Education: Constitutional Democracy’s Predicate and Product
By
By
Martha Minow[1]*
The combination of a global pandemic and global jeopardy to democracies exacerbates deficiencies in American education for children and youth and underscores the critical importance of renewed and amplified investments of resources and ideas. Underinvestment and stark disparities in educational opportunities persist across the nation. Inequities follow zip code and students’ family income, and correlate with race and neighborhood, underscoring the differing effects of crime, family fragility, and access to educational opportunities outside of schooling. These matters take on constitutional significance at this time of frailty for many constitutional democracies, including in the United States. Actually, America’s constitutional democracy both presumes and supports commitments to educating each generation in the knowledge and dispositions to enable self-governance, in theory, as well as equipping successive generations to take on adult employment and family roles. Yet by presuming what is also a goal, the Constitution has not given rise to sturdy recognition of a federal right to education.
Recent litigation advocating for constitutional recognition and enforcement of federal educational rights seeks judicial engagement, political action, and public attention. Arguments include historic roots in the views of the framers and national leaders, doctrinal developments in substantive due process and equal protection, and repeated Supreme Court articulations of the unique significance of education to the nation and its form of government. Objections to judicial recognition of a federal right to education can be countered and such a federal right could also be developed through legislation and practice. Work in this vein may stumble when it comes to spelling out the elements and priorities for practice; guided by education’s relationship to constitutional democracy, its commitments should include cultivating understanding of facts, reasoned arguments, tolerance for social differences amid membership in communities, and the avenues for political participation and guards against tyranny. Whether enacted through judicial orders or political processes, legal commitments should address the promise and dangers from expanding home-schooling and remote-access digital learning while deepening education critical to constitutional democracy.
Constitutional democracy, some say, has the virtue of aiming to produce what it also presumes: equal respect for self-governing members of society.[2] But what if the virtuous circle linking predicates to outcomes does not work? If the presuppositions are missing, is the constitutional democracy obliged or even capable of supplying them? Once a question for nations transitioning to democracy or for political philosophers, the missing predicates for constitutional democracy have become only too pressing by 2022 with serious jeopardy to the entire system of governance in the United States and in other established democratic republics.[3] Whether due to digital information technologies, authoritarian leaders, fears of dislocation due to global economic and migration trends, and a pandemic exposing and exacerbating massive social inequalities, the operations, effectiveness, and trust necessary for constitutional democracies are beleaguered.[4]
American educational programs specifically face profound challenges: teachers, students, and programs strained and disrupted by the pandemic as well as massive inequalities of resources.[5] Schools, including afterschool programs, serve as one of the few safe places in many communities struggling with economic divestment, violence, and family instability.[6] Chronic underfunding of educational programs characterizes most communities as do inequitable distribution of resources and racially separated schooling.[7] The defects and failures are especially troubling at this time of fragility for American constitutional democracy.
This is the context for renewed arguments for recognition of a federal right to education. Those arguments address not only courts but also legislatures and the broader public and can animate political and programmatic changes addressed to the pressing issues of quality, equity, and preparation of self-government that the Constitution both presumes and inspires.[8]
Underinvestment and stark disparities in educational opportunities persist across the nation.[9] When compared with results from other industrialized nations, the United States falls behind on student test results.[10] Indeed, “Among the 35 members of the Organization for Economic Cooperation and Development, which sponsors the [testing] initiative, the U.S. ranked 30th in math and 19th in science.”[11]
Within the United States, inequities in educational resources follow zip code and students’ family income, correlate with race, and include strikingly different contexts in terms of effects of crime, family fragility, internet culture, and access to educational opportunities outside of schooling.[12]
Investment of money and support for quality instruction are critical to student achievement—and additional investments are needed to address the social background differences that so deeply influence student progress.[13] One study showed how students in Mississippi and Alabama receive 40–50% of the per-pupil expenditures in New Jersey and Connecticut—and New Jersey and Connecticut stand ahead of most states while Mississippi and Alabama rest near the bottom of state rankings by student academic performance.[14] Reliance on local property taxes and other defects in school finance systems are entrenched and perpetuate stark differences between well-resourced suburban—largely White—school districts compared with urban and rural communities even within the same state.[15]
New York spends more than $12,400 more per student than does Idaho, and predominantly White school districts spend $23 billion more than predominantly non-White districts.[16] It is hard to imagine how unequal opportunities can be redressed until the federal government becomes involved, when greater spending is correlated with higher rates of high school graduation as well as higher adult earnings.[17] And different opportunities within states leave students in high-poverty areas worse off in terms not only of per pupil expenditure but also of access to rigorous courses, quality instruction, and continuity in staff.[18] Some communities are marked by rich varieties of afterschool programs including enrichment opportunities in languages, technology, sports, and the arts, while others lack either these programs or the money needed for private tuition.[19] With skyrocketing reliance on the internet and other technologies occasioned by the pandemic and by changes in the private sector, once again, disparities by family and community wealth—with associated racial and ethnic differences—deeply affect access and adult guidance for youth.[20]
