Document Type
Article
Publication Title
University of Chicago Law Review
Publication Date
2022
ISSN
0041-9494
Page Number
1179
Keywords
public education, fundamental right, constitutional law, due process
Disciplines
Education Law | Law
Abstract
Public education is "the most important function of state and local government" and yet not a "fundamental right or liberty." This Article engages one of constitutional law's most intractable problems by introducing "the public right to education" as a doctrinal pathway to a constitutional right to education process in three steps. First, it identifies that the otherwise right-to-education foreclosing case, San Antonio Independent School District v. Rodriguez, only contemplated education as a fundamental right or liberty interest. Second, by identifying public education as a due process protected property interest, this Article presents a viable pathway for circumventing Rodriguez. Third, mindful of myriad judicial competency concerns and consistent with the Court's recent call to reimagine a "twenty-first century" due process, it reintroduces the "public right" to understand how school children might appeal to substantive due process to protect their rights to state-created interests. This ambitious yet modest approach covers securing schoolchildren's rights to both discrete education tangibles and the integral educational opportunity that the states have assumed the affirmative duty to provide. This approach also has promise for improving individual rights to quality public schooling.
Recommended Citation
Matthew P. Shaw,
The Public Right to Education, 89 University of Chicago Law Review. 1179
(2022)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1306