Is There a Right to Education?
No. Social rights and the U.S. Constitution.
Post 26: 25 June 20251
On March 21, 1973, by a 5-4 decision, the U.S. Supreme Court found that Americans do not have a right to an education.
Many Americans would be surprised to hear this. A 2020 poll found that 92% of Americans considered a “quality education” as among the “essential rights important to being an American today.” That’s essentially the same rating respondents gave to “free speech” (94%), showing that regular people don’t make a great distinction between the importance of classic Constitutional rights and social rights like education, at least not within the frame set by this survey.2 The Court, indeed the entire American legal tradition, seems to disagree. That’s why we have to talk about Rodriguez.
In the case decided that day, San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), the Court rejected the claim made by a group of parents from the Edgewood district, one of the poorer areas of the big San Antonio school system, that the Texas school financing system was unconstitutional because the funding inequalities it produced violated the Equal Protection Clause of the Fourteenth Amendment. The district court had unanimously agreed, but the Supreme Court reversed its decision upon appeal. The inequalities were created by the vast difference in the value of the property tax bases supporting each small school district, differences that the state-wide funding pool did little or nothing to alleviate (it was not designed to equalize and arguably exacerbated the between-district differences).3
The parents in Rodriguez had a strong case. The district court obviously agreed. Why did the Supreme Court disagree and what does that tell us about the problem of using the U.S. Constitution to protect social rights?
The (slim) Court majority found two basic problems with the parents’ claims, both of which led it to use a rather weak judicial standard of review in which the Court is very likely to defer to the outcomes of legitimate political processes—a “presumption of validity”—regardless of how unequal those outcomes are.4
Education as a “Fundamental” Right
The first issue was that the Court held that education was not a “fundamental” right. If it were, the judicial standard would revert to what is known as “strict scrutiny”. Under that standard, governments have to justify the resulting inequalities as necessary for achieving a compelling public interest. That would still leave the question of the appropriate remedy a bit unclear, a point we’ll return to, but it seems wrong to let access to education depend only on relative wealth and political power. In his dissent, Thurgood Marshall, wrote of “the right of every American to an equal start in life.” (71) How is that not “fundamental”?
If the Constitution mentioned education, this would not be a question, but it does not. Not one word. The Ninth Amendment of the Constitution makes clear that not every right is enumerated, but establishing a clear standard for the existence of an unenumerated right has been difficult. We attach the label “fundamental” to these rights because of how basic they are to the idea of personal autonomy and freedom. Recognized fundamental rights include the right to travel about, to marry, to form friendships (associate), and to some level of privacy. At the time Rodriguez was decided, the Court recognized only those fundamental rights explicitly or “implicitly” guaranteed by the Constitution itself. This was most recently established in Roe v Wade, 410 US 113 (1973), decided only a month or so earlier. Roe, of course, asserted (and extended) the fundamental right to privacy, based on a number of Constitutional provisions and precedents.5
The Court did not deny the importance of education, asserted in Brown and in many other cases, nor that an adequate education was the foundation for the effective exercise of other Constitutional rights, such as free speech and the vote. But, writing for the Court, Justice Powell concluded that
the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause (30)
Applying the standard used in Roe (and elsewhere), Powell concluded that
It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is "fundamental" is not to be found in comparisons of the relative societal significance of education, as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. (33)
And he could not find it there:
Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. (35)
The reason I dwell on this is that the same logic applies to all social rights, of which education is the most fundamental and therefore, presumably, the easiest to assert in a court of law. I am making the claim that all of these rights, at some benefit level, are “fundamental” elements of status equality, of full membership in the community, and of freedom. In thoughtful moments, the Court may concede some or all of this, but still not act. We must acknowledge the validity of some of this hesitancy resides in respect for the authority of the political branches and for the limits of judicial competence to evaluate educational policy in detail:
We are unwilling to assume for ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in 50 States (55)
The Court, Powell says, does not “possess either the ability or the authority”(36) to act. There is some basis for this position: social rights require positive governmental action where the fundamental rights I listed earlier mostly only require that governments not interfere.6 This basic fact shifts most social rights politics out of the courts and into the legislature.
That said, the Court was still wrong about education. It is a fundamental right. The current standard for “fundamental”, set in Washington v Glucksberg, 521 U.S. 702 (1997) [not available to the Rodriguez Court], found that rights that are “deeply rooted” in the American culture and tradition or “implicit in the concept of ordered liberty” (727) are “fundamental”. A 2008 article found that 36 of 37 states guaranteed access to public education in their state constitutions—in 1868.7 Those are pretty deep roots. Given that legal fact, and the outcome in Rodriguez, it is not surprising that the focus of judicial efforts to generate more equity in educational funding has shifted from the federal to the state courts. Litigants have found some success there. In a 2023 inventory, Hanushek and Joyce-Wirtz found that plaintiffs won about half of the 200-plus state lawsuits filed between 1968 and 2021. While winning such cases had some short-term benefits, the authors found that the outcomes had no measurable long-term effect on school funding.8
I would also argue that education is fundamental to citizenship in ways that social rights to housing, medical care, or economic subsistence are not. I concede, for the moment, that the Court, with its current toolkit and vocabulary, is uncertain of what to do, but it needs to do something. Education is the only way to ensure the “equal start in life” Justice Marshall referred to earlier. That means it has to find a way to talk about social rights that is somewhere between its ordinary procedure and the demands of strict scrutiny. Specifically, we need to find a judicial language of adequacy. The litigants in Rodriguez were not seeking equal funding, though that would be nice, they were seeking adequate funding. The law has difficulty with this. It requires a whole new vocabulary.9
Discrimination Based on Wealth
Even if we accept that education is not “fundamental”, the state financing system would still be unconstitutional if it was discriminatory, that is, if it denied individuals equal protection of the law. This was the main claim made by the parents. But to accept this line of argument, the Court would have to accept that the children affected fell within a “suspect classification” of persons. That’s the second issue. In U.S. law, only race and ethnicity, religion, national origin, and immigration status are always suspect classifications, and occasionally gender. State definitions may include sexual orientation as well.
