevertheless, in July of 1977 Tyler’s school board, worried that Tyler would become a haven for immigrants driven away from other towns, insisted that undocumented children be kicked out of the city’s schools unless their parents paid a thousand dollars a year, per child, which few of them could afford, not even the Robleses, who owned their own home. Turned away from Bonner Elementary, the Robleses sent some of their kids to a local Catholic school—Jose did yard work in exchange for tuition—but they were put in touch with the Mexican American Legal Defense and Educational Fund, which sent an attorney, Peter Roos, who filed a lawsuit in the U.S. Eastern District Court of Texas. It was presided over by a judge whose name was Justice. “There were two judges in Tyler,” Roos liked to say. “You got Justice, or no justice.”

Participating in a lawsuit as an undocumented immigrant is a very risky proposition. In a closed-door meeting, Roos asked that the parents be allowed to testify in chambers and so avoid revealing their identities, which could lead to deportation. They had come to the courthouse knowing that, at any moment, they could be arrested, and driven to Mexico, without so much as a goodbye. Judge William Wayne Justice refused to grant the protective order. “I am a United States magistrate and if I learn of a violation of the law, it’s my sworn duty to disclose it to the authorities,” he said. Roos went down to the basement, near the holding cells, to inform the families and give them a chance to think it over. They decided to go ahead with the suit, come what may. Justice did make efforts to protect them from publicity, and from harassment, decreeing that the proceeding would start before dawn, to keep the press and the public at bay, and that the plaintiffs’ names would be withheld.

Roos filed a motion requesting that the children be allowed to attend school, without paying tuition, while the case unfolded, which was expected to take years. “An educated populace is the basis of our democratic institutions,” his brief argued, citing Brown v. Board of Education. “A denial of educational opportunities is repugnant to our notions that an informed and educated citizenry is necessary to our society.” The case was docketed as Doe v. Plyler. “This is one that’s headed for the United States Supreme Court,” Justice told his clerk. Five years later, the appeal, Plyler v. Doe , went to Washington.

Some Supreme Court decisions are famous. Some are infamous. Brown v. Board, Roe v. Wade. But Plyler v. Doe? It’s not any kind of famous. Outside the legal academy, where it is generally deemed to be of limited significance, the case is little known. (Earlier this year, during testimony before Congress, Betsy DeVos , the Secretary of Education, appeared not to have heard of it.) The obscurity of the case might end soon, though, not least because the Court’s opinion in Plyler v. Doe addressed questions that are central to ongoing debates about both education and immigration and that get to the heart of what schoolchildren and undocumented migrants have in common: vulnerability.

Plyler is arguably a controlling case in Gary B. v. Snyder, a lawsuit filed against the governor of Michigan, Rick Snyder, by seven Detroit schoolchildren, for violating their constitutional right to an education. According to the complaint, “illiteracy is the norm” in the Detroit public schools; they are the most economically and racially segregated schools in the country and, in formal assessments of student proficiency, have been rated close to zero. In Brown, the Court had described an education as “a right which must be made available to all on equal terms.” But the Detroit plaintiffs also cite Plyler, in which the majority deemed illiteracy to be “an enduring disability,” identified the absolute denial of education as a violation of the equal-protection clause, and ruled that no state can “deny a discrete group of innocent children the free public education that it offers to other children residing within its borders.” Dismissed by a district court in June, the case is now headed to the Sixth Circuit on appeal.

Plyler’s reach extends, too, to lawsuits filed this summer on behalf of immigrant children who were separated from their families at the U.S.-Mexico border. In June, the Texas State Teachers Association called on the governor of the state to make provisions for the education of the detained children, before the beginning of the school year, but has so far received no reply. Thousands of children are being held in more than a hundred detention centers around the country, many run by for-profit contractors. Conditions vary, but, on the whole, instruction is limited and supplies are few. “The kids barely learn anything,” a former social worker reported from Arizona.

Court-watchers have tended to consider Plyler insignificant because the Court’s holding was narrow. But in “ The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind ” (Pantheon) Justin Driver, a law professor at the University of Chicago, argues that this view of Plyler is wrong. “Properly understood,” Driver writes, “it rests among the most egalitarian, momentous, and efficacious constitutional opinions that the Supreme Court has issued throughout its entire history.”

Driver is not alone in this view. In “ No Undocumented Child Left Behind ” (2012), the University of Houston law professor Michael A. Olivas called Plyler “the apex of the Court’s treatment of the undocumented.” In “ Immigration Outside the Law ” (2014), the U.C.L.A. law professor Hiroshi Motomura compared Plyler to Brown and described its influence as “fundamental, profound, and enduring.” Even people who think the case hasn’t been influential wish it had been. “Plyler v. Doe may be irrelevant in a strictly legal sense,” the legal journalist Linda Greenhouse wrote last year, “but there are strong reasons to resurrect its memory and ponder it today.” Because, for once, our tired, our poor, our huddled masses—the very littlest of them—breathed free.

Laura Alvarez, ten years old, rode in the family’s battered station wagon to the courthouse in Tyler, for a hearing held on September 9, 1977, at six in the morning. (During a related Texas case—later consolidated with Plyler—a nine-year-old girl spoke to the judge in chambers and told him that, since being barred from school, the only learning she was getting came from poring over the homework done by a younger sibling—an American citizen.) In Tyler, the assistant attorney general for the State of Texas showed up wearing bluejeans. She’d flown in late the night before, and had lost her luggage. After an attorney from the Carter Administration said that the Justice Department would not pursue the litigants while the trial proceeded, during which time the students would be able to attend school, Judge Justice issued the requested injunction.

Witnesses presented testimony about economies: educating these children cost the state money, particularly because they needed special English-language instruction, but not educating these children would be costly, too, in the long term, when they became legal residents but, uneducated, would be able to contribute very little to the tax base. The Judge had a policy preference: “The predictable effects of depriving an undocumented child of an education are clear and undisputed. Already disadvantaged as a result of poverty, lack of English-speaking ability, and undeniable racial prejudices, these children, without an education, will become permanently locked into the lowest socio-economic class.” But the question didn’t turn on anyone’s policy preferences; it turned on the Fourteenth Amendment.

The Fourteenth Amendment, ratified in 1868, guarantees certain rights to “citizens” and makes two promises to “persons”: it prohibits a state from depriving “any person of life, liberty, or property, without due process of law,” and prohibits a state from denying “any person within its jurisdiction the equal protection of the laws.” Before Plyler, the Supreme Court had established that the due-process clause applied to undocumented immigrants, who are, plainly, “persons,” but it had not established that the equal-protection clause extended to them, and the State of Texas said that it didn’t, because undocumented immigrants were in the state illegally. Judge Justice disagreed. “People who have entered the United States, by whatever means, are ‘within its jurisdiction’ in that they are within the territory of the United States and subject to its laws,” he wrote.

But how to apply that clause? The courts bring a standard known as “strict scrutiny” to laws that abridge a “fundamental right,” like the right to life, liberty, and property, and to laws that discriminate against a particular class of people, a “suspect class,” like the freed slaves in whose interest the amendment was originally written—that is, any population burdened with disabilities “or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”

Is education a fundamental right? The Constitution, drafted in the summer of 1787, does not mention a right to education, but the Northwest Ordinance, passed by Congress that same summer, held that “religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” By 1868 the constitutions of twenty-eight of the thirty-two states in the Union had provided for free public education, open to all. Texas, in its 1869 constitution, provided for free public schooling for “all the inhabitants of this State,” a provision that was revised to exclude undocumented immigrants only in 1975.

Justice skirted the questions of whether education is a fundamental right and whether undocumented immigrants are a suspect class. Instead of applying the standard of “strict scrutiny” to the Texas law, he applied the lowest level of scrutiny to the law, which is known as the “rational basis test.” He decided that the Texas law failed this test. The State of Texas had argued that the law was rational because undocumented children are expensive to educate—they often require bilingual education, free meals, and even free clothing. But, Justice noted, so are other children, including native-born children, and children who have immigrated legally, and their families are not asked to bear the cost of their special education. As to why Texas had even passed such a law, he had two explanations, both cynical: “Children of illegal aliens had never been explicitly afforded any judicial protection, and little political uproar was likely to be raised in their behalf.”

In September, 1978, Justice ruled in favor of the children. Not long afterward, a small bouquet arrived at his house, sent by three Mexican workers. Then came the hate mail. A man from Lubbock wrote, on the back of a postcard, “Why in the hell don’t you illegally move to mexico?”

“The Schoolhouse Gate” is the first book-length history of Supreme Court cases involving the constitutional rights of schoolchildren, a set of cases that, though often written about, have never before been written about all together, as if they constituted a distinct body of law. In Driver’s view, “the public school has served as the single most significant site of constitutional interpretation within the nation’s history.” Millions of Americans spend most of their days in public schools—miniature states—where liberty, equality, rights, and privileges are matters of daily struggle. Schools are also, not incidentally, where Americans learn about liberty, equality, rights, and privileges. “The schoolroom is the first opportunity most citizens have to experience the power of government,” Justice John Paul Stevens once wrote.

The Supreme Court paid relatively little attention to public schools until after the Second World War, but, since then, it has ruled on a slew of cases. Do students have First Amendment rights? In Tinker v. Des Moines Independent Community School District (1969), the Court said yes. Three students had sued when they were suspended for wearing black armbands to school to protest the Vietnam War. In a 7–2 opinion, the Court sided with the students, affirming that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” and that public schools, though not democracies, “may not be enclaves of totalitarianism,” either. Justice Hugo Black issued a heated dissent. “It may be that the Nation has outworn the old-fashioned slogan that ‘children are to be seen not heard,’ ” he wrote, but he hoped it was still true that we “send children to school on the premise that at their age they need to learn, not teach.” A still more strident version of Black’s position was taken by Justice Clarence Thomas, in Morse v. Frederick (2007), a case involving a student who, when a parade passed in front of the school, waved a banner that read “ BONG H i TS 4 JESUS .” Writing for the majority, Chief Justice John Roberts marked an exception to the free-speech rights established in Tinker: students are not free to endorse drug use, but Thomas, concurring, used the occasion to wax nostalgic: “In the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed.”

