Bridging Brown and Rodriguez: A Doctrinal Argument for a Fundamental Right to Education

Introduction

I think by far the most important bill in our whole code is that for the diffusion of knowledge among the people. No other sure foundation can be devised for the preservation of freedom and happiness.[1] – Thomas Jefferson, 1786

Education has long been recognized as the cornerstone of American democracy. From the nation’s founding to the present, public education has been treated as essential to cultivating civic virtue, enabling economic mobility, and ensuring equal opportunity. However, we are far from achieving Jefferson’s ideal of education as the “sure foundation … for freedom and happiness”: today, pervasive disparities in educational opportunities and resources disproportionately burden poor and minority students.[2] Predominantly marginalized schools receive about $2,000 less in federal funding per student than their white counterparts, contributing to lower academic achievement and perpetuated cycles of economic disadvantage.[3] Furthermore, since 2008, most states have significantly decreased school funding, some by even more than ten percent, and more troubling still, several states have proposed or enacted constitutional amendments to diminish protections for public education.[4] Although many cite these crises as a need to recognize education as a fundamental right, for the past half-century, that recognition has remained elusive.[5] While the Supreme Court has repeatedly affirmed the vital importance of education to American life, it has nonetheless declined to extend a formal constitutional protection to education under the Fourteenth Amendment.[6] In 1973, the prospect of such protection suffered a seemingly insurmountable blow with the Court’s decision in San Antonio Independent School District v. Rodriguez, which held that education is not implicitly or explicitly recognized in the Constitution and hence does not constitute a fundamental right.[7] Ultimately, the Court’s continued recognition of education as a crucial prerequisite to meaningful citizenship, yet its refusal to afford it constitutional protection in Rodriguez, has established education as one of constitutional law’s most intractable problems. In this paper, I argue that the Court’s reasoning in Rodriguez is inconsistent not only with its fundamental rights jurisprudence, but also with its own precedents on education. When analyzed through the Court’s established doctrinal frameworks and the historical role of public education in the United States, education clearly meets the threshold for recognition as a fundamental right under the Fourteenth Amendment.

To make my argument, I begin in Section II by tracing the historical foundations of public education in the United States, demonstrating how education has been treated as a civic necessity since the nation’s founding. Then, in Section III, I examine the Supreme Court’s fundamental rights jurisprudence under the Fourteenth Amendment’s Due Process Clause, highlighting how other unenumerated rights have been granted constitutional protection. Next, in Section IV, I analyze key Supreme Court Cases on education to expose the underlying tension in the Court’s reasoning. In Section V, I synthesize my analysis from Sections III and IV to advance a doctrinal argument for recognizing education as a fundamental right, drawing on history, the Court’s past fundamental rights jurisprudence, and the treatment of education as a state-created property interest. Finally, in Section VI, I conclude by illustrating the ramifications of the Court’s refusal to constitutionally enshrine the right to education.

Historical Foundations for Recognizing a Right to Education

Education has been an integral part of American society since even prior to the nation’s founding, with the first public school, Boston Latin School, established on April 23, 1635, more than a century before the Declaration of Independence was signed.[8] Universities began to open shortly after public schools, as Harvard, the first university of the American colonies, opened its doors in September of 1636.[9] Soon individual colonies began establishing their own systems of public education. For instance, in 1642, the Massachusetts Bay Colony ratified a law that entrusted government officials with overseeing the education of all children in the Colony. A few years later, in 1648, the Colony created official educational standards for its children.[10] When the Commonwealth of Massachusetts eventually drafted its state constitution in 1780, it explicitly mentioned the importance of public education and the role of public schools in promoting moral and civic values.[11] These state-sponsored commitments to education were not exclusive to Massachusetts alone: federal ordinances passed in 1785 and 1787 gave “land grants” to new states entering the Union contingent on the states agreeing to set aside a portion of the land for the support of public schools, demonstrating the early federal recognition of education as essential to the nation’s development.[12] These land grants not only enabled the creation and preservation of schools in each township but also helped foster stable communities across the country, each supported by a local government and education system.

