Experts consider a federal constitutional right to education


Experts consider a federal constitutional right to education
Should the Supreme Court’s 1973 Rodriguez decision be overturned?

February 16, 2017—In its 1973 decision in San Antonio Independent School District v. Rodriguez, the Supreme Court ruled that the U.S. Constitution does not guarantee a right to education. The 5-4 decision left issues of educational inequality to the states. Within the past year, however, plaintiffs in Connecticut and Michigan have filed new lawsuits, which could reach the Supreme Court, asking courts to overturn Rodriguez and recognize a federal constitutional right to education. As the nation awaits the confirmation of a new Supreme Court justice, Education Next brings together two teams of legal experts to debate whether the court was correct to assert that there is no federal legal remedy to inequalities in public education.

Charles Ogletree Jr. of Harvard Law School and Kimberly Jenkins Robinson of the University of Richmond School of Law argue that, just as Brown v. Board of Education (1954) overturned the infamous “separate but equal” standard set by Plessy v. Ferguson (1896), the Supreme Court should not hesitate to overturn the erroneous Rodriguez decision. “Although the Rodriguez court trusted states to ensure equal educational opportunity, this trust has been misplaced,” they say. States have failed to provide equal access to funding for all children, much less the additional resources that disadvantaged students need to compete with their more-affluent peers. Ogletree and Robinson cite Thurgood Marshall’s dissent in Rodriguez, arguing that the equal protection clause implies a right to education. “Given the Constitution’s protection of the right to vote,” they argue, “the equal protection clause also would support a federal right to an education that prepares students to be competent voters and civic participants.”

Alfred A. Lindseth, Rocco E. Testani, and Lee A. Peifer of the law firm Eversheds Sutherland (US) LLP contend that overturning Rodriguez would lack legal justification and lead to bad policy. “Declaring education to be an implicit fundamental right would raise difficult constitutional questions about other essentials such as food, shelter, and health care,” say Lindseth, Testani, and Peifer, as well as questions about the adequacy of school funding levels about which education researchers do not agree. “Asking federal courts to wade into these thickets is a mistake. State officials and courts have already grappled with many of these issues, and creating a federal right to education would destabilize policies and decisions that have shaped local school systems for generations,” they say, noting that unlike the federal Constitution, all 50 state constitutions contain provisions that explicitly address education.

To receive an embargoed copy of “Reconsidering the Supreme Court’s Rodriguez Decision” or to speak with the authors, please contact Jackie Kerstetter at The article will be available Wednesday, February 22 on and will appear in the Spring 2017 issue of Education Next, available in print on February 28, 2017.

About the Authors: Charles Ogletree Jr. is a Harvard Law School professor and Kimberly Jenkins Robinson is a professor at the University of Richmond School of Law. Alfred A. Lindseth, Rocco E. Testani, and Lee A. Peifer are attorneys at the law firm Eversheds Sutherland (US) LLP.

About Education Next: Education Next is a scholarly journal committed to careful examination of evidence relating to school reform, published by the Hoover Institution at Stanford University and the Harvard Program on Education Policy and Governance at the Harvard Kennedy School. For more information, please visit

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