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Realizing Educational RightsAdvancing School Reform through Courts and Communities$

Anne Newman

Print publication date: 2013

Print ISBN-13: 9780226071749

Published to Chicago Scholarship Online: May 2014

DOI: 10.7208/chicago/9780226071886.001.0001

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(p.1) Introduction
Realizing Educational Rights

Anne Newman

University of Chicago Press

Abstract and Keywords

The introduction provides an overview of the book’s argument for a right to education and how that right can be realized through democratic activism. The introduction first notes how rights discourse is increasingly used in education reform today despite challenges it faces. Two challenges are highlighted: from a practical perspective, educational rights have an uncertain place in the US legal system; and from a theoretical perspective, rights claims are in tension with the principle of majority rule. The introduction then explains the two questions the book addresses: What is the place of a right to education in a participatory democracy? And how can this right be realized? The rationale for using deliberative democracy as a framework for analysis is explained, and a brief overview of the chapters is offered. The introduction highlights the reciprocal relationship between the book’s theoretical arguments and case studies; the case studies of democratic activism showcase theory in action to some degree, but they also determine the practical value of theoretical arguments about educational justice. The analysis therefore considers how activism may bring democratic theory to fruition, and how theory may need to be revised given constraints advocates face as they press for education rights.

Keywords:   Right to education, Deliberative democracy, Case studies of democratic activism, Democratic theory, Education reform, Democratic activism

Rights discourse has long been the language of reform in the United States. From the “unalienable rights” of 1776 to the rights revolution of the twentieth century (civil rights, disability rights, women’s rights), significant social and political reforms have been sparked and sustained by citizens’ appeals to rights. Education reform, especially in recent years, is no exception. As concerns about public education in the United States continue to mount, advocates of all stripes invoke rights to press for change. They speak of a right to school choice, of a right to math proficiency, of reading as the new civil right, and of the general right to learn. The moral heft of rights claims gives educators, parents, and politicians a powerful vocabulary (or as philosopher Ronald Dworkin put it, “political trumps”) with which to express their frustrations with and hopes for public schools.1 In the words of one advocate, “Part of what gets [parents] feeling strong is to say, ‘You have a right!’”2

Rights claims persist in education reform discourse despite the significant challenges they face, practically and theoretically. As a simple legal matter, the U.S. Constitution is entirely silent on the matter of education, and the Supreme Court has denied claims to a right to education at the federal level.3 State constitutions do guarantee students a public education, but usually without enough specificity to guide policy makers on what this right entails and how resources should be distributed to honor it. The uncertain place of educational rights in our legal system stems from the fact that the U.S. Constitution is understood to be a charter of negative rights—rights to be free from state interference and coercion in matters of speech, faith, and conscience. This interpretation of the Constitution guarantees no positive rights to particular social goods. This means that citizens have the right to decide what to believe and to express their chosen convictions. But (p.2) they do not have legally protected rights to housing, health care, or a decent education, at least not at the federal level as precedent now stands.

Beyond the practical obstacle of a legal tradition that has not supported positive rights, claims about educational rights also face thorny theoretical challenges. These difficulties arise because rights claims conflict with what is often understood to be the core of democracy: the principle of majority rule. Whereas this principle gives authority to the “will of the people,” rights significantly constrain what a democratic majority may decide. Honoring the right to religious freedom, for example, prohibits a majority from making decisions that flout that individual right, however many people may wish to do so. Because rights have this countermajoritarian force, it is all the more important that they are “the Right rights,” as Bruce Ackerman puts it.4 This is especially true in the case of education policy making, given the long-standing tradition of local control of public schools in the United States.

So what case might be made for thinking about education as a “Right right” in a democracy? And how do rights claims shape education reform movements? My central purpose in this book is to advance the case for a right to education as a matter of political equality, and to consider how this right might be realized. My analysis is guided by two questions, one theoretical and one practical. My theoretical analysis addresses the question: What is the place of a right to education in a participatory democracy? The second part of my analysis then takes up the practical question: How can this right actually be realized?

In my theoretical analysis I develop a case for why an adequate K–12 public education warrants the status of a right in light of the ideal of equal citizenship, an ideal that stands at the core of American democracy. In this portion of the book (chapters 12), I argue for the necessity of this right as a precondition to deliberative democracy, and I outline what this entitlement should entail. I focus in particular on the deliberative conception of democracy, which centers on inclusive public discourse as the basis for collective decision making. This framework is fitting for my analysis for several reasons: because of deliberative theory’s prominence within political philosophy; because it resonates with everyday notions of American democracy (like town hall meetings, for example); and because of scholars’ frequent use of a deliberative framework when they are studying education policy making at the local level.