It was not until the 1830s, under the leadership of education reformer Horace Mann, that schools began to shift from being locally run to being overseen by state, and eventually federal, authorities.[13] Mann advocated for the creation of compulsory state-run public education, spearheading a dramatic transformation from what was a patchwork of informal, community-based schools to a centralized system aimed at promoting democratic participation and civic virtue.[14] On May 18, 1852, Massachusetts became the first state to make public schooling compulsory for children, requiring all children ages eight to fourteen to attend school. By 1891, most states had adopted similar laws, and by 1918, all of the forty-eight then-existing states mandated school attendance in public schools.[15] Concurrently, the federal government also took steps to strengthen the education system by formally establishing the Department of Education in 1867; its purpose was to collect data on educational outcomes in states and provide assistance to local and state officials to support the management of public school systems.[16] In 1979, Congress passed the Department of Education Organization Act, elevating the Department to full cabinet-level status.[17]

Despite these attempts to improve the education system, impediments to the spread of quality education persisted, as many schools resisted integration and broader reforms following the Civil War, particularly with the entrenchment of Jim Crow laws across the South. Generations of de jure segregation trapped marginalized communities in cycles of disenfranchisement and underinvestment, causing schools today to remain deeply affected by this legacy of inequality.[18] Racial and socioeconomic segregation continues to hinder educational opportunities for minority students, reinforcing systemic barriers to academic success and social mobility. While state governments have pursued a wide range of education reform measures, their efforts have been largely unsuccessful, underscoring the intractability of the national education crisis.

Jurisprudence on the Due Process Clause and Fundamental Rights

The United States Constitution is the oldest and shortest of any major government in the world. While it explicitly guarantees certain rights, such as the right to free speech or the right to bear arms, its brevity has necessitated the judicial recognition of unenumerated rights through Constitutional interpretation, particularly under the Due Process Clause of the Fourteenth Amendment.[19] The Due Process Clause has commonly been interpreted to safeguard three categories of rights: procedural rights, the rights enumerated in the Bill of Rights, and fundamental rights, also called substantive due process rights. Of these, substantive due process rights have proven to be an inordinately contentious doctrine, as they require courts to determine which unenumerated rights are so fundamental to liberty and justice that they warrant constitutional protection, often forcing judges to make implicit determinations without clear textual guidance.

Fundamental rights jurisprudence under the Fourteenth Amendment has evolved significantly since its inception, transforming from a narrow focus on economic protections to a broader doctrine that recognizes certain unenumerated rights. From the early twentieth century until 1937, the Supreme Court used the Due Process Clause to protect economic liberties, most notably in Lochner v. New York (1905), where it struck down labor regulations on the grounds that freedom of contract was a constitutionally protected liberty. Thus began the Lochner era, where the Court frequently used Lochner and its progeny to invalidate economic legislation that it viewed as infringing upon individual economic rights.[20] During this period, the Court undertook an expansive interpretation of economic “liberty” under the Due Process Clause, giving rise to a jurisprudence that enabled exploitative labor practices, including child labor and anti-union contracts, and kept minimum wage and hour protections in prolonged legal uncertainty.[21] After Lochner was overturned in 1937 in West Coast Hotel Co. v. Parrish (1937), the future of substantive due process became precarious, and the legitimacy of the doctrine itself was cast into doubt.[22]

Consequently, in the aftermath of the Lochner era, the Court did not approve of the creation of new fundamental rights for a considerable time. Eventually, a new paradigm of substantive due process doctrine began to emerge in cases such as Griswold v. Connecticut, Washington v. Glucksberg, and Obergefell v. Hodges. In 1965, the Court issued its landmark decision, Griswold v. Connecticut, striking down a state law that prohibited the use of contraceptives by married couples.[23] Griswold was one of the first modern cases to recognize an unenumerated fundamental right under substantive due process, grounding its constitutional interpretation in the “penumbras” of specific guarantees in the Bill of Rights, particularly the First, Third, Fourth, Fifth, and Ninth Amendments, which together established a right to marital privacy.[24]

Since Griswold, the Supreme Court has provided two primary frameworks for fundamental rights jurisprudence that guide lower courts today: Washington v. Glucksberg and Lawrence v. Texas.[25] In the first approach, articulated in Washington v. Glucksberg (1997), the Court adopted a historically grounded test, holding that the Due Process Clause “specifically protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition” and that the asserted liberty interest must be defined with a “careful description.”[26] Citing Palko v. Connecticut (1937), the Court further specified that the fundamental right must be “implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed.”[27] Hence, Griswold’s historically grounded approach necessitates judicial restraint, requiring courts to ensure that rights are embedded within the cultural and legal traditions of the nation before granting them substantive due process protection.

