Judge Fuchsberg's Levittown dissent: the evolving right to an adequate education.

• Author: Hershkoff, Helen
• Position: Perspectives: Notable Dissents in State Constitutional Cases

The hope that all children in New York will one day enjoy the benefits of an adequate education rests in no small part on Judge Jacob D. Fuchsberg's lone dissent in Board of Education, Levittown Union Free School District v. Nyquist. (1) Levittown upheld New York's system of public school financing against challenges that it violated the state education clause and state and federal equal protection. (2) The decision left intact an educational system that each year produced "thousands of high school children" in city school districts who performed below their grade level in math and reading, with some who were "totally illiterate" and others who could "read the words [but] without accompanying comprehension." (3) Dissenting, Judge Fuchsberg exhorted that "poor children, no less than rich, and the Nation of which both are a part, are entitled to an education that prepares today's students to face the world of today and tomorrow." (4) Criticized by the majority for proposing a "result-oriented resolution," (5) Judge Fuchsberg can now be appreciated for having offered a dissent in its classic form--"an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed." (6)

Writing in 1982, during the evolving "new judicial federalism," (7) Judge Fuchsberg voiced an independent approach to state constitutional interpretation, refusing to treat the state education clause as "mere 'statutory articulation'" (8) or to apply federal rationality review to state equal protection claims. (9) The majority recognized that the state education clause requires the provision of "a sound basic education." (10) But the court, nevertheless, reflected an ambivalence toward the idea of education as a constitutional right, insisting that its "inclusion ... is not to be accorded the same significance" as a federal enumerated right "for purposes of equal protection analysis." (11) Judge Fuchsberg, by contrast, offered a robust and independent approach to state positive rights, which he justified by an implicit theory of federalism--stating that "primary concern for education was to be that of the States rather than of the Union" (12)--and in "the pluralistic political process of which the Tenth Amendment speaks." (13) Emphasizing, moreover, the interconnection between a right to education and conventional civil rights, (14) Judge...