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While litigation continues in an effort to establish a fundamental right to education under the U.S. Constitution, the full historical justification for this right remains missing—a fatal flaw for many jurists. This Article fills that gap, demonstrating that the central, yet entirely overlooked, justification for a federal right to education resides in America’s education story during the era of slavery and Reconstruction.

At that time, education was first and foremost about freedom. The South had criminalized education to maintain a racialized hierarchy that preserved slavery. Many African Americans, seeing education as the means to both mental and physical freedom, made extraordinary efforts to secretly acquire it. After the War, their efforts morphed into a full-fledged public education movement. Congress, aiming to remedy slavery and repair democracy itself, responded by requiring confederate states to guarantee education in their state constitutions. The rest of the nation followed shortly thereafter.

This Article analyzes this history through the Thirteenth Amendment, the Fourteenth Amendment, the Guarantee Clause, and subsequent judicial precedent. It demonstrates, first, that the Constitution has long protected a negative right to education—the freedom to pursue learning without state interference. Second, it reveals how that negative right transformed into an affirmative one in the years immediately following the Civil War. By anchoring the right to education in multiple constitutional provisions, this Article demonstrates that the right to education permeates the very fabric of our constitutional democracy.


Published by Northwestern University Law Review, Volume 116, Issue 4, 2022 and shared here with their permission.

© Copyright 2022 by Derek W. Black

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