The Fundamental Right to Literacy: Relitigating the Fundamental Right to Education After Rodriguez and Plyler

By Malhar Shah

In 1973, and again in 1982, the Supreme Court of the United States avoided addressing whether education is a fundamental right guaranteed by the United States Constitution. Subsequent federal courts have, unfortunately, mistakenly interpreted those two opinions as holding that education is not a fundamental right, even in the absence of language indicating such a holding. In the 1973 case, San Antonio Independent School District v. Rodriguez, the Supreme Court rejected a challenge to a Texas city’s school funding scheme and refused to reach the fundamental right issue because “[e]ven if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short.” In its 1982 opinion, Plyler v. Doe, the Supreme Court invalidated a Texas statute prohibiting undocumented children from receiving a public education under the Equal Protection Clause of the Four­teenth Amendment without reaching the fundamental right question. But the Plyler Court’s opinion, when addressing the total deprivation of education experienced by undocumented children, implicitly identified deprivation of basic literacy skills as the line below which states could not fall.

This article is intended, in five sections, to pick up where the Plyler Court left off and to serve as the substantive basis for potential litigation seeking to secure a holding that the U.S. Constitution guarantees the fundamental right to acquire basic literacy skills. I will argue that, from a strictly historical perspective, the founders believed that education was such a foundational principle of the nation as to need no explicit mention in the Constitution. Then, using the Plyler Court’s opinion and the latest research on the effect of literacy and illiteracy on the human brain, I argue that the right to literacy is preservative of all other rights, especially of citizens’ First Amendment right to free expression, to exercise political franchise, and the right to access justice. Next, using the Supreme Court’s most recent “equal dignity doctrine” and drawing from Professors Lawrence Tribe and Kenji Yoshino, I argue that depriving children of the right to acquire basic literacy skills deprives them of their equal dignity. I maintain that holding that children possess a fundamental right to literacy education would not lead to a slippery slope such that the Court would be forced to hold that there also exists a fundamental right to basic necessities, such as food, shelter, and clothing. Finally, I will describe the poor qualities of a school or school district sufficient to give students standing to claim they have been deprived of their right to acquire basic literacy skills.

  1. The right to basic literacy education is fundamental and deeply rooted in this nation’s history and tradition

The Due Process Clause of the Fourteenth Amendment “specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this nation’s history and tradition.’”1

Providing all children with a minimal standard of education, and more specifically a basic literacy education, was such an integral part of this na­tion’s history and tradition that the founders believed it was a rudimentary and implicit principle requiring no explicit mention in the Constitution. This section will support this conclusion beginning with a pre-Constitutional analysis of the role of education in the colonies. It will then argue that the Northwest Ordinance, a pre-Constitutional statute that required all new states to provide children with a basic education, should be read as explicitly acknowledging education as a foundational principle of our nation implicit in the Constitution. This section will track the discussion around education in the Constitutional Convention to argue that the founders believed that the right to education was such a fundamental and underlying principle that it needed no explicit mention. Finally, I will track the educational beliefs and politics of three founders, Benjamin Franklin, Benjamin Rush, and Noah Webster, to further support the argument that the founders believed that the right to education was a fundamental, implicit principle integral to the survival of the nation.

Before the official founding of our nation, the puritans “held literacy instruction as a core value and inculcated it into their laws and practices.”2 As a result, in the seventeenth century, several American colonies passed education-related legislation leading to the establishment of the Massachu­setts School of Law of 1642, and the Ye Olde Deluder Satan Act in 1647, which required towns of a certain size to set up grammar schools.3 It was a core tenet that schooling should be “public in purpose, public in access, public in control, and public in support.”4 Thus, “[b]y the 1670s all of the New England colonies then in existence, except Rhode Island, had passed legislation . . . mandating that children be taught to read.”5 And when the ideological foundations of public education began to disintegrate with the influx of religious minorities into the country in the early eighteenth century, public education institutions gave way to charity schools intended for poor children.6 The colonies’ prerevolutionary religious tradition placed educa­tion—especially for those who could least afford it—on a pedestal by granting it special protection during a time of potential chaos while they were framing the Constitution. This is illustrated by the fact that the colonies continued to exalt basic literacy education as an integral and implicit aspect of the nation’s identity, even after the tumultuous Revolutionary War period and through the start of the Constitutional Convention.

