The Right to Education

Unquestionably, the legal system recognizes certain rights, including the right to a free public education. In 1954, the United States Supreme Court issued its landmark decision in which it struck down racial segregation and ruled that "separate, but equal" educational facilities were unconstitutional. Some commentators have said that despite the ruling, many children still do not have access to a free, quality public education.

In the early 1970s, the Supreme Court clearly held that children with disabilities are given a right to a free, appropriate public education by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Supreme Court has held that all children, regardless of immigration status, can enroll in public schools.

Several federal laws have made provisions for public education. For example, the Individuals with Disabilities Education Act of 1990 mandates that all children--regardless of disability--receive a free, appropriate public education.

The United States Constitution says nothing about public education

Contrary to popular belief, the right to a free public education is not among those rights specifically listed in the Constitution. Put another way, the Constitution does not require a state to provide free public education to its residents. Instead, a right to a free public education must be enumerated in a state's constitution.

Because public schools are considered by many to be the foundation of our system of democracy, nearly every state's constitution has a provision for free public education. These states have enacted laws with the purpose of providing equal access to a quality education to all resident students. For example, the Washington state constitution promises that a free and equal public education is the state's "paramount duty." Some state courts have held that a right to a free public education only extends to academic activities; thus, the right does not include a right to participate in sports or other extracurricular activities.

Some civil rights organizations look to the Equal Protection Clause in contending that all children have a constitutional right to a free public education.

Critics say "No Child Left Behind" Act attacks right to free public education

Proposed just days after President George W. Bush took office during his first term, the No Child Left Behind Act passed in 2002. The Act was passed with bipartisan support, although admittedly few legislators and educators had read the 1,000-plus page bill before its passage. In the years since, opposition to the Act has grown, as teachers and school districts find it increasingly difficult--if not impossible--to comply with the law's mandates.

Some critics of the Act say that its provisions are eroding the right to a free public education provided by state constitutions. These critics say that the Act sets up public schools for failure while promoting privatization of education.

Proposed amendment to U.S. Constitution would require educational equality

An amendment to the Constitution received little attention when it was introduced in 2001. The amendment proposed that the current system of educational funding violates the Equal Protection Clause. The current system of funding usually is based on the affluence of a community. Some civil rights advocates now say that the concept behind the proposed amendment is worthy of debate if the nation is truly serious about making education a civil rights issue.

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