In contrast, in the years after Glucksberg, Justice Anthony Kennedy outlined a more progressive vision for substantive due process, suggesting in Lawrence v. Texas (2003) that each generation may adapt the Constitution and its ideals to the problems they face.[28] In Lawrence, Kennedy asserted that “[h]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry,”[29] opting instead for an approach reliant on evolving notions of liberty.[30] Kennedy elaborated on this progressive interpretation of due process in Obergefell v. Hodges(2015), contending that “Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.”[31] Notably, Kennedy’s approach is not an explicit test, per se, but rather a flexible method of constitutional interpretation that prioritizes changing meanings of individuals’ liberty and dignity. Inherently, these two methods of due process fundamental rights interpretation present different philosophies about the Constitution’s role: Glucksberg emphasizes history and tradition in a more conservative sense, whereas Lawrence and Obergefell appeal to contemporary understandings of liberty and autonomy. In the years following the Obergefell decision, it was not entirely clear whether courts should determine fundamental rights under substantive due process under Obergefell or Glucksberg.[32] However, the recent conservative shift in the Court has made it increasingly unlikely that Obergefell will serve as the prevailing standard in Constitutional due process jurisprudence.

Education in Constitutional Doctrine: From Meyer to Goss

Although the text of the U.S. Constitution contains no explicit reference to education, the Supreme Court has long acknowledged the centrality of education to American life. One of the earliest cases offering a constitutional safeguard to education was Meyer v. Nebraska (1923), less than a decade after the onset of compulsory education across the nation.[33] In Meyer, the Court struck down several Nebraska laws that prohibited the teaching of foreign languages to children younger than eighth grade. The Court affirmed the deep-rooted value of education throughout American history, recognizing that the “American people have always regarded education and acquisition of knowledge as matters of supreme importance which should diligently be promoted.”[34]Holding that “education of the young [is] …. essential, indeed, to the public welfare,” the Court reasoned that freedom to teach foreign languages is protected by the Fourteenth Amendment’s Due Process Clause.[35] Correspondingly, the Court struck down the state laws as unconstitutional.

Two years later, in Pierce v. Society of Sisters (1925), the Court reinforced the importance of education, ruling that an Oregon law requiring children to attend public schools instead of private or religious schools was unconstitutional.[36] Citing Meyer, the Court held that the statute “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.”[37] The Court emphasized that “the child is not the mere creature of the State” and that those who raise and educate children have the right and responsibility to shape their development.[38] Thus Pierce effectively solidified the right of parents to make decisions about child-rearing and education as a protected liberty interest under the Fourteenth Amendment’s Due Process Clause. Together, Meyer and Pierce established an early constitutional foundation for educational liberty, paving the way for the Court’s subsequent more explicit recognition of education’s democratic significance.

In the years following Meyer and Pierce, education only grew in importance in the United States, with Brown v. Board of Education(1954) marking a shift from mere protection of individual liberty interests toward a more robust recognition of education as a vital foundation for equal citizenship and social opportunity. In Brown v. Board of Education (1954), the Court held that the segregation of public schools was a violation of the Fourteenth Amendment’s Equal Protection Clause. In a unanimous opinion, Chief Justice Earl Warren affirmed that education “is perhaps the most important function of state and local governments” and “the very foundation for good citizenship.”[39] The Court reasoned that denying children access to equal educational opportunities “generates a feeling of inferiority” that detrimentally affects their ability to learn and grow.[40] By inextricably tying education to children’s “cultural values” and ability to “succeed in life,” the Court underscored that education is not just a tool for academic development, but a crucial mechanism for social integration and meaningful participation in democracy.[41] In this way, Brown unequivocally affirmed the centrality of education to the constitutional promise of liberty and equality, framing it as indispensable to a well-functioning democracy. Although the Court did not explicitly define education as a fundamental right, its reasoning suggested that access to education was essential to the exercise of other constitutional freedoms and the realization of equal citizenship.

