Helms School of Government
Submitted To Dr. Michael Robinson
In Partial Fulfillment of Requirements of
PhD in Public Policy: Education Policy
Constitutional Connection Paper: Colonial And Confederation Era Assignment
Founding Era And The Constitution
Constitutional Connection Paper: Colonial And Confederation Era Assignment
Education In America and The Constitution
Do all Americans have a Constitutional right to a free education? This seems to be the general consensus, judging from personal experience. The American Civil Liberties Union (ACLU) says, yes! In fact, the ACLU quotes Title IX Education Amendments of 1972, on their web page.
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving Federal financial assistance.” (Title IX, Education Amendments of 1972)
This article, while accurate on several points, is lacking in the main one. The article notes that the U. S. Constitution is the highest law in our land, and rightly so, but it falls short of proving that every person is guaranteed a public education in America. The article mentions free speech, the Bill of Rights, freedom of religion, and due process of law, all things that the Constitution guarantees, but the article misses the main point.
Nobody in the United States is guaranteed an education; not even a free one.
The ACLU article notes the landmark case of Brown v. Board of Education (1954). This case, Oliver Brown, et al. v. Board of Education of Topeka, et al., established that racial discrimination, and any laws that supported such discrimination are unconstitutional. This ruling partially overturned Plessy v. Ferguson (1896), which declared a “separate but equal” notion.
The primary point of Brown was the issue of a local black resident, Oliver Brown, whose daughter was required to ride a bus to a segregated school farther away from her home. Along with several other black families with similar situations, Brown filed the class action lawsuit in the U.S. Federal Court against the Topeka Board of Education, alleging the board’s segregation policy was unconstitutional. Brown and the others won. The Plessy case had formerly alleged that racial discrimination in itself was not a violation of the Constitution’s Fourteenth Amendment Equal Protection Clause, provided the other educational facility was equal to the one in question in the suit. The Supreme Court ruled that “separate but equal educational facilities are inherently unequal.” This case was a landmark case in educational equality.
However, the question still remains. Does this case and others guarantee an education in The United States? The case is about equality, but falls short of the guarantee. The case ensures that all are guaranteed the same opportunity. This leaves a small loophole that requires clarification. It would seem that if all are guaranteed the same opportunity, that it would follow that they are all guaranteed an education. As recent as 2020, the U. S. Supreme Court says, no.
In the case of Gary B. v. Snyder (2016), concerning Detroit Public Schools, the question before the court was whether education in America is a constitutional right. The question is not concerning equality, but the very fundamental right to an education itself. Does the Constitution guarantee me an education?
Dorsey writes that the courts once again decided that the answer is no. There is still no federally protected right to education, as least for now. This legal decision may eventually turn to a more definite answer, but not for the moment. Dorsey notes that there is not a single mention in the U. S. Constitution about education. He notes that this subject falls under the powers reserved to the states under the Tenth Amendment. And this fact is the assertion made by the Supreme Court every time it has been challenged. This goes back to the 1973 case of San Antonio Independent School District v. Rodriguez. In this case the court opined that education “is not among the rights afforded explicit protection under our Federal Constitution.”
The Gary B. case involved a small group of students who had attended public schools in the Detroit system, and had failed to gain an education. The plaintiffs attended five of Detroit’s lowest performing schools, and their rates of proficiency was near zero. Dorsey reports that the Michigan Law School summarized the plaintiffs’ situation as being pervasive conditions denying the students the opportunity to attain to literacy. The complaint included the lack of books, not enough teachers, filthy and unsafe buildings, insufficient desks, and extreme temperatures. The case sought redress not from the state, but from the federal courts.
This researcher is intentionally not discussing the morality of these issues, but the legal issues alone, other than to say that no normal person would wish such conditions on any student at any location. And Dorsey notes that there has existed a certain amount of corruption at the Detroit system in the past, however, the issue is whether or not there exists a fundamental guarantee of an education in The U. S. Constitution.
Before we focus on the American Colonies and the educational concepts there, and how all this is connected, let us look at the final decision of Gary B., and how this is relevant to the colonies, as well as today. In this case, the Sixth Circuit Court ruled in favor of the students, and ignored the Supreme Court, stating, “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” To be fair, according to Dorsey, the State of Michigan almost immediately began working on increasing educational funding and even awarded the students cash to further their education.