The pandemic and economic dislocations motivated the American Rescue Plan—which commits resources to amplify student learning through an extended school year, summer enrichment, or high-quality, evidenced-based tutoring programs—to stabilize and diversify the workforce in schools, and to provide for healthy conditions and social supports.[21] Choices about how to use most of the actual expenditures will rest with local decisionmakers; experts urge choices based on research findings and equitable commitments.[22] With some of the dollars dependent on competitive grants, local school leadership—and the variations in time and preparation of local leaders—matter.[23] And despite court decisions forbidding state-mandated segregation of students by race, the percentage of Black students attending predominantly non-White schools has reached over 80%.[24]
Mirroring disparities in educational opportunities and quality are differences in civic participation.[25] Some schools offer effective instruction in history and civics and help students experience political efficacy and actual community participation.[26] Other schools do not offer these opportunities.[27] Some schools provide chances for students to debate with others, prompt desires and chances to participate in their communities, and cultivate concern for the rights and welfare of others which are the elements of civics education as described by a 2003 national project.[28]
In contrast, many students lack civics courses, related work in history and social studies, and hands-on opportunities for observing and participating in political activities.[29] These gaps affect students in low-income communities and students of color even more than others, although neglect of civic education is a problem across much of the country.[30] Leaders across various sectors have summoned attention to needed investments in the “civic mission” of schools for over a decade.[31]
The effects of these disparities hurt democracy. Recent studies reported that only 26% of Americans could name the three branches of government and only one in three Americans could pass the nation’s Citizenship Test.[32] Civics used to be a focus of American public schooling.[33] Priorities given to math and reading displace civics in many schools.[34] Disagreement among experts about standards to set in social studies also contribute to declining attention to civics in schools as does suspicion in some communities that civics education advances left-wing political projects.[35] Similar forces surround legislation against the teaching of “critical race theory” or curricula that contribute to discomfort among students over the nation’s racial history.[36] Calls for and opposition to reinvigorated civics education have intensified recently, reflecting partisan divisions that have exploded after the 2020 election and the Jan. 6, 2021, assault on the U.S. Capitol.[37]
In the meantime, schooling in the United States thus falls far short of excellence and of constitutional democracy’s demands. “Each generation has to maintain its institutions and repair any damage that its predecessors inflicted or allowed. This task begins with civic education, so that Americans know how their government works, and thus what to expect from their constitutional institutions,” explains law professor Adam White.[38] To fulfill the opportunities and obligations of citizenship in a constitutional democracy, individuals need to know how to participate in the governing processes, how to assess priorities and policies both for oneself and for the larger community, how to assess information and arguments, and how to develop virtues of public spiritedness and sufficient restraint to use votes and arguments rather than violence of suppression in the face of disagreement.[39] The inequities, gaps, and results of American schooling do not meet these requirements.
Even in good times, self-governance in a constitutional democracy is hard work that takes time.[40] It produces conflicts.[41] It leaves us with few to blame but ourselves.[42] Playwright George Bernard Shaw was not stretching the truth when he gave one of his characters these words: “Democracy substitutes election by the incompetent many for appointment by the corrupt few.”[43]
We are not living in good times. Existing democracies are fragile.[44] Democracy as an ideal and as a practice is in retreat.[45] Many of the fledgling democracies established after the break-up of the Soviet Union have turned to autocratic leaders and undermined governmental checks and balances and democratic values; the military coup suspending democracy in Myanmar imprisoned democratically-elected leadership.[46]
The United States, despite record-breaking voter turn-out in 2020, witnessed the precariousness in the actual system for reporting and certifying the vote; subsequently, many states enacted laws weakening the guard-rails against partisan hijacking of elections, erecting obstacles to voting, and amplifying doubts about elections and democracy.[47] For the first time in six decades, Congressional district lines are being redrawn without federal limits set by the Voting Rights Act because of a closely divided Supreme Court decision.[48] Two-thirds of Americans, a year after the violent assault at the U.S. Capitol interrupted the certification of the presidential election, view the nation’s democracy as threatened; some call the use of violence justified.[49] The United States may join Hungary, Myanmar, Poland, Turkey, Tunisia, and Venezuela as nations where democracy is teetering and may not prevail.[50]
Some leaders appeal to the fears and hatreds of masses of people—at the expense of minorities, truth, and reason—and gain supporters while undermining belief in equality, tolerance, and the rule of law.[51] Perhaps people can always be tempted to surrender their power to others by appeals to fears and hatreds. The global pandemic, attending economic insecurities, digital disinformation, and dire circumstances of poverty, hunger, and violence[52] are conditions particularly made for fears, rumors, blame, and division. Populist appeals, assaults on human rights and the press, manipulated communications, election confusion, self-dealing by those in power: these are the exact elements Yale professor Timothy Snyder identified as predicates for tyranny and reasons to learn lessons from the lead-up to World War II.[53]
Internet communications exacerbate these problems.[54] The Internet enables social media and search, which bring much of the world’s knowledge within the reach of more people than ever in human history.[55] Information—and disinformation—are plentiful and within the reach of a few keystrokes.[56] Peer-to-peer connections through social media, game-platform-chatting, and other channels enable individuals and algorithms to propel conspiracies and to prey upon anxieties.[57] Some who push these posts are spurred by the promise of money tied to the eyeballs of viewers who engage in electronic rubbernecking or dare-you-to-be-outrageous games.[58]
Democracy gains some boosts: with digital communities, repressive regimes have to work harder to keep information out of people’s reach.[59] Citizen journalism allows a cell-phone recording of police violence to spread quickly around the globe.[60] Internet tools enable Black Lives Matter marches but also mobilized the Jan. 6 assault on the U.S. capitol.[61] The Internet can promote resistance we desire and resistance we fear.[62] The internet and digital platforms spur emotions and amplify fears and doubts, spreading knowledge but also misinformation with the press of a button—seemingly free, around the globe—and producing communities living in separate realities.[63]