While Brown appeared to lay the groundwork for recognizing education as a constitutionally protected fundamental right, the Court decisively retreated from its expansive vision of educational equality in San Antonio Independent School District v. Rodriguez(1973). In Rodriguez, students attending underfunded public schools in Texas challenged the state’s education funding scheme, which relied heavily on local property taxes and thereby disproportionately disadvantaged marginalized students in low-income districts. The Court addressed whether the school funding scheme violated the Fourteenth Amendment’s Equal Protection Clause, as well as the students’ claim that education was a fundamental right because some amount of education was required to actualize the constitutionally protected rights of voting and free speech.[42] Although the Court referenced its “historical dedication to public education,” it ultimately rejected the notion that education is a fundamental right under the Constitution.[43] Writing for the majority, Justice Powell asserted that education is not “explicitly or implicitly guaranteed by the Constitution” and cautioned against widening the scope of fundamental rights.[44] Accordingly, the Court applied only rational basis review and upheld the Texas funding scheme, concluding that the disparities it produced, while regrettable, did not qualify as a violation of the Equal Protection Clause. Thus, Rodriguez drew a sharp doctrinal line between education’s recognized societal value and its constitutional status, signaling a reluctance to invite further judicial intervention into matters of education policy.

Although Rodriguez rejected the possibility of enshrining education as a fundamental right, just two years later, the Court was given another opportunity to reconsider the extent to which access to education might warrant constitutional protection. In Goss v. Lopez(1975), the Court addressed whether suspending public school students without preliminary hearings violated their Due Process rights of the Fourteenth Amendment.[45] The divided Court held that students have a “legitimate claim of entitlement to public education” because Ohio law both mandates school attendance and guarantees free education to all residents between five and twenty-five.[46] As such, the Court found that education, while not a fundamental right, constituted a state-created “property interest” which is protected by the Due Process Clause and “may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.”[47] In this way, the Court reaffirmed the integral role of education, arguing that “total exclusion from the educational process for more than a trivial period … is a serious event in the life of the suspended child.”[48]Although the ruling was grounded in procedural due process, rather than recognizing a substantive right to education, the decision nonetheless marked a significant departure from Rodriguez’s rigid framework. By framing access to education as a state-created property interest, the Court signaled that once a state voluntarily provides public education, it cannot do so arbitrarily or without constitutional accountability. Goss thus opened a doctrinal pathway for educational protections rooted not in fundamental rights jurisprudence, but in entitlements created by state action, allowing the Court to uphold certain educational guarantees without undermining Rodriguez.

Following Goss, the Court continued to work around the doctrinal constraints imposed by Rodriguez, most notably in Plyler v. Doe(1982). In Plyler, the Court grappled with the question of whether a Texas statute denying public education to undocumented children violated the Equal Protection Clause of the Fourteenth Amendment.[49] Although the Court echoed Rodriguez that education is not a fundamental right granted by the Constitution, it highlighted the “pivotal role of education in sustaining our political and cultural heritage” [50] and acknowledged that education “provides the basic tools by which individuals might lead economically productive lives to the benefit of us all.”[51] Citing Brown, Justice Brennan, writing for the majority, illustrated the damaging nature of educational exclusion, asserting that “the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological wellbeing of the individual, and poses an obstacle to individual achievement.”[52]Although the Court declined to apply strict scrutiny, it employed a more searching inquiry of rational basis review than it had in Rodriguez, ultimately striking down the Texas statute as unjustifiably punitive to undocumented children. In doing so, Plyler carved out another narrow but meaningful exception to the doctrinal rigidity of Rodriguez, implicitly recognizing that denial of education can so profoundly undermine equal citizenship that it warrants judicial remedy.

The fight to establish a fundamental right to education within the existing U.S. Constitutional framework has persisted until today, as plaintiffs continue to seek creative ways to overcome the doctrinal barriers established by Rodriguez. Most recently, in the Rhode Island District Court case A.C. v. Raimondo, filed in 2018, a group of young students brought a federal class-action lawsuit arguing that the Constitution guarantees access to a “meaningful educational opportunity” that would adequately prepare them for civic participation.[53] Rather than relying solely on Equal Protection or Due Process claims, the plaintiffs advanced a more innovative theory, arguing that there exists a federal right for basic education because it is necessary to be “capable” voters and jurors and exercise all of their constitutional rights.[54] At the core of their reasoning was the central tenet of Brown and the same concerns echoed by the plaintiffs in Rodriguez: that education is essential to what it means to be a meaningfully engaged citizen in a democratic society. Judge William conceded that, "[t]his case does not represent a wild-eyed effort to expand the reach of substantive due process, but rather a cry for help from a generation of young people who are destined to inherit a country which we – the generation currently in charge – are not stewarding well."[55]

Nonetheless, he dismissed the case because “the arc of the law in this area is clear,” citing the precedent of Rodriguez.[56] After an appeal, in 2020, the U.S. Court of Appeals for the First Circuit issued a similar ruling, affirming that absent a “radical or absolute denial of any educational opportunity,” current interpretations of the Fourteenth Amendment do not support a right to education. As put more concisely by Judge Smith, Rodriguez “leaves plaintiffs here without a viable claim.”[57] However, are the judges right that Rodriguez precludes any path to a constitutional right to education, or is it possible, by drawing upon the Court’s own fundamental rights jurisprudence, to construct a doctrinally sound argument that education warrants recognition as a fundamental right under substantive due process?

