Is quality public education guaranteed by Constitution? (Alan Garfield)

The writer is the dean of Widener University Delaware Law School.

Query: Do children have a constitutional right to a
good public education?

The US constitution says nothing about education (many state constitutions do, including Delaware's), but that fact isn't decisive because "the Supreme Court has found many implied rights in the Constitution," such as sexual freedom issues of various kinds.
[Garfield mentions several examples, but leaves out same sex marriage.]

So the Supreme Court "certainly could imply
[infer?] a right to quality public education," and "the question is whether it should."

On one hand, the need for a well-educated citizenry is clear. How else can "we the people" be expected to govern ourselves, not to mention promoting the nation's economic welfare.

On the other hand, educational funding involves complex policy choices that might better be made by politically accountable representatives than by unelected judges. Overall level of taxation - setting priorities between education and other goals like healthcare, law enforcement and pothole repair. No wonder the Supreme Court has tended to enforce "negative" vs. "positive" constitutional rights. No wonder it's been thought that "most policy choices in a democracy should be made by legislative compromise, not judicial fiat."

"To [Garfield's] mind," however, "the right to education is qualitatively different from other types of positive rights and therefore warrants constitutional protection." Unless "all citizens are given the
basic education needed to participate in [the] democratic process," the process will forever be skewed "in favor of those with educational advantages." And that's exactly what seems to be happening, with a crazy quillwork of of locally funded school districts, etc. The result: affluent families are enabled to "subsidize [pay for?] their own children's education without having to subsidize the education of poor and middle-class children. How terrible if our aim is to "give every child the opportunity to succeed."

Now of course "judges shouldn't micromanage education policy, but they can and should use the Constitution to prod legislator into ensuring that every child has the chance to succeed."

Comments: (1) This column was probably written to favor the school funding case that is currently pending in Chancery Court, which isn't necessarily appropriate. (2) A notable issue is omitted, namely what do judges know about running the educational system and what's the remedy if they make mistakes or go too far? (3) Is the purported constitutional right to a "good" education, a "quality" education, or a "basic" education - all three of which terms appear in the column. (4) The amount of money spent on education provides no guarantee of quality. Most US public schools - in rich areas as well as poor ones - are doing a miserable job of teaching US history, civics, etc. to the citizens of tomorrow. [AOC] praises millennials as “more informed,” research shows the opposite, Warner Todd Huston, godfatherpolitics.com, 8/30/19.


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