This Article argues for a human dignity-based, due process clause analysis to recognize the fundamental duty of government to provide high quality, public education. Access to public education is a fundamental duty, or positive fundamental right because education is a basic human need and a constituent part of all democratic rights. In The Fifth Freedom, I argued that there is a fundamental duty under the U.S. Constitution to provide public education and that the reason a fundamental right to public education has not been recognized is because of a profound confusion regarding fundamental rights as duties.' The Court is biased towards protecting negative rights or liberties over enforcing positive rights or duties. As a result, the Court has failed to develop a framework for protecting even the most basic and widely accepted of fundamental duties, the constitutional duty to provide high quality, public education. Here, I demonstrate that education is essential to any meaningful concept of personal liberty and to democracy. Without an educated citizenry, liberty and democracy are merely empty concepts devoid of meaning for all but the economically privileged and socially advantaged. For instance, voter turnout is much lower amongst people with no college educations as compared to people with college and graduate level degrees. The voter turnout rate for adults who have not completed high school is even lower.' Hence, it is well understood that education inspires and enables meaningful democratic engagement. Recognizing that public education is a basic capability that is essential to human dignity requires application of a due process clause analysis similar to that applied in the 2003 human dignity-based holding of Lawrence v. Texas. Ironically, Lawrence, which is a negative-rights and liberty-based holding, can serve as the template for recognizing the positive right of access to public education. While the basic right recognized in Lawrence is the right to privacy, free of government intrusion, Lawrence rests on a broader notion of substantive due process: that privacy is essential to liberty and human dignity. Like the right to privacy, education is also essential to liberty. However, the case for a dignity based due process clause protection of the right to public education is even stronger for education than the case for the right to privacy. This is because education is essential to both the liberty and the democracy components of human dignity.
Areto A. Imoukhuede, Education Rights and the New Due Process, 47 IND. L. REV. 467 (2014).