New litigation has revived one of the most important questions of constitutional law: is education a fundamental right? The Court’s previous answers have been disappointing. While the Court has hinted that it might recognize some minimal right to education, it has thus far refused to do so.
To recognize a fundamental right to education, the Court would have to overcome two basic problems. First, the Court needs an originalist theory for why our constitution protects education, particularly since the word education does not even appear in the constitution. Second, the right to education implicates complex questions regarding its scope. Neither litigants nor scholars have seriously grappled with these problems, which explains why the Court has yet to recognize a right to education.
This Article demonstrates that the right falls squarely within the Court’s existing precedent. It traces the fundamental importance of education from the nation’s founding principles through the years immediately following the Fourteenth Amendment. It examines historical facts and constitutional developments that have quite simply been overlooked.
This Article also defines the scope of a right to education with historical evidence. It demonstrates that the original purpose of public education was to prepare citizens to participate actively in self-government. In the mid-nineteenth century, this required an education that prepares citizens to comprehend, evaluate, and act thoughtfully on the functions and policies of government.
Derek Black, The Fundamental Right to Education, 94 NOTRE DAME L. REV. 1059 (2019).