An
article in the September issue of The New Yorker makes the case
that education is a fundamental right guaranteed by the Constitution.
It’s not.
Public schools in Detroit are failing to educate students. Just
like they are failing to do so in many large cities throughout the country. A
case in the federal court system, Gary B. v. Snyder, filed by Public
Counsel and Sidley Austin LLP on behalf of a class of Detroit students, argues
that students in Detroit public schools who failed to learn how to read were
denied their due process and equal protection rights under the Constitution’s
Fourteenth Amendment. The case was dismissed by a federal district court in
Michigan in June, but has been appealed to the Sixth Circuit Court of Appeals
in Cincinnati.
The plaintiffs, as well as the writer of the piece in The New Yorker (Jill
Lepore) cite the Supreme Court case of Plyler
v. Doe (1982). In his book The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle
for the American Mind (Pantheon, 2018), Justin Driver, a
law professor at the University of Chicago, maintains that this case “rests
among the most egalitarian, momentous, and efficacious constitutional opinions
that the Supreme Court has issued throughout its entire history.”
The case came about after Texas education laws were changed in
1975 to allow the state to withhold funding from local school districts to
educate the children of illegal aliens. The Court, by a 5-4 vote, ruled that
the revised law violated the equal protection clause of the Fourteenth
Amendment. The law “severely disadvantaged the children of illegal aliens” by
“denying them the right to an education.”
But of course, the law didn’t deny the children of illegals the
right to an education; it denied them the right to an education at taxpayers’
expense. Their parents could have educated them at home, hired a tutor, or sent
them to a private school. The fact that the parents didn’t have the ability to
educate their children at home and couldn’t afford to hire a tutor or send
their children to a private school is immaterial.
But regardless of what the Supreme Court said, education is not
a constitutional right.
The Constitution doesn’t grant rights; the Constitution
guarantees rights. The Constitution specifically guarantees certain natural
rights, imposes limits on the government’s power, and explicitly declares that
all powers not delegated to the federal government by the Constitution are
reserved to the states or the people.
The United States was set up as a federal system of government
where the states, through the Constitution, granted a limited number of powers
to a central government. As James Madison succinctly explained in Federalist No.
45:
The powers delegated by the
proposed Constitution to the Federal Government, are few and defined. Those
which are to remain in the State Governments are numerous and indefinite. The
former will be exercised principally on external objects, as war, peace,
negotiation, and foreign commerce; with which last the power of taxation will
for the most part be connected. The powers reserved to the several States will
extend to all the objects, which, in the ordinary course of affairs, concern
the lives, liberties and properties of the people; and the internal order,
improvement, and prosperity of the State.
There are about thirty enumerated congressional powers listed
throughout the Constitution. Most of those powers are found in the eighteen
paragraphs of Article I, Section 8. One concerns commerce. One concerns
naturalization and bankruptcies. One concerns post offices and post roads. One
concerns copyrights and patents. One concerns federal courts. One concerns
maritime crimes. One concerns the governance of the District of Columbia. Four
of them concern taxes and money. Six concern the militia and the military. The
last one—the “elastic” clause—gives Congress the power “to make all Laws which
shall be necessary and proper for carrying into Execution the foregoing
Powers.”
Elsewhere in the Constitution we read that Congress may also
admit new states into the Union, propose amendments to the Constitution,
regulate national elections, establish courts inferior to the Supreme Court,
direct the location of the place for the trial of a crime not committed within
a state, declare the punishment for treason, provide the manner in which the
public acts and records in each state are accepted by the others, dispose of
and regulate the territory or other property of the United States, give the
states consent to lay imposts or duties on imports or exports, and provide for
the case of the removal, death, resignation, or inability of the president or
vice president.
Everything else is reserved to the states—even without the
addition of the Bill of Rights and its Tenth Amendment.
But what about the Fourteenth Amendment?
The Fourteenth Amendment, ratified in 1868, says that “no State
shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.”
I would ask the same question: What about the Fourteenth
Amendment? What does the Fourteenth Amendment have to do with the education of
the children of illegal aliens? Absolutely nothing, of course. They are not
citizens, they are not being deprived of life, liberty, or property, and they
are not being denied the equal protection of the laws.
Although all states have provisions in their constitutions for
public education, they do not have to have such provisions. Education is not a
natural right. But whether they do or don’t have such provisions, education is
strictly and entirely a state matter.
The Constitution doesn’t mention education, public schools,
teachers, teachers’ unions, private schools, tutors, students, student loans,
FAFSA forms, Pell Grants, Title IX, classrooms, desks, special education,
curriculum, Head Start, Common Core, math and science initiatives, the Higher
Education Act, the Elementary and Secondary Education Act, school breakfast or
lunch programs, teacher education, teacher certification, research grants to
colleges and universities, special-education mandates, school buses,
bilingual-education mandates, school accreditation, charter schools,
educational vouchers, mandatory attendance laws, graduation rates, the No Child
Left Behind Act, busing to achieve racial desegregation, Race to the Top funds,
or a Department of Education.
And neither does the Constitution authorize the federal
government to spend one penny on education.
If there is no constitutional right to receive basic necessities
like housing, clothing, and food, then there is certainly no constitutional
right to receive a government-provided or government-funded education.
