A Constitutional Right to Education?

Eleanor Roosevelt and the Universal Declaration of Human Rights
Eleanor Roosevelt (chair of the committee that drafted the Universal Declaration of Human Rights) looking at her proudest accomplishment

When I teach my Human Rights in International History course next spring, we’ll quickly come to the distinction between the “first generation” of political, legal, and civil rights and the “second generation” of social and economic rights. While the United States was an early adopter of the first, this country has had a more complicated relationship with the second. For example: in 1966 the United Nations adopted two international covenants meant to implement the provisions of the 1948 Universal Declaration of Human Rights. While the USA voted for the UDHR and ratified the International Covenant on Civil and Political Rights (albeit not until 1992 and then only with significant legal reservations), it has never ratified the International Covenant on Economic, Social, and Cultural Rights.

Article 13 of that document recognizes “the right of everyone to education” — with primary education to “be compulsory and available free to all,” secondary education “made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education,” and higher education “made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.” (Article 26 of the UDHR had guaranteed the right of education.) The following article in that covenant called on states that did not yet have free, compulsory primary education to develop a plan to implement such a system, and later UN conventions reiterated the right to education. (See this overview from the University of Minnesota’s Human Rights Center.)

1902 history class at Tuskegee Institute
History class at Tuskegee Institute, 1902 – Library of Congress

Now, there have been numerous American objections to this document — and even to the educational provisions. But at the same time, a right to education might seem relatively non-controversial for Americans, pioneers in the development of universal, public education in the 19th and 20th centuries and founders of thousands of institutions of higher learning.

Until you consider what writer Stephen Lurie pointed out this morning at The Atlantic, in noting that the United States languishes behind sixteen other countries in The Learning Curve, a recent ranking of educational systems by Pearson:

Each of the countries ahead of the U.S. has a fundamental commitment in common, one that the America doesn’t: a constitutional, or statutory, guarantee of the right to education….

Every country that bests us in the education rankings either has a constitutional guarantee to education, or does not have a constitution but has ensured the right through an independent statute. Each has constructed law around education as a fundamental right of citizens, at least until the age of adulthood.

Unlike 174 other national constitutions, the U.S. Constitution contains no mention of education. (Likewise, 170 other countries — but not this one — address “health” in their constitutions.) While “traditional interpretation has deemed the 10th amendment sufficient to shift responsibility to the states, and the 14th amendment adequate to ensure fairness,” Lurie points to the Supreme Court decision in San Antonio Independent School District v. Rodriguez (1973) as running “directly counter to that logic, denying appellant claims that unequal education funding violated a fundamental right and the Equal Protection Clause. Even as America assumes the responsibility for education rests somewhere, its clear that the right to that education has clearly fallen through the cracks.”

Nor does Lurie think that legislation apart from the constitution has been effective:

Jyväskylä University
Jyväskylä University in Finland, the top-ranked country in The Learning Curve system. The second chapter of the Finnish constitution guarantees the right to education – Wikimedia

With no central basis for reform, national initiatives have long offered varying approaches to improve disparate school systems. The idea is that the problems of the American education system are solved with policy and metrics, by technical requirements, and uniting standards. They assume that the American value on education is implicitly ingrained. The basis for this thinking is founded, in the modern era, in the Elementary and Secondary Education Act of 1965, implemented as part of the War on Poverty, and periodically reauthorized since. This act, and its descendants like No Child Left Behind, begins its work—funding, setting standards, and outlining federal requirements—from a rather bizarre premise. In striking out to reform education, their “purpose” is to “ensure that all children have a fair, equal, and significant opportunity to obtain a high quality education.” Yet, picking the procedural fight—the “ensuring” of a right that has no legal basis—hasn’t enabled practical solutions to vast educational inequality.

Instead, Lurie argues that a constitutional or statutory right to education “[centralizes] education as a key focus of the state” and serves to “establish baseline requirements that set the frame for policy and judicial challenges, as well as contribute to what the Pearson report calls a ‘culture’ of education: where ‘the cultural assumptions and values surrounding an education system do more to support or undermine it than the system can do on its own.'” So he calls for a constitutional amendment guaranteeing the right to education:

If a true right is established, soft forces and hard law can begin to fundamentally alter the immense flaws of the education system nationwide. This is the exact phenomenon that plays out time and again in other countries—and particularly the ones besting American education. The constitutional guarantee develops a national culture of education, a baseline for rights, and allows—if necessary—for legal protection of that standard. Such an amendment won’t be a panacea for American education, but without it the U.S. will stay average in the rankings and yet remain that one country left behind.

What do you think? Should there be a constitutional amendment guaranteeing the right to education in this country?

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