Ensuring Every Student Succeeds by Locating Rights to Education
Earlier this year, I wrote a blog post titled Locating Rights to Education for Ensuring Every Student Succeeds, where I suggested that the passage of the Every Student Succeeds Act (ESSA) both reflects and reinvigorates an age-old debate about who is ultimately responsible for ensuring equal and adequate educational opportunities, or in other words, protecting students’ rights to education. Here, I aim to take the argument one step further. Locating rights to education should not simply be an intellectual exercise; rather, ensuring that every student succeeds actually requires locating rights to education. It is imperative to determine the source and scope of those rights if we really wish to secure equal and adequate educational opportunities for our children.
The “right to education” has been codified in constitutions, statutes, and covenants among countries across the world. By one count, 187 countries’ constitutions have some mention of education. The International Covenant on Economic, Social and Cultural Rights, with 164 State Parties, establishes in Article 13 that “[t]he State Parties to the present Covenant recognize the right of everyone to education.” And the Convention on the Rights of the Child, with 196 State Parties, establishes in Article 28 that “State Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity … .”
Neither covenant has been ratified by the United States.
In our country, education is generally regarded as important, but there remains no enumerated federal right to education, and furthermore, no clarity to the source and scope of a right to education throughout the country. This uncertainty on whether and where a right to education exists has had immense consequences. At least one commentator laments the lack of such a right, pointing out that every country outperforming the United States has a right to education either in its constitution or by statute. While there is no precise method to prove a causal link between this uncertainty and failing test scores, some of the likely effects of this muddled status of a right to education are hard to ignore. At least three legal developments in the United States expose how the uncertainty has harmed our education system, and the implementation of the ESSA is an important moment to reflect on these challenges.
First, the uncertainty has made protecting students’ access to educational opportunities regardless of zip code much more difficult. One example was when the U.S. Supreme Court considered a case where a state denied educational funding to an entire class of children because of their undocumented immigrant status. As mentioned in my earlier blog post, Plyler v. Doe (1982) represented a victory for federal protections for children being denied an education even after San Antonio Independent School District v. Rodríguez (1973) had foreclosed a fundamental right to education under the U.S. Constitution. The Court in Plyler found, 5-4, that the denial was unconstitutional. But the Court did so only after taking pains to scrutinize the law’s purpose under the Fourteenth Amendment’s Equal Protection Clause. The dissenting justices, meanwhile, charged that the majority had overstepped its bounds and intruded on the lawful discretion of state legislatures. Because the source and scope of a right to education remained uncertain, the principles of equal protection, judicial deference, and federalism complicated and obscured the basic premise that these children, like any others, needed access to education.
Second, an uncertain right to education has also had an impact in state courts, where many litigants turned after Rodríguez foreclosed arguments under the U.S. Constitution. While some lawsuits have resulted in court-ordered remedies for children in particular states, others have been far less successful. Regardless of the merits of each individual case, one recurring theme has been the many years required for reaching judgments. Whether waiting on appeal, litigating on remand, or evaluating consent decrees, many of these cases have involved tremendous expenses in time and resources first addressing whether state constitutions, if not the U.S. Constitution, guarantee rights to education, and only then considering appropriate remedies, with every step slowed by procedural hurdles. Typically, by the time these cases have been completed, many children have already graduated or dropped out of school, and entire state administrations have changed hands. Once again, the basic premise that children should have access to equal and adequate educational opportunities has been obscured as the source and scope of those rights remains uncertain.
Third, the ESSA’s much-criticized predecessor, the No Child Left Behind Act (NCLB) was also undercut by this same uncertainty. Without any clear picture of the protections and entitlements afforded to students, nor a cause of action to litigate these protections and entitlements in courts, the NCLB focused on accountability standards including adequate yearly progress and enforcement mechanisms through federal sanctions on schools and a waiver system. Detached from the actual experience of students learning within classrooms, the exercise of ensuring adequate education became yet another mechanical process of regulating schools rather than protecting students. The result was a system disagreeable to all—arguably tone-deaf as students struggling in schools simply struggled more as their schools were marked as failing and ineffectual at actually providing more resources to the schools with the most needs.
As my earlier blog post hinted at, the ESSA does not by itself relieve these difficulties. Rather, the ESSA punts this uncertainty back to the states. My aim here has been to lay out why we need a new paradigm of thinking about education, and why it should include some concept of rights. Locating rights to education is not simply a semantic exercise. It is a critical step in reaffirming our commitment to providing every child with the education to which they are entitled. We know rights to education exist, including through at least some combination of federal statutes, state constitutions, and other laws. Locating these rights to education will not automatically solve every challenge in effective education policymaking, but if we begin with rights as the starting point, the ESSA and other educational debates can recalibrate with protecting our children at the center of discussion. But if the ESSA remains mired in debates over legal doctrines far removed from rights to education, we may remain in the same partisan, impersonal approach to education that has marked much of the last few decades. Uncertainty of the source and scope of rights to education has contributed to this country’s many stumbles on the quest to deliver effective education for all. We are once again at a crossroads in education, and children around the country are counting on us to pave a surer path.
Eric Chung is a J.D. student at Yale Law School and an ISPS Graduate Policy Fellow. His research focuses on the intersections between law and comparative social policy, including in the fields of education, health, and welfare.