Patrick Stickney
Patrick Stickney is a Resident Forum Blogger covering recent developments in domestic and international human rights issues.
Of all of the human rights that the United States does not officially recognize, the right to education has arguably received the greatest level justiciability in subnational courts. Denied the status of a federal constitutional right by the Supreme Court in the landmark decision, San Antonio Independent School District v. Rodriguez, the legal fight over the status of education as a right moved to state courts. Like Rodriguez, state cases have usually dealt with adequate financing of public schools. Courts of last resort in California, New Jersey, Arkansas, Connecticut, New York, North Carolina, Washington, and Wyoming, among other states, have held that the right to education is either a fundamental or substantial right derived from their respective constitutions.
Out of these states, two stand out because of the actions required by their courts. In 1975, the New Jersey Supreme Court first held that the “right to a thorough and efficient system of education” was guaranteed by the New Jersey constitution in Robinson v. Cahill (“Robinson III”). The Robinson line of cases, the first of which was decided in 1973, began when a group of parents, students, and elected officials brought suit against the state for unequal funding of schools. In Robinson I, the court held that the funding scheme was unconstitutional but rejected characterizing it as a fundamental right.
It was only after the legislature failed to act that the New Jersey Supreme Court, in Robinson III, articulated the clause as guaranteeing a fundamental right, and extended the deadline for the legislature to provide adequate funding for public schools. Following Robinson III, intervening litigation, and the legislature’s passage of an education plan without actually providing funding, the court, in Robinson VI (1976), issued an injunction that shut down the public school system until the legislature funded the legislation it had already passed. The legislature responded swiftly, and a week later passed an income tax to provide the necessary funding. This did not solve all education funding issues in the state, but since then there has been a “long history of litigation” to ensure that poorer areas have the money they need to meet New Jersey’s constitutional standard.
In Washington, the Supreme Court recently became more active in enforcing its state’s constitutional guarantee for education. The Washington State Constitution includes the provision that “it is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.” In McCleary v. State (2012), the court detailed 1) the definition of basic education the state is required to provide, 2) the status of the constitutional guarantee to basic education as a positive right held by children in the state, and 3) the failure of the state to adequately fund K-12 education in line with the fulfillment of this right. Further, the court required the legislature to fund K-12 education through “reliable and dependable tax sources” (instead of property tax levies).
Because of political difficulties in raising taxes, the legislature still has not provided any funding source which would meet the state’s obligations, and the court has responded with a series of orders that levy increasingly severe penalties on the State. In 2014, the court held the State of Washington in contempt of court. After the 2015 legislative session, the court imposed sanctions of $100,000 a day on the state, which the state is incurring to date; this money goes into a separate account “for the benefit of basic education.” If the legislature does not provide an appropriate funding source this legislative session, the court may respond with more severe action.
While most litigation about the right to education concerns school financing, there are many other components to the right. In 2001, the United States was the subject of a storied report by Katarina Tomavetski, the UN Special Rapporteur on the Right to Education at the time. In the report the Rapporteur cited racial and gender disparities, child poverty, and the “fragmentation of decision-making in education” as barriers to the fulfillment of the right to education. The Rapporteur also noted the negative impact on the right to education that results from issues like the limited provision of sex education or the existence of inadequate accommodations for students with disabilities in the classroom.
Despite the litigation occurring in the states to secure the right to education, it is unlikely that the Supreme Court will overturn Rodriguez anytime soon. It has been suggested that post-Rodriguez litigation has changed the equal protection analysis enough to allow the right to be protected at the federal level because now that education has been recognized as a right either in state constitutions or by state statute, the federal courts would only be ensuring uniform access to a right the states have already recognized. However, at least for the near future, it is unclear whether the Court would find this argument persuasive. In the meantime, the status of the right, as it has been recognized, will stay confined solely to the states.
Published on February 28, 2016.