Responsibility also attaches to broadcast and cable communications companies that have eroded distinctions between reporting and opinion and that have cultivated emotion and even rage.[64] Altogether, contemporary communications technologies can undermine the crucial desire—the hunger for participation, knowledge, reason, freedom—required by constitutional democracy.[65] Especially on social media platforms, accurate information is often overwhelmed by misinformation and conspiracy theories.[66] Distrust of communications, of experts, and of “others” seems to grow.[67]
The RAND Corporation has named the result: “Truth decay.”[68] Big digital platforms employ psychologists to exploit vulnerabilities in human cognition that bypass rational thinking in order to keep people “engaged” and have more eyeballs to see to ads.[69] Clickbait makes people vulnerable to media manipulation, trolls, scare tactics, and appeals to rebelliousness that feed Islamophobia, misogyny, anti-Semitism, and racism in digital worlds.[70] Algorithms sort people into different demographic and interest groups in order to sell ads and to escalate messages tailored for the “user” with resulting “digital gerrymandering,” selecting different content to show different people and diminishing the chance of shared understandings.[71] Broadcast, cable, and digital media trade a search for all audiences for those who have a particular viewpoint—and accentuate partisanship, like political primaries pushing candidates to appeal to those on the extremes of each party.[72]
As political polarization and distrust eat away at our communities, Americans report low trust in government and in one another.[73] This spells real trouble for democracy. A global study found that few millennials object to autocracy; only 19% of Americans surveyed report that a military takeover would be illegitimate if the government is incompetent.[74] It is in this context that education—involving each generation in learning civics, history, political process, and rational analysis—especially takes on constitutional valence and perhaps even an existential significance.
What are the prospects for recognition of a federal right to education? If addressed to the United States Supreme Court, the prospects are not good. Among the many precedents that the current Court may overturn,[75] its rejection of a federal constitutional right to education is not a likely candidate.[76] In San Antonio Independent School District v. Rodriguez, five justices rebuffed challenges to the school finance system used in Texas that resulted in some school districts in the state spending twice as much per pupil as others.[77] In the course of its opinion, the majority concluded not only that there is no fundamental right to education under constitutional due process, but also that wealth is not a suspect class giving rise to strict scrutiny when used in legislative classifications.[78] And the five-justice majority concluded that the school funding mechanisms resulting in some state districts spending twice as much per student as others was not irrational.[79]
That decision did not end the question about constitutional dimensions of education in America for multiple reasons. Prior and subsequent Supreme Court decisions emphasize constitutional dimensions of public education.[80] The case has launched decades of debate and criticisms, including some rating the decision among the Court’s worst.[81] Subsequent litigation under state constitutions has developed analysis and remedies.[82] A federal litigation effort (Gary B. v. Snyder)[83] convinced a panel in the federal court of appeals for the 6th circuit that the decrepit conditions and poor educational outcomes in five Detroit public schools violated the federal Constitution’s guarantees, but then the 6th circuit court acting en banc vacated the opinion; the case ended with a settlement.[84] Another federal case argued for a federal right to civics education, generated a sympathetic but unsuccessful opinion in the district court, and was affirmed on appeal.[85] Pursuing the matter to the Supreme Court could actually make the prospects for a federal constitutional right to education worse.
Nonetheless, the significance of the federal Constitution extends far beyond decisions of the United States Supreme Court. As public officials swear an oath to uphold it, each legislator, governor, mayor, and others in office have the duty to interpret and implement the Constitution.[86] Beyond judicial orders are constitutional considerations that do and should guide the actions not only of officials but also of individuals participating in the polity.[87] Thus, policies and legislation can reinforce and help realize values and commitments of American constitutional democracy.[88] Further, the very language of constitutional rights supports a sense of empowerment for individuals and communities that in turn affects political and legal movements and actions.[89]
Although the U.S. Constitution is often and fairly described as primarily a “negative-liberty” constitution, setting limits on government, there are some obligations it imposes that create affirmative government duties.[90] These include ensuring right to counsel in criminal matters that include risks of incarceration, opportunities for individual recipients of government benefits to be heard prior to termination of benefits, right to counsel where an individual risks loss of liberty, and access for the press to both prisons and criminal trials.[91] If recognizing a constitutional right to education starts with the assumption that no affirmative rights fall within the U.S. Constitution, that is false. Moreover, the tight connections between education and voting and between education and freedom of speech make it different from other human needs propelling theoretical arguments for rights recognition.
Education holds a crucial role under a constitution establishing self-governance, individual rights, and structural checks against tyranny. This form of government both assumes and supports commitments to educating each generation to enable not only taking up successful employment and family roles but also the duties associated with self-governance.[92] Yet by presuming what is also a goal, the Constitution has not given rise to sturdy recognition of its predicate, education.[93] Through intense struggles, the initial group entrusted with self-governance expanded from free adult White men to all adult citizens who each need opportunities to develop the knowledge, skills, and dispositions involved in the work of elections, policymaking, and advancing the interests of individuals and communities.[94] Elements of schooling have historic roots that arguably warrant constitutional recognition marked by commitments to equality and quality. At a minimum, dedication of greater resources and smarter programs are necessary to cultivate the knowledge, skills, and dispositions required by a constitutional democracy. Any doubts should be quelled now, as the constitutional system itself faces jeopardy.