Link copied

Just because the courts have recognized students’ First Amendment rights, it doesn’t follow that students have other rights. Do students have Fourth Amendment protections against “unreasonable searches and seizures”? Do they have Fifth Amendment protections against self-incrimination? Do they have Eighth Amendment protections against “cruel and unusual punishment”? In Goss v. Lopez (1975), the Court ruled that students cannot be suspended or expelled without at least some form of due process, but, two years later, in Ingraham v. Wright , it said that schools could punish children, physically, and without any procedure at all. This shift took place amid a growing conservative reaction that viewed the Court’s schoolhouse opinions as an example of judicial overreach, as a violation of states’ rights, and as part of the rise of permissiveness and the decline of order. Lopez had extended to students a Fourteenth Amendment right to due process, partly on the back of the argument that granting students rights is a way of teaching them about citizenship, fairness, and decency. “To insist upon fair treatment before passing judgment against a student accused of wrongdoing is to demonstrate that society has high principles and the conviction to honor them,” the legal scholar William G. Buss wrote , in an influential law-review article in 1971.

Plenty of teachers and school administrators think that students don’t have any rights. “I am the Constitution,” Joe Clarke, the principal of a high school in Paterson, New Jersey, liked to say, roaming the hallways with a Willie Mays baseball bat in the nineteen-eighties. This was an era that Driver describes as marking a Reagan Justice Department campaign for “education law and order.” The era produced a 1985 decision, T.L.O. v. New Jersey , in which the Court ruled that schools require only reasonable suspicion, not probable cause, to search students and their backpacks and lockers and other belongings.

Together, the education law-and-order regime and the rise of school shootings, beginning with Columbine in 1999, have produced a new environment in the nation’s schools, more than half of which, as of 2007, are patrolled by police officers. It was a police officer’s closed-door questioning of a seventh grader, taken out of his social-studies class in Chapel Hill, that led to the Court’s 2011 decision, in J.D.B. v. North Carolina , establishing that only in certain circumstances do students have Fifth Amendment rights. Do students have Second Amendment rights? Not yet. But last year a Kentucky congressman introduced a Safe Students Act that would have repealed the 1990 Gun-Free School Zones Act, and allowed guns in schools. Meanwhile, more and more schools are surveilled by cameras, and bordered by metal detectors. If the schoolhouse is a mini-state, it has also become, in many places, a military state.

Few discussions of Plyler are more keenly sensitive to its ambiguities than Ana Raquel Minian’s “ Undocumented Lives: The Untold Story of Mexican Migration ” (Harvard), a revealing study that, because “undocumented lives” are nearly impossible to trace in the archives, relies on hundreds of oral histories. For Minian, Plyler, by its very casting of undocumented children as innocents, underscored the perception of undocumented adults as culpable—criminals to be arrested, detained, prosecuted, and deported.

As Texas appealed to the Fifth Circuit, Woodrow Seals, a district judge in Houston, ruled for the children in a related case. Seals didn’t agree that the undocumented children were a suspect class, but he didn’t need to, because he believed the Texas statute was not rational, and, in any case, he thought that absolute denial of an education was so severe a harm that, on its own terms, it required strict scrutiny. Public school is “the most important institution in this country,” Seals wrote, and “the Constitution does not permit the states to deny access to education to a discrete group of children within its border.” Seals handed down his opinion in July, 1980, just months before the Presidential election. He wrote in a letter, “I hate to think what will happen to my decision if Governor Reagan wins the election and appoints four new justices to the Supreme Court.”

Carter’s Justice Department had supported the plaintiffs. Reagan’s did not. The Supreme Court heard oral arguments in Plyler v. Doe on December 1, 1981. The Mexican American Legal Defense and Educational Fund considered the case to be as important as Brown v. Board of Education, which, in 1954, Thurgood Marshall, then the head of the N.A.A.C.P. Legal Defense and Educational Fund, had argued before the Court. Marshall had presented Brown as a Fourteenth Amendment, equal-protection case. The plaintiffs in Plyler were making, essentially, the same argument. Conceivably, their case could realize the promise of Brown by establishing a constitutional right to an education. They could even press the claim that undocumented immigrants were not only persons under the equal-protection clause of the Fourteenth Amendment but also, doctrinally, a suspect class. None of these objectives were politically within their reach, however, given the makeup of the bench.

During oral arguments, Marshall peppered John Hardy, representing Plyler, about what the State of Texas did and did not provide for undocumented immigrants:

M arshall : Could Texas deny them fire protection? H ardy : Deny them fire protection? M arshall : Yes, sir. F-i-r-e. H ardy : Okay. If their home is on fire, their home is going to be protected with the local fire services just— M arshall : Could Texas pass a law and say they cannot be protected? H ardy : —I don’t believe so. M arshall : Why not? If they could do this, why couldn’t they do that? H ardy : Because . . . I am going to take the position that it is an entitlement of the . . . Justice Marshall, let me think a second. You . . . that is . . . I don’t know. That’s a tough question. M arshall : Somebody’s house is more important than his child?

Later, Marshall came back at him, asking, “Could Texas pass a law denying admission to the schools of children of convicts?” Hardy said that they could, but that it wouldn’t be constitutional. Marshall’s reply: “We are dealing with children. I mean, here is a child that is the son of a murderer, but he can go to school, but the child that is the son of an unfortunate alien cannot?”

Three days later, the Justices held a conference. According to notes made by Justice Lewis F. Powell, Jr., Chief Justice Warren Burger said, “14A applies as they are persons but illegals are not entitled to E/P.” Marshall said, “Children are not illegals. . . . E/P means what it says.” Five Justices wanted to uphold the lower court’s opinion, four to reverse it. Justice William J. Brennan, Jr., volunteered to write the majority opinion. He circulated a draft that called for strict scrutiny, deeming the children “a discrete and historically demeaned group.” Powell said that he couldn’t sign it.

Powell, appointed by Nixon in 1971, had been, for a decade, the chair of the school board of Richmond, Virginia. Sometimes known as “the education justice,” he was deeply committed to public schools. But, because he was also committed to judicial restraint, he was opposed to declaring education to be a constitutional right. “It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws,” he had written in 1973, in San Antonio Independent School District v. Rodriguez , a case that was widely seen as having shut the door on the idea. For Powell, establishing education as a fundamental right invited claims: are health care, food, and shelter fundamental rights, too?

Powell was unwilling to sign Brennan’s first draft, not only because it went against his opinion in Rodriguez but also because the draft contained language “that will be read as indicating that all illegal aliens, adults as well as children, may be ‘discrete and insular minorities for which the Constitution offers a special solicitude.’ ” Brennan wrote a second draft; Powell once again asked him to narrow his opinion. But other Justices, who wanted to uphold the lower court’s decision, sought to move Brennan further to the left. After reading a draft of Burger’s dissent (“The Constitution does not provide a cure for every social ill,” the Chief Justice wrote, “nor does it vest judges with a mandate to try to remedy every social problem”), Justice Harry Blackmun circulated a proposal for issuing a different opinion, arguing that education has a special status because it’s foundational to all other political rights, being necessary “to preserve rights of expression and participation in the political process, and therefore to preserve individual rights generally.” Marshall, Brennan, and Stevens were prepared to join that opinion. But Blackmun needed Powell to make five. And Powell wouldn’t sign on. “As important as education has been in the life of my family for three generations,” he wrote to Blackmun, “I would hesitate before creating another heretofore unidentified right.”

In the end, Brennan crafted a compromise. Education is not a constitutional right, he wrote, “but neither is it merely some governmental ‘benefit.’ ” Undocumented migrants are not a suspect class, but their children are vulnerable, and laws that discriminate against them, while not subject to strict scrutiny, deserved “heightened scrutiny.” Powell wrote to Brennan after reading the draft, “Your final product is excellent and will be in every text and case book on Constitutional law.”

And yet its interpretation remains limited. “Powell wanted the case to be about the education of children, not the equal protection rights of immigrants, and so the decision was,” Linda Greenhouse remarked in a careful study of the Court’s deliberations, published a decade ago. For many legal scholars, Plyler looks like a dead end. It didn’t cut through any constitutional thickets; it opened no new road to equal rights for undocumented immigrants, and no new road to the right to an education. It simply meant that no state could pass a law barring undocumented children from public schools. But that is exactly why Driver thinks that Plyler was so significant: without it, states would have passed those laws, and millions of children would have been saddled with the disability of illiteracy.

In 1994, when Californians were contemplating Proposition 187, which would have denied services to undocumented immigrants, a reporter for the Los Angeles Times was able to track down thirteen of the original sixteen Plyler children. Ten had graduated from high school in Tyler. Two worked as teacher’s aides. Laura Alvarez and all six of her brothers and sisters stayed in Tyler after Judge Justice issued his opinion in Plyler. She became a legal resident of the United States under the terms of the 1986 Immigration Reform and Control Act, graduated in 1987 from John Tyler High School, and spent a decade working for the Tyler school district. “Without an education, I don’t know where I’d be right now,” she said.

“I’m glad we lost,” James Plyler said in an interview in 2007, when he was eighty-two, and long since retired, and enjoying his grandchildren, who are themselves of Mexican descent.

Lewis Powell retired from the Court in 1987. He was replaced by Anthony Kennedy. In another opinion, Powell had written that children should not be punished for the crimes of their parents. “Visiting this condemnation on the head of an infant is illogical and unjust,” because “legal burdens should bear some relationship to individual responsibility or wrongdoing.” It’s hard to know what Kennedy’s likely replacement, Brett Kavanaugh, would say about whether the Constitution guarantees undocumented migrant children the equal protection of the law. He’s never cited Plyler in his scholarship and, in opinions issued from the bench, has cited it only once. He hasn’t written much about equal protection, either, though he has said, in passing, that he finds the equal-protection clause ambiguous. As for undocumented migrant children, he has issued one important opinion, a dissent in Garza v. Hargan, last year, that, while not citing Plyler, described the plaintiff in the case, an undocumented immigrant minor in Texas, as particularly vulnerable.

