Summary of “Is Education a Fundamental Right?”

In Brown, the Court had described an education as “a right which must be made available to all on equal terms.” But the Detroit plaintiffs also cite Plyler, in which the majority deemed illiteracy to be “An enduring disability,” identified the absolute denial of education as a violation of the equal-protection clause, and ruled that no state can “Deny a discrete group of innocent children the free public education that it offers to other children residing within its borders.” Dismissed by a district court in June, the case is now headed to the Sixth Circuit on appeal.
In June, the Texas State Teachers Association called on the governor of the state to make provisions for the education of the detained children, before the beginning of the school year, but has so far received no reply.
The Judge had a policy preference: “The predictable effects of depriving an undocumented child of an education are clear and undisputed. Already disadvantaged as a result of poverty, lack of English-speaking ability, and undeniable racial prejudices, these children, without an education, will become permanently locked into the lowest socio-economic class.” But the question didn’t turn on anyone’s policy preferences; it turned on the Fourteenth Amendment.
Is education a fundamental right? The Constitution, drafted in the summer of 1787, does not mention a right to education, but the Northwest Ordinance, passed by Congress that same summer, held that “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” By 1868 the constitutions of twenty-eight of the thirty-two states in the Union had provided for free public education, open to all.
Justice noted, so are other children, including native-born children, and children who have immigrated legally, and their families are not asked to bear the cost of their special education.
For Powell, establishing education as a fundamental right invited claims: are health care, food, and shelter fundamental rights, too?
Education is not a constitutional right, he wrote, “But neither is it merely some governmental ‘benefit.'” Undocumented migrants are not a suspect class, but their children are vulnerable, and laws that discriminate against them, while not subject to strict scrutiny, deserved “Heightened scrutiny.” Powell wrote to Brennan after reading the draft, “Your final product is excellent and will be in every text and case book on Constitutional law.”
“Powell wanted the case to be about the education of children, not the equal protection rights of immigrants, and so the decision was,” Linda Greenhouse remarked in a careful study of the Court’s deliberations, published a decade ago.

The orginal article.