By the time the Constitutional Convention began in 1786, at least six states had constitutional provisions guaranteeing citizens’ right to education,7 demonstrating the people’s continued belief in education as a core tenet. Seek­ing to execute that objective into politics on a federal level, the Congress of the Confederation, with unanimous state approval,8 used its limited federal power to pass the Northwest Ordinance of 1787, which required new terri­tories to include in their constitutions as a prerequisite to becoming a state the following statement: “religion, morality, and knowledge [are] necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”9 This language established the principle that education should be an intrinsic characteristic of the nation’s culture moving forward, as evidenced by the fact that the Ordinance estab­lished a multitude of Constitutional principles consistently used throughout this nation’s history. The Ordinance was a vital step moving forward, for it laid the foundation for what were to become constitutional amendments and was further exalted during its time for its ability to attract settlers and investors. It also laid out rules of inheritance and conditions for the validity of contracts, prohibited higher taxation of nonresident proprietors, prohibited slavery, and promoted religious pluralism.10 These provisions gave the Ordi­nance constitutional dimensions because they “referred to the set of principles according to which a political community governs itself,”11 principles which The Federalist Papers and the Declaration of Independence recite and on which the Constitution and our Constitutional jurisprudence implicitly rely.12 Those principles—expansionism, development, imperialism, physical and economic risk, commercialism, and utopianism—lack a formidable presence in presently recognized constitutional documents, which gives the Ordinance a “special claim to constitutional authority insofar as it is a founding text of those aspects of our political traditions that draw upon the principles it contains.”13 Those principles are constitutional in nature also because they “preserve[d] and perpetuate[d] the distinctive political life that the states had won in the War for Independence”14 and were enacted to address the same problems addressed by the Constitution: “the danger of factionalism and the value of an extended republic.”15 Further, not only did the Ordinance receive the same widespread popular acceptance as the Constitution,16 but it was “the first piece of legislation to address effectively the problems of the national domain” so as to “establish[] a governmental scheme dependent on maturation.”17 The Ordinance thus serves as the first document that laid out the core principles upon which our nation was founded, and by explicitly touting universal education as one of those principles it established the right to basic education as a fundamental, yet distinct, Constitutional principle deeply rooted in the nation’s history and tradition.

That the Ordinance has special constitutional dimensions and established education as a fundamental constitutional principle is further shown by the fact that it served as the basic outline for the Bill of Rights. Indeed, the right to free exercise of religion, habeas corpus, trial by jury, proportional rep­resentation in the legislature, prohibition of cruel and unusual punishment, and due process protections guarding liberty and property were derived from the Ordinance.18 And because the Bill of Rights is mostly a negative docu­ment—meaning that it protects against governmental deprivations of rights rather than requiring the government to provide positive rights—it would have made little sense to incorporate a positive right to education within that document from the Northwest Ordinance.19 Furthermore, because the Bill of Rights was meant to prevent federal intrusion on individual rights, by leaving education to the states, the Bill of Rights was arguably irrelevant to its protec­tion. Indeed, the federalist structure of the nation was in of itself designed to insulate citizens’ state rights from federal intrusion. Because most states had already guaranteed their citizens the right to an education, the Bill of Rights did not need to create an additional safeguard for the fundamental right to education. Thus, by including education among the Ordinance’s provisions, the drafters already assigned basic education the status of a fundamental and implicit Constitutional principle.

Records from the Constitutional Convention further evidence the founders’ belief that education is an implicit right guaranteed by the Constitution. To­wards the end of the convention, James Madison and Charles Pinckney jointly moved to insert a provision allowing Congress to establish a University.20 The Convention denied that motion after Governor Morris stated that such a power was unnecessary since “the exclusive power at the Seat of Government, will reach the object.”21 This statement meant that the delegates—already reluctant to enumerate more Congressional powers so late in the convention—believed that education was such an inherent part of the Constitution that it did not need explicit mention.22 Indeed, scholars argue that Morris was referring to the Article I, section 8, clause 1 power to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.”23 The Supreme Court’s influential opinion in U.S. v. Butler adopted this very conception of the spending power by holding that the “general welfare” language in the Spending Clause does not act merely as a reference to the other enumerated powers in Article I but instead allows Congress to exercise its spending and tax powers to pursue any goal so long as it for the general welfare.24 Following suit, Congress has since consistently used its spending power to enact education-based legislation to provide for the general welfare.25 Thus, for the founders, education was a core federal principle that they envisioned the federal government would further protect in order to provide for the general welfare of the Republic.

