Derek W. Black (University of South Carolina – School of Law) has posted The Constitutional Compromise to Guarantee Education (Stanford Law Review, forthcoming) on SSRN. Here is the abstract:
Although the Supreme Court refused to recognize education as a fundamental right in San Antonio v. Rodriguez, the Court in several other cases has emphasized the possibility that the constitution might afford some protection for education. The Court, however, has never explained why the constitution should protect education.
New litigation is attempting to capitalize on the Court's sympathy toward education, but convincing the courts will still require a compelling affirmative constitutional theory. This Article offers that theory, demonstrating that the original intent of the Fourteenth Amendment was to guarantee education as a right of state citizenship. This simple concept has been obscured by the unusually complex ratification of the Amendment. But this article, relying on primary sources, reveals that providing public education was a condition of southern states' readmission to Union and was incorporated into the meaning of the Fourteenth Amendment. As a right of citizenship, this Article also theorizes that the Fourteenth Amendment prohibits states from partisan and other illegitimate manipulations of educational opportunity–some of which have continued to this day.
Posted at 6:10 AM