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April 01, 2014

Educational Rights in the States

by Trish Brennan-Gac

Education opens the doors to opportunity in the United States. It is the key to social and economic mobility. Yet, most Americans are surprised to learn that our federal Constitution does not provide the right to an education at all. San Antonio Ind. School Dist. v. Rodriguez (1971).

We must look to the states to determine which rights, if any, we have to an education. A limited number of state constitutions explicitly recognize education to be a fundamental right, entitling all students to the same quality of education regardless of neighborhood or income. Other state constitutions require the provision of education services (thorough and efficient education, etc.) by the state without conveying a right to students. Others barely address education at all. As a result, American education has developed into a hodge-podge quilt of different rights, access, and quality standards that depend entirely upon where children live.

Even within states, school districts vary widely in resources and quality. Some states rely heavily on local property taxes and wealth, while others allocate resources more equitably across all districts. The disparities have led to vastly different educational systems and outcomes. Parents and education activists from poor districts have turned to state constitutions for help.

Before 1960 only two states embraced education as a fundamental right: Wyoming and North Carolina. In 1960 Maryland added education to its Declaration of Rights. Since Brown v. Board of Education, education activists throughout the country have demanded access to a quality education for all children. These activists turned to state courts to encourage them to require states to provide more equitable access to a high-quality education when state constitutions did contain this explicit requirement. They argued that such states must allocate resources so that all students receive the same high-quality education regardless of income or neighborhood. Their arguments often attacked financing schemes that relied on local property taxes for the bulk of school resources.

California started the ball rolling when its supreme court held in Serrano v. Priest (1976) that education is a fundamental right under its constitution. Courts in Connecticut, Washington, and West Virginia soon followed suit. Mississippi, Oklahoma, Wisconsin, and Kentucky recognized the right to a quality education under their state constitutions in the 1980s. Rose v. Council for Better Educ., 790 S.W.2d 186, 205 (Ky. 1989). In Kentucky, the court defined seven capabilities that an education system must provide to each child, which were subsequently adopted by courts in Alabama, Arkansas, Kansas, Massachusetts, New Hampshire, North Carolina, South Carolina, and Texas.

The movement picked up steam in the 1990s as 12 more state courts acknowledged a right to education. In 1993, Alabama, Minnesota, New Hampshire, and Tennessee were added to the list, followed one year later by North Dakota and Virginia. By the end of the decade, Arkansas, Connecticut, Montana, New Jersey, South Carolina, and Vermont had joined the ranks.

The legal strategies in these lawsuits focused on resources and financing as a means of obtaining education equity because there was no recognized, uniform means of measuring “outputs,” i.e., whether students throughout this country were learning to high educational standards.

When President Lyndon B. Johnson announced the War on Poverty, he recognized the critical role education played in helping the poor and disadvantaged realize the American ideal of self-determination. He believed there was an appropriate federal role and worked to define it. But at the time, there was not even a consensus definition of education, let alone a means of measuring how well the nation was educating its youth. Francis Keppel, Johnson’s commissioner of education, began the conversations that led to the National Assessment of Education Progress (NAEP), one of the only national tests that exists to report how our nation’s children are performing. He also began working with Congress toward passage of the Elementary and Secondary Education Act (ESEA) in 1965, the first comprehensive and substantial federal investment in education.

In 1970 President Richard Nixon established the National Institute of Education to improve educational quality by connecting education research findings to practices in the states. President Jimmy Carter later made education a national priority by establishing a separate U.S. Department of Education. In the 1980s, Americans’ concerns shifted from a focus on the space race in the 1950s to Japan and economic competitiveness. President Ronald Reagan established the National Commission on Excellence in Education, which released the Nation at Risk report in 1983, critiquing the status and standards of American education. The report provided momentum for a growing movement to set quality standards for all schools.

Conversations began in earnest regarding what schools are expected to teach and what students are expected to learn. In 1984, President Regan declared, “America’s schools don’t need new spending programs; they need tougher standards. . . .” Ronald Reagan, Remarks at the National Conservative Action Conference Dinner, Ronald Reagan Presidential Library (Mar. 2, 1984). By the end of that decade, the standards movement was in full swing. In 1989, President George H. Bush convened the nation’s governors for an education summit. The meeting sought to focus the governors on establishing education goals for the nation.

In 1990, President Bush used his state of the union address to lay out the six national education goals. He then created the National Education Goals Panel in July 1990 to establish a shared set of goals and to raise awareness of expected student outcomes.

