Resolving the dissonance of Rodriguez and the right to education: international human rights instruments as a source of repose for the United States.

• Author: Holland, Angela Avis

ABSTRACT

Education exists as a fundamental right recognized by countries worldwide. Overwhelming support for the right to education is reflected in international human rights instruments, including the International Convention on Economic, Social, and Cultural Rights and the Convention on the Rights of the Child. Notwithstanding a near global consensus on this issue, the United States has refused to recognize a federal right to education since the 1973 Supreme Court decision San Antonio Independent School District v. Rodriguez. The ill-effects of Rodriguez linger today; glaring disparities continue to mar the educational prospects of women, minorities, and poor children in the United States. In this Note, the Author emphasizes the critical importance of a right to education for all people. The Author explains the purpose and function of education, presents a brief history of educational inequity in the United States, and summarizes the international human rights instruments that recognize the right to education. The Author also analyzes the Rodriguez decision and identifies the presence of a national consensus within the United States regarding the right to education. Ultimately, the Author argues that there is an international consensus recognizing the right to education. Accordingly, the Author suggests the following: (1) the United States should reconsider its treatment of the right to education by using the analytical framework employed by the Supreme Court in Roper v. Simmons; (2) recognition of a federal right to education falls directly in line with recent governmental efforts to "federalize" education; and (3) recognition of the right to education would help the United States maintain its status as a global leader.

TABLE OF CONTENTS I. INTRODUCTION II. THE ESSENTIALITY OF EDUCATION A. Discerning the Meaning, Purpose, and Function of Education B. Select Theories on the Importance of Education 1. The Empowerment Model 2. The Citizenship Model 3. The Multicultural Democracy Model 4. The Economic Benefits Model C. Exclusion and Marginalization: The Legacy of "Miseducation" in the United States 1. Gender 2. Race 3. Class III. INTERNATIONAL RECOGNITION OF THE RIGHT TO EDUCATION A. The Right as Reflected in Major International Human Rights Instruments 1. The Universal Declaration of Human Rights 2. The International Covenant on Economic, Social, and Cultural Rights 3. The Convention on the Rights of the Child 4. The International Convention on the Elimination of All Forms of Racial Discrimination B. Ratification, Reservations, and the United States' Reluctance C. The Force of the International Community and Customary International Law IV. RODRIGUEZ: THE UNITED STATES' FAILURE TO RECOGNIZE THE RIGHT TO EDUCATION A. The Majority Opinion: Education Is Not a Fundamental Right B. Marshall's Dissent: All Children Deserve the Right to an Equal Start C. Dissatisfaction with Educational Disparities Gives Rise to a "National Consensus" V. STRIKING THE RIGHT CHORD WITH INTERNATIONAL HUMAN RIGHTS INSTRUMENTS A. Revising the Melody: Lessons from the Judicial Recognition of "International Consensus" in Roper v. Simmons B. Harmonizing with the Legislature: Acknowledging the "Federalization" of Education C. Learning to Blend: Accountability and Cooperation for Effective Leadership Abroad VI. CONCLUSION I. INTRODUCTION

Where, after all, do universal human rights begin? In small places, close to home--so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person: the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.

--Eleanor Roosevelt (1)

Education rests at the core of success and progress for children worldwide. By providing access to information and creating a gateway to opportunity, education permits the full and complete development of young minds. (2) Even more, it is meant to serve as "the great equalizer" within and among nations. (3) This is especially profound in light of the historical misuse of education as a device for separation and oppression. (4) For generations, "well-educated" members of society have reaped the benefits of enhanced knowledge and advanced skills, while the "undereducated" and "uneducated" have suffered financially and politically. (5) Today, select groups continue to enjoy the simultaneous acquisition of financial and political power to the exclusion of others, due, in large part, to disparate educational opportunities. (6)

The legacy of education in the United States consists of the outright denial of educational opportunity for women and blacks during antebellum slavery, the perpetuation of inequality via segregated schooling during the Jim Crow era, and the continued provision of disproportionate education for minorities and poor students in under-funded school districts. (7) Notwithstanding its turbulent past, the United States, like most countries, acknowledges the critical importance of education for all citizens. (8) The landmark Brown decision served as judicial confirmation of this notion, hailing education as vital to the promotion of democratic ideals, essential to the exercise of constitutional guarantees, and critical to the creation and maintenance of a harmonious society. (9) Educators and scholars from a range of professional disciplines espouse various theories that further elucidate the integral nature of education. (10) Moreover, the international community heralds the importance of education for all. (11) Yet, the United States exists as one of two countries that have persistently declined to outwardly recognize a federal "right to education." (12)

The United States' first open refusal to recognize a fundamental right to education surfaced within the Supreme Court decision San Antonio Independent School District v. Rodriguez. (13) Specifically, the Court held that "[e]ducation ... is not among the rights afforded explicit protection under our Federal Constitution." (14) From a strict textualist perspective, the Court was correct in its assertion. However, the Court also refused to "find any basis for saying [education] is implicitly so protected." (15) It is this refusal that represents the critical error of Rodriguez, and it is this error that requires a significant remedial response to ensure that all children are afforded equal educational opportunities.

The profoundly negative implications of Rodriguez linger, and its fruits continue to pervade American society today. (16) The United States' failure to recognize education as a fundamental right has caused a host of unwieldy ramifications including, the prolonged provision of substandard education for racial minorities and the urban poor. (17) This failure also has hampered the United States' ability to function as a democratic society--one in which citizens can fully exercise fundamental rights and liberties. (18) Furthermore, it has reduced the influence of the United States as a global leader, and as a byproduct, has contributed to the decline of America's image as an ultimate sovereign state. (19) Stated more aptly, failure to recognize such a right has placed the United States "out of step with the rest of the world." (20)

This Note will demonstrate the critical importance of a clear and open recognition of education as a fundamental right by the United States. Part II explains the meaning, purpose, and functions of education; articulates select theories that illustrate the critical importance of education for all; and briefly recounts the history of education in the United States. Part III details the overwhelming global recognition of the right to education as reflected in major international treaties and human rights instruments. Part IV outlines the United States' failure to recognize a federal right to education by examining the Rodriguez decision. It also describes the resultant nationwide discrepancy in education and sheds light on the emergent national consensus regarding the right to education. Finally, Part V encourages decision-makers to examine the current crisis in American public education through an international lens. It proposes judicial reexamination of Rodriguez in light of the prevailing international consensus supporting the right to education and based upon the recent trends reflected in Roper v. Simmons. (21) Specifically, this section recommends that the Court employ the analytical framework provided by Roper in order to recognize education as a fundamental right. (22) This section also articulates the need for uniformity with respect to legislative efforts to "federalize" education. Furthermore, it advocates congressional ratification of both the International Covenant on Economic, Social, and Cultural Rights as well as the Convention on the Rights of the Child. Ultimately, this Note urges the United States to join the rest of the international community by recognizing a federal right to education.

2. THE ESSENTIALITY OF EDUCATION

   1. Discerning the Meaning, Purpose, and Function of Education

      Education is the act or process whereby individuals develop innate capacities, obtain knowledge or training in a particular area, and access information to achieve a level of understanding. (23) The educational process is also designed to stimulate mental and moral growth and the refinement of character. (24) Although the right to education affects people of all ages, Lawrence LeBlanc has stated that,

      [f]or all practical purposes, to speak of a right to education is to speak of a right of the child. Adults too may be said to have a right to education, since...