Most of the affected students in this case were Latino but the claim was made on behalf of “poor” children. But “poor” is not recognized as a suspect classification.10 The suspect classes are defined by immutable personal characteristics that form the foundation for “discrete and insular” groups, usually with limited access to political power and almost always the historical subjects of discrimination. “Poor” lacks the quality of immutability—though it is far more immutable than we would like—and relative wealth does not usually create discrete groupings, income and wealth distributions are continuous (and there is no obvious bright line definitions even though governments use specific standards for some purposes). In Rodriguez, discrimination, if it is occurring, affects whole districts, which, even if relatively poor, include families of different income levels. This is confounded further by the fact that poor students often live in property-tax rich districts (because they are near high value industrial and business district properties; though this was not true in Edgewood).
In his opinion, Powell also noted that it was not possible to ascertain whether “the asserted deprivation is of significant consequence” (19); i.e., whether these funding gaps are tantamount to a denial of service. In most discrimination cases, the denial of service or access is absolute. Again, clean lines. This was true in Brown, for example; Black kids were excluded from White schools, period. This comes right back to the issue of adequacy. This is what people are demanding, but courts lack a meaningful standard. In this case, the state asserted that the baseline (state) funding level was “adequate”. The Court concluded that “No proof was offered at trial persuasively discrediting or refuting the State's assertion.” (24)
The inability to talk about adequacy is slowly changing. Hanushek has noted that the litigants in school financing cases (again, at the state level) have over time focused less on equity—the difference in resources across districts—and more on the adequacy of funding in each district.11 This is consistent with social rights thinking, but is orthogonal to the logic of discrimination law, which typically focuses on absolute equality.
Next: I’ll be taking a short summer break from On Social Citizenship. Regular posts will resume in July (probably the 15th but maybe the 22nd). The next posts will continue to investigate issues related to K-12 education. [Sorry to be a bit late this week.]
<All of the posts in On Social Citizenship connect. I recommend that readers go back and read the first entry in the series.>
Image: See Shepard Price, March 21, 2023, San Antonio Express News, “’The little man has lost again’: How a San Antonio lawsuit set back American education 50 years ago.
Carr-Ryan Center for Human Rights, Harvard Kennedy School, Reimagining Rights Survey, https://www.hks.harvard.edu/centers/carr/programs/reimagining-rights-responsibilities/2020-poll . Follow-up study in 2021 found similar results: https://www.hks.harvard.edu/centers/carr/programs/reimagining-rights-responsibilities/2021-poll This is a fascinating series of studies. I think I will return to them for a deeper dive soon.
At the time of the lawsuit, the ten wealthiest districts in Texas were able to provide TEN times the level of support for education as the poorest ten districts. (Marshall dissent, 74) This, despite higher property tax rates in the poorer districts.
The state-wide fund, created after WWII, was intended to set a baseline level of funding for each school district. The fund was not small, it provided almost half of all public school resources at the time of this case. But it is not equalizing. A portion of the funding was simply a flat per capita allowance and the rest was based on measures of economic activity that tended to channel money the other way, toward wealthier districts (Marshall 78).
Powell: “This, then, establishes the framework for our analysis. We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny.”
Each court opinion found different bases for the fundamental right to privacy. The main opinion said it was “founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action” (153) but others merely relied on the 9th Amendment. Since we are now post-Roe, it is fair to ask if “privacy” was the strongest foundation for the decision.
This is a basic feature of social rights. See “The Idea of Social Citizenship” for more on positive and negative duties associated with different rights.
Calabresi, Steven G., and Sarah E. Agudo. "Individuals Rights under State Constitutions When The Fourteenth Amendment was Ratified in 1868: What Rights are Deeply Rooted in American History and Tradition." Tex. L. Rev. 87 (2008): 7. This helpful article has a full inventory of rights.
Eric A. Hanushek and Matthew Joyce-Wirtz, Incidence and Outcomes of School Finance Litigation: 1968–2021, Public Finance Review 2023, Vol. 51(6) 748–781. The long-term finding in this paper is troubling. There are deeper questions here about what “adequacy” requires in terms of funding and what other barriers might matter as much as the funding system (hint: it has to do with segregation). Ill return to these themes in later posts.
All social rights hinge on some notion of adequacy, with the standard of adequacy based on the requirements of full participation in society. The presumption is that most of this work is legislative or, in cases where a general process is established by the legislature, by executive experts. Here, I am looking for a role that courts can play, most likely in setting very broad requirements for legislative action. Overall, this problem is similar to the general issue of substantive (as opposed to procedural) due process, a problem that the Court has also not been able to solve.]
The term “suspect” is odd here; it just means that legal distinctions that refer (directly or indirectly) to this classification are inherently suspect in equal protection terms.
Eric Hanushek, “School Finance and the Courts: Equity and Adequacy”, AEFP Live Handbook, March 2025.