“The minor is alone and without family or friends,” Kavanaugh wrote. “She is in a U.S. Government detention facility in a country that, for her, is foreign. She is 17 years old.” The reason for her vulnerability? “She is pregnant and has to make a major life decision.” She wanted to have an abortion; Kavanaugh had earlier joined a decision ruling that she must first leave detention and find a sponsoring foster family. When, in a further appeal, the D.C. court vacated that ruling, Kavanaugh dissented, arguing that the court had acted on “a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.” Her name was kept out of the proceedings. She was another Doe. It is not clear whether she ever finished her education. ♦

By signing up, you agree to our User Agreement and Privacy Policy & Cookie Statement . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

By Jonathan Blitzer

By Geraldo Cadava

The Constitutional Right to an Education

• First Online: 31 August 2022

Cite this chapter

• Wade L. Robison 5  

Part of the book series: AMINTAPHIL: The Philosophical Foundations of Law and Justice ((AMIN,volume 11))

166 Accesses

The right to an education in the United States is grounded on the form of government created by the Constitution. The proper argument for understanding why there is a right to an education is not to show that it is implied by, say, the right to petition the government, a right that does require enough education to read and write, but to see that it is a necessary condition for the structure of government we have. The proper argument is not piecemeal, that is, going from provision to provision to determine which, if any, requires an education, but transcendental, seeing how the very nature of a government of the people, by the people, and for the people depends upon the people being educated.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

• Available as PDF
• Read on any device
• Instant download
• Own it forever
• Available as EPUB and PDF
• Compact, lightweight edition
• Dispatched in 3 to 5 business days
• Free shipping worldwide - see info
• Durable hardcover edition

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Adams J (1765) A Dissertation on the Canon and Feudal Law. https://thefederalistpapers.org/wp-content/uploads/2013/01/John-Adams-A-Dissertation-on-Canon-and-Feudal-Law.pdf

Adams J (1776) Thoughts on Government. p. 5, https://www.nps.gov/inde/upload/Thoughts-on-Government-John-Adams-2.pdf

Adelman L (2020). The Roberts Court’s Assault on Democracy. Harvard Law & Policy Review, February 18, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3540318

Brown v. Board of Education , 347 U.S. 483 (1954) https://supreme.justia.com/cases/federal/us/347/483/

deTocqueville A (1966) In: Mayer JP, Lerner M (eds) Democracy in America. Harper & Row, New York

Google Scholar  

Dixon R (2020) Belarus’s Lukashenko jailed election rivals and mocked women as unfit to lead. Now one is leading the opposition. The Washington Post, July 23

Federalist Papers (2001). In: Carey GW, McClellan J (eds) Liberty Fund, Indianapolis

Gary B., et al. v. Whitmer, No. 18-1855 (2020), https://law.justia.com/cases/federal/appellate-courts/ca6/18-1855/18-1855-2020-05-19.html

Griswold v. Connecticut , 381 U.S. 485 (1965), https://supreme.justia.com/cases/federal/us/381/479/

Jay J (1785) Letter to Dr. Benjamin Rush, March 24, https://oll.libertyfund.org/titles/jay-the-correspondence-and-public-papers-of-john-jay-vol-3-1782-1793

Jefferson T (1785) Letter to John Jay, August 23, https://oll.liberty.fund.org/titles/jefferson-the-works-vol-4-notes-on-virginia-ii-correspondence-1782-1786

Jefferson T (1820) Letter to William C. Jarvis, September 28, https://founders.archives.gov/documents/Jefferson/98-01-02-1540

League of Education Voters, https://educationvoters.org/2016/07/13/what-is-basic-education/

Lee S (2012) Five of the Most Confusing Ballots in the Country. ProPublica, Nov. 5, https://www.propublica.org/article/five-of-the-most-confusing-ballots-in-the-country

Locke J (2000) In: John W, Yolton JS (eds) Some Thoughts Concerning Education. Oxford University Press, Oxford, p §81

Paz C (2020) Read Barack Obama’s Eulogy for John Lewis. The Atlantic, July 30. https://www.theatlantic.com/politics/archive/2020/07/read-barack-obamas-eulogy-for-john-lewis-full-text/614761/

Ricks TE (2020) First principles: what America’s founders learned from the Greeks and Romans and how that shaped our country. HarperCollins, New York

Rush B (1786) Letter to Richard Price, May 25, https://www-jstor-org.ezproxy.rit.edu/stable/pdf/j.ctvhhhddg.32.pdf?refreqid=excelsior%3Abdbe4d46a5e12a74d2ddc36ae8f7e913

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), https://supreme.justia.com/cases/federal/us/411/1/ .

Stern R (2019) Transcendental Arguments. Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/transcendental-arguments/ .

Strauss V (2020) Federal court rules students have constitutional right to a ‘basic’ education — including literary — in historic Detroit case. The Washington Post, April 24

Universal Declaration of Human Rights. Article 26, https://www.un.org/ruleoflaw/files/ABCannexesen.pdf

Washington, George. Eighth Annual Message, December 7, 1796, https://avalon.law.yale.edu/18th_century/washs08.asp

Download references

Author information

Authors and affiliations.

Rochester Institute of Technology, Rochester, NY, USA

Wade L. Robison

You can also search for this author in PubMed   Google Scholar

Editor information

Editors and affiliations.

School of Historical, Philosophical, and Religious Studies, Arizona State University, Tempe, AZ, USA

Joan McGregor

Department of Philosophy, Oakland University, Rochester, MI, USA

Mark C. Navin

Rights and permissions

Reprints and permissions

Copyright information

© 2022 The Author(s), under exclusive license to Springer Nature Switzerland AG

About this chapter

Robison, W.L. (2022). The Constitutional Right to an Education. In: McGregor, J., Navin, M.C. (eds) Education, Inclusion, and Justice. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 11. Springer, Cham. https://doi.org/10.1007/978-3-031-04013-9_4

Download citation

DOI : https://doi.org/10.1007/978-3-031-04013-9_4

Published : 31 August 2022

Publisher Name : Springer, Cham

Print ISBN : 978-3-031-04012-2

Online ISBN : 978-3-031-04013-9

eBook Packages : Law and Criminology Law and Criminology (R0)

Share this chapter

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• Publish with us

Policies and ethics

• Find a journal
• Track your research

We serve the public by pursuing a growing economy and stable financial system that work for all of us.

• Center for Indian Country Development
• Opportunity & Inclusive Growth Institute

Monetary Policy

• Banking Supervision
• Financial Services
• Community Development & Outreach
• Board of Directors
• Advisory Councils

Work With Us

• Internships
• Job Profiles
• Speakers Bureau
• Doing Business with the Minneapolis Fed

Overview & Mission

The ninth district, our history, diversity & inclusion, region & community.

We examine economic issues that deeply affect our communities.

• Request a Speaker
• Publications Archive
• Agriculture & Farming
• Community & Economic Development
• Early Childhood Development
• Employment & Labor Markets
• Indian Country
• K-12 Education
• Manufacturing
• Small Business
• Regional Economic Indicators

Community Development & Engagement

The bakken oil patch.

We conduct world-class research to inform and inspire policymakers and the public.

Research Groups

Economic research.

• Immigration
• Macroeconomics
• Minimum Wage
• Technology & Innovation
• Too Big To Fail
• Trade & Globalization
• Wages, Income, Wealth

Data & Reporting

• Income Distributions and Dynamics in America
• Minnesota Public Education Dashboard
• Inflation Calculator
• Recessions in Perspective
• Market-based Probabilities

We provide the banking community with timely information and useful guidance.

• Become a Member Bank
• Discount Window & Payments System Risk
• Appeals Procedures
• Mergers & Acquisitions (Regulatory Applications)
• Business Continuity
• Paycheck Protection Program Liquidity Facility
• Financial Studies & Community Banking
• Market-Based Probabilities
• Statistical & Structure Reports

Banking Topics

• Credit & Financial Markets
• Borrowing & Lending
• Too Big to Fail

For Consumers

Large bank stress test tool, banking in the ninth archive.

We explore policy topics that are important for advancing prosperity across our region.

Policy Topics

• Labor Market Policies
• Public Policy

Racism & the Economy

Education clauses in state constitutions across the united states.

January 8, 2020

This article documents the variation in strength of education clauses in state constitutions across the United States. The U.S. Constitution is silent on the subject of education, but every state constitution includes language that mandates the establishment of a public education system. Some state constitutions include clauses that only stipulate that the state provide public education, while other states have taken more significant measures to ensure the provision of a high-quality public education system. Florida’s constitutional education clause is currently the strongest in the country – it recognizes education as a fundamental value, requires the state to provide high-quality education, and makes the provision of education a paramount duty of the state. Minnesota can learn from the experience of other states. Most states have amended the education clause of their state constitutions over time to reflect the changing preferences of their citizens. Between 1990 and 2018, there were 312 proposed amendments on ballots across the country, and 193 passed. These amendments spanned various issues. Policymakers and voters in each state adopted the changes they deemed necessary for their education system. Minnesota has not amended its constitutional education clause since it was first established in 1857.

Constitutional language matters. We use Florida and Louisiana as case studies to illustrate that constitutional amendments can be drivers of change. Institutional changes to the education system that citizens of Florida and Louisiana helped create ultimately led to improved outcomes for their children. Minnesota can do the same. The first step is to amend the 1857 language to better reflect the preferences and needs of citizens in 2020.

Download policy brief  (pdf)

Related Content

Choosing a school is hard. Tailored information can help.

Educational outcomes and Minnesota’s economy: Asian American student snapshot

Educational outcomes and Minnesota’s economy: American Indian/Alaska Native student snapshot

Sign up for news and events.

17 minute read

Constitutional Requirements Governing American Education

Federal constitutional requirements, state constitutional issues, conclusion.

The right to a free public education is found in the various state constitutions and not in the federal constitution. Every state has a provision in its constitution, commonly called the "education article," that guarantees some form of free public education, usually through the twelfth grade. The federal constitution, on the other hand, contains no such guarantee. In San Antonio Independent School District v. Rodriquez, the U.S. Supreme Court in 1973 held that education is not a "fundamental right" under the U.S. Constitution. Thus, as a matter of constitutional law, the founding fathers left it to the states to decide whether to provide an education or not and, if deciding to provide one, determine at what level of quality.

Not only does the federal constitution confer no right to education, it does not even explicitly empower the U.S. Congress to legislate on the subject. Most federal education legislation is therefore enacted under the "spending clause" of the Constitution, which gives Congress the authority to tax and spend for the general welfare. Since federal grants to the states may be conditioned upon the state's adoption of certain legal and regulatory structures, the federal government has been able to exercise substantial authority over K–12 education policy. For example, in South Dakota v. Dole, the Supreme Court in 1987 upheld a federal law withholding a percentage of federal highway funds from any state that declined to raise its minimum drinking age to twenty-one. This kind of carrot-and-stick approach underlies much federal education law, from the setting of nationwide achievement standards to the education of students with disabilities to Title I and other federal grants relating to education. That other great source of federal regulatory authority, the Constitution's "commerce clause," however, has not been used to justify federal legislation in these areas. In United States v. Lopez, the Supreme Court in 1995 held that a law making it a crime to possess a firearm within a certain distance of a school was an impermissible overextension of Congress's commerce power. Even the justices dissenting in Lopez agreed that the content of education was a classic area of state, not federal, authority.

Nevertheless, once a state decides to provide an education to its children, as every state has, the provision of such education must be consistent with other federally guaranteed constitutional rights, such as the Fourteenth Amendment's right to equal protection under the law and the First Amendment's right to the free exercise of, and the nonestablishment of, religion. Therefore, even though the U.S. Constitution does not, in the first instance, require that an education be provided, it nevertheless has had a significant effect on American education.

