Unpacking the Amendment, Pt. 1: Know Your Rights.

As the Dispatch notes, the education amendment is gaining few friends but plenty of enemies. If I really want to write a series of posts about this thing, I need to get going.

By the way, anyone besides me think this thing needs a name? Right now the name would be something like “The amendment proposed by the Coalition for Ohio’s Future d/b/a Getting it Right for Ohio’s Future.” That could stand to be tightened up a bit. I’d suggest to the proponents something like the Right to Learn Amendment, but who listens to me?

On to the Amendment. Let’s skip over the definitions for a minute. Reading the definitions out of context is causing people to get worried for no reason. In a statute or constitution, definitions matter only insofar as they define terms that appear in the statute.

The first substantive provision is Section B which proclaims:

Each Public School Pupil has a fundamental right to the opportunity for a High Quality Public Education. Such right shall be guaranteed by the state, as provided in this amendment, for all Public School Pupils, regardless of school district property values, income levels or other demographic or geographic factors.

Now we need to look at the definitions to begin understanding what that means. In the definitions section, “Public School Pupil” is defined as “any individual who is required by law to attend, or who does attend a public school operated by a Public School District as defined herein.” Some people have been asking about private school students, charter school students, voucher school students. The amendment applies to them all in that it guarantees each an opportunity for a high-quality education. That doesn’t mean they have a right to state-funded improvements in, say, a private school. It doesn’t mean that Life Skills will be forced actually offer a decent education. As long as the public school district where they live offers a high-quality education, the provision is fulfilled.

The definition of a high quality education sets a fairly high bar: "all of those educational components, programs and services necessary to prepare each Public School Pupil to carry out the duties of citizenship and to function at the highest level of his or her abilities in post-high school education programs or gainful employment." If you read the definition of "Educational Components," the bar gets arguably higher.

The fundamental right provision changes the law in two ways. First, it creates a personal right to education. The provision in the constitution now states only that the state has a duty to maintain a thorough and efficient system of common schools. Second, because the right is declared a fundamental right, it opens the door to (caution, legalese ahead) heightened scrutiny equal protection analysis.

What?

The 14th amendment to the US Constitution guarantees that equal protection under the law. The line of cases interpreting this provision use different standards depending on nature of the claim. If the issue involved either a suspect classification (race, religion, national origin among others) or a fundamental right, the court imposes strict scrutiny. What you need to know: high bar. Difficult to defend the action. In most other cases (gender not included) the standard is rational basis. What you need to know: if it’s rational basis, game over. The court can always find a rational basis.

By declaring education a fundamental right, the amendment may overcome the barrier to judicial action erected by the Supreme Court in San Antonio Independent School District v. Rodriguez. That was the one equal protection case based on wealth of school districts that the Court considered.

Problem is, Rodriguez was decided on three lines. One was that education is not a fundamental right. A second is that a system in which different school districts have different tax bases doesn’t classify citizens in a way that runs afoul of equal protection. The third is that such a case is not justiciable.

Justiciability is one of the terms courts use to say they are bailing on an issue out of concerns about separation of powers. For example, sometime after the resolution authorizing use of force in Iraq, a bunch of citizens (including Dennis Kucinich) sued claiming the Congress hadn’t properly declared war. The court dismissed the case as nonjusticiable – the courts will refuse to get involved in controversies involving war. The DeRolph dissent was based in large part on justiciability.

So how will this change affect how courts decide education cases? That’s not at all clear. I’ve been told that in 14 states education has been declared a fundamental right, but I can’t find a case where that was done in a constitution. From this summary of state constitutional provisions, it looks like those that include an education guarantee do so with some version of what Ohio has – a duty imposed on the legislature to maintain the system. Some courts have uses such clauses to declare a fundamental right. For instance, the North Carolina Supreme Court found that a similar provision in their constitution guarantees each child a right to a sound basic education.

The section on its face solves the fundamentality problem. The bit about the guarantee holding regardless of where a student lives may solve the classification problem. But neither by itself solves the justiciability problem.

Problem is, Rodriguez isn’t going anywhere. Rodriguez was decided in 1972 when the Court was still giddily riding the wave of Warren-era activism. Of the recent Court conservatives, only Renquist sat at that time. On that Court the the plaintiffs ended up on the bad end of a 5-4 decision. On a court dominated by conservatives like Ohio’s, an attempt to move beyond Rodriguez into a heightened scrutiny equal protection analysis is likely a nonstarter, even with this new language added in.

So the fundamental right language by itself won’t necessarily move a recalcitrant Supreme Court. It does set the stage for some of the guarantees explicitly laid out in other provisions of the amendment. That’s coming up.