Reframing Education as a Fundamental Right: A Doctrinal Argument

The Supreme Court’s ruling in San Antonio Independent School District v. Rodriguez (1973) unequivocally remains a formidable barrier to recognizing education as a fundamental right under the U.S. Constitution. Nevertheless, judicial precedent and interpretive frameworks offer compelling support for reframing education within the Court’s existing jurisprudence on substantive due process. Although the Court rejected education as a fundamental right in Rodriguez, it has, in nearly every other case, “gone out of its way to emphasize the importance of education.”[58] Such an emphasis implies an openness to extending some level of constitutional protection to education or, at least, a reluctance to conclusively foreclose the possibility.[59] Applying the Court’s own fundamental rights jurisprudence laid out in Washington v. Glucksberg (1997) reveals that education satisfies two primary criteria for recognition as a fundamental right. It is “deeply rooted in the Nation’s history and tradition” and “implicit in the concept of ordered liberty.”[60] Historically, education has been a defining characteristic of American life since even before the nation’s founding. It garnered widespread recognition by the Framers, most notably Thomas Jefferson, who “hailed an enlightened citizenry as an indispensable safeguard of democracy,” and became a universal expectation through compulsory schooling laws dating back to the early 1900s.[61] Moreover, Congress and the states did not merely support education: they mandated its provision in conjunction with the ratification of the Fourteenth Amendment itself.[62] As a condition for reentry into the Union after the Civil War, Southern states were required to adopt new constitutions that conformed to a “republican” form of government, which explicitly included guarantees of public education.[63] The deliberate linkage between education and the postbellum reconstruction of American citizenship demonstrates that public education was viewed as a prerequisite to the functioning of a democratic society, as the Fourteenth Amendment would not have been ratified in 1868 without educational guarantees.

In addition to its profound historical significance, education is also essential to the exercise of other constitutionally protected liberties, and, thus, satisfies another key prong of Glucksberg: that the asserted right be “implicit in the concept of ordered liberty.” Throughout its tenure, the Court has underscored the vital necessity of education to citizenship. In Brown v. Board of Education, the Court directly tied equal education opportunity to full participation in civic life, calling education “the very foundation of good citizenship.” A few decades later, in Plyler v. Doe (1982), the Court reinforced this view, emphasizing that education plays a crucial role in preparing students to vote and participate in political life. In both these cases, the Court recognized that without education, individuals are less equipped to participate in the democratic process, achieve economic stability, and lead fulfilling lives, all of which are hallmarks of a free and ordered society. Hence, Rodriguez failed to consider the integral role education plays in the very fabric of our constitutional democracy. The Court’s narrow focus on textual absence of a right to education overlooked not only the historical depth of education’s role in American society, but also its indispensable function in enabling the exercise of other rights. Education is not merely a social good, but a civic necessity that provides the tools for the exercise of other constitutionally enshrined rights and meaningful participation in a democratic society. By the Glucksberg standard, coupled with the Court’s own repeated affirmations of educational significance, the case for recognizing education as a fundamental right seems to be not only doctrinally sound, but also constitutionally compelling.

However, upon further inspection, the right to education faces a challenge under the Glucksberg test’s requirements of the right being defined with “careful description.” Although education plays a pivotal role in American civic life and is deeply rooted in history, it does not easily comply with the same level of precise, narrowly defined protection as other rights deemed fundamental by the Court. This difficulty lies in the complex and multifaceted nature of education, which encompasses a wide range of practices, policies, and state responsibilities that vary widely across jurisdictions. Unlike substantive due process rights such as the right to marry or the right to raise one’s children, there is no universally applicable standard for what constitutes a “right to education.” Education includes a variety of forms and methods, including public and private schooling, homeschooling, and specialized instruction for children with disabilities – a variability which complicates the ability to frame education as a narrowly tailored, enforceable constitutional right.

