Thursday, November 18, 2004

Post by Goodwin Liu

As we know from the many commemorations of Brown's 50th anniversary, there remains a wide gulf between the promise of Brown and its fulfillment in public education. The reasons are complex, but they partly reflect the path of the law since Brown. Although most Americans are familiar with Brown, they are not familiar with later decisions that undermined it. In particular, I suspect most people would be surprised to know that there is no right to education guaranteed by the federal Constitution.

This year, with the help of Chris Edley and Steve Sugarman, I've launched a new project at Boalt called "Rethinking Rodriguez: Education as a Fundamental Right." It is an interdisciplinary project exploring what it would mean to make education a fundamental right today. The project is not focused on mapping a litigation strategy for overruling Rodriguez, although that might be one result. Instead, we are thinking broadly and creatively about how the concept of education as a fundamental right might be instantiated as a constitutional value or, to borrow Cass Sunstein's phrase, as one of the nation's "constitutive commitments" -- not only through court decisions but also through legislation, policy, and public discourse. (For anyone interested, I would be happy to e-mail you a concept paper on the project.)

As part of this project, two lines of research have interested me. The first is a thorough elaboration of how Rodriguez's key premises have been eroded over the past 30 years, sapping the decision of its vitality and making it ripe for reexamination. Here I am thinking of (1) the overwhelming importance of education to citizenship and economic success in 2004 (or 2020) versus 1973; (2) the decline of local control in education in the midst of centralizing reforms at the state and federal levels; and (3) the limited and uneven success of state judicial and legislative reforms, which undermines Rodriguez‚s confidence in allowing reform to proceed "one step at a time."

The second line of research involves an issue Rodriguez did not address: unequal educational opportunity between states. Ever since Brown (and even before), equality of educational opportunity has been pursued under the Fourteenth Amendment‚s command that "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Yet, by various measures, educational inequality between states has historically been, and is today, more substantial than inequality within states. If education is a fundamental right, shouldn't it be a national right held in common by all children in the country? If so, then the constitutional basis for the right is perhaps not well-situated in notions of equal protection or due process. Instead, as Bruce Ackerman has suggested, it may be best situated in the constitutional guarantee of national citizenship, enforceable by Congress. Indeed, affirmative rights under the Citizenship Clause animated the earliest proposals (dating back to 1870) for federal aid to equalize educational opportunity across states.

Forging a strong link between a right to education and the guarantee of national citizenship is a potential beachhead for broader thinking on social and economic rights.  I look forward to the December meeting with a special interest in complementary efforts to invigorate the concept of national citizenship.

Goodwin Liu