The arguments for a federal constitutional right to education are not difficult to sketch.[96] Advocates before federal courts have done just that in the past several years and used established methods of constitutional argument by pointing to the public meanings of the post-Civil War amendments,[97] the repeated statements of founders of the nation as well as later leaders about the crucial contributions of education to democratic citizenship, and the legal doctrines built up over time interpreting substantive due process fundamental rights and equal protection of the laws.[98] A recent edited volume of essays thoroughly reviews the arguments for and against a federal right to education.[99] Two of the three judges who heard the arguments in the federal court of appeals for the 6th circuit agreed; thus, before the court en banc vacated the judgment, the appellate court drew upon the substantive due process fundamental rights precedents, the Supreme Court’s own treatment of education in constitutional cases, and the historic role and prevalence of education to announce a narrow fundamental right to a minimum education.[100]
The court had before it factual findings of disturbing conditions and poor education outcomes in five Detroit public schools; decrepit facilities not only falling below city health and safety codes but also subjecting students to collapsing ceilings and infestations of rodents and insects, classrooms staffed by individuals with little or no training; insufficient, out-of-date teaching materials, and proficiency rates on state tests falling below 10% of the student population.[101] The Gary B. panel noted that even the Rodriguez opinion left open avenues for constitutional challenges to effective deprivation of a minimum quantum of education necessary to exercise constitutional rights of speaking and voting and identified the defective facilities, teaching, and educational materials as failing to meet the requisite minimum.[102] After all, the Supreme Court in Rodriguez left open the possibility of constitutional violation if a state “fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.”[103]
As the Supreme Court itself noted in its later decision in Plyler v. Doe, the Rodriguez Court “reserved judgment on the constitutionality of a state system that ‘occasioned an absolute denial of educational opportunities to any of its children.’”[104] Determining specific remedies would await remand, but after the panel decision, Michigan’s Governor Gretchen Whitmer announced a settlement.[105] It included individual awards to the seven student plaintiffs, funding to support literacy programs, establishment of two task forces to monitor the quality of education in Detroit and advise the Michigan Governor on education reform in the city, and a promise to propose legislation authorizing more funding for literacy programs in the Detroit schools; it also ended a prohibition on Detroit’s use of bonds to raise capital for its schools.[106]
Similar (though not identical) arguments challenged the lack of civics education in Rhode Island.[107] Again, the arguments use the Supreme Court’s treatment of fundamental rights under substantive due process, looking to national history, legal traditions, and practices.[108] Advocates point to the importance attached to education by founders of the United States, the creation of common (public) schools in the nineteenth century and universal adoption of compulsory school by the twentieth century, the Supreme Court’s treatment of the education as foundation to American life and democracy in Brown v. Board of Education,[109] and the Court’s further view of education in Plyler, as not “merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation,” but instead “education has a fundamental role in maintaining the fabric of our society.”[110]
Tying education even more tightly to the democratic process, advocates challenged the failures of Rhode Island to ensure civics education in all of its schools.[111] Beyond literacy, beyond basic facilities and materials, a national report urges schools to make sure that students understand the importance of their “contribut[ion] . . . to the progress of our Nation,” and understand how they can contribute.[112] The report continues, “Americans who are not properly educated about their roles as citizens are less likely to be civically engaged. . . . They are less likely to vote, less likely to engage in political discourse, and less likely to participate in community improvement projects than their counterparts who receive civic education.”[113] And because some students in the state do receive civics education in both direct instruction and school-supervised opportunities to engage in the governance activities in the community,[114] claims of deprivations of equal protection of the law—with disproportionately negative effects on students who are members of minority racial and ethnic groups—could also be framed.