Madison and Pinckney’s joint motion to insert a provision allowing Con­gress to establish a national university came at the culmination of a rigorous and concerted effort by many of the founders to not only establish a national university, but also to secure educational rights for children on a widespread scale. Since the 1780s, the founders worked diligently to create institutions of education in order to collect and convey knowledge.

Benjamin Franklin’s views and politics around education are essential to understanding the Constitutional dimensions of the right to education.26 Because of his past as a printer who ascended from rags to riches, Franklin inspired entrepreneurs who were emigrating to, and seeking to prosper in, North American culture, making his beliefs the most closely identifiable with those of post-revolutionary people.27 Indeed, he has been proclaimed a “spokesman” of the new American middle-class.28 Franklin observed that “the good education of youth has been esteemed by wise men in all ages, as the surest foundation of the happiness both of private families and com­monwealth.”29 Franklin believed that the connection between education and the nation’s identity, especially in its youth, was evidenced by the necessity of establishing a firm national economic base because, “with young counties as with young men, you must curb their fancy to strengthen their judgment . . . thus poetry, painting, music (and the stage as their embodiment), are all necessary and proper qualifications of a refined state of society.”30 Thus, for Franklin, education was the means by which natural leaders would develop, as opposed to fabricated aristocracies,31 a principle eerily similar to Jefferson’s views that natural aristocracies are tied to the commonwealth and happiness of the nation by serving as a necessary catalyst for creating future leaders who could exercise proper judgment to guide the young nation to prosper­ity. Those leaders could not attain such superior judgment by happenstance, as Franklin’s philosophy was premised on the idea that one’s personality is largely shaped by one’s environment. Thus, “[n]othing [was] more important for the public weal, than to form and train up youth in wisdom and virtue.” Indeed Franklin exalted education over riches and arms, whose utility an uneducated person could only use to create destruction,32 an especially dan­gerous circumstance for a new nation because “it is easier to educate youth than to cure adults.”33

But Franklin’s educational philosophy was not by any means limited to ensuring the existence of strong leaders who could exercise strong judgment to shape the nation. Rather, Franklin felt the nation would deteriorate if it failed to educate every citizen, as the expanding colonies needed skilled craftsmen, technicians, businessmen, and agriculturalists.34 Thus, Franklin, likely influenced by his own family’s inability to afford the high cost of educa­tion,35 concentrated much of his effort on instituting education programs for poor students by sending graduates to farm areas to teach children reading, writing, arithmetic, and grammar.36 Like Benjamin Rush, he firmly held to the minority belief that every level of society, including women and Black folks, should achieve the same level of education as white men.37

Most notable for the purposes of this article is Franklin’s emphasis on basic literacy education. Franklin was harshly critical of children’s reading and language skills, commenting that “[o]ur boys read as parrots speak, know­ing little or nothing of the meaning.”38 Thus many of Franklin’s proposals on education sought to change the way language and writing was structured, in order to reflect how children themselves understood language.39 For example, Franklin critiqued the English alphabet for its phonetic anomalies and, in response, proposed spelling reforms.40 His proposal for an English School further emphasized basic studies in grammar, rhetoric, and logic.41 Franklin’s belief that education was intrinsic to the survival of the Republic thus served as a key insight into not only the founders’ but also the people’s belief in the need for a universal, basic education.

While Benjamin Rush also urged the need for basic education by vigorously campaigning for a national university, free postage for newspapers, and the education of women, his efforts arose from a different concern than Franklin’s: a fear of chaos. For Rush, each individual was naturally wild, “taken from the woods . . . never happy in his natural state, till he returns to them again.”42 Education was thus indispensable to the process of shaping individuals’ in­tellect and integrating them into civilized society where only the construct of government and institutions of education would be able to prevent them from reverting back to their natural state, where they would be more likely to commit heinous crimes.43 By educating the citizenry, man could “produce such a change in his moral character as shall raise him . . . to the likeness of God himself. Whereby only through the construct of a strong government and education system would a republic have the fortitude to combat the inequities of man.” 44 Thus, Rush held the idea that educating the commonwealth was necessary to preventing the natural state of deprivation, which society could overcome only by educating the citizenry; only through education could we produce leaders capable of protecting fundamental rights.45

