Is a Free Education a Fundamental Right?

(This article originally appeared on

Should your zip code determine your access to the American dream? Or is the U.S. Constitution’s guarantee to provide “equal protection” a principle we have silently agreed to uphold in theory – but not in practice?

I’m starting to wonder after reading about Tanya McDowell, the Connecticut mother facing felony charges for lying on her five-year-old son’s registration forms so he could attend a better school. McDowell’s story is painfully reminiscent of Kelley Williams-Bolar, the Ohio mother who made a similar choice earlier this year – and is now a convicted felon.

These two stories of civil disobedience come against the backdrop of an ongoing national conversation about our public school system – and how it must be improved. They also provide an unsettling irony in lieu of tomorrow’s 57th anniversary of Thurgood Marshall’s historic victory in Brown v. Board of Education, the 1954 U.S. Supreme Court decision that triumphantly reaffirmed a core American principle: “In the field of public education the doctrine of ‘separate but equal’ has no place.”

If Marshall were alive today, he would urge us to stop celebrating our symbolic victory in Brown, and start accepting our actual responsibility for tolerating a public education system that is, clearly, still separate, and still unequal.

Marshall said so himself, in a lesser known 1973 Court opinion, San Antonio v. Rodriguez. But this time he was not the lead lawyer, arguing the case, but the Court’s first African-American justice, issuing a ruling. And this time, he was on the losing side.

The case began when a group of poor Texas parents claimed that their state’s tolerance of the wide disparity in school resources – much of which were determined by the value of local property taxes – violated the Equal Protection Clause of the 14th Amendment. A state court agreed, but the U.S. Supreme Court, in a narrow 5-4 decision, reversed.

Gone from the Court’s 1973 ruling was its 1954 contention that “education is perhaps the most important function of state and local governments.” Gone, too, was its assertion that “it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity,” wrote a unanimous Court in Brown, “where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”

Instead, the five-Justice majority in Rodriguez wrote simply that while the Texas school system “can fairly be described as chaotic and unjust . . . it does not follow that this system violates the Constitution.”

“Though education is one of the most important services performed by the state, it is not within the limited category of rights recognized by this Court as guaranteed by the Constitution.” If it were, the majority conceded, “virtually every State will not pass muster.”

For Justice Marshall, that was precisely the point. “The Court concludes that public education is not constitutionally guaranteed,” he wrote, even though “no other state function is so uniformly recognized as an essential element of our society’s well being.”

Marshall understood that without equal access to a high-quality public education, democracy doesn’t work. “Education directly affects the ability of a child to exercise his First Amendment rights,” he explained. “Education prepares individuals to be self-reliant and self-sufficient participants in society. Both facets of this observation are suggestive of the substantial relationship which education bears to guarantees of our Constitution.”

So here we are, nearly thirty years after Rodriguez – and nearly sixty after Brown – and yet parents like Tanya McDowell and Kelley Williams-Bolar feel compelled to break the law to ensure that their children receive a fair shot at the American dream. Meanwhile, income inequality has reached unprecedented levels, the nation has simultaneously grown more racially and ethnically diverse, and massive spending disparities remain between schools.

In today’s America, when it comes to public education, have we allowed our five-digit zip codes to become the equivalent of a lottery ticket to a better future? Is this really who we wish to be?

After so many years and so little real change, something new – perhaps even something drastic – needs to be done.

What if we took away the legal ambiguity that resulted in a 5-4 Supreme Court decision? What if we made the guarantee of an equal opportunity to learn our nation’s 28th Constitutional Amendment?

What do YOU think? Is a Free Education a Fundamental Right?

a)    NO. A public education is extremely important. It’s also not listed as a fundamental right anywhere in the U.S. Constitution. It may be imperfect, but the Supreme Court got it right in the Rodriguez case.

b)   YES. The 14th Amendment’s guarantee of “equal protection” under the laws is sufficient grounds for recognizing the unique value of a quality education. It’s time to reinterpret the Rodriguez case!

c)    NOT YET. Reinterpreting Rodriguez is not enough. It’s time to make equal access to a quality education an undeniable right. It’s time for the 28th Amendment to the U.S. Constitution!

Categories: Democracy, Equity, Learning

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  1. Alexis Legendre
    Posted May 16, 2011 at 6:08 pm | Permalink

    I would like to talk to you further on this subject. My grandchildren reside with me in the school district they attend and their Mom pays taxes on the home we live in. But she is only in the home a few days a month because of her work. They are wanting to bill us for tuition. The school they attend has a very poor rating so not like we are trying to get them into a better school.

  2. Monica Prentiss
    Posted May 17, 2011 at 2:10 am | Permalink

    I do not understand why the nation can not be like here in Wisconsin. We have open enrollment. If a school can better serve our child in another district, we can apply and they can attend, we just need to transport them. It works here. It keeps surrounding school districts competitive enough to keep good programs for the children. We have been thinking of moving out of Wisconsin and until a few months ago when I heard the story of the mom getting attested, had no idea, open enrollment wasn’t available in all states.

