Academic journal article The American University Journal of Gender, Social Policy & the Law

Class in the Classroom: Poverty, Policies, and Practices Impeding Education

Academic journal article The American University Journal of Gender, Social Policy & the Law

Class in the Classroom: Poverty, Policies, and Practices Impeding Education

Article excerpt

Introduction

The United States of America has long been known as a land of opportunity for all. Many still recognize "a pervasive ethos in America that there should be an equal opportunity for all regardless of race, class, or lineage, to attain whatever amount of wealth, professional prestige, and social status that our hard work and overall merit entitle us."1 While capitalism also praises "free market competition," social justice movements and activists decry the inequalities that can result from the "meritocratic effects of intergenerational privilege."2 For this reason, some argue that equal opportunity and the United States Constitution exhort the government to provide public education as a fundamental duty, notwithstanding the decision in San Antonio Independent School District v. Rodriguez,3 which declined to find education to be a fundamental right and held that poverty was not a suspect class triggering strict scrutiny in an Equal Protection lawsuit challenging educational inequality in a public school system.4

International human rights conventions including the United Nations Charter5 and the Universal Declaration of Human Rights also provide support for public education. The Universal Declaration of Human Rights (UDHR), to which the United States is a party, includes public education as a protected human right.6 Further support is found in the International Covenant on Economic, Social, and Cultural Rights, which the United States has signed but not yet ratified.7

The United States has no national education system, and its Supreme Court has not interpreted the federal Constitution to include a right to public education. Thus, any constitutional basis for the right to comprehensive educational opportunities derives from state constitutions. Ongoing tensions exist in state courts about what it means to provide "free public education." In many states, education has been deemed to be a fundamental right or a fundamental interest, but the parameters of fulfilling that right or interest remain vague.8 In some states, the courts have interpreted the right to be that of an "adequate" education, while others focus on an "equal" education.9 Especially since the most recent recession, a common response of state courts is to "punt" the decision to the legislative branch, which fails to correct the inequality, as recent examples in Texas, Kansas and Washington illustrate.10

Education is "unique among the constitutional rights" because, as Professor Derek Black notes, "constitutional rights, such as free speech, privacy, and Due Process are violated in particular moments in time. For the same reason, they are susceptible to narrow remedies. But education is an ongoing project that requires constant vigilance-the failure of which can span over years and decades."11

Professor Michael Rebell12 argues that the right to education is supported by U.S. Supreme Court case law, specifically Plyler v. Doe, which held that denying funding for undocumented students enrolled in local public schools violated the Equal Protection Clause when there was no "substantial" governmental interest for the differential treatment of undocumented and documented children.13 In his view, this ruling justifies intermediate scrutiny for current public school funding differences, on the grounds that "the similarity of the situation of the children of undocumented immigrants in Plyler and the class of children who are educationally disadvantaged by poverty is striking."14 As the Plyler majority reasoned, the undocumented children who are denied access to public education will grow up to be illiterate. Similarly, he explains that children in poverty-stricken neighbors with substandard public schools will also grow up illiterate and subject to its lasting stigma, that the current system is creating a subclass of illiterate children, and that all of this is happening through no fault of the children, like those who are undocumented. …

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