Friday, January 15, 2016

Reconstituting the Right to Education

Joshua Weishart's forthcoming article, Reconstituting the Right to Education, is now available on ssrn here.  Consistent with his first article, it is very thoughtful.  I have already found it useful in three of my forthcoming projects.  His abstract indicates:

Confronting persistent and widening inequality in educational opportunity, advocates have regarded the right to education as a linchpin for reform. In the forty years since the Supreme Court relegated that right to the domain of state constitutional law, its power has surged and faded in litigation challenging state school finance systems. Like so many of the students it is meant to protect, however, the right to education has generally underachieved, in part because those wielding it have not always appreciated its distinctive forms and function.

Deconstructed, the right to education held by children has been formulated doctrinally as both a claim-right, imposing affirmative duties on the state to act, and an immunity, disabling certain state action. These two strands — oft-manifested as the claim-right to educational “adequacy” and an immunity entailing “equality” of educational opportunity — once considered irreconcilable are actually interlocked by the right’s core, historical function to protect children’s liberty and equality interests.

And yet the right to education is ill-equipped to fulfill its protection function. Education clauses in state constitutions do not fix the standards for mutually enforcing equality and adequacy. This encumbers already-reluctant courts in addressing educational disparities and emboldens legislative resistance when they do. Appreciating that the right to education has a protection function entailing equality and liberty interests nevertheless suggests that it can be adjudicated in a way that unifies the demands and guarantees of substantive due process and equal protection. That union holds the potential to ameliorate the enforcement standards thereby reconstituting the right to education as a mainstay of reform.

https://lawprofessors.typepad.com/education_law/2016/01/reconstituting-the-right-to-education.html

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