James W. Pfister: Is education a fundamental right?

In the seminal Brown v. Board of Education (1954) case, the U.S. Supreme Court stated that education was one of the most important things a state does. In this case, segregation of Black children by law was declared to be unconstitutional. What about discrimination by wealth leading to inequality in school funding? In Brown, the Court stated that it is doubtful that a child can succeed if denied the opportunity of an education: “Such an opportunity, where the state has undertaken to provide it, is a right which must be available to all on equal terms.”

But San Antonio Independent School District v. Rodriguez (1973) held that education was not a fundamental right “explicitly or implicitly protected by the Constitution … requiring strict judicial scrutiny.” A mere rational basis test would be sufficient. Strict scrutiny would require equality unless the state had a compelling reason to discriminate based on necessity. A rational basis test would allow discrimination if the law rationally leads to a legitimate state interest, here being sufficient education for all, but some can be better than others. Writing for the majority in Rodriguez, Justice Lewis Powell Jr. stated that, “…ultimate solutions must come from the lawmakers and from democratic pressures of those who elect them.”

My thesis is that education is a fundamental right, even though it is not textually found in the Constitution. Therefore, state-provided education should be equal in terms of school funding, to the extent possible. This is consistent with the American values of equality and achievement.

Of the four justices who dissented in Rodriguez, two wrote dissenting opinions: Byron White and Thurgood Marshall (who was one of the attorneys in the above Brown case). Marshall’s opinion, with Justice William O. Douglas concurring, discussed fundamental rights which are not found in the Constitution and came close, I believe, to embracing natural law. He said he could not accept that fundamental interests, which call for (strict scrutiny) encompass only established rights which (we) are somehow bound to recognize from the text of the Constitution itself.” He cites, for example, the right to procreate found in Skinner v. Oklahoma (1942) and the right to vote in state elections found in Reynolds v. Sims (1964). He used a “nexus” approach, that one thing is connected to another. Thus, the said right to vote is connected to the “…civil and political rights inherent in the First Amendment.” Regarding education, he states: “education directly affects the ability of a child to exercise his First Amendment (rights).” Marshall concludes that these examples of nexus with textual rights, “…compel us to recognize the fundamentality of education and to scrutinize with appropriate care the bases for state discrimination affecting equality of educational opportunity….”

Natural law is based on our human nature and precedes and is superior to textual law. Our courts normally do not use natural law, but there is room to consider it here. Our Declaration of Independence, an example of natural law, refers to “unalienable rights” endowed by our Creator, and “among these” are life, liberty and the pursuit of happiness. Does “among these” include education? The Bill of Rights does not mention education, but the Ninth Amendment (Article 9 of the said Bill) refers to other rights retained by the people. Does this include education? Education is fundamental to the development of humans, from early months throughout life. Education is necessary to live. Formal schooling is part of this educational process in a modern society. If a fundamental right, it should be provided equally, under the Equal Protection and Due Process (fairness) clauses of the 14th Amendment.

Years ago, Seymour Martin Lipset wrote an influential book, “The First New Nation” (1963). He said there are two basic values in American culture: equality and achievement. Achievement leads to inequality among people, but opportunity should be equal, to the extent possible. Affirmative action, for example, or diversity for its own sake, are so-called equity, not equality; equity is the theory that outcomes should be equal. This is the enemy of achievement. It cheats achievers. Equality requires that the rules be equal, equal opportunity. With equal opportunity in education, we fulfill the promise of Brown v. Board, and, perhaps, follow natural law.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Is education a fundamental right?