  3. Posted May 17, 2011 at 9:42 am | Permalink

    Alexis, I’d be happy to connect, although I don’t have the expertise it sounds like you need to clarify this question. I’d recommend speaking with a locally-based lawyer who knows the residency and tax issues.

    And Monica, I’m a Badger alum, but I didn’t know about Wisconsin’s open enrollment strategy. I’m, going to look into it more and see how useful it could be as a model; thanks for the tip!

  4. Eileen
    Posted May 25, 2011 at 1:03 pm | Permalink

    I read about this case recently and have to say I find it appalling. How can a person be charged with “stealing” a public education? And on what basis is the CT attorney general’s office requiring her to pay back the government for her son’s education? These are rhetorical questions, clearly, but ones I find myself stuck on in trying to understand this situation.

    I agree that in a democratic society, it is essential to our ,as well as in the best interest of our ability to self-govern, that we provide our children with a free, appropriate public education. Clearly, large numbers of children are not receiving this at all and fixing it is a national nightmare. Sometimes, the only action left is a drastic action. I would be a proponent of a 28th Amendment for educational equality.

    The Wisconsin model sounds promising. I’m interested in looking into that as well.

    Posted June 19, 2011 at 11:34 pm | Permalink

    According to the Associated Press the Education Officials agreed that during these tight times disparities between the school districts have raised the head of racial disparities between them as well.

    Kelly Williams-Bolar and Tanya McDowell are both facing the ‘wrath of fraud’ by their child’s education. Ms. McDowell is facing 20 years. I can remember the Patty Hearst millionaires’ who not only did fraud by robbing banks but was an accessory to the SLA members who did multiple murders and she was given less than a year. Her sentence was pardoned by the President Clinton after it was commuted by President Jimmy Carter. Wow two President by her side. Their reason was she had been brainwashed. Well both mothers McDowell and Bolar were also brainwashed or perished by the injustice of inequality of their children’s education. But somehow no one seems to notice. Ms. Hearst had attracted more publicity than the Twin-Tower Murders of 9/11. I suppose money is a virtue, ‘the only virtue that is.’ Thanks for this lesson in school district laws that my child had to hear about. I hope she does not take it with her through law school. ‘America the F??? ?’

    Posted June 20, 2011 at 4:14 am | Permalink

    I suppose that my first post was a bit too raunchy for this website; but I do believe and it is evident admited by the Education Official according to the Associated Press that the difference in the educational inequality has plenty to do with the haves and the have nots. This society is still making a difference in who gets a qualified education and who does not. Sam as in your point made in your article about the historical event of Thurgood Marshall’s victory, Brown vs Board of Education, my historical point is Patty Hearst for instance who was cleared of all of her fraud doings because she was rich. Kidnapped indeed is what she alleges and it could not be proven so therefore she was able to avoid the ‘wrath of fraud and even murder’ by pardon but the two mothers McDowell and William-Bolar well they are destitude in poverty so their frauds are intentional as implied by the media and most. Somehow it is always intentional when you are poor. And I still say that this one rich woman Hearst was able to get the attention in the media as much as the 9/11 tragedy did. The two mothers should be also given pardon instead for trying to do one of the best thing a parent can do for their child and that is to help them to get a decent education no matter what it takes. Education is the only avenue from poverty so in this case someone tell me if these mother’s actions are not an example of desparation? The punishment should really fit the crime and in actuality this was a minor mistake of the two deprived mothers. People do desparate things in desparate times and ‘homelessness’ is definately a desparate time but we can all see that desparation of a certain kind can be very costly especially for those who’s pockets are lined with lent. Thank you, and have a good day.

    Posted June 20, 2011 at 11:54 am | Permalink

    Sam you think that maybe you guys could have chosen to post my corrected spelling and grammar post? Never mind, this is what we are advocating isn’t it “A proper education in America.” Therefore my post will do just fine misspelled and all. I’m not mad at you. Oh and have a lovely day.

  8. Posted June 20, 2011 at 1:00 pm | Permalink

    Hey Lorraine, Sorry! Didn’t realize one was a correction of the other, so just posted the first one. If you want you can resubmit and I’ll delete this one — up to you. Meanwhile thank you for taking the time to read and respond to what’s here. Looking forward to ongoing conversations . . .

    Posted June 21, 2011 at 12:31 am | Permalink

    No probem Sam it can stay as it is as long as the message did get across; hey thanks for responding. I am new to your site. I like to say that after listening to your speech at the TEDxSinCity on the Freedom to Learn I will be a dedicated reader from now on of your work. I have been spreading the word of your teachings to some college and highschool students friends of my daughters and others. I am so excited to have found you. I will be getting your books soon on the Faces of Learning and We must Not Be Afraid to be Free, cannot wait. As always, Have a Wonderful Day! Lorraine Voss.

  10. Posted June 23, 2011 at 10:50 pm | Permalink

    Assuming that access to a quality education is a right, we’re not very close to being able to make that a reality for many children across the country. So if we reinterpret the case and operate with the assumption that every child must receive a certain level of schooling, I’m not sure what we need to do in order to make that happen for all the children whose current schooling is inadequate. And that, I would argue, is a very important question.

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