Why Doesn't the Constitution Guarantee the Right to Education?

Every country that outperforms the U.S. has a constitutional or statutory commitment to this right.
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Ron Edmonds/AP Photo

 

“The Learning Curve,” the global ranking of education systems produced by the publishing company Pearson, is by most accounts a beautiful publication. A harmonious blend of narrative, appealing infographics, and images of joyous learning, the report sets about rating the performance of various school systems as nicely as it can. For the American reader, once they scroll past the advice and best practices, finding the U.S. slot isn’t as pretty. By the report’s latest edition, in 2012, the United States education system sits at 17th place out of 40 countries, and it’s not just behind those socialist Scandinavians. In addition to the classic northern European bloc—Finland (1st), Netherlands (7th), Denmark (9th)—the superior contenders also come from Asia (2nd through 5th), Oceania (New Zealand, 8; Australia, 13), the rest of Europe, and indeed, even Canada (a respectable 10th).

Each of the countries ahead of the U.S. has a fundamental commitment in common, one that the America doesn’t: a constitutional, or statutory, guarantee of the right to education. By centralizing education as a key focus of the state, these countries establish baseline requirements that set the frame for policy and judicial challenges, as well as contribute to what the Pearson report calls a “culture” of education: where “the cultural assumptions and values surrounding an education system do more to support or undermine it than the system can do on its own.” As the U.S. is about to embark on another national attempt at education reform in the Common Core, evidence suggests that a constitutional amendment, that rare beast, is both timely and vital to improved results. Comparing the American to the international approach to educational rights suggests that this reform might be a wise one.

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Looking at the fundamental guarantee of education doesn’t just mean looking up the ladder. Thanks to the new Constitute Project, searching the global expanse of constitutions for a particular theme is now possible. “Education” is found in 174 country constitutions—i.e. nearly every single one. For some context, that’s just less than “free” (appearing 176 times), and just more than another term missing from the U.S. Constitution, “health” (170 times).

Every country that bests us in the education rankings either has a constitutional guarantee to education, or does not have a constitution but has ensured the right through an independent statute. Each has constructed law around education as a fundamental right of citizens, at least until the age of adulthood. Finland, the world leader, succinctly asserts, “Everyone has the right to basic education free of charge.”(Chapter 2, Section 16). South Korea’s Article 31 on Education has six sections. Switzerland’s constitution mentions education more than two dozen times. For countries with no formal constitution, many have included the right in supplementary documents like the Human Rights Act of the United Kingdom (1998) or the Australian Capital Territory Human Rights Act (2005). Others still, like New Zealand, form the basis for the right to education by incorporating international laws like the International Covenant on Economic, Social and Cultural Rights, whose Article 13 provides expansive assurances of education. In addition, each of these countries—well, almost every country in the world—is also party to the Convention on the Rights of the Child, the most widely accepted human rights treaty in history. The convention, which prohibits among other things the kidnapping and sexual exploitation of children, vigorously asserts the right of a child to education. Of UN members, only Somalia and the United States have not ratified that agreement.

There simply hasn’t been a movement in the U.S. to establish the rights of children in respect to equal, free, and adequate education. One of the few pending constitutional amendments (meaning approved by Congress but not by 3/4ths of States) is the Child Labor Amendment of 1924, limiting and prohibiting labor for those under 18. Though the amendment failed to gain ratification from enough states, including Louisiana who rejected it multiple times, child labor was effectively nixed by FDR in the Fair Labor Standards Act, 14 years later. When it comes to the rights of children in education, traditional interpretation has deemed the 10th amendment sufficient to shift responsibility to the states, and the 14th amendment adequate to ensure fairness. The Supreme Court decision in San Antonio Independent School District v. Rodriguez (1973), though, ran directly counter to that logic, denying appellant claims that unequal education funding violated a fundamental right and the Equal Protection Clause. Even as America assumes the responsibility for education rests somewhere, its clear that the right to that education has clearly fallen through the cracks.

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Stephen Lurie is a writer based in Washington, D.C.

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