Any treatment of education and constitutional rights must begin with the Fourteenth Amendment, which guarantees every citizen equal protection under the law. Application of this doctrine has been most profound in the area of school desegregation. In 1954 the U.S. Supreme Court struck down state-sponsored racial segregation of schools in the famous case of Brown v. Board of Education of Topeka, Kansas. This decision and hundreds of later court decisions applying it to individual school districts all over the United States have had major ramifications on virtually every facet of school district operations from the mid-1950s into the twenty-first century. This has been true not only in the South, but throughout the rest of the country, as school districts and courts struggled with how to effectively desegregate the nation's schools. In the decades since Brown, most school districts have eliminated "vestiges" of state-sponsored segregation, have been declared to be a "unitary" school district (as opposed to a former dual-race system), and have been released from federal court supervision.

Nevertheless, many unitary school districts, now concerned that their schools will become resegregated, are seeking to take steps to preserve racial diversity at their schools. In one of the supreme ironies of American jurisprudence, such efforts may now be illegal under the same Fourteenth Amendment that previously required school districts to employ race-conscious student assignments as a remedial measure but forbids such measures as a means of preserving integrated schools in school districts no longer under court supervision.

Another major constitutional issue facing American education involves public funding of vouchers for private schools. Although several states have enacted limited voucher programs, their legality and continued existence remains in doubt under the First Amendment of the Constitution, which requires the separation of church and state. In June 2002 the Supreme Court ruled that students in the Cleveland, Ohio, area may use state-funded vouchers to pay tuition at private schools, including schools with a religious affiliation. The decision in this case is likely to have a significant impact for decades to come.

As desegregation lawsuits in federal courts wind down, the most important constitutional litigation involving education is increasingly taking place in state courts, as plaintiffs' groups seek to enforce state constitutional guarantees. Beginning in the early 1970s plaintiffs' groups began to make constitutional challenges to the heavy use of local property tax revenues in most states to finance public schools. This system of funding public schools often resulted in large disparities in per-pupil expenditures between property-rich and property-poor districts. As a result of a series of these "equity" suits, which were based on state constitutional guarantees of equal protection and uniformity, most states in the years since the early 1980s have reformed their state education funding formulas to provide a greater degree of equity (although not complete equality) in funding between school districts. This has been accomplished in many states by providing more state-level funding to property-poor districts to offset their lower local revenues, and less state funding to property-rich districts.

During the same period, plaintiffs' groups also began to challenge the adequacy of state education systems, including the sufficiency of funding of public schools, under the "education articles" of state constitutions. These cases are quite different from "equity" cases, which are based on disparities in funding; "adequacy" cases challenge the sufficiency of the funding to provide the level of educational opportunities required by the particular state constitution, regardless of how such funding is allocated among a state's school districts. It is these state court "adequacy" cases that are likely to be the main source of constitutional litigation in the early twenty-first century.

Federal Constitutional Requirements

Below are discussed the evolution of school desegregation since the landmark 1954 Brown decision and the racial diversity in U.S. schools in the post-desegregation era. This section also reviews the status of school vouchers and their constitutionality under the First Amendment.

School desegregation. There is no question that since the early 1960s school desegregation suits under the Fourteenth Amendment have had a greater impact on American schools than almost any other factor. In its 1954 Brown v. Board of Education decision, the Supreme Court declared state-mandated racial segregation of schools illegal. A year later, in Brown II, the Court ordered that segregated schools be eliminated with "all deliberate speed." The Court, however, gave little practical guidance as to how school districts and the lower courts were to carry out this major transformation in the social fabric of many regions of the country. As a result, the process of desegregating formerly dual-race school systems lasted for decades and in the early twenty-first century had still not been completed in some school districts.

After Brown, little happened until the mid-1960s as many southern states waged a program of massive resistance to school desegregation. In Stanley v. Darlington School District, the federal court in South Carolina described the different forms of such resistance. In the mid-to late 1960s, token desegregation occurred, but that was due more to the passage of the Civil Rights Act of 1964, which forced school districts to desegregate as a precondition to receiving federal funds, than it was to court enforcement of constitutional guarantees. In 1968 the situation dramatically changed with the Supreme Court decision of Green v. School Board of New Kent County. In Green, the Court required that school districts promptly take steps to effectively desegregate the operations of their schools in the areas of student assignments, faculty and staff assignments, facilities, extracurricular activities, and transportation. Ineffective plans that resulted in only token desegregation were no longer permitted. Green was followed by the Court's 1971 Swann v. Charlotte-Mecklenburg Board of Education decision, which approved the use of mandatory busing as a desegregation tool. Thus began the real process of desegregating the schools. Mandatory busing, however, was extremely controversial, especially among white parents, and the effect of such desegregation plans was often undermined by what became known as "white flight" (i.e., white parents moving out of the district or placing their children in private schools). Therefore, in the 1980s, the courts began to rely more and more on voluntary desegregation plans that centered on magnet schools and other measures designed to encourage, but not require, students to transfer to racially mixed schools. One of the first such plans was approved by the federal court in 1989 in Stell v. Savannah-Chatham County Board of Education, which involved the school district in Savannah, Georgia.

By the 1990s most school districts had accomplished as much faculty and student desegregation as was practical, given "white flight" and the persistence of de facto segregation in housing patterns. Consequently, the courts began to release more and more school districts from court supervision on the grounds that they had eliminated the vestiges of the former segregated school systems "to the extent practicable." Nevertheless, although not discussed in Green, some courts also began to examine whether the "achievement gap" between minority and white students in many school districts was also a "vestige" of the former segregated system. Consequently, in deciding whether to dismiss desegregation cases, courts in the 1990s did not focus as much on student or faculty assignments (the main issues from 1954 through the 1980s), but rather on whether poor academic performance of minority pupils is a "vestige" of the former segregated system that must be eliminated before court supervision is terminated. In 1995 in Jenkins v. Missouri, the Supreme Court held that such low performance had to be causally linked to the prior dual school system. Because this is difficult to establish, plaintiffs have had only limited success in convincing courts that low minority performance is sufficiently related to the prior dual school system to serve as a basis for continued court supervision.

Therefore, as the nation entered the new millennium, the constitutional obligation to desegregate, which greatly influenced operations and planning in many school districts for more than forty years, had been satisfied in most districts and was becoming less and less of a factor in those relatively few districts that remained under active federal court supervision.

Diversity. The closing of the desegregation era does not mean, however, that issues of race have disappeared in public education. Many school districts, which successfully desegregated the student populations of their schools and have therefore been declared unitary and released from court supervision, continue the struggle to maintain racial integration or, as it is now more often called, "diversity," in their schools. Nevertheless, the Fourteenth Amendment, which once required race-based student assignments and admissions as a remedial measure, may now prohibit school districts from continuing to use race-conscious plans once such school districts have completed remedial proceedings and been declared unitary. Once the effects of past discrimination have been remedied, as in the case of a school district declared unitary, it is argued that there is no longer a remedial justification for taking student race into account in making student assignments or deciding upon admissions to special programs, such as magnet schools. For example, if student race is considered in admitting students to a magnet school, a student denied admission because her race did not contribute to racial diversity may claim that she was denied admission based on race and that such a decision is discriminatory and a denial of equal protection. School districts often respond that maintaining racial diversity is a compelling governmental interest, and that some use of race in the decision-making process regarding assignment of students should therefore be permitted. The lower courts are split on the issue, although the majority view tends to prohibit race-based admissions and assignment policies unless they serve a remedial purpose. Until the Supreme Court decides the issue, the lower courts are likely to careful scrutinize and in most regions of the country prohibit any consideration of student race in the student assignment and admissions process.

School vouchers. Many school reform advocates believe that public schools suffer from a lack of competition and that states or school districts should provide vouchers to students, especially poor and minority students attending substandard inner-city schools, to enable them to attend a private school. At least three states (Florida, Wisconsin, and Ohio) have passed legislation funding such vouchers. Until spring 2002 one huge unknown factor in the debate over using public funds to support private, parochial schools was whether such use of public funds violates the First Amendment of the Constitution, which prohibits government from unduly supporting religion or favoring one religion over another. In June 2002 the Supreme Court held in the case Zelman v. Simmons-Harris that the use of public funds to pay for religious school tuition is constitutional. Under this program, the State of Ohio provides vouchers to some 4,000 students from low-income families. The vouchers can be used to pay tuition at participating private schools, including religiously affiliated schools. Although the Supreme Court's ruling resolved the constitutionality of school vouchers, the policy debates about the vouchers are likely to continue in the years to come.

State Constitutional Issues

As school desegregation issues, which have dominated public education for decades, are finally resolved, lawsuits based on state constitutional requirements have moved to the forefront. These lawsuits have become known as either "equity" or "adequacy" cases.

Equity cases. These cases began with the unsuccessful efforts of plaintiffs in San Antonio Independent School District v. Rodriquez, a case brought in the early 1970s in federal court to challenge the method of funding public education in Texas. At the time, Texas, like most states, financed its schools primarily through local property taxes. Because property values differed greatly between districts, this method of funding resulted in significant spending disparities between school districts, with the wealthier districts in Texas spending more than two to three times as much as the poorest districts on a per-pupil basis. In rejecting plaintiffs' equal protection claim under the Fourteenth Amendment, the Supreme Court held that education was not a fundamental right under the Constitution. It therefore held that disparities in the provision of education services and facilities did not have to be justified by a showing that they served a compelling governmental interest, but could be justified merely by showing that a rational basis existed for such a taxing mechanism. Because the local property tax system had a rational basis, in the view of the Court, it was not unconstitutional.

Notwithstanding this initial defeat in the federal courts, proponents of equity among school districts in education funding continued their fight in the state courts, and they won victories in the mid-1970s in California ( Serrano v. Priest ) and New Jersey ( Robinson v. Cahill ). In these decisions, the courts struck down property tax–based systems based on state constitutional provisions requiring equal protection and uniformity, and they ordered the use of more equitable funding systems in which the resources provided for a child's education did not depend nearly as much on the property wealth in the community in which a child lived and attended school. Since then, "equity cases," as they are often called, have been brought in almost every state, and plaintiffs have been successful in many of them. While local property taxes remain a major source of school revenues, states have modified their education financing formulas to provide more state aid to property-poor districts to offset lower local property tax revenues in such districts and to provide less state aid to property-rich districts. While complete equality in funding has rarely, if ever, been realized, and is not required under most state court decisions, large disparities in funding between school districts have been greatly reduced in many states.

