Historically, the U.S. Supreme Court has reluctantly weighed in on education. But when it has, its decisions need to be carefully scrutinized. Readers who follow education can recite past rulings, such as Brown v. Board of Education, for their far-reaching impact and media coverage. But there’s a far less known case that I believe can upend our views about education (“Is Education A Fundamental Right?” The New Yorker, Sep. 5).
I’m talking now about Plyler v. Doe, which the U.S. Supreme Court decided in 1982. I believe it has the potential to make education a fundamental right for the first time in American history. It involved the decision by James Plyler, the superintendent of public schools in Tyler, Texas, to bar undocumented immigrants from school in his district. In his defense, Plyler was following state law, which allowed public schools to do so.
When fundamental rights are involved, the courts have held that a standard known as “strict scrutiny” be applied before they can be abridged. The question is whether education is such a right. The U.S. Constitution does not mention the right to an education. The closest was in 1787 when the Northwest Ordinance held that “schools and the means of education shall forever be encouraged.”
I’m not a lawyer, but I think that eventually Plyler v. Doe will become the basis for making education a fundamental right. At present, the door seems shut as a result of the high court’s ruling in 1973 in San Antonio Independent School District v. Rodriguez. But the matter is far from settled.
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Courts will be very reluctant to make education a “fundamental right”. The foreseeable consequence of doing so would be to trigger lawsuits by children, parents and public interest organizations challenging any public school decision or policy that arguably restricted a student’s educational opportunities. Judges and Justices would rationally fear being pressed into service as substitute school superintendents or substitute school boards.
There’s also the threshold argument that, when the Constitution was written, few states (none, I think) recognized a general govt obligation to provide free public schools.
Finally, as a matter of govt philosophy generally, decisions regarding the amount and quality of free public education should generally be made by the legislative and executive branches of govt — the elected branches.
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Labor Lawyer: Although education in this country has a long history of local control, I think the courts will eventually rule that it is indispensable and will therefore immerse themselves in the issue. Ideally,education should be a legislative issue, but because of the vastness of this country, I think it will become a federal issue.
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Agree that there will be elements of K-12 that will become federal issues — increased geographic mobility makes this inevitable. However, whether education issues are federal vs. state/local issues is a different inquiry than whether education issues are legislative/executive vs. judicial issues. I’m strongly opposed to education issues becoming judicial issues. Judges lack the expertise, taxing authority and political accountability to decide education issues. Also, once the federal courts decide that X is a Constitutional right, then there is no easy way for the govt — federal, state or local — to take any action that is inconsistent with X. Arguably, on issues like abortion or the right to vote, there are strong philosophy-of-govt concepts that justify the federal courts preempting the legislative and executive branches. In my opinion, K-12 education issues are qualitative different vis-à-vis philosophy-of-govt concepts and should be largely left to the legislative and executive branches.
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Labor Lawyer: Tradition dies hard in education. The US has a long and strong history of local control of education. Sometimes that’s good because outsiders lack familiarity with local issues. But eventually a lawsuit will be filed that will make education a basic right. That will create an entirely new picture of schools.
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I am not a lawyer, and even if I was I would be reluctant to pontificate in the presence of Labor Lawyer, whose consistently thoughtful comments are greatly appreciated, but here’s what I think is legally important:
The obscure Plyler decision in 1982, followed by the Immigration Reform and Control Act (“Reagan Amnesty”) in 1986, had a transformative impact on California schools; the acclaimed Brown v. Board of Education decision, not so much.
African-Americans still attend effectively segregated schools and have not made much of a dent on the Achievement Gap. Parents residing in Mexico realized they could move across the border and give their children free K—12 American educations, no questions asked, or even allowed.
If you read the contentious 5—4 Plyler decision, it’s apparent in retrospect that the Justices had good intentions, figuring that there was more good than harm in educating a limited number of Mexican children residing in Texas at that time.
The unintended consequences are evident in current L.A.U.S.D. demographics.
Also, were it not for the Plyler precedent, Proposition 187 in 1994 would have reversed many of the amnesty’s effects.
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Plyler is evidence supporting the argument that K-12 education issues should be resolved by the legislative or executive branches rather than by the judiciary. Once the judiciary has spoken — announcing a Constitutional right or principle — that often strips the legislative and executive branches of the ability to implement reasonable compromises.
The facts in Plyler make it more reasonable for the SCt to step in. The critical issue there was whether illegal immigrants are “persons” covered by the 14th Amendment’s equal-protection clause. This is not a purely K-12 issue but rather a “who’s covered by the 14th Amendment” issue — an issue that we would expect the SCt to decide. By quarrel with Plyler is not so much that the SCt decided the issue but rather that the SCt decided the issue incorrectly. Probably, the 14th Amendment drafters did not intend the 14th Amendment to cover illegal immigrants (they were thinking about freed slaves, not illegal immigrants) + common sense suggests the world will run better if the legislative and executive branches can make issue-by-issue determinations re illegal immigrants’ rights rather than the SCt giving illegal immigrants across-the-board Constitutional rights. In other words, in my view, the SCt should have decided the “are-illegal-immigrants-covered by the 14th Amendment” issue but should have held that illegal immigrants are not covered by the 14th Amendment.
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Lancer to Bruin: It’s impossible to predict how the U.S. Supreme Court will rule on cases in the years ahead, but I think education is too important for the high court to leave the matter strictly to local control. There will be occasional exceptions, but the trend is toward making education a fundamental right.
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1. Undocumented immigrants are here illegally.
2. There are cities and towns in MA who are in debt because of the large number of illegals that were dropped in their communities. They have overcrowded classrooms and are being forced to build new schools. The state and federal government have refused to provide any additional funding.
3. What does an “EDUCATION” mean. You could ask 10 different people their meaning and get 10 different answers. Having taught in MA and FL, I can tell you that states have different views of what an education is.
4. How many states do not have a requirement that young people must attend school to a certain age?
5. If the courts rule for the “RIGHT”, does this mean the federal government will provide the necessary funding so every teacher will be paid the same and the same amount spent per pupil across the country? Teachers and students in FL would love that.
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mathcoach2: I’m not saying that immigrants who are here illegally should get an education. What I am saying is that a basic education, which you correctly point out varies from state to state, will eventually be declared a right by SCOTUS. The problem will be how to define a basic education and then how to fund it.
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