AuthorBlack, Derek W.

INTRODUCTION 1060 I. THE BARRIERS TO A RIGHT TO EDUCATION 1070 II. EDUCATION AS A FUNDAMENTAL RIGHT UNDER SUBSTANTIVE DUE 1076 PROCESS A. The Court's Historical Roadmap for Fundamental Rights and 1079 B. Pre--Fourteenth Amendment History: Founders, Education, 1081 the Demands of Self-Rule C. Transitioning from Theory to Reality: The Fourteenth 1085 Amendment Era 1. Recognition of Education Deprivations Prior to the 1085 Fourteenth Amendment 2. Legislation to Address Education Deprivations 1086 Prior to the Fourteenth Amendment 3. The Fourteenth Amendment 1088 4. State Practices and Ratifications of the Fourteenth 1090 Amendment III. QUALITATIVE DEMAND 1095 A. The Framers' and Ratifiers' Intent 1097 1. Preparing Individuals for Citizenship in a Republican 1097 Form of Government 2. The Reciprocal Relationship Between the "Qualified 1099 Voter" and His Right to Education B. A Common Understanding of Educated Citizenship 1102 1. Print-Based Self-Government 1102 2. Opinion Formation and Government 1105 3. A Constitution-Making Era 1107 4. A Substantive Standard for a Citizen's Education 1108 CONCLUSION 1112 INTRODUCTION

On most major measures, educational inequality is holding steady or on the rise. Achievement, segregation, and funding data all indicate that poor and minority students are receiving vastly unequal educational opportunities. (1) For instance, predominantly minority schools receive about $2000 less per student than predominantly white schools. (2) Even putting aside this inequality, overall government commitment to public education is receding. Since 2008, most states have substantially decreased school funding, some by more than ten percent. (3) The federal government has done little to stem the decline. Not since 2002 has the federal government made any substantial new investment in education. (4) Most disturbing, some states are currently taking steps to amend their state constitutions to weaken support and protection for public schools. (5) Parents increasingly doubt that the public education system can weather these challenges and are exiting the system altogether. (6) In short, public education stands in the midst of practical and constitutional crises.

These crises call for a single solution: a federal fundamental right to education. Yet, for the past half century, that right has proven elusive. (7) In 1973, the Supreme Court in San Antonio Independent School District v. Rodriguez explicitly rejected education as a fundamental right and has since refused to reconsider the issue. (8) The Court's most encouraging language merely hints that it is open to recognizing some narrow interest in a minimally adequate education. (9) Yet after four decades, the Court has failed to recognize any such interest or right.

Recently, litigants in three different states returned to federal court in the hope that the Court would finally translate its general commitment to education into a doctrinal right. (10) These lawsuits, however, face the same unresolved challenge as those that have preceded them: they need a compelling theory for why the Federal Constitution would protect education. To begin with, the word "education" does not appear in the Constitution. Moreover, its importance in modern society is far from enough for the Court to recognize an implied right. (11) Although scholars have written extensively on the subject, they have done little to close this gap.

Most scholarly theories lack a strong doctrinal argument, operating instead on the questionable premise that evolving educational norms and policy-based arguments are enough to prompt the Court to overturn Rodriguez. (12) The strongest theories suffer from the opposite problem. They require the Court to rewrite basic doctrine that would reach well beyond education. (13) And all those that rely on substantive due process shy away from a strict originalist approach, presumably because conventional wisdom has suggested that there is no originalist argument to be made for education. (14) To the extent scholars engage history, they rely primarily on practices and educational necessities that arose subsequent to the Fourteenth Amendment. (15) In other words, most commentators have argued that education has developed into a fundamental right, without addressing whether education would have been originally considered a fundamental right at the time of the Fourteenth Amendment.

This Article is the first to offer an originalist argument for a fundamental right to education that falls squarely within the Court's existing precedent. The Court need not reverse its privileges and immunities precedent, change its equal protection scrutiny, develop a theory of the Citizenship Clause, or develop modern qualitative standards for assessing differences in educational opportunity. (16) Instead, the Court need only apply its well-established standard for recognizing fundamental rights: the right must be " 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed.'" (17)

Although the Court's fundamental rights analysis remains unchanged, new historical evidence and insights reveal that, contrary to conventional wisdom, education was originally understood as a fundamental right. Relying on new evidence and insights, this Article demonstrates that, from the United States' founding principles to the final ratification of the Fourteenth Amendment itself, education has always been understood as a fundamental right. (18) In particular, Congress directly linked the ratification of the Fourteenth Amendment to Southern states' readmission to the Union, as well as to new commitments in their state constitutions to provide education. Furthermore, evidence establishes that the Founders held firm beliefs about the necessity of an educated citizenry in a republican form of government, (19) which is also manifest in the distinct educational practices in the United States as compared with other countries. (20) Unsurprisingly, then, when Congress reframed the state-federal relationship through the Fourteenth Amendment, Congress acted decisively on those beliefs, demanding education from every state in the nation. (21) In fact, no state would ever again enter the Union without an education clause in its constitution.

In a prior Article, I detail the three-year period surrounding the ratification of the Fourteenth Amendment and the procedural implications of those events. (22) Although that three-year period is critically relevant under Supreme Court precedent, the Court's historical inquiries would go beyond that period. This Article provides answers to those additional inquiries, examining a broader historical period (from the colonial period through the end of Reconstruction) and its substantive implications for a fundamental right to education.

The Court's recent decisions that recognize a fundament right to bear arms offer a detailed roadmap for this historical analysis. In McDonald v. City of Chicago, (23) the Court methodically examined the historical evidence necessary to recognize a new fundamental right under substantive due process. In this methodical examination, the Court made five categorical inquiries. The five inquiries covered the common-law history of the right well prior to, at the passage of, and decades following the Fourteenth Amendment. (24) Importantly, the inquiries were not intended to identify specific steps that would technically incorporate the right within the text of the Fourteenth Amendment. Rather, the purpose of the Court's five inquiries in McDonald was to determine whether those who framed and ratified the Fourteenth Amendment would have generally understood the right to be a fundamental one. (25)

A McDonald-style analysis in the context of education resoundingly indicates education's similarly fundamental nature. The first inquiry in McDonald is whether the right has historical roots that stretch back to the founding of our nation and societies that preceded it. (26) While other societies lacked a commitment to public education, (27) the Framers' view of education was entirely consistent with its future recognition as a fundamental right in the United States. (28) At its founding, the United States represented a democratic experiment distinct from those societies that preceded it. (29) Whereas most other societies would have had little reason to treat education as a right, the United States was premised on a citizenry that could engage in intelligent self-rule. (30) Consistent with this premise, the Framers aspired to a more educated and literate citizenry. (31)

The second inquiry is whether Congress and the states may have taken practical steps to protect the right following the framing of the U.S. Constitution. (32) Contemporaneous with and immediately following the framing, Congress and the states took several concerted steps to expand access to education. Congress devoted land and money toward the expansion of education. (33) Several states adopted constitutional clauses recognizing the crucial role education plays in a republican form of government. (34) Acting on these commitments, public education rapidly grew. By the mid-1800s, the only country in the world with more access to education was Prussia. (35)

The third inquiry is whether any "threat" to the right existed prior to the Fourteenth Amendment and whether Congress took any steps to address the deprivation. (36) The historical record on education is particularly persuasive on this point. In the pre--Fourteenth Amendment era, Congress came to view those states with weak education systems as infringing on their citizens' rights and impeding democracy itself. (37) Southern states, in particular, had made the education of African Americans a crime, and only afforded poor whites limited access to school. (38) This led to high illiteracy and low voter turnout...

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