Rush therefore advocated for universal education based on his belief that all citizens should be able to exercise their basic rights. Education is fuel for the “republican machine,” necessary “to establish a government to protect the rights of property, [] to establish schools which should encourage the virtue of its care,”46 and to “insure that democracy is ruled by an ‘elite drawn from the whole,’” an idea in complete agreement with the Jeffersonian principle of natural vs. artificial aristocracy. For Rush, “[f]reedom can exist only in the society of knowledge. Without learning men are incapable of knowing their rights, and where learning is confined to a few people, liberty can be neither equal nor universal.”47

On a more practical level, Rush desired even more than a basic education guaranteed to all children. He envisioned a universal, low-cost education system that would satisfy children’s academic and non-academic needs48 and in which taxes to support the schools would be equally levied.49 Most importantly, Rush touted literacy instruction as central to a basic education, arguing that children should focus solely on mastering English literacy skills for the first eight years of their education50 and that parents could request that their children study different languages.51 Furthermore, Rush believed “unreservedly” that the education system needed to accommodate children’s innocent nature by hiring teachers who treat children gently and with fa­miliarity, rather than institute corporal punishment.52 Indeed, educating the citizenry was so fundamental for Rush that he, like Franklin, emphasized the necessity of educating both women and Black folks at a time when those social groups lacked the most fundamental of rights.53 For him, young women should read and write English well and be proficient in bookkeeping, arithmetic, geography, history, and religion, as “[i]t was undoubtedly the consequences of barbarism that depressed ‘the delicate female . . . far below the dignity of her rank.’”54 Black folks, on the other hand, should also be taught to read and write and be provided with additional education to “maintain themselves.”55 Rush’s educational goals expressed the ambitions of a nation obsessed with education where even the lowest levels of society were expected to attain knowledge for its survival.

Rush emphatically campaigned to carry out his educational vision. He devoted thirty years of his life to establishing and advancing the fortunes of Dickinson College, even against enormous political opposition. His beliefs were never lost among his colleagues, both domestic and abroad. Rush re­peatedly urged eminent British scholars writing about the young republic to highlight his efforts to establish compulsory elementary education, to train competent schoolmasters, to establish colleges in each state, and his efforts to found a national university that would specialize in politics and interna­tional law.56 Rush’s influence is still felt today, as all fifty states guarantee their children an education, either by statute or constitution. In fact, Rush’s educational stance was so widely shared in its day that even conservative thinkers politically campaigned for universal education.

Unlike Rush, a Jeffersonian republican, Noah Webster was a Federalist who “veered toward extreme conservatism” and advocated for a strong federal government.57 But despite their polarized political stances, Webster, Rush, and Franklin all agreed that education was a fundamental and distinct aspect of the nation’s character. In furtherance of his beliefs, Webster went so far as to create the American Dictionary in order to remedy the inadequacies plaguing the learning of British English. As a linguist for forty years,58 Web­ster wrote “Sketches of American Policy,” a book that may have inspired the constitutional convention,59 in which he “argued for a strong federal govern­ment supported by a constitutional and an educational system consonant with America’s specific needs.”60 Webster, much like Benjamin Rush, believed that a system of education was needed to provide effective protection for people and property as well as to secure a strong representative democracy, since education “insures the stability of property and the perpetuation of freedom.”61 Thus, as a publicist for the Constitution, Webster opposed a bill of rights, “declaring that an educated yeomanry needed no legislation to secure the rights of the populace.”62

Webster also believed that reading and writing skills were essential to one’s successful development, emphasizing that only through learning to read and write could individuals provide for themselves.63 In his Fugitive Essays, Webster asked that “each district provide children with at least four months of schooling annually.” Furthermore, like Franklin and Rush, Webster was a strong proponent of education for women, especially an education that would teach them to speak and write elegantly, in addition to history, geography music, drawing, and dancing.64

While outlining every founder’s thoughts on education during the time of ratification is beyond the scope of this article, it is important to place their tireless dedication to spreading and conveying knowledge to children against the backdrop of the colonial system of education, the principles embodied by the Northwest Ordinance, the Constitutional Convention debates around education, and the founders’ own beliefs that education was key to the na­tion’s maintenance and development. Situating the founders’ sentiments reveals their shared belief that the right to education was so fundamental to the founding and structure of the nation that it needed no explicit mention in the Constitution.