Despite these arguments, the Court of Appeals for the First Circuit recently affirmed the Rhode Island federal District Court’s decision, rejecting the students’ constitutional claims on January 11, 2022.[115] While acknowledging the importance of education as “the most important function of state and local governments” and as the “very foundation of good citizenship,” the appellate court ultimately found no basis for a constitutional right to an adequate civics education under the substantive due process or equal protection doctrines.[116] Specifically, the panel held that failure to provide civics education did not amount to “total deprivation of a minimally adequate education” as is required to be actionable under Rodriguez,[117] and found the state’s decisions about the school curriculum to be sufficiently rational.[118] This decision leaves in place the lower court’s expressions of deep concern about the situation.[119]
Objections to judicial recognition of a federal right to education can be countered. Arguments against a judicially-recognized constitutional right to education start with the majority in Rodriguez and have been amply repeated and extended more recently.[120] First, judicial competence would be strained due to line-drawing problems in recognition of a constitutional right not expressly listed, e.g., how could education be distinguished from other needs such as housing and food?[121] Second, federal courts are the wrong institution to deal with the issues because legislatures, not courts, should pursue the matter due to differences in institutional competence and legitimacy of action.[122] States are responsible for education and have prerogatives into which the federal government should not intrude.[123] Thus, federal legislation and state action both reflect the authority and suppleness needed to devise policies adapted to actual needs and capable of regular revision.[124] And third, judicial declaration of rights can produce backlash and consequential disillusionment, as experiences with school desegregation demonstrate.[125]
Responses to the first two of these arguments begin with Rodriguez—a 5/4 decision that could well have come out the other way.[126] The majority itself noted, “Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that ‘the grave significance of education both to the individual and to our society’ cannot be doubted.”[127] While the majority asserts lack of judicial competence and concerns about intruding on state and local authorities, it also relies on judge-made doctrines about levels of scrutiny and what counts as irrational state policies for purposes of finding constitutional violations.[128] Those doctrines are both discretionary and malleable, not written in the Constitution’s text.[129] The dissenters rely on similar judicially made guidance about how and when courts can recognize fundamental rights.[130] Applying doctrines cited by the majority to the facts of the challenged Texas school finance system, Justice White (joined by two others) would have found violations even under the minimal constitutional scrutiny calling for a rational relationship between the state’s methods of school finance and its ends.[131]
Justice Marshall, joined by Justice Douglas in dissent, conceived of the majority’s decision as departing from precedents regarding constitutional guarantees of equal protection and due process in the context of schooling.[132] His analysis of the precedents under both lines of doctrine shows how the majority bypasses precedents where the Supreme Court recognized as fundamental rights (such as the right to travel. the right to vote, the right to appeal a trial court decision, and the right of reproductive choice involved in access to contraception) lacking specific textual references in the Constitution.[133] Thus, although some see ours as primarily a “negative liberty” constitution, setting limits on government, varied affirmative duties of government have constitutional recogntion. The close connections between education and voting, and between self-government and checks on tyranny, make educational different from other human needs.
Subsequent judicial decisions have only bolstered the dissenting view. The Court in Plyler v. Doe rejected as unconstitutional the Texas law excluding undocumented school-age children from the education provided to other children in the state.[134] It reasoned not only that the 14th Amendment applies to persons, not only to citizens, but also that public education is not merely “some governmental benefit’ indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction,” thus making education different than housing or food.[135] Without overturning Rodriguez’s rejection of a fundamental constitutionally recognized right to education, the Court nonetheless underscored the necessity of schooling to maintaining a democratic system as well as to equipping individuals to succeed economically.[136] The elevated treatment of education by the Court in Brown v. Board of Education, nearly two decades before Rodriguez, became a focal point for the Plyler court: it stressed that compulsory schooling is required for the most basic public duties and is the foundation of good citizenship.[137]
Thus, rather than producing a slippery slope with line-drawing problems for other fundamental rights, education is distinctively critical. Similarly, in his concurring opinion, Justice Blackmun noted that “denial of an education is the analogue of denial of the right to vote: the former relegates the individual to second-class social status; the latter places him at a permanent political disadvantage.”[138] And rather than exceeding the capacity and authority of federal courts, in Brown and in Plyler, constitutional protection of educational access falls within their purview and capabilities.[139]
Despite assertion of separation of powers limitations and questions about judicial competencies, courts in the United States have in fact overseen institutional reforms of the railroads, prisons, mental institutions, housing authorities—and schools.[140] The results are not always what advocates hope but the same can be said about legislated and administrative action.[141] The tools given to courts include hearing claims, gathering evidence, and forming judgements about both the substance and the remedies of constitutional obligations.[142] In articulating the elements of constitutional rights and duties, courts can and do benefit from the input of experts, community members, masters appointed to conduct hearings and craft recommendations, and continuing input from the parties to litigation.[143] All of these tools can be used in identifying the critical elements of a federal constitutional right to education and measures of its enforcement.[144]
Concerns about judicial competency to rule on and design remedies enforcing a constitutional right to education can be countered by reference to decades of state judicial decisions interpreting and enforcing state rights to education.[145] Although some states have rejected remedies in deference to legislative solutions, many others have relied with some successes on their state constitutions, their equitable remedial powers, and consultative processes to devise and revise meaningful implementation of adequate education for their residents.[146] Judicial enforcement has prompted action by legislatures and involved varied groups in crafting efforts to improve schools and reduce inequities in education.[147] Even if the judicial action only corrects the worst barriers to education opportunity, it represents an important effort that in turn helps to prompt further reforms and initiatives.[148] Short of enforceable decisions, the fact of litigation over whether there is a constitutional right to education can stimulate public education and consciousness, debate, and investment.[149]
