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America’s Children Don’t Have a Federal Right to Education. Will That Ever Change?

More than four decades ago, a young girl was breezing through 3rd grade, but she craved a deeper challenge.

Her brother, meanwhile, was experiencing bullying. During a walk home from school one day, a group of bullies followed her and her brother all the way home and nearly attacked them before backing off.

That incident, and the girl’s disillusionment, was the final straw. The girl’s parents sacrificed jobs and relationships to uproot their lives, bringing her and her brother to a new state and a new school district. The girl found herself in the middle of the pack academically, but she embraced the challenge and she worked hard to chart an ambitious path to a law career that eventually included studying under the civil rights leader Julian Bond at the University of Virginia and graduating from Harvard Law School.

That young girl was Kimberly Jenkins Robinson, now a professor of education law and public policy at the University of Virginia School of Law, and one of the nation’s leading advocates for a federal right to a high-quality K-12 education—the kind she might have missed, if not for her parents’ ability and willingness to move.

She shared her story earlier this month during a kickoff event for the Education Rights Institute, a new research and advocacy organization she’s spearheading from within the law school. But she hopes others won’t have to follow in her footsteps.

“No family should ever have to move to get a high-quality education,” Robinson said during a launch event for the institute on Oct. 16.

The institute, funded initially with nearly $5 million in private donations, will produce original research and provide school districts with resources and guidance on their students’ existing civil rights protections. It joins recently announced nonprofit organizations like Brown’s Promise and the forthcoming EdFund that are pushing for systemic reforms to how America’s schools are funded.

Nearly every state’s constitution includes a right for all children within state lines to receive a free and adequate education. Those rights have been the subject of dozens of lawsuits in recent years as school districts, advocacy groups, parents, and even students have argued, based on those constitutional guarantees, that states need to provide more resources to ensure schools can live up to that commitment.

But the U.S. Constitution contains no such assurance.

In Robinson’s view, that should change, either by law or judicial ruling. She’s written two books on the subject and has a third one in the works. She even hopes to produce a related documentary modeled after Ava DuVernay’s “13th.” That film examines the system of mass incarceration that followed the 1865 passage of the 13th Amendment, which banned slavery nationwide.

Education Week interviewed Robinson twice in recent months for her thoughts on progress toward a federal right to education. The following interview has been edited for length and clarity.

Is a federal right to education within reach?

We’re closer than you may think. We do have an array of federal education rights that we did not have 50 years ago. Those are rights for everything from students with disabilities, due process, rights to be free of race discrimination. We have definitely moved toward recognizing an array of federal rights for students.

A federal right to education would be the right that makes the other rights meaningful. If you don’t have a right to a high-quality education, it’s less important how someone denies you access to education if it’s not a high-quality education that you’re receiving.

With that said, I think there’s still a significant way to travel. I do not think this current Supreme Court would recognize a federal right to education. Given the opportunity, they would reaffirm Rodriguez (the 1973 verdict rejecting the notion that funding schools through local property taxes violates the Constitution).

But the court is not the only arbiter of federal rights. Congress can make laws that offer rights.

It’s the basic right of human dignity to have a right to education. It’s the essence of our humanity. There’s just a compelling case for every child having access to a high-quality education. There are many, many students who get a truly low-quality education, and a whole bunch of others who get a mediocre education. In the wealthiest nation in the world, students should have a guarantee of a high-quality education.

In your travels, how often do you encounter people who think America’s children already have a federal right to education?

People don’t know that it doesn’t exist.

There are state guarantees, but even if the language is very strong, the enforcement of it and the meaning of it can be tepid. They lack the force that’s needed to demand a high-quality education. Part of it is that many courts defer to the legislature, which is dictated by politics and the needs of their districts, not the best interests of the entire state or commonwealth. Because of that, you get the haves who want to hold what they have, and the have-nots not having the leverage to get more.

School finance litigation has helped to get access for those who are lacking high-quality education. That has not been enough.

How do states’ recent efforts around private school choice bolster or challenge the notion of a federal right to education?

Because of Supreme Court precedent that gives parents the right to direct the education of their child, parents do have a right to opt out of the public school. Some of those parents are making that choice to exit schools that are failing their children. And blaming a parent who says, ‘My kid’s not being served well so I’m going to pull my child,’ is pointing the finger at the wrong thing.

School choice can, and in some places does, exist within public schools, too. I think that you can have school choice that is simply aiming to help those parents who are trapped into a low-quality school have options. We need to have a system that serves all students well. That will draw in more parents.

I think that the proliferation of private school choice could undermine our public school system. When 90 percent of the students are in the public school system, we should make sure it’s a very high-quality one. Even if that number stays at 10 percent who choose to opt out, you just want to avoid it being because families felt that their children weren’t being served.

I think school choice is going to persist, but the focus of the [Education Rights Institute] is on making sure public schools are strong and of high quality. We aren’t an institute that’s going to focus on denigrating school choice, but it’s not part of our mission to focus on school choice.

Even if a federal right to education is still a long way off, what do you hope the institute will accomplish?

One thing that troubles me about education is that much of the public doesn’t understand educational opportunity gaps, the nature and scope of them. That’s part of why we don’t have greater support for systemic reform. There’s not a deep understanding of how broken our education system is, and I wanted to close that knowledge gap.

And then another thing is helping people understand that we can choose to build a better system, we just have to decide that that’s what we want. The longer we choose not to provide a better system, the more it costs, in terms of economic and democratic and justice costs for the system we have right now, and the divides that we have along race and class and ZIP code.

And then finally I want school districts to pay greater attention to Title VI of the Civil Rights Act of 1964, particularly in this current moment. There are federal obligations around race and equity that districts have already committed to, including in the states where they’re pushed to do things that might be in competition with that.

The conversation about opportunity gaps has been growing in recent years. Is it moving outside of the nonprofit scholarly world? I’m not so sure. Is it an everyday conversation at the dinner table? Can we present it in a way that anyone on the street can understand it? The data show big racial divides around understanding opportunity gaps. That is one of the things I want to change.

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