  1. The right to literacy is implicit in the concept of ordered liberty

While “history and tradition are the starting point” for examining whether a right is protected under our Constitution, it is “not in all cases the ending point of the substantive due process inquiry.”65 The fundamental rights inquiry must be made with a focus on context:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amend­ment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.66

Thus, courts must decide whether a right is “‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [it] were sacrificed’”67 and “[w]hen new insight reveals discord between the Constitu­tion’s central protections and a received legal structure, a claim to liberty must be addressed.”68 Specifically, “[t]he fundamental liberties protected by this Clause . . . extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”69

The Supreme Court has repeatedly referenced the fundamental importance of acquiring a minimum level of basic reading and writing skills to the na­tion’s concept of ordered liberty and democracy. More specifically, it has explicitly stated that basic literacy skills are a prerequisite to the meaningful exercise of all other rights, mainly the fundamental rights to free speech, to vote,70 access justice, and to exercise choices central to all of the imports for the dignity and autonomy of the person.71

III.       Literacy is preservative of all other rights because it is an indispensable tool for the development of children’s fundamental capabilities

The Supreme Court has maintained that some minimal quantum of education is preservative of all other rights and that literacy is at the core of that minimal education. In Plyler v. Doe, the Court invalidated a Texas statute that completely deprived children of an education,72 reasoning that the total deprivation would place an insurmountable burden on children.73 But in discussing that burden, the Court emphasized the fundamental nature and importance only of basic literacy skills and the troubling consequences flowing from depriving children of those skills:

The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The inestimable toll of that deprivation on the social economic, intellectual, and psychological well-being of the individual, and the obstacle it poses to individual achievement, make it most difficult to reconcile the cost or the principle of a status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause.74

Thus, the Plyler Court implicitly identified deprivation of basic literacy skills as the line below which states could not fall without officially, and fully, depriving children of their education.75 This recognition of the fundamental nature of basic reading and writing skills rested upon the fact that illiter­ate children lack not only important basic capabilities, but even the tools to begin developing those capabilities.76 The opinion expressed the Court’s concern that illiterate children are socially, culturally, and economically desolate. The Court stressed that “[t]o be faced with such an “unreasonable obstacle[] to advancement on the basis of individual merit . . . would pose[] an affront to one of the goals” of our system of ordered liberty, and deny children “the means to absorb the values and skill[s] upon which our social order rests.”77 Thus, for the Court, children deprived of the right to learn to read and write have no freedom or control over their lives. Without the basic skills necessary for almost all important human functions, without the capabilities that are the “defining characteristic of our species,”78 such individuals become part of an “underclass [that] presents [the] most dif­ficult problems for a Nation that prides itself on adherence to principles of equality under law.”79

But the Plyler Court was certainly not the first to emphasize the funda­mental nature of basic education and its implicit role in the concept of ordered liberty. The Supreme Court stated in Wisconsin v. Yoder that “some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.”80 The education system, the Court reasoned, attempts “to nurture and develop the human potential of . . . children . . . to expand their knowledge, broaden their responsibilities, kindle their imagination, foster a spirit of free inquiry, and increase their human understanding and toler­ance.”81 This language exemplified a legal understanding that literacy is a fundamental tool that provides the “formative structure” for the development of children’s basic and indispensable capabilities.82 Following the same line of reasoning, the Brown Court premised its holding on the understanding that no government interest could be so compelling as to justify depriving select children of a quality education because education is integral to “awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.”83

  1. The Plyler Court’s conclusions are supported by research showing that illiteracy disrupts children’s cognitive functioning

Studies show that when individuals fail to acquire basic literacy skills their cognitive functioning, brain development, motor functions, calculation and number processing, language skills, memory, reading comprehension, and their overall ability to grasp new concepts, become impaired.84 With respect to cognitive functioning, because illiterate individuals receive less practice in reading, their performance is significantly worse than their liter­ate counterparts in text processing, writing, arithmetic, and orientation to time.85 Furthermore, “[the] failure to learn to read and write significantly burdens one’s visual perception, logical reasoning, remembering strategies, vocabulary development, phonological processing, and working memory.”86 Even more troubling are studies showing a positive correlation between poor education and the odds of a clinical dementia diagnosis87 and aphasia.88 Lan­guage skills have also been shown to be diminished in illiterate individuals as a result of different information processing strategies. On average, illiter­ate individuals’ letter fluency—the ability to recognize letters, as opposed to reading—is only three to four words per minute on letter fluency tests,89 while their metalinguistic skills90 are severely underdeveloped because these children lose opportunities to rehearse language skills in the right contexts.91 Illiterate individuals also have substantially diminished complex motor skills, as evidenced by tests for apraxia, a motor disorder caused by damage to the brain, which show that illiteracy causes difficulty in “carrying out movements of the face on demand,” using communicative gestures, finger movements, meaningless movements, and “coordinated movements with both hands and motor impersistence tasks.”92