Having won money from the state, the plaintiffs moved to dismiss their case. The Appeals Court granted the dismissal. However, it is the dissenting opinion of Judge Eric Murphy that makes the point in this case note-worthy. “The importance of a service performed by the State does not determine whether it must be regarded as fundamental,” was Judge Murphy’s opinion. In this notable opinion, a clear distinction is made between fundamental rights, and the state’s interference, or denial of fundamental rights. Legally speaking, it is as if the Appeals Courts initial decision never happened. But, the language of the opinion is still there for anyone to see, and for plaintiffs to draw from in the future.
Education In America: The Colonial Period
Early colonial America could be considered the freest civil society that has ever existed. Education was a main part of that freedom. Parents were responsible for their children’s education, and they retained complete control of their children’s schooling. No such thing existed as the National Education Association (NEA). There were no local regulatory or school boards, and there were not teacher certification requirements. Parents had total control over the education of their children, and no persons were forced to pay for education they did not approve of, or did not use, as in those who had no children.
Brouillette reports that prior to the Revolutionary War, most American schools operated on a laissez-faire concept. They tended to operate apart from any special interest groups. They may have been partially funded by local taxpayers, but mostly by private means. Many were church schools, or maybe charity school for the less fortunate.
However, by around 1650, some townships enforced the attendance of school. Massachusetts may have been the first to enact such law. This was known as the Old Deluder Satan Act. Tocqueville mentioned that some of the colonies established requirements to attend school or suffer fines for failing to do so. However, by the time of the Revolutionary War there were more private schools than tax-funded ones, and many Massachusetts towns had no tax-funded schools at all.
It is of significant importance that we note America began with very little government influence in education. We have discovered that our present Constitution does not provide for a fundamental right to receive and education, although it does provide for equal opportunity for all.
We have discovered that education is left to the states under the power of the Tenth Amendment, in that all powers not specifically designated to the central government are reserved to the states, or to the people. Then why do we have an NEA? Why does the federal government fund education so heavily through such acts as Title 1, for example? Along with funding the federal government is fond of requiring accountability. Space and time will not allow us to cover these questions at this time, but we will seek answers in the future.
As it stands today, there is no fundamental right, as far as the Constitution is concerned, to an education in the United States of America. However, whatever is performed by the government, there are laws that regulate every person’s right to equal treatment. Things may have been more simple in colonial days, at least as far as education was concerned, but with the government’s finger in the educational pie, things have become quite complicated these days. A whole lot of money is being thrown at the problem and yet we still have children that are not learning, even with all we have to work with.
Perhaps over-regulation is at least part of the problem. Perhaps things could be more simplified in order to function better. Maybe we should have more actual teachers—current teachers on decision-making committees. Maybe we should rethink everything.
American Civil Liberties Union (ACLU), “Your Right To Equality In Education”, Produced by the ACLU Department of Public Education, 125 Broad St. NY, NY 10004. (2022) https://www.aclu.org.
Brouillette, M. “Early Colonial Period To The American Revolution: A Free market In Education.” (1999) Mackinac Center For Public Policy. https://mackinac.org/2033.
Dorsey, D. “Education Is Still (For Now) Not A Fundamental Right Under The U.S. Constitution. (2020) http://www.kansaspolicy.org.
Mansfield, H.C. & Winthrop, D., Eds. Democracy In America. Alexis De Tocqueville. The University of Chicago Press, (2000) pp. 41-42.
The Supreme Court of The United States. Oliver Brown, et al. v. Board of Education of Topeka, et al. (1954).
_________________________________ Homer Plessy v. John H. Ferguson (1896)
 American Civil Liberties Union, “Your Right To Equality In Education”, (2022)
 The Supreme Court of The United States, Brown v. Board of Education, (1954)
 Ibid, Plessy v. Ferguson, (1896)
 Ibid, Brown v. Board of Education (1954)
 David Dorsey, “Education Is Still (For Now) Not A Fundamental Right Under The U. S. Constitution”, Kansas Policy Institute, 2020
 David Dorsey, “Education Is Still (For Now) Not a Fundamental Right Under The U. S. Constitution” (2020)
 Matthew Brouillette, “Early Colonial Period To The American Revolution: A Free Market In Education”, (1999) Mackinac Center For Public Policy
 Harvey Mansfield, Delba Winthrop, Eds., Alexis De Tocqueville, Democracy In America, University of Chicago Press, (2000) p. 41-42