The early chapters of the book are largely addressed to political and educational theorists, and they consider enduring questions about what democratic ideals mean for the making of education policy. My central claim (p.3) is that deliberative democracy cannot be sustained without a robust right to education—a right that I argue is not protected firmly enough in most accounts of civic education and deliberative democracy. Although educational rights have an uncertain place in American democracy, in chapter 3 I describe select moments in American history that illustrate that the idea of a right to education for equal citizenship has deep roots in our social and legal history.

The second part of the book addresses policy makers and advocates, in addition to theorists, and answers the pragmatic question of how we can realize a right to education. Through illustrative case studies, I consider two leading examples of democratic activism that advance a right to education. I first consider legal advocacy to examine what progress might result from taking educational rights claims to court. Legal advocacy is a major and growing avenue for education reform, as demonstrated by the school finance lawsuits that have now been filed in forty-five states. To examine the opportunities and challenges of court-based reform efforts, I focus on a landmark case from Kentucky, Rose v. Council for Better Education, which dramatically declared the entire state’s public education system to be unconstitutional and affirmed students’ right to an education that prepares them for citizenship, future educational opportunities, and the labor market. The decision is important because of the particular skills and capacities it enumerated as constitutive of an adequate education. It thus offers a useful point of comparison with my philosophical arguments by providing insights on the congruence and distance between moral and legal rights in the education arena.

I then examine a second leading type of activism to realize educational rights through the democratic process: the mobilizing efforts of community-based advocacy organizations. This form of democratic activism has quickly become a significant force in urban communities across the United States for reforming education policy, and for amplifying the voices of marginalized citizens in education politics. Local advocates often invoke rights claims for two purposes: as a means to empower parents to press for change, and as a way to compel politicians’ attention. For an in-depth glimpse at rights claims in this context, I provide a case study of a highly successful advocacy organization in San Francisco that has been advocating for marginalized parents and youth for over thirty years. I consider how this organization employs rights discourse with parents and public officials, and to what effect.

Although legal advocacy and community organizing proceed in distinct venues with different norms, these case studies underscore how both types (p.4) of activism are motivated by moral claims about educational rights. Understanding the moral warrant for such claims entails working across theory and practice. To this end, I do not offer the two case studies simply as instantiations of the theory I cover in the first portion of the book. Rather, I view the relationship between my theoretical arguments and the activism I examine as reciprocal. Democratic activism may showcase theory in action to some degree, but it also determines the practical value of theoretical arguments about educational justice. My analysis therefore considers how activism may bring theory to fruition, as well as how theory may need to be revised given the political, institutional, and legal constraints that shape advocates’ work.

I am motivated to develop a case for a right to education by several gaps in the relevant literature across disciplines. In recent years political philosophers and theorists have increasingly argued for a constellation of positive welfare rights to ensure citizens’ political equality, including rights to basic income, health care, housing, and employment.5 These arguments differ in their details but share a foundational premise: if we are serious about achieving political equality in a democracy, then we must recognize and meet democracy’s material preconditions. Giving citizens the right to vote is not enough, these arguments suggest, because hunger, homelessness, and poverty compromise, if not entirely undermine, the value of individuals’ political liberties. Yet this literature’s narrow focus on material goods, without any sustained consideration of education, rests on the dubious assumption that if citizens are decently housed, fed, and employed, they can participate in democracy on equal footing. This assumption fails to recognize the significant epistemic demands of democratic citizenship, and the importance of widespread, high-quality education to improve the conditions of democracy.

Significant contributions to educational philosophy have focused more squarely on the demands of civic education.6 This literature is especially attentive to how civic education in a multicultural society may create tensions among parents, children, and the state, and how their competing interests might be balanced in the context of particular curricular and policy conflicts (related to sex education, homeschooling, or teaching evolution, for example). Yet its focus on balancing stakeholders’ liberty rights in education policy offers little guidance about what the state must positively do to provide students with an adequate public education. This tends to leave important aspects of educational entitlements unsettled, including how strong those rights may be against majoritarian opposition. In addition, this literature typically locates arguments for civic education in the general context (p.5) of a democracy, without specifying a particular conception of democracy (such as aggregative, deliberative, or representative). This generalist approach underdetermines the content of civic education. My focus on deliberative democracy addresses this problem and supports deliberative norms as ideals for collective decision making. But my rights-based approach calls into question whether deliberative education policy making can be done fairly today given the systemic background inequalities in educational opportunity and attainment.

