This Article explains why there is a fundamental duty for the government to provide public education under the U.S. Constitution. Numerous scholars and public officials have written on the need to overrule San Antonio v. Rodriguez or adopt alternative approaches to recognizing a right to public education either judicially or by way of constitutional amendment. This Article identifies a consistent and systemic reluctance by the Court to meaningfully enforce positive rights, which are the duties that the government owes to the people. In doing so, it explores the consistent recognition throughout American history that education is a fundamental duty of government. When the Supreme Court issued its infamous holding in San Antonio v. Rodriguez, it did so using the language of negative rights. However, even as the Court failed to recognize a fundamental right, it simultaneously upheld existing precedent that recognized the government's special duty to provide public education. Recognizing the fundamental duty to public education as a positive right would correct a major inconsistency in U.S. constitutional law and help bring fundamental rights doctrine more in line with broader understandings of social justice. In order to safeguard the fundamental right to public education, a new form of fundamental rights analysis for positive rights must be developed. The details of such a rights analysis will take time, but it must begin with an understanding that traditional strict scrutiny analysis cannot be applied to positive rights as they are to negative rights. Part II discusses the development of fundamental rights under the U.S. Constitution. Part II ends with recognition that despite a comprehensive jurisprudence regarding individual liberties, there is a dearth of jurisprudence regarding constitutional duties owed to individuals, which are also known as positive rights. Part III examines the normative justifications for recognizing a fundamental duty to provide public education by examining the educational philosophies of such luminaries as Thomas Jefferson and John Dewey alongside today's international human rights laws. Part IV describes and criticizes the current doctrine regarding the right to public education as inconsistent with the aspirational holding of Brown v. Board of Education. It builds from Justice Marshall's Rodriguez dissent and includes a critique of the Court's use of federalism, race neutrality, and exposes the Court's reluctance to recognize positive rights and duties. Part V discusses possible approaches to judicially enforcing a right to public education. It explores the limits of current fundamental rights doctrines that are based in negative rather than positive rights and the resulting need to develop a new form of rights analysis that applies in the context of fundamental duties owed to individuals.
Areto A. Imoukhuede, The Fifth Freedom: The Constitutional Duty to Provide Public Education, 22 U. FLA. J.L. & PUB. POL'Y 45 (2011).