Locating Rights to Education for Ensuring Every Student Succeeds
Just as 2015 came to a close, the center of gravity for rights to education began moving again, this time back toward the states.
On December 10, 2015, President Obama signed the Every Student Succeeds Act (ESSA) into law, the latest renewal to the Elementary and Secondary Education Act of 1965 (ESEA). The ESEA was last renewed under the No Child Left Behind Act of 2001 (NCLB), a law that had instituted a number of federal accountability measures that states were expected to follow in order to receive federal funding and avoid sanctions. Hailed as a rare bipartisan effort in a widely divided federal government, the ESSA has been applauded on both sides of the political aisle as a step forward from what many have considered a broken system under NCLB.
The ESSA responds to criticisms of federal overreach, an overemphasis on testing, and ineffectual accountability measures. The law establishes federal educational standards while returning much of the accountability and enforcement to the states. While the ESSA will be widely discussed for its educational standards and accountability, policymakers should not overlook that the law is also one squarely concerning rights to education. Are students entitled to a high quality education? Are students with additional needs, including English language learners and students with disabilities, entitled to resources that will allow them to receive equal educational opportunities?
Even after the bipartisan victory in December, the question of who is responsible for securing rights to education is still the elephant in the room. Ostensibly, the ESSA returns accountability and oversight to the states. At the same time, however, the law does not eschew the recognition that there is a federal responsibility for providing equal and adequate educational opportunities for every student. The purpose of the law is “to provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps.”
Furthermore, as President Obama noted in his signing remarks, “this bill upholds the core value that animated the original ESEA signed by President Lyndon Johnson—the value that says education, the key to economic opportunity, is a civil right. With this bill, we affirm that fundamental American ideal that every child, regardless of race, income background, the zip code where they live, deserves the chance to make out their lives what they will.”
There is inevitably a tension when attempting to ensure that students will be entitled to certain rights regardless of zip code while deferring to each individual state to enforce those rights. While the ESSA moves the center back closer to the states, it stops short of fully addressing the challenging decision about how to structure a workable system of enforcement that protects every student in every school while recognizing battles over control between levels of government.
The tension is not a new one, and the ESSA should be included as the latest development in the history of a moving center of gravity for rights to education over the last 60 years. In 1954, the U.S. Supreme Court held in Brown v. Board of Education and in subsequent desegregation cases that every student is entitled to attend desegregated schools under the Fourteenth Amendment’s Equal Protection Clause in the U.S. Constitution. On similar grounds, the Court held in Plyler v. Doe (1982) that public primary and secondary education where available must be made available to all students. Meanwhile, the Civil Rights Act of 1964 extended federal protections against discrimination on the basis of race, color, national origin, and religion in public schools, and additional statutes including Title IX of the Education Amendments of 1972, the Equal Educational Opportunities Act of 1974, and the Individuals with Disabilities Education Act of 1990 affirmed and extended those protections to more groups of students. Today, these statutes are enforced by the U.S. Departments of Education and Justice.
During the same time period, the Court emphasized in San Antonio Independent School District v. Rodríguez (1973) that it is state and local governments that control education policymaking and in effect held that the right to education is not fundamental under the U.S. Constitution. Following the decision, lawsuits for educational equity and adequacy have widely moved to state courts under state constitutions with varying levels of success. And programs like under the NCLB, which had established federal standards with federal accountability measures to withhold funding from noncompliant states, have majorly deferred to the states. For years, the Bush and Obama Administrations have granted waivers for states to develop their own plans and avoid sanctions for noncompliance.
Together, these developments—along with many others that could be named—show the complexity of education policy that has refused a binary of state or federal-only control. The ESSA provides a short-term answer by suggesting greater state control, but it punts the question of how to fully protect what this country has recognized are rights that every student has to access adequate and equal educational opportunities. It gives a default to where we should turn first when educational standards are not being met, but it does not tell us where the lines are ultimately drawn when a student receives a failing education.
The debate continues. The ESSA should not by any measure be seen as its conclusion. Recognizing a system that truly works to protect the various rights to education must involve an honest, public discussion about what precisely are our federal rights to education and which institutions are in the most optimal positions to protect them. Everywhere around the country there is agreement that all students are entitled to adequate and equal educational opportunities, but we must continue asking the difficult question of how we ensure that education.
Eric Chung is currently a J.D. student at Yale Law School and a ISPS Graduate Policy Fellow. His research focuses on the intersections between law and comparative social policy, including in the fields of education, health, and welfare.