A new push by President Barack Obama may bring attention back an old debate about the lack of a national constitutional right to have an education.plan to make colleges more accountable and affordable.
The two-day bus campus bus tour features the President speaking about tying funds for colleges to performance, according to a fact sheet released by the White House on Thursday. The tour started Thursday morning in Buffalo, New York.
The plan is based on rating colleges and universities on measures such as tuition, rate of graduation, earnings and the debt level of graduates, and linking those ratings to financial aid.
The challenge of gaining bipartisan support in Congress for the plan reflects a legal reality that doesn’t come up often in national discussion about education these days: The Constitution doesn’t mention education and the Supreme Court has concluded that education is not a fundamental right under it.
The Supreme Court resolved this issue 40 years ago in a case about the means of financing the public elementary and secondary schools in San Antonio, Texas, called San Antonio Independent School District v. Rodriguez (1973).
By a 5-4 decision, with Justice Lewis Powell writing for the majority, the court found that “the Texas system does not operate to the peculiar disadvantage of any suspect class” and that education “is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.”
In dissent, Justice Thurgood Marshall warned that “the majority’s holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens. The Court does this despite the absence of any substantial justification for a scheme which arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable wealth within each district.”
The San Antonio ruling shifted the emphasis in education litigation to state courts, since a majority of state constitutions guarantee a right to education.
In contemporary times, revisions to those guarantees have transformed some into specific and sophisticated ones. But Justice Marshall’s dissent proved prescient.
Whenever a president presents a major reform in education, like the Obama plan for a change in financial aid, the effort is clearly handicapped by education being treated as a political matter—and not as a matter of right guaranteed by the Constitution.
And the state-level right to education battle has taken some odds turns that touch on constitutional issues from the 1950s and the battle for civil rights.
In the state of Alabama, for instance, there is still language requiring separate schools for black and white students in that state’s constitution. (The 1950s Supreme Court rulings nullify that language in practice.)
A referendum to delete the Jim Crow-era language from Alabama’s constitution was defeated last fall at the polls because the change would have also removed a requirement for the state to fund education at public schools.
A state commission is now working on another amendment that may decouple the two issues, with the approval of voters in Alabama.
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