Beyond the lack of a coherent standard, the Court’s reluctance to recognize education as a fundamental right reflects a deeper concern about expanding the scope of substantive due process in the absence of principled criteria for embracing certain positive rights whilst excluding others. If the judiciary were to constitutionalize education, it might face pressure to similarly recognize other social goods as fundamental rights, such as housing or healthcare, raising the question: how should courts distinguish between positive rights that warrant constitutional protection and those that do not? One possible answer lies in examining whether the social good in question is not only necessary for well-being, but also essential to the exercise of other constitutionally protected liberties. Unlike housing or healthcare, which are vital to individual dignity but not explicitly linked to political or civic participation, education has consistently been framed by the Court as a precondition for meaningful engagement in democratic life. Cases like Brown and Plyler reflect a recognition that education enables individuals to exercise free speech and vote – rights already enshrined in the Constitution. As such, education is not just a social good, but an extension of already established core liberty interests. Consequently, while the Court may be justified in exercising restraint when faced with broad claims to social welfare rights, education occupies a unique position at the intersection of individual liberty and democratic functioning, justifying a more robust constitutional safeguard.

In light of the inherent tension between doctrinal restraint and the democratic necessity of education, turning to preexisting precedent in Goss v. Lopez reveals a framework through which courts can enshrine educational entitlements without transgressing the established boundaries of substantive due process. Although Rodriguez is often viewed as an “impregnable firewall”[64] to constitutionally protecting a right to education, it did not engage education as a property interest, which “discursively – and doctrinally – ... makes [its] due process analysis incomplete.”[65] Thus, while Goss dealt with solely procedural due process, its recognition of a legitimate entitlement to public education opens the door for the Court to extend substantive due process protections to that same state-created interest. In contrast to the Glucksberg test which would rely on subjective notions of what a fundamental right to education entails, the public property right to education is rooted in state law. As a result, “its judicial enforcement, whether in federal or state court, does not require courts to define, derive, or imply the right.”[66] By focusing on what states have already promised, courts would not be asked to create new rights, but simply ensure that the ones already conferred are protected under substantive due process. If public education is treated as an individual property right grounded in state law, then individuals would have standing to sue the state under the Fourteenth Amendment when their access to that education is seriously harmed or jeopardized, with the Due Process Clause serving as the constitutional provision to enforce that right in court.

However, a significant factor to consider is that extending Goss v. Lopez beyond procedural protections into the realm of substantive due process may stretch the doctrine beyond its intended scope. While Goss affirmed a procedural due process right to notice and hearing before a student is suspended, it did so on the narrow grounds that a state had already established an entitlement to public education through statute. Courts have historically drawn a sharp distinction between procedural and substantive due process, and, even more so, have been especially reluctant to expand the latter to cover positive rights like education that require extensive government provision. As such, expanding Goss into the scope of substantive due process may be seen as judicial overreach. Blurring the line between substantive due process and procedural due process may also erode doctrinal clarity, inviting courts to make normative judgments about the adequacy of state-provided services – an area in which the judiciary has been viewed as lacking both expertise and a clear constitutional mandate. Furthermore, courts may be hesitant to treat a state-conferred property interest as the basis for a fundamental right enforceable under federal constitutional doctrine, particularly if doing so would entangle the judiciary in evaluating the adequacy of educational policies like funding levels or curriculum standards.

Nonetheless, the Court has not shied away from intervening in matters of educational policy when constitutional principles are at stake. In Swann v. Charlotte-Mecklenburg Board of Education (1971), the Court upheld broad judicial authority to oversee and implement school desegregation plans, including the use of busing, mathematical quotas, and attendance zones.[67] Swann illustrated that when constitutional rights are imperiled, the Court has not only tolerated judicial involvement in education, but embraced an active supervisory role to ensure those rights are meaningfully realized. In this way, the concern that courts lack institutional competence in the realm of education cannot be an absolute bar to judicial action, especially when state failures violate liberties that the Court has repeatedly recognized as essential to democratic participation and meaningful citizenship.