Although most literacy studies have been conducted on illiterate adults, one groundbreaking study demonstrated that illiterate children already exhibit these debilitating symptoms. Illiterate children underperform in constructional abilities,93 verbal memory coding and delayed recall,94 visual memory coding and delayed recall,95 visual perception, auditory perception, oral language, metalinguistic awareness,96 calculation, and spatial abilities.97 Furthermore, while metalinguistic awareness task performance98 improves with age in literate children, it does not in illiterate children.99 Illiterate chil­dren also score significantly below their literate counterparts in verbal flu­ency,100 semantic verbal fluency,101 phonemic verbal fluency,102 and arithmetic problems, “suggesting that the differences in the development of executive functions between these two populations are already evident in childhood.”103

It can hardly be denied then, that children who fail to acquire basic literacy skills face a daunting and exhausting struggle at a critical point in their lives. Not only has their school and community failed to provide them with the minimal guidance needed to navigate the education system, but they have deprived them of skills indispensable for facing the basic economic, political, health-care, and intimate issues that will pervade their lives.

  1. Illiteracy places an insurmountable burden on children’s ability to thrive

Research shows that adults who fail to acquire basic literacy skills face insurmountable obstacles in their path to maintaining economic sustenance, mobility, and adequate health. This research, together with the above cited studies showing that illiteracy impairs individuals’ cognitive functioning, supports the Plyler Court’s conclusion that states denying children the op­portunity to acquire basic literacy skills reproduce “[t]he existence of such an underclass” that it presents “significant social costs borne by our Nation” and “eliminates rights upon which our social order rests.”104

A stronger relationship exists between poor literacy skills and “lower incomes, lower status employment, and a range of other challenges”105 than other more traditional measures,106 and that relationship can be characterized in two ways. First, literacy is directly related to individual income by way of increasing capabilities and by serving as an integral aspect of personal liberty and autonomy.107 In an age of continuing technological advancement,108 basic literacy skills are extremely important because many employers continue to seek more skilled workers. This is especially true in a knowledge-based economy, in which employees must be able to “work productively and cre­atively in teams, to engage in technical and systems thinking, to manipulate abstract concepts and symbols,” and to “‘read a range of printed, electronic and visual texts; master the new communication technologies via spoken and written language; locate, manage, evaluate and use information or knowledge; and engage critically with media and other text.”109 Employees must match that demand by gaining qualifications that “signal[] those skills to the labor market.”110 But the failure to become literate diminishes the capabilities that individuals develop, which in turn diminishes their ability to signal quali­fications to employers.111 Thus, literacy is a “fundamental resource[]” for economic opportunity.112 Quantitative studies also support this conclusion, showing that the “initial average level of schooling is strongly correlated with [economic] growth.”113 Literacy capabilities are also “strongly associated with higher personal income and the related social benefits.”114 For example, the lifetime earning of males with a bachelor’s degree was 96 percent higher than their peers with only a high school diploma.115 This trend, the research­ers suggest, is likely to entrench social divisions if not remedied,116 further contributing to the existence of an “underclass” of illiterate individuals. The Supreme Court has acknowledged this relationship between poor education and economic deprivation reasoning that “[t]he failure to provide education to poor urban children perpetuates a vicious cycle of poverty, dependence, criminality, and alienation that continues for the remainder of their lives.”117 Thus, literacy operates at a fundamental level: it is indispensable to the development of important capabilities, which opens up opportunities for individuals to attain some means of sustenance and eliminates “obstacle(s) … to individual achievement.”118

Facing an insurmountable obstacle to attaining stable employment and sustenance, illiterate individuals are more likely to turn to criminal behavior that further locks them into and perpetuates an “underclass” of individuals. Numerous studies have found a direct correlation between lower-educational achievement—and more specifically, illiteracy—and increased arrest and incarceration rates.119 Thus, 85 percent of all juveniles and 60 percent of all incarcerated individuals are functionally illiterate.120 And because punishment serves neither a remedial function nor assists in carrying out rehabilitation, illiterate individuals are trapped into desolate lives of poverty which force them to resort to criminal behavior. Incarcerated individuals have a 54 percent greater change of returning to prison if they fail to receive literacy assistance.121 And when children engage with the juvenile justice system, they are “more likely to experience stress-related illnesses such as poor birth outcomes, adult chronic disease and obesity, mental health disorders, heart disease, and substance abuse, in addition to psychiatric problems, suicide attempts, and increased HIV, Hepatitis C, and tuberculosis.”122 Poor health outcomes—the effects of which will be discussed later in this subsection—substantially detract from students’ academic achievement and thereby re-entrench the pattern whereby they are trapped in poverty and forced to engage in criminal activity for sustenance.123

