A STATUTORY SOLUTION TO A CONSTITUTIONAL PROBLEM.

• Author: Grigsby, Kevin

INTRODUCTION

A fundamental right to education has long been recognized in constitutions around the world. (1) In South Africa, the right to education is outlined in the founding provisions of the constitution which specifically acknowledge "the need to redress the results of past racially discriminatory laws and practices" as a reason for this right. (2) The Supreme Court of the United States has analyzed the right to education in this country on various occasions, yet the Court has consistently avoided rendering a definitive decision articulating whether a positive right to education is guaranteed by the Constitution itself. (3)

Although in 1954 Brown v. Board of Education unequivocally established that "in the field of public education, the doctrine of 'separate but equal' has no place[,]" (4) a uniform quality of education throughout the United States has proven to be far from reality. With the passing of the Civil Rights Act of 1964 came the mandate that the Commissioner of Education "conduct a survey and make a report... concerning the lack of availability of equal educational opportunities for individuals by reason of race..." (5) The "Coleman Report," as it came to be known, found that at the time, math and reading scores of the average black twelfth grade student ranked in the thirteenth percentile of scores. (6) With more than eighty-seven percent of their twelfth grade peers testing higher than black students, (7) the lack of equal educational opportunities was evident. Nearly a half-century later according to data from the 2013 National Assessment for Educational Progress, the gap remains present. In 2013, the average black student was at the twenty-second percentile in reading. (8) This lack of progress in educational equality has unsurprisingly had wide-ranging effects. In 2009, the median family income in the United States was $38,409 for blacks, but $62,545 for whites. (9)

Lacking a constitutional guarantee to education, let alone the guarantee of a quality education, black and other minority families continue to face an uphill battle as a result of inequality in education. (10) As ordered by the Brown Court, where the racial desegregation of public schools was concerned, states were required to act "with all deliberate speed." (11) Although the Brown Court deemed the principle of separate but equal to be unconstitutional as it applied to public education in 1954, more than three decades later, schools continued to operate under court-ordered desegregation plans while progressing with the mandated "deliberate speed." (12) Absent existing precedent to constitutionalize a fundamental right to education, statutory law could immediately begin to level the playing field for minority students and attempt to redress the results of the United States' own discriminatory laws and practices of the past, specifically in the field of public education.

PROPOSAL

Under the Individuals with Disabilities Education Act ("IDEA") the federal government of the United States mandated that "all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs..." (14) With the guarantee of a Free Appropriate Public Education ("FAPE") for students with recognized disabilities comes the legally enforceable requirement that all Local Education Agencies ("LEAs") provide an Individual Education Program ("IEP") that is reasonably calculated to ensure the student's success. (15) Procedures outlined in the IDEA provide parents and students with an array of tools ranging from compulsory mediations to appeals of administrative determinations. (16) These tools allow parents and students to hold schools accountable when educational needs go unmet.

The case of Endrew F, a decision rendered by the Supreme Court in 2017, illustrates the force that the IDEA can carry. (17) Believing that his academic and functional progress had stalled, upon receipt of Endrew's fifth grade IEP, which closely resembled his IEP from fourth grade, Endrew's parents removed him from his LEA. (18) Following his removal, Endrew's parents subsequently enrolled him in a private school. (19) After further deciding that the LEA's modified fifth grade IEP remained inadequate, Endrew's parents sought reimbursement for his private school tuition from the LEA as permitted by the IDEA. (20) When their claim was denied by the Colorado Department of Education, Endrew's parents appealed to a federal district court, the Tenth Circuit Court of Appeals, and finally to the United States Supreme Court. (21) In delivering its opinion, the Supreme Court reiterated that under the IDEA, "for most children, a FAPE will involve integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade." (22)

While the practical impact of the Supreme Court's pronouncement is yet to be determined, Endrew F. goes to show that the IDEA should not be underestimated. Imagine if minority students at failing schools throughout the country possessed a statutory right to a free and appropriate public education under the IDEA, and they were provided their day in federal court upon each violation of that right. At some point or another, the systematic failure and continuous litigation that could result would become more costly than the alternative option; providing an adequate education to all students enrolled in public schools on an equal basis.

Based on history alone, recognizing the improbability of either a constitutional amendment or a Supreme Court decision acknowledging a positive fundamental right to education, the IDEA could provide a necessary solution. As a creature of the legislative process, the IDEA can be altered as readily as it was enacted. By adding "poverty" as a qualifying disability under the IDEA in order to "redress the results of... racially discriminatory laws and practices" (23) that have plagued the United States for centuries, the federal government could align itself more closely with the nations that already provide a constitutional right to education for all students.

Studies have found that over "60 percent of African American and Latino students attend schools where the majority of students in the school are poor." (24) Further, in the country's most impoverished schools, more than "80 percent of students are African American and Latino." (25) Adding "poverty" to the list of qualifying disabilities would allow for a greater level of educational equality throughout the nation and could aid in substantially shrinking the achievement gap that has lingered in public education for far too long.

This note will first examine the history of the right to education in the United States and the Supreme Court's hesitation to recognize a positive fundamental right in comparison to South Africa's unambiguous constitutional recognition. Part II will discuss the IDEA and its present applicability to students with qualifying disabilities. Finally, Part III will examine the achievement gap and explore the potential impact that IDEA procedural protections could have on students in underprivileged communities attending underperforming schools.

1. HISTORY

   1. United States: The American Way

      The United States, through legislative enactment or judicial interpretation, has never recognized a positive fundamental right to education. (26) Absent constitutional or statutory law acknowledging federal authority over public education, the would-be federal power is "reserved to the states respectively" through the operation of the Tenth Amendment. (27) By ceding authority over public education to the individual states, the federal government facilitated the creation of fifty individual educational jurisdictions, which has made a uniform standard that could ensure equality in education nearly impossible to accomplish.

      Although the Supreme Court has never recognized a positive right to education, it has recognized a negative right on various occasions. A negative right is one that, although not expressly granted, is unable to be infringed upon or interfered with. (28) The Supreme Court recognized a negative right to education in Meyer v. Nebraska. (29) In Meyer, a state law forbidding the instruction of students in foreign languages prior to a certain age was declared unconstitutional because it interfered

      with the right of students "to acquire useful knowledge..." (30) The Court recognized Nebraska's authority to regulate education; nevertheless, it also noted that such authority was not unrestricted. (31)

      Two years after Meyer, the Supreme Court again recognized a negative right to education. In Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, officials from private primary schools sought injunctive relief from an Oregon statute that made public education for children between the ages of eight and sixteen years old a requirement. (32) The Supreme Court began its opinion by again noting the authority of the state to regulate within the field of public education. (33) Nonetheless, in affirming Meyer the Supreme Court found the Oregon statute to "unreasonably interfere[] with the liberty of parents and guardians" as the state had no right to "standardize its children..." (34)

      In contrast to the negative right to education outlined in Meyer and Pierce, as noted above, the Supreme Court has never recognized a positive right. A positive right to education would do much more than proscribe states from infringing upon the liberty interests of students and parents. Such a right would require state governments to ensure that a certain quality of education was being provided. (35) In Brown v. Board of Education, the Court indicated support for a positive right to education; however, whether that right existed was not essential to the disposition of the case and consequently, was not decided. (36)

   2. Judicial...