The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here.

Most Americans would probably be surprised to discover that there is no right under the Constitution to require that the government must provide children with a decent education. Yet, that has been the situation at least since the 1973 seminal case of San Antonio Independent School District v. Rodriguez in which the U.S. Supreme Court repudiated the right.

One of the intriguing aspects of Rodriguez is that the majority opinion included a solatium of sorts: In a future appropriate case, the Court could find that children have a fundamental positive constitutional right to that “quantum of education” providing the basic minimal skills needed to enjoy free speech and full political participation. As a matter of logic and linguistics, the statement is a tacit admission by the Justices that, despite Rodriguez’s ruling, there is a sound doctrinal basis in the Constitution for recognizing the right.

Taking up this tantalizing dictum as my own personal challenge, in 1992 I authored an Article laying out several federal constitutional provisions any one of which implicitly supports a fundamental positive right to public elementary and secondary education. Commensurate with the high regard in which the nation’s children should be held and with demanding international human rights norms, I proposed that this new right should guarantee the minimum “quantum of education” necessary to enable development of each child’s mental abilities to his or her fullest potential.

It is now almost fifty years since Rodriguez was handed down. It, and its like-minded progeny, are still good law. Aside from the fact that this country’s lack of the right is an embarrassing international anomaly, non-recognition has also been detrimental to public schooling on the home front. For, at least since the 1990s, the United States has been in the unrelenting grip of an education crisis—a crisis which could have been partially ameliorated by the Court’s recognition of the positive education right.

Even a short thought-experiment illustrates the point. A salient feature of the current crisis has been school funding disparities which oppressively disfavor school districts with low property-tax bases and high proportions of racial-minority students. If Rodriguez had recognized the right, however, the federal government would have been constitutionally obligated to see to it that underfunded districts are put on a par financially with wealthier, “whiter” ones. Or, consider that recognition of the right would surely have improved the caliber of education and ensuing student academic achievement—especially if the Court had set the bar beyond the stingy basic minimal skills standard. Finally, though a less tangible benefit, the elevation of such a right to federal constitutional status could have had an important expressive or pedagogical dimension; that is, recognition would have conveyed the message, filtering down to the public over time, that the nation prioritizes its children and deeply cares about their futures. In an America where successive generations have been relegated to substandard schooling, this is a message that is long overdue.

Professor Susan H. Bitensky earned a J.D. from the University of Chicago Law School. After graduation, she was a union-side labor lawyer for seven years, followed by employment as an Associate Counsel to the NYC Board of Education where she focused on commercial law and education policy. She later assumed the position of Professor of Law at Michigan State University College of Law, teaching Evidence, Constitutional Law, and International Human Rights. Professor Bitensky is the author of many law review articles and other publications, and has presented papers at numerous international symposia. Her scholarship has mostly concerned children’s rights under the U.S. Constitution and international human rights law.