Adequacy cases. Equity cases, while successful in reducing funding disparities between school districts in many states, have fallen short of being the panacea that many school finance reformers believed they would be, for several reasons. First, attaining equity does not necessarily mean increases in education spending. Indeed, while the result of Serrano v. Priest was to insure equity in spending among California's school districts, it has at the same time moved California from one of the highest spending states on education to one of the lowest. Moreover, the equity cases did not, in the minds of many plaintiffs' groups, address the claims of many urban school systems. Such school districts and their supporters contend that they need additional funding to address the educational needs of the large numbers of their students who are at risk of academic failure because of the effects of poverty and other socioeconomic problems. Simply obtaining funding equal to other school districts is not sufficient, it is argued, given the extraordinary needs of such districts.

Since the 1970s plaintiffs have brought "adequacy" suits in more than twenty states, alleging that the state has failed to provide an "adequate" education, a right guaranteed by many state constitutions. Generally, such suits allege that educational "inputs," such as facilities, curriculum, textbooks and other instructional materials and equipment, and number and quality of teachers, are insufficient to enable schools and school districts to provide an "adequate" education for their students. Plaintiffs also rely on substandard "outcomes," as evidenced by low scores on standardized tests, low graduation rates, and high dropout rates as proof that the state has failed to provide an adequate education for substantial numbers of its children.

Such suits are normally based on the "education article" contained in most state constitutions that requires the state legislature to provide for some type of a "system" of free public schools. Generally, the education articles are couched in fairly vague terms, such as requiring "a thorough and efficient system of education" or a "system of free common schools." Although the constitutional language rarely gets any more specific than the foregoing examples, the highest courts of many states have interpreted such language to require an "adequate" or "sound, basic" education.

In several states, adequacy suits have been dismissed on the grounds that they involve political questions reserved by the state constitution to the legislature, and therefore that they violate the separation of powers doctrine. In essence, because the terms used both by the courts (e.g., "adequate") and the constitution (e.g., "thorough," "efficient") are ambiguous and capable of many meanings, these courts have held that if the courts decided such cases, they would in effect be substituting themselves for the legislature in determining important policy questions normally reserved by the state constitution to the legislative branch (e.g., what level of education to provide and how much of the state's resources to devote to education).

Notwithstanding pretrial dismissals in several states, plaintiffs have enjoyed success in increasing numbers of states, including most notably New Jersey, Ohio, Kentucky, and Wyoming. The highest courts of these states have struck down the state system for financing public schools and required the legislatures to appropriate significantly increased spending for public education. Other important cases, such as those in Arkansas, New York, and North Carolina, have been decided at the trial court level in plaintiffs' favor, but they have not yet been reviewed by the state's highest court. In still other states, such as Florida, cases have been filed but not yet decided.

In states where plaintiffs have been successful, often after many years or decades of litigation, such lawsuits have led to higher spending for education, including expenditures for school facilities, teacher's salaries, special programs, and technology. Whether these lawsuits have resulted or will result in improved student achievement, however, is another oft-debated question that is beyond the scope of this entry.

Both federal and state constitutional requirements have heavily influenced the organization, funding, and operation of America's schools in the past and are likely to continue to do so in the future.

See also: S UPREME C OURT OF THE U NITED S TATES AND E DUCATION .

BIBLIOGRAPHY

Abbott v. Burke, 710 A.2d 450 (N.J. 1998).

A RMOR , D AVID J. 1995. Forced Justice: School Desegregation and the Law. New York: Oxford University Press.

Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954).

Brown v. Board of Education of Topeka, Kansas, 349 U.S. 753, 757 (1955) ( Brown II ).

Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wyo. 1995).

Civil Rights Act of 1964. U.S. Code. Vol. 42, sec. 2000d.

D AYTON , J OHN . 2001. "Serrano and its Progeny: An Analysis of 30 Years of School Funding Litigation." 157 West's Educational Law Reporter 447.

Green v. School Board of New Kent County, 391 U.S. 430 (1968).

Jenkins v. Missouri, 515 U.S. 70 (1995).

Robinson v. Cahill, 303 A. 2d 273 (N.J. 1973).

Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989).

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

Serrano v. Priest, 557 P. 2d 929 (Cal. 1976).

Stell v. Savannah-Chatham County Board of Education, 888 F. 2d 82 (11th Cir. 1989).

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).

Tuttle v. Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999).

United States v. Lopez, 514 U.S. 549 (1995).

A LFRED A. L INDSETH

Additional topics

• Consortia in Higher Education - Types of Consortia, Conclusions

Education - Free Encyclopedia Search Engine Education Encyclopedia: Education Reform - OVERVIEW to Correspondence course

• Lavinia Group
• Insight Education Group
• Course & Account Access
• Video Platform Account Access
• Graduate-Level Courses
• Fast Track Courses
• Course Bundles
• Certificates
• Flex Credit Courses
• Hybrid Learning Courses
• Hours-Only PD Courses
• Advanced Degrees
• Course Topics
• Course Formats
• Term Calendar
• University Partners & Transcripts
• Course Pricing
• Pay as You Learn
• Group Registrations
• Group Savings
• Bundle Savings
• New Customer Discounts
• Refer & Earn
• Connecticut
• District of Columbia
• Massachusetts
• Mississippi
• New Hampshire
• New York City
• North Carolina
• North Dakota
• Pennsylvania
• Rhode Island
• South Carolina
• South Dakota
• West Virginia
• How it Works
• Become a Group Leader
• Join a Group
• Teacher Exemplar Video Library
• Video Coaching & Learning Platform
• PD for Admin & Faculty
• New Teacher Course
• Substitute Teacher Course
• Build Your Program
• Video for Pre-service & Faculty
• Book a Demo
• Chat With Us
• In the Press
• Downloadables
• Lesson Plans
• Presentations
• Video Blogs

January 1, 2022

A Constitutional Right to Education?

Every state in the U.S. requires school attendance for minors. It’s easy to understand why: An education goes a long way toward promoting a child’s developmental, social, and economic success, and our society as a whole benefits when its citizens can communicate and contribute at high levels.

Despite the states being united in the desire to educate America’s children, there’s no federal right to education. Yes, there’s a U.S. Department of Education, and bills such as the No Child Left Behind Act and the Every Student Succeeds Act have set educational standards and made federal funding available for K–12 schooling. Yet the means, mode, and regulation of education are largely left up to state and local governments, meaning that a kid’s school experience depends largely on where he or she lives.

Let’s dust off our federalism hats and look at the potential implications and drawbacks of enshrining a federal right to education into the Constitution.

Defining a Federal Right to Education

Much ink and many hours of court cases have been dedicated to defining, clarifying, and debating the particulars of current Constitutional guarantees, such as the rights to speak freely, bear arms, receive due process, etc. However, even among legal experts, there’s no singular definition for the idea of a “federal right to education.” To summarize some of the past court cases and movements advocating for it, we might define a federal right to education as:

The right of all American children to a high-quality, equal education regardless of race, income, location, etc., guaranteed by the U.S. Constitution

As of 2021, the U.S. Constitution and its amendments do not specifically mention education, which is why (per the Tenth Amendment) the states are in charge of providing and regulating schooling. A federal right to education could be added to the Constitution via ratifying a new amendment. However, most attempts at enshrining this right have come through the court system.

The most notable court case regarding a federal right to education came about in 1973, when a suit out of Texas made its way to the Supreme Court. In San Antonio Independent School District v. Rodriquez , parents from the low-income, predominately Hispanic Edgewood district argued that it was discriminatory for their schools to receive only $37 per pupil while the wealthier Alamo Heights neighborhood received $413 per student.

A three-judge panel in Texas agreed with the parents and went a step further by calling education a fundamental right, citing the Equal Protection Clause of the 14th Amendment. However, when the State of Texas appealed to the U.S. Supreme Court, the justices delivered a 5–4 decision overturning the Texas judges’ words. The majority opinion asserted that Texas had not violated its constitution and that education is not a fundamental right.

A Tale of Two Schools: The Pros of a Federal Right to Education

The idea of equity is not new to K–12 education. We all want students to reach the same levels of academic achievement, but a single day in the classroom will show you that some students need more time and resources to meet educational standards than others. The same holds true on a national scale: Some districts perform significantly better than others. So, it stands to reason that additional resources should go to struggling schools…right?

However, all too often, the inverse of this principle seems to hold true. In other words, funding often goes to already high-performing schools while low-income, low-performing schools languish without assistance.

Take Elgin, Illinois, for example. According to the Hechinger Report , 2019 state tests showed that not one of the third graders at Ronald D. O’Neal Elementary were reading and writing at grade level. The school’s population tells at least part of the story: 90 percent of children come from low-income households, and nearly 75 percent are English language learners. Both of these demographics have historically demonstrated difficulties with English language arts education.

Meanwhile, Centennial Elementary School, located just nine miles away, has a student population of 20 percent low-income families and 17 percent English language learners. In 2019, nearly 75 percent of their third graders passed the state reading and writing test standards.

The differences in demographics and test scores aren’t the only things separating these two schools. Centennial—the higher-performing school—received $1,465 more per student in state and local funding than the struggling O’Neal, a difference of $789,905 per year.

Such disparities are at the heart of the arguments in favor of a constitutional right to education. Right now, nearly half of educational funding comes from local property taxes. Obviously, districts populated by lower income earners will have lower tax revenues, leading to lower available funds for schools. That means children from these areas, by virtue of where they’re born, are less likely to receive a quality education.

Under a federal right to education, schools would be funded in a more equitable fashion, meaning that resources would be guaranteed to go to districts where students are struggling to perform to national standards. Thus, students from impoverished zip codes would have a better chance at receiving access to the same technology, quality instruction, extracurriculars, IEP support, and other resources often enjoyed predominately by schools in wealthier districts.

Constitutional Right to Education: The Cons

Although a constitutional right to education could potentially guarantee certain levels of funding and educational standards across the country, many argue that there could be unintended consequences to regulating education at the federal level. The United States is a large and diverse country. States and cities have different prominent industries and cultural concerns, and these differences can impact the type of education most needed or valued in a given region. If all decisions come from a federal level, schools would have a harder time accounting for these differences in their curricula.

