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Reading Is Fundamental: Why The No Child Left Behind Act Necessitates Recognition Of A Fundamental Right To Education

Michael Salerno is a graduate of the Benjamin N. Cardozo School of Law. He would like to thank the entire staff of the CARDOZO PUB. LAW, POL`Y & ETHICS J. for all of their diligent work reviewing this Note. Specifically, he would like to thank Editors-in-Chief Alicia Hayes and J.T. Hutchens, and editors Sharon Samuel and Nathan Kaufman for their guidance. Lastly, Michael would like to thank his Mother, Father and siblings, and his wife Kara for their unending love and support and keeping him sane during this process.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities... . It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. 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.1

Introduction

For those attempting to reach the law-making halls of Washington, D.C., education2 has always been of the utmost importance.3 Americans are constantly bombarded with statistics touting the educational achievements of other nations, the country`s precipitous decline in the same area, and the need to correct the trend.4 Even the Supreme Court has recognized the importance of education to the continued success of American, if not every democratic, society.5 It should follow that education would be a right afforded the highest protection by the nation`s courts. This, however, is not the case.

There is no fundamental right to education explicitly guaranteed by the United States Constitution. Neither has the Supreme Court recognized an implied fundamental right to education in the Constitution,6 despite its willingness to do so for the rights to travel,7 marriage,8 and procreation.9 When courts raise the issue of whether there is a fundamental right to education, they usually do so in the context of determining whether a state government has improperly funded public schools.10 In such cases, the Court, in refusing to imply a fundamental right to education, has reasoned that it "lack[s] both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues."11 Essentially, since any state legislation that may infringe upon a citizen`s right to education concerns the distribution of state resources, and does not directly "deprive," "infringe," or "interfere" with the right, the Court will not elevate the right to education to Constitutional protection.12

Trends in state courts and federal legislative initiatives may force the Supreme Court to revise its stance on this issue. First, it is well established that the states often act as "laboratories" for new and changing legal questions.13 If the Court finds that a majority of states are moving in a particular direction, the Court takes this into consideration when facing a similar issue, and will often align its ruling with the prevailing state view.14 Currently, a majority of states recognize a fundamental right to education.15 How these states characterize the right is discussed in Part III of this Note.

Secondly, as described above,16 the Supreme Court has been reluctant to intrude upon what it perceives to be the local nature of education. However, for the first time since Brown v. Board of Education of Topeka,17 despite many previous political promises, the federal government has considerably altered the landscape of national education with the No Child Left Behind Act ("NCLB").18 Under NCLB, public schools within each state must meet certain annual criteria to receive federal education funding.19 By creating incentives for states to improve their schools, the federal government has become involved in education for the same reason the state governments have: because "education is perhaps the most important function of state and local governments."20 With the creation of NCLB, there is recognition that education may be the most important function of the federal government as well.

The intention of this Note is to persuade the federal government, and more specifically the Supreme Court, to recognize a federal fundamental right to education. Part I will discuss fundamental rights and why education should be recognize...

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