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

Of the over 11,000 proposed amendments to the Constitution, there have only been a couple that directly address the right of an education (rather than various rights within school, such as the School Prayer Amendment). Though likely incomplete, Congress.Gov records indicate that there have only been two proposals—one by Rep. Major Owens (D-NY) and repeated efforts by Rep. Jesse Jackson Jr. (D-IL)—for an education amendment, ever.  The now-infamous Jackson Jr. introduced an identical education amendment in every Congress from 1999 to 2012 “regarding the right of all citizens of the United States to a public education of equal high quality.” Though one year joined by 37 cosponsors (all Democrats), that was the extent of the support. In each case, the resolution was referred to and killed in the House Judiciary Committee.  Despite his annual persistence, though, even Jackson’s push didn’t seem too concerted in light of his particularly buckshot approach to constitutional reform.  In a House session in 2003, for example, Jackson introduced seven different constitutional amendments on everything from voting to the environment and taxes.

Take that in comparison to the four separate resolutions regarding “parental rights” introduced in the 112th Congress alone. Those Republican lead efforts assert that the educational rights at stake are not those of children, but of “the liberty of parents to direct the education of their children” as “a fundamental right.” It’s hard to understand how the fundamental right in education is that of the “educators,” but that’s exactly what the record of constitutional reform suggests.

When it comes to non-constitutional legislation, federal lawmakers have obsessed over logistical concerns. With no central basis for reform, national initiatives have long offered varying approaches to improve disparate school systems. The idea is that the problems of the American education system are solved with policy and metrics, by technical requirements, and uniting standards. They assume that the American value on education is implicitly ingrained. The basis for this thinking is founded, in the modern era, in the Elementary and Secondary Education Act of 1965, implemented as part of the War on Poverty, and periodically reauthorized since. This act, and its descendants like No Child Left Behind, begins its work—funding, setting standards, and outlining federal requirements—from a rather bizarre premise. In striking out to reform education, their “purpose” is to “ensure that all children have a fair, equal, and significant opportunity to obtain a high quality education.” Yet, picking the procedural fight—the “ensuring” of a right that has no legal basis—hasn’t enabled practical solutions to vast educational inequality.

A real solution, as international precedent and common sense suggest, is to finally promote education as a national value through a constitutional amendment. If there is something still sacred to both of our political parties, it is certainly based in the fundamental assurances of the Constitution and Bill of Rights (even if there is vast disagreement of which amendments to care for, and how to interpret them). When it comes to education, the Pearson study confirms that the one of the greatest boons to education is a supportive national culture: where our national culture revolves around constitutional rights, the course of action is natural.

An emotional attachment isn’t the only benefit of adopting a national right to education—the benefits for students are tangible. The Southern Education Foundation’s 2009 report “No Time to Lose” thoroughly details the harmful disparities of the current education system and how a constitutional amendment could help. Besides the important ability to catalyze a national discourse on education and legitimize federal leadership, a constitutional amendment provides a vital opportunity for court challenge. As influential as the decision in Brown v. Board proved to be for de jure discrimination, relying on the 14th Amendment for equal protection has proven inadequate to ensuring de facto educational equality across race, state, and income.

When there is a constitutional guarantee to education, the report and history suggest, direct litigation can produce lasting results. If a true right is established, soft forces and hard law can begin to fundamentally alter the immense flaws of the education system nationwide. This is the exact phenomenon that plays out time and again in other countries—and particularly the ones besting American education. The constitutional guarantee develops a national culture of education, a baseline for rights, and allows—if necessary—for legal protection of that standard. Such an amendment won’t be a panacea for American education, but without it the U.S. will stay average in the rankings and yet remain that one country left behind.

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

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