Cries for systemic reform as a means of improving the quality of education in this nation gained momentum advocating for the alignment of curriculum, standards, and assessments. Congress passed Goals 2000: The Educate America Act in 1994. This legislation provided incentives for states to voluntarily develop education standards and assessments. Immediately following the passage of Goals 2000, the Clinton administration secured passage of the 1994 Improving America’s Schools Act, a reauthorization of President Johnson’s ESEA. These two bills built upon President Johnson’s legacy and ensured that all students were taught to the same education standards.

Americans received a wake-up call in the mid-1990s when the results of international tests challenged our notion of our nation’s place in the world. Three major international assessments began ranking nations on education. In 1995, the International Association for the Evaluation of Educational Achievement (IEA) released the results of the Trends in International Mathematics and Science Study (TIMSS), followed in 2001 by the Progress in International Reading Literacy Study (PIRLS). The Organization for Economic Co-Operation and Development (OECD) began administering the Programme for International Student Assessment (PISA) in 2000. The results showed that the nation was lagging behind in education.

In 1995, the United States did not even make the top 10 for performance in mathematics among fourth- and eighth-grade students. In science we ranked third among fourth-grade students but disappeared from the top 10 list for eighth-graders. In 2001, the first PIRLS results revealed that the United States ranked ninth in overall reading achievement. That same year, the first PISA results ranked the United States 20th in mathematics, 15th in science, and 16th in reading.

Three days after his inauguration, President George W. Bush proposed a reauthorization of ESEA that required states to administer yearly statewide assessments aligned to state standards.

The law held states accountable for “adequate yearly progress” and imposed sanctions on schools that failed to meet targets. However, comparisons could only be made within states because there was much disagreement about the similarities of the standards and assessments among the states.

Conversations to develop a common measure of student achievement began in earnest in 2006, and by 2008 a formal partnership was forged between the National Governors Association (NGA) and the Council of Chief State School Officers (CCSSO). These organizations led a collaborative process that culminated in the formal release of the Common Core State Standards (CCSS). The CCSS are intended to provide a common, but voluntary, roadmap for the education of our nation’s youth.

As these standards were developed, the nation experienced another leadership change when President Barack Obama was elected in 2008. A month after his inauguration, Congress passed the American Recovery and Reinvestments Act. The Obama administration leveraged its influence during the implementation of this stimulus legislation. The Race to the Top program was crafted to require states, as part of this competitive grant, to adopt a set of college and career-ready standards. This stimulated the rapid adoption of the CCSS throughout the country.

In 2010, NGA and CCSSO formally released the CCSS. This was soon followed by a number of consortium organizations working to create aligned assessments. The Obama administration used the Race to the Top grant as a vehicle to support the development of these assessments by issuing another grant competition to fund consortia with states committed to the adoption of CCSS and the development of aligned assessments. The result was the emergence of two major consortia that are finalizing the first national assessments: the Smarter Balanced Assessment Consortium and the Partnership for Assessment of Readiness for College and Careers (PARCC).

As federal influence in education policies rapidly evolved, the momentum establishing a right to education from the 1990s diminished. As of 2014, only one more state joined the list recognizing education as a right. In 2011, the Supreme Court in South Dakota interpreted the state’s constitution to guarantee a right to education while finding that the state’s school funding systems was not unconstitutional. Although the adequacy argument was unsuccessful, it advanced the right to education.

In what direction is our nation heading in acknowledging the right to education at the 50-year anniversary of President Johnson’s War on Poverty? According to the PISA results in 2012, the United States ranks 36th in mathematics, 28th in science, and 24th in reading. While we still cannot reliably compare the academic performance among students in our states, we are on the precipice of being able to do so with the adoption of the CCSS and the aligned assessments. And while we have not established education as a fundamental right for all U.S. citizens, 22 states now acknowledge that right.

What Does This All Mean for Our Future?

At the end of the day, the movement to establish education as a fundamental right stems from the recognition that education is more important than ever in this era of global competitiveness. One of the critical advancements is recognition that states are responsible for providing, not a basic, but a high-quality education. We can now define what that means and soon we will be able to measure whether or not we are achieving it.

The stage is now set for another wave of litigation. Advocates of the CCSS will most likely invoke the right to a quality education, using the standards and assessments to define what that looks like. Opponents will draw upon the fact that education is a state responsibility, not a federal one. The courts once again will be tasked with balancing the dual state and federal roles in our educational system.

Trish Brennan-Gac

Trish Brennan-Gac is an attorney, education policy specialist, and technical service provider working with states, districts, and schools throughout the country. Through her work, she monitors the impact that state and federal policies have on education systems and school performance.