Numerous state supreme courts have been asked to examine the extent to which their state constitutions guarantee a "fundamental right" to minimal standards of free public education in wake of the United States Supreme Court's decision in San Antonio Independent School District v. Rodriguez.(1) Many plaintiffs in these cases have based their claims upon the education articles of their state constitutions, whereas others have rooted their claims in state and federal constitutional equal protection and due process doctrines.(2) The Mississippi Supreme Court found a fundamental right to minimal standards of education within the due process guarantees of the Mississippi Constitution(3) in Clinton Municipal Separate School District v. Byrd.(4) This Article critically examines the Rodriguez approach to identifying implicit fundamental rights in the federal arena.(5) Thereafter, the Article discusses the Mississippi Supreme Court's past attempt to deal with the right to an education under the Mississippi Constitution in light of Rodriguez, and the resultant responsibility placed upon state government to fulfill that duty.(6)
THE RODRIGUEZ APPROACH UNDER THE FEDERAL CONSTITUTION
The Framers of the United States Constitution were well-steeped in classic thought regarding the "natural" rights of man.(7) Over time, these theoretical natural rights have evolved into the broad concept of certain constitutionally protected "fundamental" rights. Unfortunately, a perusal of learned treatises, judicial opinions, and scholarly writings does not reveal a comprehensive and exhaustive list of these rights, nor are they to be found exclusively within the United States Constitution.(8) Such rights are so uniquely personal that they may not be granted nor unlawfully impinged by governmental action.(9)
In Rodriguez, the United States Supreme Court definitively stated that fundamental rights worthy of governmental protection are either explicitly or implicitly contained within the United States Constitution.(10) This premise led to the conclusion that the Federal Constitution guaranteed no fundamental right to an education.(11) The Court's conclusion prompted Justice Marshall, an old-time judicial' activist,(12) to rhetorically inquire "where the Constitution guarantees the right to procreate, or the right to vote in state elections, or the right to an appeal from a criminal conviction."(13) The answer is clearly that it does not. However, the recognition of rights of expression or participation in political process as fundamental "does not necessarily translate into an affirmative governmental obligation to enrich each individual's personal capacity or ability to exercise these rights."(14)
Most of the fundamental rights guaranteed by the United States Constitution are not gifts created by that document. Rather, these inherent rights stem from judicial recognition of the basic natural rights of man. The Rodriguez Court correctly recognized that these implicit rights are properly limited to the freedom to pursue human activity without improper governmental invasion of mind, body, or soul.(15) As a right to free education requires positive governmental action, rather than prohibits governmental interference, it therefore is not implicitly guaranteed by federal law.
APPLYING THE RODRIGUEZ TEST UNDER THE MISSISSIPPI CONSTITUTION
The Rodriguez Court held that education was not one of the rights explicitly or implicitly guaranteed by the Federal Constitution, and therefore was not entitled to the status of a fundamental right.(16) If we apply the Rodriguez analysis to Mississippi constitutional law, the inevitable conclusion is that the right to a free public education is a fundamental right in Mississippi since it is now explicitly guaranteed within the Mississippi Constitution.(17) The Rodriguez test is, however, not entirely workable under Mississippi's constitutional framework.
The United States Constitution is a document of restricted authority and delegated powers.(18) The Mississippi Constitution, though, not only addresses areas deemed fundamental, but also addresses other areas which could have been left to statutory enactment. It logically follows, therefore, that fundamental state rights are not necessarily determined by what is provided in our constitution.(19) Although some matters found within our state constitution are reflections of our fundamental rights as Mississippians, others simply are not fundamental rights of our citizens.(20)
THE CONSTITUTIONAL RIGHT TO AN EDUCATION AS RECOGNIZED IN THE BYRD DECISION
The Mississippi Constitution of 1890 imposed upon the legislature a "`duty... to encourage by all suitable means, the promotion of intellectual, scientific, moral and agricultural improvement, by establishing a uniform system of free public schools.., for all children between the ages of five and twenty-one years."'(21) This constitutional commitment to education explicitly remained throughout the late nineteenth and early twentieth centuries despite the largely rural and agrarian society's belief that only minimal formal education was necessary.(22)
Mississippi's Education Clause was unfortunately modified in a 1960 legislative attempt to circumvent the mandate of Brown v. Board of Education.(23) The Mississippi Constitution was amended by language removing the "duty" of establishing free public schools, making free education a discretionary function of the legislature.(24) Clinton Municipal Separate School District v. Byrd(25) was decided under this state of constitutional ambiguity.
In Byrd, two high school students were suspended for defacing school property.(26) The students appealed their suspension to the chancery court, praying that the court permanently enjoin the school board from enforcing the punishment.(27) The chancery...