This Article proposes an innovative approach for directing the expanding federal role in education that will encourage states to address disparities in educational opportunities that prevent disadvantaged students from achieving their full potential. The proposed approach builds on the understanding reflected in NCLB that the federal government will remain critical in public education reform. This Article reexamines one avenue for federal involvement that the U.S. Supreme Court considered in several cases and that scholars have debated for more than thirty years: a federal right to education.
San Antonio Independent School District v. Rodriguez explicitly offered the Supreme Court the opportunity to recognize education as a fundamental constitutional right when poor, minority schoolchildren who resided in districts with "a low property tax base" challenged the constitutionality of the Texas school financing system. The Court refused to recognize a federal right to education because it determined that the Constitution neither explicitly nor implicitly recognized education as a fundamental right. Furthermore, the Court found that education's importance and relationship to other rights, such as the right to speak and vote, were insufficient to transform it into a fundamental right.
Numerous scholars have disagreed with the Court's opinion in Rodriguez and argued that the United States should recognize a federal right to education. However, those arguments, as have many of the proposals to reform education, envision a court-defined and enforced reform effort. In contrast, this Article contends that Congress should recognize a federal right to education through spending legislation that the federal and state governments collaboratively enforce. This reconceptualization of the enforcement of a federal right to education draws upon the implementation and enforcement mechanisms for a right to education in international human rights law.
This Article proceeds in five parts. Part I briefly considers the major attempts to address inequities in educational opportunity - school desegregation litigation, school finance suits, and current federal education legislation - and analyzes why these approaches have not eliminated persistent inequities. Part II summarizes the arguments presented in the existing scholarship on a federal right to education. It then presents arguments for why federal action is necessary to address the persistent disparities in educational opportunities. Part III considers the human rights enforcement mechanisms for a right to education. Part IV then proposes how these models could inform the development and enforcement of a federal right to education in the United States. Part V explores some of the strengths and weaknesses of this Article's proposed approach.
Kimberly Jenkins Robinson, The Case for a Collaborative Enforcement Model for a Federal Right to Education, 40 U.C. Davis L. Rev. 1653 (2007)