Ultimately, while concerns about judicial overreach and the distinction between procedural and substantive due process are not unfounded, they should not outweigh the urgent need for a constitutionally grounded protection against educational deprivation. Using a property interest approach built on Goss v. Lopez, courts would not be obligated to artificially manufacture rights or intrude upon the policy-making discretion of states. Rather, it would simply ensure that once states have conferred the right to education, they cannot deny it in a manner that is unequal, arbitrary, or harmful to students’ ability to participate in civic life. By relying on commitments states have already made through their laws, statutes, and constitutions, this approach offers a doctrinally modest but significant step toward recognizing education as a constitutionally protected interest. In sum, whether through the Glucksberg framework or the recognition of state-conferred entitlements under substantive due process, courts have viable avenues under the Fourteenth Amendment to navigate the doctrinal rigidity of Rodriguez without overstepping their jurisprudential role.

Conclusion

For over half a century, the Supreme Court’s decision in San Antonio Independent School District v. Rodriguez has left millions of students without a baseline constitutional protection for education, allowing deeply entrenched educational inequities to persist largely unchecked. Left at the behest of states that continually neglect their educational responsibilities, students in marginalized communities remain trapped in cycles of educational disadvantage and political disempowerment, with no adequate legal recourse. The sheer lack of judicial intervention stands in tension with the Court’s own affirmation that education is indispensable to the exercise of core constitutional liberties. Though it seems elusive in today’s current political climate, enshrining a right to education is deeply rooted in the Court’s existing jurisprudence, with cases like Meyer, Pierce, Brown, Plyler, and Goss affirming the utmost importance of education to a democratic society. The Court’s initial draft of its opinion in Brown v. Board of Education even declared school segregation unconstitutional because it violated a fundamental right, not equal protection.[68] While Rodriguez stands as a barrier to recognizing education as a fundamental right, its reasoning contradicts the very history and legal tradition that the Court itself has long embraced. In this way, recognizing a fundamental right to education under the Fourteenth Amendment is not just congruent with historical pedigree and the Court’s past doctrine, but, more importantly, essential to fulfilling the Constitution’s ideal of liberty and equality for all.

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[1] Thomas Jefferson, Letter to George Wythe, August 13, 1786, in The Papers of Thomas Jefferson, ed. Julian P. Boyd (Princeton: Princeton University Press, 1950), 10:9.

[2] Derek W. Black, "The Fundamental Right to Education," Notre Dame Law Review 94, no. 3 (2019): 1060, accessed March 26, 2025, https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4832&context=ndlr.

[3] Black, "The Fundamental," 1060.

[4] Ibid.

[5] Ibid.

[6] William Blanchette, "Sufficiently Fundamental: Searching for a Constitutional Right to Literacy Education," Boston College Law Review 64, no. 2 (2023): 393-394, accessed March 26, 2025, https://bclawreview.bc.edu/articles/3043/files/63fcf7ad7a300.pdf.

[7] San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). Accessed March 26, 2025. https://supreme.justia.com/cases/federal/us/411/1/#tab-opinion-1950219.

[8] Mary Crooks, "First Public School in America," National Geographic, last modified October 19, 2023, accessed March 26, 2025, https://education.nationalgeographic.org/resource/first-public-school-america/#.

[9] Blanchette, "Sufficiently Fundamental," 381.

[10] Ibid.

[11] Ibid.

[12] Nancy Kober and Diane Stark Rentner, History and Evolution of Public Education in the US (Graduate School of Education and Human Development at George Washington University, 2020), 2, Center on Education Policy.

[13] Blanchette, "Sufficiently Fundamental," 382.

[14] Ibid.

[15] Ibid.

[16] Blanchette, "Sufficiently Fundamental," 383.

[17] Ibid.

[18] Civil Rights History Project, "School Segregation and Integration," Library of Congress, accessed March 26, 2025, https://www.loc.gov/collections/civil-rights-history-project/articles-and-essays/school-segregation-and-integration/#:~:text=The%20massive%20effort%20to%20desegregate,integrated%20until%20many%20years%20later.

[19] Blanchette, "Sufficiently Fundamental," 385.

[20] Blanchette, "Sufficiently Fundamental," 386-387.

[21] Victoria F. Nourse, "A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights," California Law Review 97, no. 3 (2009): 775-776], JSTOR.

[22]Williams, "The One and Only," 427.

[23] Griswold v. Connecticut, 381 U.S. 479, (1965). Accessed March 26, 2025. https://www.oyez.org/cases/1964/496.

[24] Griswold, 381 U.S. 479, (1965).

[25] Blanchette, "Sufficiently Fundamental," 388.

[26] Washington v. Glucksberg, 521 U.S. 702, 703 (1997). Accessed March 26, 2025. https://supreme.justia.com/cases/federal/us/521/702/.

