Equality, Freedom, Education: (2) Not One American Child Has the Constitutional Right to a Free, Quality Education

It is remarkable to me that although issues of discrimination in education have been adjudacated with the equal protection of all citizens under the law being upheld by numerous court cases—Brown v. Board of Education of Topeka comes to mind—we tend to forget (or may never have realized) that American children do not have a Constitutionally-guaranteed, fundamental right to a free, public education.

As I have Googled my way through this topic, almost all of what I’ve encountered are reports and op eds about challenges and successes related to ensuring equality in American public education, but there is precious little written about the absence of a fundamental constitutional right to free public education.

As Carolyn Anderson cites in White Rage:

As the case moved up to the U.S. Supreme Court, Texas pleaded racial innocence and claimed not only that it was meeting the bare minimum requirements for access to education but also that it could not and should not be held responsible for the differences between what poor districts and wealthy ones amassed. Nixon’s four appointees to the court, as well as Potter Stewart, who had been tapped by Eisenhower, agreed. In a March 1973 ruling that pulled the rug out from under Brown, they found that “there is no fundamental right to education in the Constitution.”

It would be correct to point out that every state does have statutes that affirm their responsibility to provide public education, but as the Education Commission of the States related in their “50-State Review:”

States differ in the constitutional foundation of their public education systems. The specific wording used to describe the public school system has consequences for how schools are funded in each state. In recent years, the constitutional language mandating the creation of public schools has been the basis for school finance court cases in some states.

I think you will find (if you have the energy to swim through miles of legal mud) that the cases referred to are often related to equal protection under the law, and not whether every American child has the right to a free public education, so here are three things I try to keep in mind related to this topic:

  1. There is a lack of uniformity across the country, state-by-state, in terms of how to apply the concept of a free public education.
  2. Constitutional assurances of equality in free public education are not the same as the right to a free public education; or looked at in another way: if there is no legal basis for providing a free education for every student in a state, and the requirement for universal public education in that state is legislated away, the issue of equality becomes legally (but to my mind, certainly not morally) moot.
  3. In a state ruled by a conservative Republican governor and by a conservative Republican state legislature, these players can decide to remove whatever act or law exists that requires the provision of public education to all students because there is nothing in the U.S. Constitution that requires each American child in every state or commonwealth to have access to a free, high-quality, public education—or any kind of education.

A bit over four years ago, I spoke privately with a Pennsylvania State Senator who then served on the Commonwealth’s Senate’s Education Committee. What he told me was that Republican Senators on the committee had expressed privately to him that Pennsylvania should get out of the education business entirely (my words; his point) because “they didn’t want their tax dollars to keep going down the drain” of failing schools, which then and still is code for schools populated primarily by children of color.

You will not find prominent leaders in the Army of Liberty (see: The War Between Equality and Liberty) advocating for the end of public education, but you will hear them advocating for the “free market” to control American Education, which has the same inevitable result of ending universal public education (see: The Harm that School Choice Brings). It is not just ironic that a very wealthy spokesperson for free market control of education for four years was the U.S. Secretary of Education; it was an entirely purposeful intervention by the GOP (the Army of Liberty).

In a Diane Ravitch blog post, “Michigan Lame Duck GOP Power Grab Over Education,” she claimed that “GOP free-market policies have severely damaged education. (Michigan’s) NAEP standing has plummeted over the past decade. But they can’t let go. The DeVos Republicans want to stay in power after losing the election.”

It is THIS ISSUE, the focus of Conservative Republicans, the Army of Liberty, on ending universal public education, which should be challenged by the Democratic Party (the Army of Equality). Championing the opposing point of view, along with three other key challenges, should be the shouted planks of the Democratic brand:

  1. High-quality, free and universal public education must be made a constitutional right of all American children.
  2. There must be universal health care; Medicare for All, if you will.
  3. There must be a constitutional right for Americans to receive a living wage.
  4. We must become, once again, a country that is based upon and committed to the Rule of Law.

If you would like to learn more about the absence of constitutional guarantees for public education, I encourage you to read Noliwe Rooks’ book, “Cutting School: Privatization, Segregation, and the End of Public Education,” which makes the argument for such guarantees while indicting those, like the DeVos family et al, who have been and are complicit in shredding the notion that free, high-quality, public education for every American child should be a fundamental right under the U.S. Constitution.


This is the second of several posts that I will be updating and reposting in an attempt to refine and arrange all of my education-related posts in a logical, conceptual order. As always, your comments will be much appreciated.

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