equal protection and public education essay

equal protection and public education essay

Exploring the Intersection of Equal Protection and Public Education

1. Introduction to the Concept of Equal Protection in Education

The legal culture that emerged in the 1980s and into the 1990s is no longer compatible with this view on the ends of public education or, more forcefully, this view of the limits of the constitution as a tool of rights and obligations. In Bakke, the Supreme Court intervened in the allocation of places in medical schools, challenging the popular but unsupportable idea that there can be a color-blind state. Allan Bakke sought admittance into the University of California Medical School at Davis in 1973. He had a 3.46 grade point average and a 468 Medical College Admission Test score. He had two referees and better assessments than some of the entitled racial or ethnic minority students. During the years Bakke had applied, the school had only one hundred available places yet 1,269 students sought admission. In 1972, 16 percent of those admitted to the school were entitled minority students.

Conversations in all sectors of the country are taking place around disparities and discrimination within the systems of the United States and discussing changes that need to be made. Presently, the dominant perspective is that we need to rethink the relationship between the state and public education as a result of the pandemic. However, a pandemic does not give us the right, the same way that decades of disparities and discrimination do not compel us, to return to yesteryear. The past remains a story of disparities and segregation. We have over a century with highlights of court cases that have influenced educational policy. It was the prompt for states to construct their own constitutional declarations. This essay attempts to examine developments in public education’s goals and shifts in law and legal culture that might result in the law’s construction as it has no role in remedies for inequalities in public education.

2. Historical Perspectives on Equal Protection in Public Education

The United States started systematizing public education during Reconstruction, with many states mandating some form of free attendance laws in the years that followed. Cases that would later be instrumental in developing the right to an education reached the Supreme Court in the early half of the twentieth century. As disturbingly atemporal as it may sound, references a child who “has been allowed to regress to the profoundest depths of mental retardation” due to the stark lack of services available to him compared to white children in the South. The language of “maximum feasible educational opportunity,” which became a hallmark of the advocates within Mills, was not hollow.

As homeless children and youth continue to be underserved, understanding the above tensions is crucial to develop policies that further the legislative aim of “equalizing educational opportunity for homeless children.” This focus on equal access to educational opportunity serves as the foundation for addressing more specific evolutions of the right to an education under current equal protection jurisprudence. In other words, instead of addressing disabilities or mental health policy for homeless students, education case law surrounding equal protection concerns focuses on access to fundamental rights. As such, this section will review equal protection in public education through several historical moments, each carrying implications for federal law, state law, and legal interpretations.

3. Contemporary Challenges and Solutions in Ensuring Equal Protection in Public Education

However, there are proponents of policy solutions designed to encourage the equal treatment of students based on constitutional principles grounded in an expansive reading of equal protection. Although the programs occupying urban centers have been criticized for perpetuating the reproduction of social inequalities, these programs and initiatives are becoming a harbinger for the legal fights attempting to quash them and a growing reconceptualization of desegregation. The emphasis on urban problems and solutions bypasses a concern for the potential universality of possible breaches in equal protection predicated on non-careful considerations of heterogeneity. With diversity being a constant of the nation and the schools, ensuring the conditions necessary for fulfilling an inherent cornerstone of our social and educational governance is necessary. These novel ways of thinking of the growth in diversity in U.S. public schools resonate alongside existing class action lawsuits which attempt to address equal protection and substandard education problems in rural California.

The increase in the diversity of the students attending U.S. public schools has led to a concurrently increased predominance of segregation, which has a significant impact on current conceptions of equal protection. Urban districts are predominantly housed by marginalized students, and these groups are experiencing increasingly discriminatory policies ranging from unequal distribution of educational resources between urban and suburban districts, and within urban districts, to punitive discipline and limited access to advanced courses within schools. These discriminatory policies negatively impact students’ schools and educational opportunities, defining which students are legitimized and are supposed to achieve. Countervailing these policies is difficult for several reasons. Urban districts are largely reliant on the property tax, which perpetuates an inequality of funding to schools. Population retention or white flight also has a financially and politically detrimental effect on urban schools. Policy solutions are also marred in complexities due to class dimensions and differing regional priorities.

4. Case Studies and Legal Precedents in the Intersection of Equal Protection and Public Education

In many jurisdictions in the Global North, for example, it is illegal to deny education to an unauthorized migrant child on equal protection grounds. In other jurisdictions, such as Germany, access to public education on equal protection grounds is limited by concerns for migrants’ (naturalizing) parents or, more generally, residency requirements. However, in various jurisdictions, secondary education is not explicitly guaranteed on these grounds, and in some jurisdictions it is not clear whether education at the secondary (and higher) levels is constitutionally required at all. Moreover, legal requirements to ensure access to public schooling are insufficient for ensuring that unauthorized migrant children receive a fair chance of educational success. Unequal educational outcomes can also be exacerbated through tracking or streaming – organizing students into different groups or programmes of study based on their ability or academic performance.

For a greater understanding of the interaction between equal protection and public education, this section invites a close examination of case studies and legal precedents. A critical analysis of specific cases sheds light on the ways in which existing laws and policies may stand in the way of providing equal protection and eradicating discriminatory practices in the educational context, and casts doubt on the role of schools and their institutional and legal practices in reproducing inequality or furthering the aims of justice and equal protection. The remaining articles continue with this overall aim, considering various contexts of study, policy, institutional practice, or activist legacies to chart more specific instances of the intersections between equal protection and public education.

5. Conclusion: Recommendations for Future Policy and Practice

Given that removing constitutional obstacles to educational policy design and judicial opportunities and power still leaves many questions unanswered, educational actors and institutions have to catch up through coordinated policy initiatives in spheres such as family, housing, health, job training and security, and economic security under the general old age, survivors’, and disability insurance program of the Social Security Act. Policymakers should adopt a regulatory benefit-cost standard that requires an explicit, interinstitutional approach to general welfare, including the coordination of education and labor market institutions in ways that mitigate and remedy the impact of “wrongful learning.” Ongoing policy decisions require an emphasis, in the context of opportunities to develop and shape the learning environment, on the prevention and possible remedy of wrongs generally, and explicitly those committed against members of historically marginalized groups. Among other things, the disparate impact of practices or policies requires a collaborative power of both adjudicative and educational administrative processes. Not only state legislatures can protect the right to education. Policymakers can, as part of their spheres of action, help to create integrated purposes that instantiate a substantive right to the advantages of learning, the freedom actually to learn in the environment that augurs best for that freedom, and to formal equality on the basis of participation that presupposes a real chance to graduate.

Recommendations for Action

This essay has discussed how the Supreme Court assimilated public education to the status of a fundamental right in the mid-twentieth century, albeit one – owing to the Spending Clause source of the substantial federal funding flowing to elementary, secondary, and postsecondary schools – lacking a constitutional remedy. More recently, the promise of equal opportunity animating such worthy goals as “participatory competitiveness” and diversity in higher education did not explicitly transubstantiate public K-12 schools into environments protected by equal protection matching that protecting, say, prisoners or retirees. That is not to say that efforts to prohibit individual discrimination in the public schools have been absent; to the contrary, the focus on the interests of the individual child, using the framework of individual rights, informs important areas of educational law, in both statutory and constitutional terms. Outstanding gaps in the unenumerated and explicit reasons behind educational rights must be addressed.