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.

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.


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.

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.