SchoolandState.com summarizes some of the arguments against the federal government taking over the regulation of public schooling:

• Decreased diversity and autonomy in education : Just like any other industry, education is constantly growing and evolving. Innovations don’t always come from those at the top of the educational pyramid; sometimes, the best ideas come from individual districts, schools, and classroom teachers. If every school had to abide by the same federal rules, this might stifle educators’ creativity and ability to try something new, leading to less individuality and risk taking.
• Potentially lowered standards in the pursuit of equality : Every teacher has experienced the challenge of educating kids of different abilities in the same classroom. You don’t want to leave struggling students behind, but you also don’t want to keep gifted students from reaching their potential. Those who support more local control of education are concerned that centralized regulation will exacerbate this challenge to a national scale. They worry, for example, that instead of raising up struggling rural or inner-city schools, high-performing districts will stagnate as other schools try to catch up.
• Risk of political change and activism disrupting education : There’s no doubt that politics already impacts our current educational system—often more than parents or educators want. The benefit of state- and local-led schools is that they have a better chance of mitigating the influence of nationwide elections, lobbying groups, and transitory, hot-button political movements. In other words, if local communities have more control than federal bodies, schools have a better chance of protecting kids from sweeping changes or activism based on the results of one federal election cycle.
• Diminished parental and community influence : No one has a greater interest in or responsibility for a child’s education than his or her family. Although many caregivers are unable to educate their children personally, they trust schools to teach and care for their children in a way that supports how they’re raising them at home. When localities are in charge of K–12 education, families have more opportunities to voice their feedback and be involved in decision-making processes. Centralized regulation would diminish families’ roles in their children’s education.
• Mismatch with American founding values : The Constitution (and American law generally) favors a more decentralized approach to governance. The Tenth Amendment, as mentioned above, states that any power not specifically granted in the Constitution should be reserved for the states, allowing for more independence and localized decision-making. A federal, one-size-fits-all approach to education may undermine the spirit of freedom and exploration woven through America’s founding principles.

So, should there be a constitutional right to education? For teachers and school leaders across the country, the way forward is the same regardless of what happens in the political realm: We’ll keep showing up and giving our best for our students regardless of the challenges or resources available.

Related Topics in Social Studies

Related content.

Susanne Leslie

Play for All Ages: Share How YOU Play!

Breaking Down Literacy Barriers with Cool School Comics (+ Free Earth Day Lesson Plan)

Search the k12 hub, more from teaching channel.

The graphic below illustrates how the development of a child’s kinetic scope leads to growth in their senses, control, coordination, balance, intuition, and power. Foundational

Picture this, you’re seated on an airplane, ready for takeoff, and the flight attendant has just started the safety briefing. You reach for the trifold

Find Your Tribe: 5 Reasons Why New Principals Need a Community

Transitioning from an assistant principal to the role of principal can be both exciting and challenging for educators. In this pivotal moment of their career,

Recommended Courses

Social studies instruction for maximum impact, social studies.

Flex Credit

Think Like a Historian! Teaching Historical Investigations in Social Studies

The legacy of racial injustice, culture and language.

Want to partner with us?

We’re always looking for new authors! If you’re interested in writing an article, please get in touch with us.

Subscribe to our Newsletter!

Get notified of new content added to K12 Hub.

• I am a Teacher or Teacher leader
• I am a District or School Administrator or Leader

Center Staff

State Network

• State Programs At-a-Glance

Board & Councils

• Board of Directors
• National Advisory Council

History of the Center

Annual Reports

• About the Program
• How to Use We the People
• Curriculum by Grade Level
• Simulated Hearings
• National & State Competitions
• 2024 National Finals
• 2024 National Invitational
• Professional Learning
• Supplemental Resources
• Level 3 Resources
• Level 2 Resources
• Level 1 Resources
• Program Impact
• State Competitions
• 2023 National Finals
• 2023 National Invitational
• Hearing Questions
• Scoring Rubric Videos
• Resource Center Level 3
• Resource Center Level 2
• Resource Center Level 1

• National Showcases
• Curriculum In Focus

• About the Toolkit
• How-To Use the Toolkit
• Principles of the Constitution
• Evolution of Political Parties
• Women's Rights
• Civil Rights in America
• Citizenship
• Civics Empowers All Students
• James Madison Legacy Project Expansion
• Project Citizen Research Program

Teacher Resources

• Self-Paced Courses
• The Constitution EXPLAINED Videos
• Constitution Day
• Bill of Rights
• Voting and Elections
• 60-Second Civics
• Quotations about Democracy

Civics Inquiry Lesson Plans

• Lower Voting Age
• Who Are We the People?
• Escaping Misinformation
• Has Dr. King's Legacy Been Fulfilled?

EAD Crosswalks

• We the People Level 1
• We the People Level 2
• We the People Level 3

Learn.Civiced.org

• We the People Open Course
• Strengthening Democracy Open Course

For Teachers

Resource Materials

• Civics Renewal Network
• Civics Teacher Corps
• EAD Champion
• WTP Alumni Network
• Ways to Give

The Constitution EXPLAINED

About the Constitution

We the people.

Constitutional Convention

Foundations of the Constitution

The Three Branches of Government

The people's branch.

The Dos and Don'ts of Congress

Who Chooses the President?

Faithfully Execute

The Presidency Changes

The Least Dangerous Branch

Other Articles of the Constitution

Full faith and credit.

The Supreme Law of the Land

Amendments and Ratification

The secret sauce.

Ratification

The Bill of Rights

Freedom of religion.

Freedom of Expression

Freedom of Assembly and Petition

To Keep and Bear Arms

My Home is My Castle

Due Process of Law

Presumed Innocent

The Right to a Fair Trial

Cruel and Unusual

Unlisted Rights

States' Rights

Reconstruction Amendments

Abolishing slavery.

Defining Citizenship

Expanding the Bill of Rights

Equal Protection of the Laws

Votes for All Men

Other Amendments to the Constitution

The income tax.

Prohibition and Repeal

Votes for Women

Votes for D.C.

No Tax on Voting

Votes for Young People

The Constitution EXPLAINED Playlist

Center for Civic Education

5115 Douglas Fir Road, Suite J Calabasas, CA 91302

  Phone: (818) 591-9321

  Email: [email protected]

  Media Inquiries: [email protected]

  Website: www.civiced.org

• Our Programs
• Our Networks

Your Article Library

12 major constitutional provisions on education in india.

ADVERTISEMENTS:

Some of the major constitutional provisions on education in India are as follows:

There are some changes regarding the 42nd Amendment to the Constitution. During 1976 our constitution was amended in many of its fundamental provisions. Under the Constitution of India, the Central Government has been specifically vested with several educational responsibilities.

Below are given constitutional provisions on Education:

1. Free and Compulsory Education:

The Constitution makes the following provisions under Article 45 of the Directive Principles of State Policy that, “The state shall endeavour to provide within a period of ten years from the commencement of this Constitution, for free and compulsory Education for all children until they complete the age of fourteen years.”

The expression ‘State’ which occurs in this Article is defined in Article 12 to include “The Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.” It is clearly directed in Article 45 of the Constitution that the provision of Universal, Free and Compulsory Education becomes the joint responsibility of the Centre and the States.

In the Constitution it was laid down that within 10 years, i.e., by 1960 universal compulsory education must be provided for all children up to the age of 14, But unfortunately, this directive could not be fulfilled. Vigorous efforts are needed to achieve the target of 100 percent primary education. The Central Government needs to make adequate financial provisions for the purpose. At the present rate of progress it may, however, be expected that this directive may be fulfilled by the end of this century.

2. Education of Minorities:

Article 30 of the Indian Constitution relates to certain cultural and educational rights to establish and administer educational institutions.

It lays down:

(i) All minorities whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(ii) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

3. Language Safeguards:

Article 29(1) states “Any section of the citizen, residing in the territory of India or any part there of having a distinct language, script or culture of its own, hall have the right to conserve the same.” Article 350 B provides for the appointment of special officer for linguistic minorities to investigate into all matters relating to safeguards provided for linguistic minorities under the Constitution.

4. Education for Weaker Sections:

Article 15, 17, 46 safeguard the educational interests of the weaker sections of the Indian Community, that is, socially and educationally backward classes of citizens and scheduled castes and scheduled tribes. Article 15 states, “Nothing in this article or in clause (2) of Article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes.”

Under Article 46 of the Constitution, the federal government is responsible for the economic and educational development of the Scheduled Castes and Scheduled Tribes

It states. “The state shall promote with special care the educational and economic interests of the weaker sections of the people and in particular, of the Scheduled castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation.” It is one of the Directive Principles of State Policy.

5. Secular Education:

India is a secular country. It is a nation where spirituality based on religion, had always been given a high esteem. Under the Constitution, minorities, whether based on religion or language, are given full rights to establish educational institutions of their choice. Referring to the constitutional provisions that religious instructions given in institutions under any endowment or Trust, should not be interfered with even if such institutions are helped the State.

Article 25 (1) of the Constitution guarantees all the citizens the right to have freedom of conscience and the right to profess, practice and propagate religion.

Article 28 (1) states, “No religious instruction shall be provided in any educational institution if wholly maintained out of state fund.”

Article 28 (2) states, “Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or Trust which requires that religious instruction shall be imparted to such institution.”

Article 28 (3) states, “No person attending any educational institution by the state or receiving aid out of state funds, shall be required to take part in any religious instruction that may be imported in such institutions or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person a minor, his guardian has given his consent thereto.”

Article 30 states, “The state shall not, in granting aid to educational institution maintained by the State or receiving aid out of State funds, on grounds only of religion, race, caste, language or any of them.”

6. Equality of Opportunity in Educational Institutions:

Article 29(1) states “No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds, on grounds only of religion, race, caste, language or any of them.”

The Fundamental Rights of the Indian Constitution has also adopted the fourfold ideal of justice, Liberty, Equality and Fraternity. Our Constitution laid down that in the eyes of law, everyone should have an equal status, to no one the justice be denied, everyone should have liberty of thought, expression.

The fundamental right of equality clearly signifies that in the eyes of law no distinction can be made on the basis of any position, caste, class or creed. Side by side the right of equality of opportunities to all is also provided. The equality of opportunity is meaningless, unless there are equal opportunities for one’s education.

The well-known Kothari Commission, 1964-66 recommended that Central Government should undertake the responsibility in education for the equalization of educational opportunities with special reference to the reduction of inter-state differences and the advancement of the weaker section of the community.

7. Instruction in Mother -Tongue:

There is diversity of languages in our country. After the dawn of Independence, Mother- Tongues have received special emphasis as medium of instruction and subjects of study. In the Constitution of India, it has been laid down that the study of one’s own language is a fundamental right of the citizens.

Article 26 (1) states, “Any section of the citizens, residing in the territory of India or any part there of, having a distinct language, script or culture of its own, shall have the right to converse the same.”

Article 350 A directs, “It shall he endeavour of every state and every local authority to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups.”

Secondary Education Commission, 1952-53 recommended that the mother tongue or the regional language should generally be the medium of instruction throughout secondary school stage subject to the provision that for linguistic minorities, special facilities should be made available. Kothori Commission, 1964-66 has also said that at college and university stage, mother-tongue should be the medium. The medium of instruction at school level is already mother-tongue. This is not a new proposal.

8. Promotion of Hindi:

The Indian Constitution makes provision for the development and promotion of Hindi as national language. Article 351 enjoins the Union, the duty to promote the spread of the Hindi language.

