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A Statutory Solution to a Constitutional Problem

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Washington University Global Studies Law Review


A fundamental right to education has long been recognized in constitutions around the world. In South Africa, the right to education is outlined in the founding provisions of the constitution which specifically acknowledge “the need to redress the results of past racially discriminatory laws and practices” as a reason for this right. The Supreme Court of the United States has analyzed the right to education in this country on various occasions, yet the Court has consistently avoided rendering a definitive decision articulating whether a positive right to education is guaranteed by the Constitution itself.

Although in 1954 Brown v. Board of Education unequivocally established that “in the field of public education, the doctrine of ‘separate but equal’ has no place[,]” a uniform quality of education throughout the United States has proven to be far from reality. With the passing of the Civil Rights Act of 1964 came the mandate that the Commissioner of Education “conduct a survey and make a report . . . concerning the lack of availability of equal educational opportunities for individuals by reason of race . . . .” The “Coleman Report,” as it came to be known, found that at the time, math and reading scores of the average black twelfth grade student ranked in the thirteenth percentile of scores. With more than eighty-seven percent of their twelfth grade peers testing higher than black students, the lack of equal educational opportunities was evident. Nearly a half-century later according to data from the 2013 National Assessment for Educational Progress, the gap remains present. In 2013, the average black student was at the twenty-second percentile in reading. This lack of progress in educational equality has unsurprisingly had wide-ranging effects. In 2009, the median family income in the United States was $38,409 for blacks, but $62,545 for whites.

Lacking a constitutional guarantee to education, let alone the guarantee of a quality education, black and other minority families continue to face an uphill battle as a result of inequality in education. As ordered by the Brown Court, where the racial desegregation of public schools was concerned, states were required to act “with all deliberate speed.” Although the Brown Court deemed the principle of separate but equal to be unconstitutional as it applied to public education in 1954, more than three decades later, schools continued to operate under court-ordered desegregation plans while progressing with the mandated “deliberate speed.” Absent existing precedent to constitutionalize a fundamental right to education, statutory law could immediately begin to level the playing field for minority students and attempt to redress the results of the United States’ own discriminatory laws and practices of the past, specifically in the field of public education.