As to the third objection—the risk of public backlash against federal judicial declaration of rights—a rich empirical literature on the subject has emerged since Rodriguez. Michael Klarman has explored how the Supreme Court’s school desegregation decisions may have temporarily slowed local progress and triggered backlash, but ultimately set in motion events culminating in the end of legally mandated segregation in and beyond public education.[150] Scholarly debates over direct versus indirect effects of judicial decisions do not alter the general conclusion that Brown v. Board of Education contributed substantially to the end of racial apartheid in America.[151] The Supreme Court’s decision requiring access to marriage for same-sex couples seems to have accelerated public opinion’s movement in that direction.[152] Negative political responses to judicial action can be serious, but also difficult to predict; such concerns may be out of place given the charge to judges to render decision based solely on the specific facts of a case and the relevant law.[153]
In short, although there are familiar objections to judicial involvement in announcing or enforcing a federal right to education, there are equally longstanding responses.[154] Those include nearly seventy years of federal judicial articulation of the fundamental role of education to American society and democracy and extensive involvement by state courts in adjudicating and enforcing a right to education in their state constitutions.[155] By making school attendance compulsory and providing for sanctions against noncomplying parents and children,[156] every state underscores the importance of education. The risks to liberty posed by such laws further suggests moral, if not legal, grounds for federal recognition of enforceable rights toat least minimal quality education.[157]
Quite apart from judicial action, a federal right to education could be developed through legislation and practice, and constitutional arguments supply support. Congress has overcome claims of exclusive state control over schooling through more than sixty years of statutory programs providing funding and standards for education.[158] Professor Kimberly Robinson advocates for Congressional action to work with interested states to experiment, then implement new strategies.[159] She argues that this incremental approach would allow the federal government to fix legislative shortcomings before expanding the efforts; she also suggests that this cooperative approach joining federal, state, and local governments could reduce fears of federal intrusion on state autonomy.[160] The Southern Education Foundation urges the introduction and pursuit of an amendment to the United States Constitution to ensure equitable education for all Americans.[161]
Social and political movements have played critical roles in building educational institutions and related resources and government involvement over the course of the nation’s history.[162] Even as colonies, Massachusetts and Conneticut mandated public education as an essential preparation for self-government.[163] Local efforts rather than national ones emerged, despite schemes for national systems of education proposed by statesmen involved in the American Revolution.[164] Political efforts to ensure “common schools” for all proceeded, especially in New England, during the early republic and expanded across the nation with the leadership of Horace Mann in the 1830s and 1840s.[165] Leaders in American education proposed and implemented common schools; they emphasized commitment to public schooling to support “the level of education that made democracy effective” and schooling helped to forge the nation’s character.[166]
Many African-Americans pushed for educational opportunities to support their emancipation from slavery and full citizenship and self-government, even when that meant fighting against the educational plans or denials of education by the established authorities and other Whites.[167] The creation of a federal department of education after the Civil War and the devotion of the federal Freedman’s Bureau, collaborating with private groups, reflect the work of advocates, politicians, and philanthropists to pursue education for formerly enslaved individuals and indeed for all Americans.[168]
Presidents of both the Republican and Democratic parties—notably Dwight D. Eisenhower, Lyndon Johnson, George W. Bush, and Barack Obama—have made education a federal priority.[169] So have philanthropic initiatives, including national commissions exposing shortfalls in American schools and urging reforms.[170] Whether focusing on narrowing the racial gap in achievement on standardized tests, the needs of special populations, such as immigrants, students with disabilities, and English-language learners, civic organizations and political movements that have built American educational systems could be galvanized to contribute even more through debates over a federal right to education.[171]
Hence, sustained historical practices, emphatic support from political leaders across time and political parties, and the advocacy of parents, teachers, and others both underscore the deep significance of education as a universal opportunity for American children and youth and produce federal initiatives that are inflected by constitutional considerations.[172] Thus, the development and enactment of policies and legislation can articulate commitments of American constitutional democracy.[173] Pursuing such civic work outside the courts with the language of constitutional rights imbues the efforts with empowerment for individuals and communities. The symbolic dimensions of the Constitution emerged after its enactment and reach into the consciousness of communities well beyond its instrumental uses.[174] Indeed, beliefs held by individuals and groups and struggles over fundamental rights, power, and policies are what make constitutional rights endure and remain relevant as successive generations seek to make their own the visions of “we the people.”[175]
Whether part of advocacy before courts, legislatures, school boards, or communities, advocates need to sharpen the priorities for education while articulating the meaning of a right to education. Guided by education’s relationship to constitutional democracy, advocates should stress cultivating understandings of facts, reasoned arguments, tolerance for social differences amid membership in communities, and the avenues for political participation and guards against tyranny. Legal commitments should ensure schools are places of safety from violence and from bullying or abuse; schools should also be equipped with the resources needed for quality and for redressing existing inequities. Education should support not only cognitive capacities but also students’ social and emotional growth.
The vulnerability of democratic governance and civility across America underscores the need to cultivate students’ abilities to detect and understand facts, to make and respond to reasoned arguments, to tolerate social differences while valuing membership in communities, and to comprehend and engage with the avenues for political participation and protections against tyranny. During this time of national and global crisis around health, practices around remote-learning, home-schooling, and learning outside of school hours are mutable and deserve serious attention. That means a rigorous focus on the promises and dangers to equity and to democracy from expanding home-schooling, remote-access digital learning, and learning beyond formal schooling.