[27] Glucksberg, 521 U.S. 702, 721 (1997).

[28] Blanchette, "Sufficiently Fundamental," 389.

[29] Lawrence v. Texas, 539 U.S. 558, 572 (2003). Accessed March 26, 2025. https://supreme.justia.com/cases/federal/us/539/558/#tab-opinion-1961305.

[30] Lawrence, 539 U.S. 558, 562 (2003).

[31] Obergefell v. Hodges, 576 U.S. 644 (2015). Accessed March 26, 2025. https://supreme.justia.com/cases/federal/us/576/644/.

[32] Blanchette, "Sufficiently Fundamental," 390.

[33] Blanchette, "Sufficiently Fundamental," 392.

[34] Meyer v. State of Nebraska, 262 U.S. 390, 400 (1923). Accessed March 28, 2025. https://supreme.justia.com/cases/federal/us/262/390/#tab-opinion-1930013.

[35] Meyer, 262 U.S. 390, 400 (1923).

[36] Pierce v. Society of Sisters, 268 U.S. 510, (1925). Accessed March 28, 2025. https://supreme.justia.com/cases/federal/us/268/510/#tab-opinion-1930961.

[37] Pierce, 268 U.S. 510, 534 (1925).

[38] Pierce, 268 U.S. 510, 535 (1925).

[39] Brown v. Board of Education, 347 U.S. 483, 493 (1954). Accessed March 28, 2025. https://supreme.justia.com/cases/federal/us/347/483/#tab-opinion-1940809

[40] Brown, 347 U.S. 483, 494 (1954).

[41] Brown, 347 U.S. 483, 493 (1954).

[42] San Antonio Independent School District v. Rodriguez, 411 U.S. 1(1973). Accessed March 26, 2025. https://supreme.justia.com/cases/federal/us/411/1/#tab-opinion-1950219.

[43] San Antonio, 411 U.S. 1, 31 (1973).

[44] San Antonio, 411 U.S. 1, 37 (1973).

[45] Goss v. Lopez, 419 U.S. 565, (1975). Accessed March 28, 2025. https://supreme.justia.com/cases/federal/us/419/565/#tab-opinion-1951045.

[46] Goss, 419 U.S. 565, 573 (1975).

[47] Goss, 419 U.S. 565, 574 (1975).

[48] Goss, 419 U.S. 565, 576 (1975).

[49] Plyler v. Doe, 457 U.S. 202 (1982). Accessed March 28, 2025. https://supreme.justia.com/cases/federal/us/457/202/.

[50] Plyler, 457 U.S. 202, 203.

[51] Plyler, 457 U.S. 202, 221.

[52] Plyler, 457 U.S. 202, 222.

[53] Matthew Patrick Shaw, "The Public Right to Education," The University of Chicago Law Review 89, no. 5 (2022): 1880, accessed March 28, 2025, https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=6304&context=uclrev.

[54] A.C. v. Raimondo, 494 F. Supp. 3d 170 (D.R.I. 2020)

[55] Shaw, "The Public," 1881.

[56] Ibid.

[57] Ibid.

[58] Derek W. Black, "The Constitutional Compromise to Guarantee Education," Stanford Law Review 70, no. 3 (2018): 739-740 accessed March 28, 2025, https://review.law.stanford.edu/wp-content/uploads/sites/3/2018/03/70-Stan.-L.-Rev.-735.pdf.

[59] Black, "The Constitutional," 739-740.

[60] Glucksberg, 521 U.S. 702, 703 (1997).

[61] Susan H. Bitensky, "THEORETICAL FOUNDATIONS FOR A RIGHT TO EDUCATION UNDER THE U.S. CONSTITUTION: A BEGINNING TO THE END OF THE NATIONAL EDUCATION CRISIS," Northwestern Law Review 86, no. 3 (1992): 551, accessed March 26, 2025, http://northwesternlawreview.org/wp-content/uploads/2020/02/86NwULRev5501991-1992.pdf.

[62] Black, "The Fundamental," 1071.

[63] Black, "The Fundamental," 1071.

[64] Shaw, "The Public," 1880.

[65] Shaw, "The Public," 1883.

[66] Shaw, "The Public," 1886-1887.

[67] Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1,(1971). Accessed March 29, 2025. https://supreme.justia.com/cases/federal/us/402/1/#tab-opinion-1949253

[68] Black, "The Fundamental," 1112.