New Article: Unequal Liberty and a Right to Education

New Article: Helen Hershkoff & Nathan Yaffe, Unequal Liberty and a Right to Education, SSRN. Abstract below:

This article lays the groundwork for a liberty-based federal constitutional right to quality public schooling. We start from the premise that Black, Brown, and poor children now and historically have never enjoyed equal liberty in the United States, and that, for these children, the public school, like the prison, today functions as a site of social control, relying upon confinement and force, while failing to fulfill its pedagogic purpose. In urging a liberty-based rationale, we rest on the foundational principle that the state cannot deprive a person of liberty without a legitimate justification. Nevertheless, states throughout the United States confine thousands of Black, Brown, and poor children to public schools that do not meaningfully educate and instead serve as no more than unsafe and harmful warehouses for the students detained within them. Having first unequally apportioned educational opportunity, the state then compels attendance in these schools on pain of civil or criminal penalties. The confinement of Black, Brown, and poor children within resource-starved carceral schools maintains and reproduces race-class subjugation within a system of racial capitalism.

We argue, within the frame of abolition constitutionalism, that the state violates the traditional guarantee of equal liberty if a state’s system of public schooling relegates Black, Brown, and poor children to sub-standard and unsafe schools that perpetuate the children’s persistent structural disadvantage. In our view, such a system produces and reinforces the very kind of racial and class caste that the Fourteenth Amendment aimed to abolish. Judicial remedies that order states to provide education pitched at a level of basic literacy will not remedy the constitutional violation, but instead further entrench lifelong social, economic, and political confinement. The principle of equal liberty requires that public schooling, to be adequate, afford opportunities for quality education that allow children to flourish. If a state cannot provide a quality education in the child’s “assigned” school district, then the state must remedy the violation by releasing the child from confinement and allowing the child to transfer to schools elsewhere that do meet educational standards.

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