The 28th Amendment? Alexander Sanchez

The quality and efficiency of education within the United States is a controversial topic, but data from various cross-national tests consistently underscores the fact that United States students are lagging internationally. One of the biggest cross-national tests, the Program for International Student Assessment (PISA), placed the United States 24th, 28th, and 36th in reading, science, and mathematics respectively out of 65 countries. In addition, in 2012, the education company Pearson—using a variety of global data from cross-national studies and individual country data—ranked the United States 14th in education; Finland ranked first. Furthermore, only one year of arts education is required in the United States in comparison to three and four years for “core” subjects like English and mathematics. This leads to even lower outcomes for fine arts education, reducing students’ opportunities to explore other areas and achieve well-balanced lives through creative and emotional expression. There is clearly an issue within the United States education system that needs urgent reform.

Interestingly enough, when differences in countries’ social class demographics are taken into account during the analysis of crossnational tests, the performance of students in the United States rises significantly. If only the results from students of higher socioeconomic status are used in analysis of the PISA test, then the United States rankings would rise to 6th in the world in reading and 13th in mathematics. PISA rankings in the United States are low partly because a proportion of the students taking the test are at a disadvantage due to hardships associated with growing up in a lower social class. In addition to a variety of other factors, I believe this academic divide exists in part due to a lack of a common standard for education within the United States Constitution.

The word “education” is found in 187 country constitutions, yet it is completely absent from the U.S. Constitution. This reflects the lack of any constitutional right to education in the United States, which is not inherently negative because individual states can still enact their own rights to education. However, every country that consistently beats the United States in standardized education rankings has some form of constitutional or statutory guarantee for the right of education. Although correlation does not equal causation, nationwide laws on educational rights seem to benefit the education system of the nations that enact those laws. Finland’s constitution, for example, asserts, “Everyone has the right to basic education free of charge.” By including education as a focus of the state, a country establishes requirements that set the frame for educational policy challenges and reform. These requisites contribute to what the Pearson report calls a “culture” of education where “the cultural assumptions and values surrounding an education system do more to support or undermine it than the system can do on its own.” Based on this, I propose an amendment to the Constitution that mandates that every child in the United States deserves a right to educational equality and adequacy. I believe this would help increase governmental support to decrease educational disparities within the United States and would give a stronger federal backing for educational reform propositions and research.

Although the need for a constitutional right to education in the United States might seem like common sense, there are opposing arguments that deserve mention. In the article “Education and the Constitution,” David Boaz argues that there should not be a constitutional right to education. He explains that the constitution was created by the Founding Fathers with the intention of allowing local governments to make statewide decisions based on the individual needs of each state. Basically, education is a matter reserved for the states and federal involvement would be detrimental to education because the needs of each state are different. However, including a constitutional right to education does not mean that all control will be stripped from local governments. Policies such as the Every Student Succeeds Act, which allows individual states to regulate standardized testing and the evaluation of their schools, can be used in conjunction with and in support of a constitutional right to education. The goal of a constitutional shift is not to restrict the control of the states, but rather to shift the priorities of the United States to include educating its children as a basic necessity for the prosperity of the nation.

Many would argue that a right to education is already an unwritten federal agreement, or that many states already have their own standards for including education as a universal right. Although this is true, a constitutional right is needed to support educational rights of children in any court hearings that might arise related to the matter. If education is not included as a constitutional right, then the Supreme Court can legally veto any appeals that argue that a group of children are not properly receiving educational equity and adequacy, such as in the San Antonio v. Rodriguez case, which will be reviewed shortly. This top-down approach in reforming education is necessary because although certain states could successfully foster educational excellence, disparities can still arise between the educational qualities of different states if there is no set standard for education. In addition, partial federal control of educational funding within states could also help eliminate the strong disparities observed when comparing schools with members of contrasting socioeconomic statuses.

It can also be argued that the proposal for a constitutional right to education in the United States would simply be a continuation of concepts in the 14th Amendment of the U.S. Constitution. The Equal Protection Clause of the 14th Amendment provides that no state shall deny to any person within its jurisdiction “equal protection of the laws.” This clause was the basis for Thurgood Marshall’s 1954 victory in Brown v. Board of Education—the Supreme Court decision that helped dismantle racial segregation in schools in the United States. However, the 1973 Court opinion San Antonio v. Rodriguez reflected the fact that the public education system was, and still is, separate and unequal. In this court case, a group of poor Texas parents argued that the state violated the Equal Protection Clause in the 14th Amendment by allowing great disparity in school resources, many of which were determined by the value of local property taxes. Even though a state court agreed, the Supreme Court stated that the appellants did not prove that education is a fundamental right that textually exists in the Constitution, and, thus, the appeal was rejected. As a result, states were only required to provide “basic minimal skills necessary for the enjoyment of the rights of speech and full participation in the political process.” This statement violated the earlier Brown v. Board of Education decision, which declared unanimously that education, “where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” The Supreme Court in San Antonio v. Rodriguez also stated that “though education is one of the most important services performed by the state, it is not within the category of rights recognized by this Court as guaranteed by the Constitution.” If it were, the majority concluded, “virtually every state will not pass muster.”

Thurgood Marshall responded to the latter remarks by writing about the irony of such a statement. A disconnect exists between the fact that the Court recognizes education as an essential element of society’s well-being while simultaneously concluding that public education is not constitutionally guaranteed. Lack of a right to education opposes democracy itself, Marshall writes, because education “directly affects the ability of a child to exercise his First Amendment rights and prepares individuals to be self-reliant and self-sufficient participants of society.” The Constitution was drafted to establish guidelines for maintaining a democratic nation, yet possibly the most critical aspect of fostering democracy remains completely absent from it. A guarantee for educational equity and adequacy is crucial for American youth to lead the country in the future. The quality of education children receive should not be determined solely by their ZIP-codes, nor should systems exist that allow for a further divide between high and low-achieving students.

Many people may argue that the Constitution should remain stagnant and should be followed in the strictest way possible, and that amendments to the Constitution, such as including a new right to education, are seen as disruptive to an organized democratic society. However, the U.S Constitution itself was written as a living document—that is, the Founding Fathers enacted it with the intention of having it altered in response to changing political and social aspects of the United States. Thomas Jefferson himself believed that “Every constitution, then, and every law, naturally expires at the end of nineteen years. If it be enforced longer, it is an act of force, and not of right.” By challenging the most fundamental part of the United States’ political and sociological system—the Constitution— measurable and positive changes within our education system could actually occur.

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Alexander Sanchez
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