Children, born with capacities and eagerness to explore and learn, thrive when given challenging and supportive learning environments, with teachers who are also learning and who collaborate and communicate, and with involvement of parents and other caring adults.[176] Leaders who are innovative, engaging, and collaborative matter; so do both continual assessment and efforts to improve. Many high-quality schools across the country—including many with predominantly low-income students, are effective.[177] Building systems to create and sustain high-quality schools is much more difficult than establishing one very good school, and it can be exceptionally challenging to create and maintain effective schools where families and communities are strained by poverty, crime, or drugs.[178] The sheer physical condition of many schools across the nation can be so poor as to jeopardize not only learning but also the health of students and staff.[179]
Quality education inevitably requires good teachers and adequate resources.[180] Fine leadership and resources to plan and to be nimble in cases of crises are critical as the Covid-19 period has underscored.[181] Those schools that already had digital learning plans could pivot when remote learning become essential.[182] Yet many schools and school districts lack such elements—and lacking access to reliable internet services, computers, and quiet places to learn, exacerbates educational disparities in the United States.[183] For those learning English, for those who have disabilities, and for those with other distinct challenges, the issues are even more pronounced.[184]
Spending money matters in schooling, because it is correlated with student achievement records and with teachers with more training.[185] Despite stark inequalities of educational opportunity, nearly half the states did not restore budget cuts made during the great recession and federal dollars (providing about 8% of public school revenues) have not kept pace with inflation.[186] Funding affects the availability of smaller class sizes and support staff, including mental health professionals.[187] And reducing inequities in funding demonstrably reduces gaps in student test performance that previously existed between low-income and higher-income districts.[188] Funding can support higher quality public schools, charter schools, and vouchers for use in private schools; a mix of providers can offer valuable choice and competition but inequities only increase without provision of resources to children whose families cannot move to suburban districts, pay private tuition, or navigate complex school choice regimes.[189] Ensuring a minimum quality of education means attending to the very different experiences with the effects of crime, the prevalence of family fragility, and the ability of parents or other caring adults to be engaged and supportive in the child’s learning. Guaranteeing that the schools are themselves free of violence—including exposure to weapons and exposure to bullying—is a predicate for effective learning as well as for the physical safety of students and staff.[190]
Education should prepare children to earn a living and to become engaged and effective participants in constitutional democracy—and it turns out that both increasingly need explicit attention to social and emotional development and the “soft” skills of communicating effectively, getting along with diverse others, and collaborating to solve problems and adapt to changing circumstances.[191] Education for children and youth should support not only their developing cognitive capacities but also their social and emotional growth. Sometimes described as twenty-first century schools, abilities to collaborate, to communicate effectively with a variety of people, to create and solve unanticipated problems, to think critically, to be flexible, to navigate both in-person and virtual worlds, technologies, and media are increasingly vital to success in the work world and to participation in voting and other civic engagement.[192]
Developing self-awareness, self-management, and control of one’s emotions even in the face of disagreements—what are increasingly called “social and emotional learning”—have become similarly vital tasks for education.[193] Whether these are needs highlighted by changing environments or whether children need help from schools developing these capacities due to parents distracted by other duties, too much time spent in digital activities, or too many traumatic incidents, these are educational needs identified by employers and by experts in civic participation.[194] Experiences learning and working alongside students with different racial, ethic, and socioeconomic backgrounds can be important elements of both cognitive and social learning.[195] Thurgood Marshall noted in one case: “[U]nless our children begin to learn together, then there is little hope that our people will ever learn to live together.”[196]
The vulnerability of democratic governance and civility across America underscores the need for particular faculties in children and youth. These include: students’ abilities to detect and understand facts, to make and respond to reasoned arguments, to tolerate social differences while valuing membership in communities, and to comprehend and engage with the avenues for political participation and protections against tyranny.[197] The bet made by constitutional democracies is that self-government is possible and is indeed the best guard against demagoguery, but self-government is hard and the gullibility of humans is a persistent trait.[198]
Education experts Richard Kahlenberg and Clifford Janney explain how the constitution’s framers understood that more would be required to guard against tyranny and concentrated power than the checks and balances of separation of powers, federalism, and a free press.[199] They note how the founders understood that “a demagogue, appealing to passions rather than reason, can use democratic means to win office, and, once in power, chip away at rival sources of authority—such as an independent press, and an independent judiciary—that stand in his way.”[200] Hence, beyond structures of government as a bulwark against demagogues, the nation needs “an educated populace. Thomas Jefferson argued that general education was necessary to ‘enable every man to judge for himself what will secure or endanger his freedom.’”[201] Education should equip voters with the analytical and perceptive abilities to discern which leaders have the nation’s interests at heart; schools should also
instill a love of liberal democracy: a respect for the separation of powers, for a free press and free religious exercise, and for the rights of political minorities. In this way, demagogues who sought to undermine those institutions would themselves be suspect among voters. Educating common people was the answer to the oligarchs who said the average citizen could not be trusted to choose leaders wisely. The founder of American public schooling, nineteenth century Massachusetts educator Horace Mann, saw public education as fundamental to democracy[:] “A republican form of government, without intelligence in the people, must be, on a vast scale, what a mad-house, without superintendent or keepers, would be on a small one.”[202]
School-based education grounded in history of the movements to abolish slavery and gain women’s suffrage about civics can enhance not only knowledge but also political participation and, perhaps, the nation’s capacity to hold officials accountable and to self-correct.[203] Actual experiences engaging in civic processes such as engaging in debates, student governments, school newspapers, community volunteer work, and lobbying local elected officials are especially proved to be effective.[204] A national study by the American Academy of Arts and Sciences found that despite contemporary political polarization, Americans across the country agree that the United States needs to invest in its civic education for young people; a new report from Educating for American Democracy “brought together leaders from around the country and across the political spectrum to develop a roadmap toward a new, national commitment to civic education.”[205]
Education, of course, need not take place in schools. For much of human history, educating children and youth occupied adult family and community members and religious institutions.[206] Even amid state compulsory schooling laws, the Supreme Court spurred growth of home-schooling in the name of parental rights and religious freedom.[207] During the pandemic, fledgling practices of remote-learning and on-line instruction proliferated as many schools had to shut down in-person learning for extended periods.[208] The national and global crisis around health makes salient the significance of remote learning, home-schooling, and learning outside of school hours to any serious consideration of educational rights and practices. This should include a rigorous focus on the promises and dangers to equity and to democracy from expanding home-schooling, digital learning, and learning beyond formal schooling.