From a policy perspective, the time is especially ripe for consideration of how a right to education might be realized. As school finance litigation continues to sweep across the states, litigators and scholars debate whether advocates should press for students’ right to an equal education or to an adequate one. This discussion has focused scholarly attention on what type of education the state owes its citizens. But this work tends to be one-sided in its approach, given disciplinary divides: legal scholars wrestle with constitutional clauses to see what rights might be eked out from them, while political philosophers articulate what is morally best, whatever positive law might support. My analysis of the Rose case brings these two types of analysis together in recognition of the reality that ideals need legal and policy traction to be of use to education reformers. It also highlights the fact that court-based education reform is motivated by moral mobilization to a greater degree than is often recognized. My interdisciplinary approach enables a more comprehensive look at where ideals and practical constraints intersect in rights-based education reform efforts.

Finally, the case study of a community-based advocacy organization provides an important contrasting perspective to court-based efforts. Education researchers are increasingly recognizing the extent to which such organizations empower marginalized citizens to press for education reform.7 This scholarship contributes to our understanding of how education reform can be community-driven; it also demonstrates how the reform process itself can further the ideal of a widely inclusive, participatory democracy. Yet existing literature does not focus much on the role of rights discourse in this process. By highlighting this dimension of advocates’ efforts, my analysis sheds light on a key way community organizations can engage and empower parents to participate in education politics and policy making.

Taken together, my philosophical arguments and policy-oriented case studies demonstrate the need for a right to education and illuminate some promising paths to realizing this right. This analysis is especially timely given the growing chorus of concerns about educational inequities in the United States and lively debates about how they might be mitigated. The (p.6) urgency of realizing a right to education is also underscored by the leading conferences, philanthropic initiatives, and advocacy efforts dedicated to rights-based education reform in recent years.8 Its importance is arguably best demonstrated, though, by the many citizens who leverage rights discourse to bring about educational change because “When you say ‘It’s a right,’ it is undeniable. It is what should happen.”9

My overarching aim in this book is to bring various disciplinary and methodological approaches to bear on a topic that is critically important now, philosophically and practically speaking. Americans consider public education to be the most important equal-opportunity welfare good. Whatever its legal viability, rights discourse persists as a valuable vocabulary with which to express our aspirations for a better public education system and, by extension, a better democracy. By exploring the role of rights claims in both theory and in practice, I aim to advance understanding of the complicated relationships among moral claims, educational justice, and public policy.


(1) . Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), xi.

(2) . Interview with N’Tanya Lee, former executive director of Coleman Advocates for Children and Youth, January 31, 2007.

(3) . San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), which I discuss in chapter 3.

(4) . Bruce Ackerman, We the People: Foundations (Cambridge, MA: Belknap, 1991), 12.

(5) . For example, see Philippe Van Parijs, “Why Surfers Should Be Fed: The Liberal Case for an Unconditional Basic Income,” Philosophy and Public Affairs 20, no. 2 (1991): 101–31; Norman Daniels, Just Health Care (Cambridge: Cambridge University Press, 1985); Jeremy Waldron, Liberal Rights: Collected Papers, 1981–1991 (Cambridge: Cambridge University Press, 1993), 309–38.

(6) . See Eamonn Callan, Creating Citizens: Political Education and Liberal Democracy (Oxford: Oxford University Press, 1997); Meira Levinson, The Demands of Liberal Education (Oxford: Oxford University Press, 1999); Rob Reich, Bridging Liberalism and Multiculturalism in American Education (Chicago: University of Chicago Press, 2002).

(7) . For example, see Jeannie Oakes and John Rogers (with Martin Lipton), Learning Power: Organizing for Education and Justice (New York: Teachers College Press, 2006); Mark R. Warren and Karen L. Mapp, A Match on Dry Grass: Community Organizing as a Catalyst for School Reform (New York: Oxford University Press, 2011); Mark Warren, Dry Bones Rattling: Community Building to Revitalize American Democracy (Princeton, NJ: Princeton University Press, 2001); Kavitha Mediratta, Seema Shah, and Sara McAlister, Community Organizing for Stronger Schools: Strategies and Successes (Cambridge, MA: Harvard Education Press, 2009); and Dennis Shirley, Community Organizing for Urban School Reform (Austin: University of Texas Press, 1997).

(8) . Such efforts include a major conference hosted by University of California– Berkeley School of Law, which brought together leading scholars and civil rights attorneys to discuss the contours of a right to education in 2006; reports by the Public Education (p.118) Network on public engagement with school finance litigation; and renewed attempts by organizations like the Southern Education Foundation to press for a constitutional amendment that recognizes a federal right to education.

(9) . Interview with Sandra Fewer, former staff member of Coleman Advocates for Children and Youth, December 19, 2006.