A F E D E R A L R I G H T T O E D U C A T I O N
Why don't we have it?
Why don't we have a federal right to education?
Why don't we have a federal right to education?
A nation built upon the distilled ideals of the Enlightenment does not protect the right for its citizens to become enlightened. Odd. The following are reasons why Americans do not have this essential right.
Education at the Constitutional Convention
During the construction of our Constitution during the summer of 1787, the founders likely did not include education as a federal right for several reasons:
It was an agrarian society. The nation’s economy and national defense did not require that the populace be largely educated, unlike today.
Other pressing matters. Remember, the Articles of Confederation was falling apart. They had to maintain a functional government while creating a new one. All while putting down numerous revolts, riots and rebellions.
The federal government had no money. The central government under the Articles of Confederation was purposefully designed to be weak--it did not even have the power to collect taxes. It is impractical to guarantee a federal right if there is no realistic means to provide it.
Fears that federal government would be too strong. Although, a system of a weak central government was currently proving to be a disaster, our founders were still weary--only years removed from a living under a tyrannical monarchy--of crowning a central government with too much power.
An American Advocate in Paris
Education did have its supporters at the Convention. Benjamin Franklin and James Madison pushed for some form of federal funding without success. The founder with the most ardent support of education was absent from the Convention. Thomas Jefferson was in Paris serving as an ambassador to France. James Madison later sent him a copy of the newly-adopted Constitution. After review, Jefferson responded back:
“Above all things I hope the education of the common people will be attended to, convinced that on their good sense we may rely with the most security for the preservation of a due degree of liberty.”
"If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be."
THOMAS JEFFERSON
The 10th Amendment
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Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Tenth Amendment of the U.S. Constitution says whatever is not explicitly delegated to the federal government in the Constitution, is delegated to the states. Since "education" is not one of the 4,543 words in the Constitution—education is deemed a state matter.
Negative vs. Positive Rights
Americans do not have a federal right to education because education is a positive right and the Constitution is generally seen as a charter of negative rights.
Human rights can be classified into two groups—negative and positive.
Negative rights are rights inherent to a human being, like the right to free speech and religion. They impose a negative duty on others. People must refrain from action in order to preserve another’s negative right.
Positive rights are those that entitle “a person to have another [i.e. the government] do some act for the benefit for the person entitled” (Garner, 1999). Examples of positive rights are the right to healthcare, food, and education. Positive rights impose a positive duty on others. People must act to ensure that the right is being fulfilled.
It is the opinion of many federal judges that “the Constitution is a charter of negative rather than positive liberties.” U.S. Supreme Court Justice Clarence Thomas has said that “Our Constitution is a collection of ‘thou shalt nots...not thou shalt provides.’”
Glaring exceptions
But upon closer inspection, the United States does have positive right provisions in the Constitution.
The Sixth Amendment which grants the right to a speedy trial, the right to a trial by jury of one’s peers, and the right to counsel, is a positive right. This right requires others to act as trained judges, lawyers, and jurors to ensure the fair treatment of the accused. The very existence of the United States’ justice system can be seen as evidence of a positive right protected in the Constitution.
The Guarantee Clause, also known as the Republican Form of Government Clause, sets forth a positive right. Article IV, Section 4 of the U.S. Constitution reads, “The United States shall guarantee to every state in this Union a republican form of government.” A republican form of government requires an electoral process. This clause requires states to procure governments by elections—instead of authoritarian, dictatorial, monarchal, or militaristic means. The existence of a Board of Elections, in every county or parish in America, and citizens acting to provide fair elections, is evidence that the Constitution protects this positive right.
San Antonio v. Rodriguez (1973)
The United States Supreme Court ruled that citizens do not have a federal right to education because education is never mentioned "explicitly or implicitly" in the Constitution.
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The Case
Demetrio Rodriguez, a father of local elementary public school children, argued that Texas system of funding public schools, primarily with local property taxes, bred inequalities and deprived his children of their constitutional rights. His poor neighborhood could not fund quality education while children in rich neighborhoods received quality education. He argued his children, U.S. citizens protected by the 14th Amendment's Equal Protection Clause, had a right to an adequate and equal education.
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Majority Opinion
The Supreme Court ruled 5-4 in favor of the school district. The majority opinion reasoned that education was not expressed “explicitly or implicitly” in the Constitution and therefore was not a federal matter. The court ruled education was an issue for the states.
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Dissenting Opinion
But Associate Justice Thurgood Marshall snapped back in the court’s dissenting opinion. He pointed out that although citizens do not have an explicit right to an education—they are protected by their 1st Amendment right of free speech and their 15th Amendment right to vote. He argued that it is impossible for a citizen to exercise those rights effectively without a proper education. Marshall was expressing the need to uphold the Constitution’s unenumerated rights. He argued that a proper education is necessary for a citizen to exercise their explicitly coded rights. Therefore, the right to an education should be protected at the federal level.
Legacy
In 2015, Time magazine interviewed a group of legal scholars and they agreed that Rodriguez was the "worst Supreme Court decision since 1960.” And that the decision "played a major role in creating the separate and unequal schools that exist today." Ultimately, Rodriguez set an ugly precedent—since 1973, the Supreme Court has refused to hear cases based on school inequity, solidifying their opinion that education is not a fundamental human right.
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Unenumerated rights are rights that can be implied from other rights—but are not themselves expressly "enumerated" among the explicit writ of the law.
International Covenant on Economic, Social, and Cultural Rights (ICESCR)
Unlike over 170 other nations, the United States has not ratified the United Nations International Covenant on Economic, Social, and Cultural Rights (ICESCR) which includes education as a fundamental human right.
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The ICESCR is a legally binding international treaty born out of the provisions championed in the famed, non-legally binding, Universal Declaration of Human Rights (UDHR). The ICESCR is composed primarily of positive rights, such as labor rights, the right to health and education (Article 13). The United Nations sees education as a fundamental human right and “an indispensable means of realizing other human rights."
Parties and signatories to the ICESCR
Our own land and our own flag cannot be replaced by any other land or any other flag. But you can join with other nations, under a joint flag, to accomplish something good for the world that you cannot accomplish alone.
ELEANOR ROOSEVELT
Ratified
Not ratified
Amnesty International writes that, since the Carter administration (1977), the United States has refused to ratify the treaty for various political reasons.
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Jimmy Carter. "Did not push for the necessary review of the Covenant by the Senate, which must give its 'advice and consent' before the United States can ratify a treaty.”
Ronald Reagan and George H. W. Bush. "Took the view that economic, social, and cultural rights were not really rights but merely desirable social goals and therefore should not be the object of binding treaties.”
Bill Clinton. "Did not deny the nature of these rights but did not find it politically expedient to engage in a battle with Congress over the Covenant.”
George W. Bush. "Followed in line with the view of the previous Bush administration."
Barack Obama. "The Administration does not seek action at this time."
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The Heritage Foundation, a conservative think tank, "argues that signing the treaty would obligate the introduction of policies that it opposes." The United States joins the ranks of Saudi Arabia as one of the few nations that have not ratified the ICESCR.
The United States is the only United Nations member state to have not ratified the Convention on the Rights of the Child (UNCRC), the most supported international treaty—ever. President Obama has called this "embarrassing," yet while in office he never submitted the treaty to the Senate for ratification.
Do we need it?
So the United States does not have a federal right to education. However, we are among the most prosperous and well-educated nations in the world. Do we even need it?