Academic journal article Harvard Law Review

A Right to Learn? Improving Educational Outcomes through Substantive Due Process

Academic journal article Harvard Law Review

A Right to Learn? Improving Educational Outcomes through Substantive Due Process

Article excerpt

  In these days, it is doubtful that any child may reasonably be
  expected to succeed in life if he is denied the opportunity of an
  education. Such an opportunity, where the state has undertaken to
  provide it, is a right which must be made available to all on equal
  terms.
  ... Does segregation of children in public schools solely on the basis
  of race ... deprive the children of the minority group of equal
  educational opportunities? We believe that it does.
    -- Chief Justice Earl Warren (1)

Decades after the Supreme Court issued this bold declaration, the promise of Brown v. Board of Education (2) has fallen disappointingly short. Not only are schools still extremely segregated, (3) but in addition, predominantly minority schools, which also tend to be high poverty schools, have "substantially inferior resources" (4): "High poverty schools have been shown to increase educational inequality for students in these schools because of problems such as a lack of resources, a dearth of experienced and credentialed teachers, lower parental involvement, and high teacher turnover." (5) Ironically, an educational system originally erected to minimize social and economic disparities (6) now simply may replicate, if not exacerbate, existing disparities. Thus, although Brown held out the promise of equal educational opportunity, the current state of affairs resembles that of the pre-Brown era (7)--a result of the Supreme Court's retreat from its commitment to Brown in subsequent years. (8)

School reform efforts have attempted to navigate the obstacles created in the post-Brown era by exploring alternatives to integration for improving educational opportunity. This Note proposes another option for school reform: if education were recognized as a fundamental interest under the Federal Constitution, substantive due process (9) might provide a means for equalizing educational opportunities. Although the Due Process Clause (10) has traditionally been considered a limit on state action, the Supreme Court has imposed an affirmative duty on states to protect individual rights when the state has first undertaken to restrain the liberty of an individual. Hence, compulsory education laws, by impairing the liberty of students, could provide the starting point for imposing an affirmative duty on states to educate those students sufficiently. However, whereas most commentary has focused on the potential use of DeShaney v. Winnebago County Department of Social Services (11) in seeking a right to educational resources under substantive due process, this Note proposes instead using an earlier case, Youngberg v. Romeo, (12) as a model for recovery.

Part I details the path of post-Brown school reform, focusing on school finance litigation, and suggests how the Due Process Clause could be used to remedy the shortcomings of this litigation. Part II explores how the Supreme Court has employed the Due Process Clause to impose affirmative duties on the states to provide certain services to individuals in the context of prisons, mental institutions, and other custodial settings. Part III employs the custodial framework set out in DeShaney to determine the viability of a substantive due process right to educational resources and concludes that DeShaney ultimately falls short. Part IV then looks to Youngberg and examines the viability of a constitutional right to education under its analysis. Finally, Part V demonstrates how a right to education under Youngberg could vindicate claims for greater educational resources. Part VI concludes.

I. POST-BROWN SCHOOL REFORM EFFORTS

A. School Finance Litigation

When the Supreme Court abandoned the dream announced in Brown, (13) litigants sought to vindicate a right to equal educational opportunity through school finance litigation, focusing on the equalization of educational resources. (14) School finance litigation, however, suffered a blow in San Antonio Independent School District v. …

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