Hindi accepted as the Official Language of India as laid down by the Constitution in following words:

“It shall be the duty of the Union to promote the spread of the Hindi language, to develop it so that it may serve as a medium of expression of all the elements of the composite culture of India.” In practice, Hindi is already largely in use as a link language for the country. The educational system should contribute to the acceleration of this process in order to facilitate the movement of student and teacher and to strengthen national Unity.

9. Higher Education and Research:

Parliament has the exclusive rights to enact legislation in respect of institutions and Union Agencies mentioned in entries 63, 64, 65, and 66 of List. The entries which give authority to the Government of India in education are mentioned below:

Entry 63 of the Union List:

The institutions known at the commencement of this Constitution as the Banaras Hindu University, the Aligarh Muslim and the Delhi University, and any other institution declared by Parliament by law to be an Institution of National importance.

Entry 66 of the Union List:

Co-ordination and determination of standards in institution for higher education or research and scientific and technical institutions.

10. Women’s Education:

One of the unique features of Modem Indian Education is the tremendous advancement of Women’s Education. Education of the girls is considered to be more important than that of the boys.

The Constitution makes the following provisions under different articles:

Article 15(1) provides that the State shall not discriminate any citizen on groups only of sex.

Article 15 (3) reads: ”Nothing in this article shall prevent the State from making any special provision for women and children.”

The well-known National Policy on Education was concerned about the status and education of women in the country. It envisages that education would be used as a strategy for achieving a basic change in the status of women. It opined that the national system of education must play a positive role in this direction.

The Policy states, “Education will be used as an agent of basic change in the status of women. In order to neutralize the accumulated distortions of the past, there will be a well conceived edge in favour of women.”

11. Education in the Union Territories:

Article 239 of the Constitution states, “Save as otherwise provided by Parliament by Law, every Union Territory shall be administrator by the president acting to such extent as he thinks fit through an administrator to be appointed by him with such designation as he may specify.”

12. Educational and cultural relations with foreign countries:

Entry 13 of the Union List reads. Participation in international conferences, associations and other bodies and implementing decisions made there at.

Related Articles:

• State Policy and Education in India
• Constitutional Provisions Regarding Right to Education in India

Comments are closed.

• Find a Lawyer
• Ask a Lawyer
• Research the Law
• Law Schools
• Laws & Regs
• Newsletters
• Justia Connect
• Pro Membership
• Basic Membership
• Justia Lawyer Directory
• Platinum Placements
• Gold Placements
• Justia Elevate
• Justia Amplify
• PPC Management
• Google Business Profile
• Social Media
• Justia Onward Blog

New York Constitution Article XI - Education

• Section 1 - Common schools
• Section 2 - Regents of the University
• Section 3 - Use of public property or money in aid of denominational schools prohibited; transportation of children authorized

Get free summaries of new opinions delivered to your inbox!

• Bankruptcy Lawyers
• Business Lawyers
• Criminal Lawyers
• Employment Lawyers
• Estate Planning Lawyers
• Family Lawyers
• Personal Injury Lawyers
• Estate Planning
• Personal Injury
• Business Formation
• Business Operations
• Intellectual Property
• International Trade
• Real Estate
• Financial Aid
• Course Outlines
• Law Journals
• US Constitution
• Regulations
• Supreme Court
• Circuit Courts
• District Courts
• Dockets & Filings
• State Constitutions
• State Codes
• State Case Law
• Legal Blogs
• Business Forms
• Product Recalls
• Justia Connect Membership
• Justia Premium Placements
• Justia Elevate (SEO, Websites)
• Justia Amplify (PPC, GBP)
• Testimonials

Now that the 2 Wisconsin referendums passed, what's next and what don't we know about them yet?

Wisconsin voters have approved two statewide referendums that will affect elections in the state. Under the changes, clerks can't use private grants or donations to help them administer elections, and only election officials designated by law will be able to perform tasks to conduct elections.

While a majority of Wisconsin voters voted in favor of the questions Tuesday night , that might not be the end of the story. Opponents think vague language, especially in the second referendum question, may lead to lawsuits. If that happens, a court could determine the scope of who can be involved in performing election-related activities.

Rick Esenberg, president and chief counsel of the conservative Wisconsin Institute for Law & Liberty, said in a statement Wednesday that the firm has " no plans to bring lawsuits and lawsuits will arise only if a private party seeks to fund the administration of elections or perform a government function with respect to them."

WILL has initiated lawsuits around Wisconsin election laws before, including over absentee voting rules and voter registration forms .

The referendums approved Tuesday stemmed from Republicans' scrutiny of "Zuckerbucks," a term used to describe million of dollars in grants funded by Facebook founder Mark Zuckerberg to help clerks run elections during the pandemic.

While the bulk of the money went to the state's five largest cities — they lean Democratic, which Republicans argue drummed up turnout — the grants went to more than 200 communities in Wisconsin, including Republican-leaning ones.

More: Wisconsin's April 2 referendum questions and the 'Zuckerbucks' debate, explained

While no groups have announced plans to test the bounds of the new amendments in court, it's not out of the question.

Here's what we do and don't know about the impact of the amendments and how their effects could play out:

When do the Wisconsin referendum changes take effect, and will they be in place for other 2024 elections?

The ban on using private grants to administer elections, and that only election officials designated by law can perform tasks, take effect almost immediately.

Once the results of the April election are certified by the Wisconsin Elections Commission — which has a May 15 deadline — the new parts of the constitution will be in place, according to the nonpartisan Legislative Reference Bureau.

That means restrictions on private grants will be in effect as clerks prepare for the August primary and November general election, plus any  special or recall elections  that happen before then.

More: What are Wisconsin's 2024 elections, and when are they? Four dates to put on your calendar.

What will happen to new grants that Milwaukee is receiving for voting equipment, education?

While the grants under question were distributed by the Center for Tech and Civic Life to help clerks as the pandemic began in 2020, the City of Milwaukee recently pursued about $1 million in grants from another organization.

The city has received two grants from Cities Forward, a Washington, D.C., nonprofit whose donors haven't yet been released. The organization, which has been tax-exempt just since January, hasn't yet filed documentation with the Internal Revenue Service that shows all of the people involved.

One grant will be used to purchase two high-speed machines known as "tabulators" for counting absentee ballots, 50 ExpressVote machines where voters use a touch screen to mark their ballots, cell phones for staff, security cameras and other equipment. A separate grant would help implement a citywide "civic engagement campaign."

Milwaukee Election Commission Executive Director Claire Woodall confirmed to the Milwaukee Journal Sentinel on Wednesday that the city has received the grants and will have spent them before the April 2 results are certified and the amendments take effect.

Woodall has also said that, while the first grant falls under election administration, the second is "entirely public education."

Private election grants are now banned in Wisconsin, but what about donations from individuals?

One concern brought forward by Democrats is that the language in the first question applies to private donations that individuals could make to clerks' offices, not just larger grants from organizations.

Democratic Sen. Mark Spreitzer of Beloit previously told the Milwaukee Journal Sentinel he spoke with the Legislature's nonpartisan attorneys, who interpreted the language to broadly cover both donations and grants.

"If I wanted to walk in and make a donation to my local clerk, they wouldn't be able to accept that," Spreitzer said.

The State Democracy Research Initiative at the University of Wisconsin-Madison Law School also examined the referendum language and found that Wisconsin didn't lay out some exceptions that other states have.

"Even states that have restricted the use of private funding or resources have often included exceptions for common donations, such as private spaces for use as polling locations or food and beverages for poll workers," staff attorney Emily Lau wrote in an analysis of the referendums.

More: Voters will face two referendum questions regarding outside funding of election administration. How to understand these questions

Could there be a lawsuit over who counts as election officials, and what tasks they can perform?

This is one of the major areas of uncertainty, and one that could attract a lawsuit. The Legislature's nonpartisan attorneys have pointed out that state law already includes what will now be part of the constitution: that only appointed election officials can conduct elections.

But the bigger question is what counts as "conducting" an election. "Any question about what tasks constitute conducting an election, and are therefore limited to election officials, must be resolved by a court," a Legislative Council attorney wrote in an analysis provided to Spreitzer's office.

For example, it's unclear if election-related activities conducted by an organization like the League of Women Voters, which helps register and educate voters, could fall under the change.

Lau, from the State Democracy Research Initiative, wrote that a court could interpret the amendment broadly and exclude people involved with administering elections but aren't sworn in. That could affect private volunteers or vendors who "may be onsite to troubleshoot technological issues or transport voting equipment," for example.

Esenberg said WILL "(does) not believe — and said during the campaign — that the amendments preclude government from using vendors to provide materials and services. Any suggestion to the contrary would be nonsense. What government can’t do is outsource the administration of elections."

On the other hand, a court could find that, because the existing state law and the new amendment are so similar, clerks could still work with outside consultants. At one point, a Dane County Circuit Court determined that nothing in state law prohibited that.

An explanation of the referendums from Democratic Attorney General Josh Kaul also noted that clerks have power under state statutes to designate individuals to carry out election-related tasks. Poll workers take an oath, for example.

"But that power is only statutory, and if the statutes changed, the new constitutional provision would bar clerks from designating individuals to assist with election-related tasks," Kaul wrote.

So, lawmakers have the ability to return and make changes to that part of state law, possibility affecting how clerks designate individuals to help them administer elections.

Alison Dirr contributed to this story.

• Bihar Board

SRM University

Ap inter results.

• AP Board Results 2024
• UP Board Result 2024
• CBSE Board Result 2024
• MP Board Result 2024
• Rajasthan Board Result 2024
• Shiv Khera Special
• Education News
• Web Stories
• Current Affairs
• नए भारत का नया उत्तर प्रदेश
• School & Boards
• College Admission
• Govt Jobs Alert & Prep
• GK & Aptitude
• CBSE Class 9

Democratic Rights Class 9 Notes: CBSE 9th Social Science Chapter 5, Download PDF Here

Cbse class 9 democratic rights notes: check cbse class 9 social science notes for chapter 5- democratic rights. these notes are prepared to help students with quick revision for class tests and annual cbse board exams..

CBSE Class 9 Social Science Democratic Rights Notes

Rights in a democracy .

• Rights are reasonable claims of persons recognised by society and sanctioned by law.
• Rights are necessary for the very sustenance of a democracy. In a democracy every citizen has to have the right to vote and the right to be elected to government.
• Rights also perform a very special role in a democracy. Rights protect minorities from the oppression of the majority. They ensure that the majority cannot do whatever it likes.
• Rights are guarantees which can be used when things go wrong.

Rights in the Indian Constitution 

Right to equality.

