Reading Is Fundamental: Why The No Child Left Behind Act Necessitates Recognition Of A Fundamental Right To Education

• Author: Michael Salerno
• Position: Michael Salerno is a graduate of the Benjamin N. Cardozo School of Law
• Pages: 509-542

Page 509

Michael Salerno is a graduate of the Benjamin N. Cardozo School of Law. He would like to thank the entire staff of the CARDOZO PUB. LAW, POL`Y & ETHICS J. for all of their diligent work reviewing this Note. Specifically, he would like to thank Editors-in-Chief Alicia Hayes and J.T. Hutchens, and editors Sharon Samuel and Nathan Kaufman for their guidance. Lastly, Michael would like to thank his Mother, Father and siblings, and his wife Kara for their unending love and support and keeping him sane during this process.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities... . It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. 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.¹

Introduction

For those attempting to reach the law-making halls of Washington, D.C., education² has always been of the utmost importance.³ Americans are constantly bombarded with statistics touting the educational achievements of other nations, the country`s precipitous decline in the Page 510 same area, and the need to correct the trend.<sup>4</sup> Even the Supreme Court has recognized the importance of education to the continued success of American, if not every democratic, society.<sup>5</sup> It should follow that education would be a right afforded the highest protection by the nation`s courts. This, however, is not the case.

There is no fundamental right to education explicitly guaranteed by the United States Constitution. Neither has the Supreme Court recognized an implied fundamental right to education in the Constitution,6 despite its willingness to do so for the rights to travel,⁷ marriage,⁸ and procreation.⁹ When courts raise the issue of whether there is a fundamental right to education, they usually do so in the context of determining whether a state government has improperly funded public schools.10 In such cases, the Court, in refusing to imply a fundamental right to education, has reasoned that it "lack[s] both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues."¹¹ Essentially, since any state legislation that may infringe upon a citizen`s right to education concerns the distribution of state resources, and does not directly "deprive," "infringe," or "interfere" with the right, the Court will not elevate the right to education to Constitutional protection.¹²

Trends in state courts and federal legislative initiatives may force the Supreme Court to revise its stance on this issue. First, it is well established that the states often act as "laboratories" for new and changing legal questions.¹³ If the Court finds that a majority of states are moving in a particular direction, the Court takes this into consideration when facing a similar issue, and will often align its ruling with the Page 511 prevailing state view.¹⁴ Currently, a majority of states recognize a fundamental right to education.¹⁵ How these states characterize the right is discussed in Part III of this Note.

Secondly, as described above,¹⁶ the Supreme Court has been reluctant to intrude upon what it perceives to be the local nature of education. However, for the first time since Brown v. Board of Education of Topeka,¹⁷ despite many previous political promises, the federal government has considerably altered the landscape of national education with the No Child Left Behind Act ("NCLB").¹⁸ Under NCLB, public schools within each state must meet certain annual criteria to receive federal education funding.¹⁹ By creating incentives for states to improve Page 512 their schools, the federal government has become involved in education for the same reason the state governments have: because "education is perhaps the most important function of state and local governments."20 With the creation of NCLB, there is recognition that education may be the most important function of the federal government as well.

The intention of this Note is to persuade the federal government, and more specifically the Supreme Court, to recognize a federal fundamental right to education. Part I will discuss fundamental rights and why education should be recognized as one of them. This will set the framework for a criticism, in Part II, of the holdings in San Antonio Independent School District v. Rodriguez²¹ and Plyler v. Doe,²² which refused to find a fundamental right to education. Part III will consider the status of education in the states and how their governments (legislatures and judiciaries) have written and interpreted their own constitutions regarding education. Specifically, in Part III.B.3, this Note will examine how the courts have interpreted similar education provisions in state constitutions to create different obligations for those states regarding education. Finally, Part IV will discuss NCLB and the responsibilities that should be placed on the federal government due to its unprecedented foray into national education.

I Finding Fundamental Rights In The Constitution

A What Qualifies as a "Fundamental Right"?

The Constitution was written as a grant of power to the newly founded federal government.²³ Its construction, therefore, concerned the rights given to the branches of government, not the citizenry rights that would be protected by the federal government.²⁴ It is only through the Amendments to the Constitution that the people`s rights were Page 513 recognized, and, moreover, through the Due Process Clause of the Fourteenth Amendment²⁵ that fundamental rights have been implied.²⁶

Fundamental rights are those "rights contemplated by the federal Constitution [in the Due Process Clause of the Fourteenth Amendment] ¥implicit in the concept of ordered liberty.`"²⁷ The determination as to which rights qualify for "fundamental" status is a determination of the courts, as arbiters of the Constitution.²⁸ Those rights expressly delineated by the Constitution, such as the Bill of Rights, are per se fundamental.²⁹ The Court, however, has held that rights not specifically delineated by the Constitution are "implicit in the concept of ordered liberty"³⁰ as well.

For example, in Loving v. Virginia,³¹ the Court held that the statute criminalizing the Lovings` interracial marriage violated their personal liberty, as guaranteed them by the Due Process Clause. The liberty to marry was defined as a "vital personal right essential to the orderly pursuit of happiness by free men."<sup>32</sup> To infringe upon this right was to infringe upon "one of the ¥basic civil rights of man,` fundamental to our very existence and survival."³³ Therefore, when any right satisfies these criteria (i.e., it is essential to the pursuit of happiness or is fundamental to existence and survival), it will be protected as a fundamental right implied by the Constitution.

B Education is a Fundamental Right

When determining what qualifies as a "vital personal right," the Court considers a historical view of what has traditionally been valued by American society, how those values have changed, and where they Page 514 currently stand.³⁴ Although education was not directly addressed by the Constitution, and perhaps was purposefully omitted from it,³⁵ its importance was not lost on the Founders. In a letter from Thomas Jefferson to George Washington, Jefferson stated, "[e]stablish the law for educating the common people. This it is the business of the state to effect and on a general plan."³⁶ Additionally, in the Ordinance of 1787, one of the Founders` first actions in Congress was to declare that "knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."³⁷ Although public education in the form it is known today was not undertaken by the states until the 1830s,³⁸ this is evidence that education was an American concern from the inception of the nation.

At the turn of the twentieth century, the Supreme Court began to recognize the importance of education in cases like Meyer v. Nebraska39 and Brown v. Board of Education.⁴⁰ More recently, the federal government has recognized the significant role of education in dictating our global economic status. One such instance occurred in 1990 when President George H.W. Bush initiated the America 2000 Plan.⁴¹ The plan Page 515 detailed six education goals to be reached by the year 2000: 1) all children will enter school ready to learn; 2) ninety percent of students will remain...