The Fundamental Right to Education
In my last article, The Constitutional Compromise to Guarantee Education, I examined the period immediately leading up to and following the Fourteenth Amendment and found that the ratification of the 14th Amendment and southern state's education clauses in the constitutions were inextricably intertwined. Quite simply, rewriting their constitutions and providing for public education was a condition of readmission to the Union, as was the ratification of the 14th Amendment. In other words, without constitutional guarantees of education, southern states never reenter the Union. And without southern votes for the 14th Amendment, the amendment never becomes part of the constitution. Thus, I argue that one cannot understand the rights of state citizenship that the 14th Amendment secured, nor the meaning of a republican form of government, without examining those state constitutions.
Our legal lexicon, at least as far as I know it, does not have a word to capture what occurred. For lack of a better term, I call these events a constitutional compromise. None of the major constitutional exercises of power, nor the constitutional revisions that emerge, would have occurred without the others. My conclusion is that, whatever we call it, the federal constitution did, as a matter of fact, guarantee access to public education. The article then moves on to the arguably tougher question of figuring out what, if any limits, the constitutional compromise places on states in their delivery of education.
After finishing that research and having time to further reflect on it, I began to question how exactly a modern court would deal with this history. There is no constitutional compromise doctrine, no republic form of government standard, no development of the rights of state citizenship. So I began to dig further and came upon yet additional problems and concerns. The foremost is that those who enacted the 14th Amendment thought about rights far differently than us. Their thoughts on how best to protect those rights was also far different. The main effect and purpose of the 14th Amendment was not to grant courts authority, but to give Congress authority. With the 14th Amendment, Congress's prior civil rights legislation would be on strong footing and Congress could pass far more. In short, the primary protection for life, liberty, property, due process, equal protection, and Continue reading: Education Law Prof Blog