• The Constitution says that the government shall not deny to any person in India equality before the law or the equal protection of the laws. It means that the laws apply in the same manner to all, regardless of a person’s status. This is called the rule of law.
• The government shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. 
• Every citizen shall have access to public places like shops, restaurants, hotels,and cinema halls. Similarly, there shall be no restriction with regard to the use of wells, tanks, bathing ghats, roads, playgrounds and places of public resorts maintained by the government or dedicated to the use of the general public.
• All citizens have equality of opportunity in matters relating to employment or appointment to any position in the government. However, Reservations are not a violation of the Right to Equality.
• Under the right to equality, the practice of untouchability has been forbidden in any form. Untouchability here does not only mean refusal to touch people belonging to certain castes. It refers to any belief or social practice which looks down upon people on account of their birth with certain caste labels. Such practice denies them interaction with others or access to public places as equal citizens. So the Constitution made untouchability a punishable offence.

Right to Freedom 

• Freedom means absence of constraints. In practical life it means absence of interference in our affairs by others – be it other individuals or the government. Under the Indian Constitution all citizens have the right to: 
• Freedom of speech and expression
• Assembly in a peaceful manner
• Form associations and unions
• Move freely throughout the country
• Reside in any part of the country,and
• Practice any profession, or to carry on any occupation, trade or business.
• Freedom of speech and expression is one of the essential features of any democracy.However, this freedom should not be used to instigate violence against others. 
• Citizens also have the freedom to hold meetings, processions, rallies and demonstrations on any issue . Citizens can also form association. But such meetings have to be peaceful. They should not lead to public disorder or breach of peace in society. Those who participate in these activities and meetings should not carry weapons with them.
• Citizens have the freedom to travel to any part of the country .They are free to reside and settle in any part of the territory of India.
• The Constitution says that no person can be deprived of his life or personal liberty except according to procedure established by law. It also means that a government or police officer cannot arrest or detain any citizen unless he has proper legal justification. Even when they do, they have to follow some procedures:
• A person who is arrested and detained in custody will have to be informed of the reasons for such arrest and detention.
• A person who is arrested and detained shall be produced before the nearest magistrate within a period of 24 hours of arrest.
• Such a person has the right to consult a lawyer or engage a lawyer for his defence.

Right against Exploitation

• First, the Constitution prohibits ‘traffic in human beings’. Traffic here means selling and buying of human beings. 
• Second, our Constitution also  prohibits forced labour or begar in any form. Begar is a practice where the worker is forced to render service to the ‘master’ free of charge or at a nominal remuneration.
• Finally, the Constitution also prohibits child labour. No one can employ a child below the age of fourteen to work in any factory or mine or in any other hazardous work, such as railways and ports.

Right to Freedom of Religion 

• Every person has a right to profess, practice and propagate the religion he or she believes in. Every religious group or sect is free to manage its religious affairs. 
• A right to propagate one’s religion,however, does not mean that a person has the right to compel another person to convert into his religion by means of force, fraud, inducement or allurement.
• Freedom to practice religion does not mean that a person can do whatever he wants in the name of religion.
• The government cannot compel any person to pay any taxes for the promotion or maintenance of any particular religion or religious institution. There shall be no religious instruction in the government educational institutions. 
• In educational institutions managed by private bodies no person shall be compelled to take part in any religious instruction or to attend any religious worship.

Cultural and Educational Rights 

• Any section of citizens with a distinct language or culture have a right to conserve it. 
• Admission to any educational institution maintained by the government or receiving government aid cannot be denied to any citizen on the ground of religion or language.
• All minorities have the right to establish and administer educational institutions of their choice.

Right to Constitutional Remedies

• The fundamental rights in the Constitution are important because they are enforceable. We have a right to seek the enforcement of fundamental rights. This is called the Right to Constitutional Remedies.
• It is possible that sometimes our rights may be violated by fellow citizens, private bodies or by the government. When any of our rights are violated we can seek remedy through courts. If it is a Fundamental Right we can directly approach the Supreme Court or the High Court of a state
• Fundamental Rights are guaranteed against the actions of the Legislatures, the Executive, and any other authorities instituted by the government. There can be no law or action that violates the Fundamental Rights.
• The Supreme Court and High Courts have the power to issue directions, orders or writs for the enforcement of the Fundamental Rights. They can also award compensation to the victims and punishment to the violators.

Working of Institutions Class 9 Notes: CBSE 9th Social Science Chapter 4, Download PDF Here

Get here latest School , CBSE and Govt Jobs notification in English and Hindi for Sarkari Naukari and Sarkari Result . Download the Jagran Josh Sarkari Naukri App . Check  Board Result 2024  for Class 10 and Class 12 like  CBSE Board Result ,  UP Board Result ,  Bihar Board Result ,  MP Board Result ,  Rajasthan Board Result  and Other States Boards.

• NDA 1 Admit Card 2024
• TSPSC AE Answer Key 2024
• NDA Admit Card 2024
• CTET Correction Window 2024
• NTA NITTT Result 2024
• APPSC Group 2 Result 2024
• CUET PG Answer Key 2024
• TN SET Application Form 2024

Latest Education News

Karnataka SSLC Answer Key 2024 Out at kseeb.karnataka.gov.in; Get KSEAB Class 10th Provisional Key Link, Raise Objections till April 8

TN Board Class 10th Social Science Exam Analysis, Question Paper 2024 with Answer Key: Download PDF

MJPRU Result 2024 Out: रोहिलखंड यूनिवर्सिटी रिजल्ट mjpruiums.in पर जारी, इस Direct Link से चेक करें स्कोरकार्ड

Test Your IQ: Can You Tell Which Pizza Is Bigger In 60 Seconds?

ICG CGEPT Admit Card 2024: Download Indian Coast Guard Exam City Slip at cgept.cdac.in

ICAI CA 2024: Delhi HC Dismisses Plea For Postponement of Inter, Final Exams

JEE Main Analysis 2024 (April 8) Shift 1, 2: Check Subject-Wise Paper Analysis, Difficulty Level, Questions Asked 

JEE Main Session 2 Question Paper 2024 Memory Based: Check Question Paper with Solutions April 8 

JEE Main Session 2 (April 8) Aakash Answer Key 2024: Download Shift 1 and Shift 2 Answer Key FREE PDF

UPSC NDA Admit Card 2024: यूपीएससी एनडीए एडमिट कार्ड upsc.gov.in पर जल्द, इस लिंक से कर सकेंगे डाउनलोड

Find 3 differences between the couple pictures in 10 seconds!

HPSC Veterinary Surgeon Cut Off 2024: Check Expected Cutoff & Minimum Marks

MSDSU Result 2024 Out: महाराजा सुहेल देव स्टेट यूनिवर्सिटी UG, PG रिजल्ट msdsu.ac.in पर जारी, इस Direct Link से करें चेक

ALIMCO Recruitment 2024: Notification Out For 142 Assistant Manager And Other Posts, Check Eligibility

SSC Exam Calendar 2024: JE, CPO, CHSL और फेज 12 के लिए परीक्षाओं की बदली तारीखें, यहां देखें नई डेट

Navratri Colours 2024: Significance and Meaning of 9 Colours During Chaitra Navratri

Black Carbon emissions are a big problem for India. Here's every detail to know

Navratri 2024 in April: Start, End Date, Ghatsthapana Timings & Chaitra Navratri Calendar for 9 Days

CTET 2024 एप्लीकेशन करेक्शन विंडो ओपन, इन डिटेल्स को कर सकते हैं चेंज

2nd PUC Result 2024 Karnataka Date and Time: KSEAB 2nd Pre-University Certificate Results Expected in 3rd Week of April, Check Updates

Mobile Menu Overlay

The White House 1600 Pennsylvania Ave NW Washington, DC 20500

A Proclamation on Transgender Day of Visibility,   2024

On Transgender Day of Visibility, we honor the extraordinary courage and contributions of transgender Americans and reaffirm our Nation’s commitment to forming a more perfect Union — where all people are created equal and treated equally throughout their lives.  

I am proud that my Administration has stood for justice from the start, working to ensure that the LGBTQI+ community can live openly, in safety, with dignity and respect.  I am proud to have appointed transgender leaders to my Administration and to have ended the ban on transgender Americans serving openly in our military.  I am proud to have signed historic Executive Orders that strengthen civil rights protections in housing, employment, health care, education, the justice system, and more.  I am proud to have signed the Respect for Marriage Act into law, ensuring that every American can marry the person they love. 

Transgender Americans are part of the fabric of our Nation.  Whether serving their communities or in the military, raising families or running businesses, they help America thrive.  They deserve, and are entitled to, the same rights and freedoms as every other American, including the most fundamental freedom to be their true selves.  But extremists are proposing hundreds of hateful laws that target and terrify transgender kids and their families — silencing teachers; banning books; and even threatening parents, doctors, and nurses with prison for helping parents get care for their children.  These bills attack our most basic American values:  the freedom to be yourself, the freedom to make your own health care decisions, and even the right to raise your own child.  It is no surprise that the bullying and discrimination that transgender Americans face is worsening our Nation’s mental health crisis, leading half of transgender youth to consider suicide in the past year.  At the same time, an epidemic of violence against transgender women and girls, especially women and girls of color, continues to take too many lives.  Let me be clear:  All of these attacks are un-American and must end.  No one should have to be brave just to be themselves.  

At the same time, my Administration is working to stop the bullying and harassment of transgender children and their families.  The Department of Justice has taken action to push back against extreme and un-American State laws targeting transgender youth and their families and the Department of Justice is partnering with law enforcement and community groups to combat hate and violence.  My Administration is also providing dedicated emergency mental health support through our nationwide suicide and crisis lifeline — any LGBTQI+ young person in need can call “988” and press “3” to speak with a counselor trained to support them.  We are making public services more accessible for transgender Americans, including with more inclusive passports and easier access to Social Security benefits.  There is much more to do.  I continue to call on the Congress to pass the Equality Act, to codify civil rights protections for all LGBTQI+ Americans.

Today, we send a message to all transgender Americans:  You are loved.  You are heard.  You are understood.  You belong.  You are America, and my entire Administration and I have your back.

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim March 31, 2024, as Transgender Day of Visibility.  I call upon all Americans to join us in lifting up the lives and voices of transgender people throughout our Nation and to work toward eliminating violence and discrimination based on gender identity.

     IN WITNESS WHEREOF, I have hereunto set my hand this twenty-ninth day of March, in the year of our Lord two thousand twenty-four, and of the Independence of the United States of America the two hundred and forty-eighth.

                             JOSEPH R. BIDEN JR.

Stay Connected

We'll be in touch with the latest information on how President Biden and his administration are working for the American people, as well as ways you can get involved and help our country build back better.

Opt in to send and receive text messages from President Biden.