Before the pandemic, 3-4% of American school-age children were schooled at home by their parents and represented two distinct groups: a small group of left-leaning progressives who viewed traditional schooling as too constraining of children’s creativity and eagerness to learn, and many more conservative Christians who treated public schools’ messages as inconsistent with their religious beliefs.[209] Over time, though, some highly educated, young urban professional parents have turned to home schooling for some portion of their children’s education because of disappointment with the rates of progress in schools or desires to spend more time with their children.[210] As many as 10% of all students spend some time being homeschooled.[211] With a range of state regulations governing the practice, and many states providing very little by way of requirements or oversight, four serious risks arise from home-schooling: 1) risks of physical or emotional abuse occurring and going undetected; 2) lack of preparation for participation in a diverse society; 3) inadequate preparation for and constrained choice-making about adult work and roles; and 4) failure to learn the knowledge and values related to history, science, rational argument, and civic participation.[212]
The numbers of families turning to full-time homeschooling doubled during the pandemic.[213] And the increase grew five-fold among respondents identifying as African American or Black.[214] Here, school closures and parents working from home coincided with racially related violence and low expectations or other racially linked failures by teachers —before and after the killing of George Floyd.[215] In addition, support from ideologically conservative investors in home-schooling programs and advocacy may have contributed.[216] And even for students who remain enrolled in public or private schools, increasing use of remote instruction turned many of them into at least part-time home-school students.[217]
If the increases in home schooling persist, the shortcomings and risks to children and to society will also grow—and call for concerted attention in the articulation and enforcement of a right to education. Particular concerns arise if a larger proportion of the population fails as children and youth to develop experiences with a diversity of others or to grow capacities to collaborate with and conceive of people unlike their own families as part of their community.
The pandemic also accelerated uses of digital learning in conjunction either with schools or with privately provided programs of study.[218] The gaps in access to the internet and to computers became obvious as more schools turned to on-line learning during the pandemic.[219] Access to the right technology is only part of the story. Learning online can be even more effective to learning in person for some students if there is appropriate structure, personalization, and interaction.[220] Digital learning can incorporate engaging and fun activities and platforms that permit connections with students from other communities and countries.[221] Digital capacities can also connect students with personal mentors, animated avatars, and adjustments to address personal learning styles, abilities, and disabilities.[222]
But research shows that teacher involvement and ongoing learning and support for teachers remain crucial to student learning.[223] Education for most people requires human interactions with feedback, encouragement, and engagement with peers.[224] At least in the near term, effective digital education may not produce cost savings although the subject is prompting research and debate.[225] Digital instruction in public school settings also introduces new issues about privacy and security.[226]
With imagination and investment, on-line learning could bring within the reach of any student world-class instruction, dynamic interactive materials, personalized support and feed-back, and opportunities for engagement with peers. Done poorly, however, on-line learning will magnify the disparities between households based on resources, including parents with varying degrees of educational background and time to oversee on-line activities. Greater use of on-line learning could also impair the development of social and emotional learning, including dealing with differences among people and developing patience and emotional management. Devising educational programs—and attendant rights—in the future will involve both the promise and challenges of digital resources.
Families with resources can and do choose not only private schools but also an array of out-of-school learning opportunities to cultivate knowledge and talents.[227] Learning outside of schools can also rely on libraries, community apprenticeship programs, and direct access to digital resources.[228] What role do and should any of these opportunities play in constructing a federal right to education—this will remain a question for another day. But if the lens of constitutional democracy should inform a rights-based treatment of education, inequities in access and the effects of such experiences on the polity deserve attention. Whether enacted through judicial orders or political processes, legal commitments should address the promise and dangers from expanding home-schooling and remote-access digital learning while deepening education critical to democracy.
John Dewey, the theorist and practitioner of democratic educational reforms, once wrote: “The struggle for democracy has to be maintained on as many fronts as culture has aspects: political, economic, international, educational, scientific and artistic.”[229] In the wake of a global pandemic, challenges to democracies around the world, and renewed attention to structures of racial and economic disadvantage in the United States, development of a federal right to education gains urgency and force. Digital learning and home schooling are changing the landscape of possibilities. Digital instruction accentuates need to devise experiences connecting individuals from different backgrounds, developing social and emotional skills, and literacies in digital materials as well as in math and reading. Whether achievable through judicial action or through legislative and policy work propelled by rights-conscious advocacy, a federal right to education should provide quality and equitable opportunities for all children and youth.
The United States Constitution established a governmental structure that calls for educating each generation in the knowledge and dispositions to enable self-governance in theory as well as equipping successive generations to take on adult employment and family roles. Marion Wright Edelman, founder of the Children’s Defense Fund and constant advocate for children, once said, “You need to be a flea against injustice. Enough committed fleas biting strategically can make even the biggest dog uncomfortable and transform the biggest nation.”[230] Let us be fleas for justice; let us make the predicates and the outcomes of our constitutional democracy a truly virtuous circle.