The second way that literacy is essential to economic performance is that when children acquire basic literacy skills, our nation’s productivity increases and insulates it from significant socioeconomic effects.124 Studies show that measures of literacy have a “significant and positive effect on levels of per capita GDP and productivity and they do a better job than measures of educational attainment in predicting economic growth.”125 There are mul­tiple reasons for this strong correlation. One explanation is that education “encourages investment in capital equipment,” research, and development because highly educated workers enable innovation and adoption of new technology.126 Another reason is that people with better literacy skills move on to tertiary education and better contribute to the economy.127 Whatever the reasons are, however, it is clear that depriving children of the opportunity to acquire basic literacy skills imposes significant costs on the nation and further contributes to the existence of an underclass of illiterate individuals who are unable to change their “station in life.”128

Research has also demonstrated a strong connection between higher literacy capabilities and higher levels of health and healthy behavior.129 A number of factors explain this correlation. The ability to read helps patients understand information provided in a health-care context and independently act on that information.130 Literate patients are also more likely to manage their health effectively because they can research health conditions and gain access to a variety of sources of health information and better interpret quantitative health information.131 Numerous studies support these conclu­sions: in general terms, people with stronger numeracy skills at the age of 33 have a six percent lower probability of long-term health problems, which is important in the context of literacy because literacy skills are a prerequisite for improving numeracy skills.132 Another study suggests that “people with better qualifications are more likely to have healthy lifestyles, [such as being] fit and slimmer.”133 Further, people enrolled in adult learning get more cervical smear tests, which could prevent over 100 cancers for every 100,000 women, and they also exercise more and “display greater awareness of health issues than others of their age.”134 This is supported by another study showing a causal relation between education and “self-reported health” and a negative relation to the number of chronic conditions.135 That result followed even after controlling for health insurance and income.136 Studies also demonstrate that illiteracy has a negative effect on mental health. For example, basic reading and arithmetic skills have been shown to lead to lower levels of depression.137 Thus, it is clear that illiterate people lack the resources to educate themselves about necessary health choices and resources, which places them at a signifi­cant disadvantage with respect to their literate counterparts. This poses an alarming threat to individual liberty because health-care decisions involve “the most intimate and personal choices a person may make in a lifetime,” and the ability to make important health decisions is “central to personal … autonomy” and individual liberty.138 It would defy rational thought to hold otherwise.

Children who have failed to acquire basic literacy skills eventually become parents who are unable to help their children acquire literacy skills, ultimately reproducing an illiterate social underclass. One reason for the connection between childhood illiteracy and a social underclass is grounded in family structure: individuals with poor literacy skills also tend to be those who have experienced homelessness, are single parents, have large families, and have children who do not view reading as pleasurable.139 Thus, those parents likely lack the financial resources and other support structures, such as a second parent, to help their children acquire and develop literacy skills. A second reason is that families with poor literacy skills are less likely to be able to create an atmosphere that “lead[s] to effective learning of school-like literacy practices for all the members of the family.”140 Thus, in those circumstances, children may be unmotivated to acquire literacy skills at school because they are not strongly valued at home.141 A third reason is that illiterate children have lower self-confidence, self-esteem, and self-efficacy, which creates a feedback loop wherein those children are unable to set goals in any aspect of their lives, navigate their educational or employment environments, and acquire literacy and other necessary skills.142 Quantitative studies support the conclusion that children of illiterate parents possess poorer literacy, educational, and other life skills. The Adult Literacy and Basic Skills Unit “found that children of parents who reported having literacy difficulties were around twice as likely as others to be in the lowest quartile nationally on reading test scores.”143 Another study shows that “children of parents with no qualifications are already up to a year behind the sons and daughters of graduates by the age of three.”144

In totality, research strongly supports the Plyler Court’s conclusion that depriving children of basic literacy has far-reaching and debilitating conse­quences each and every day of their lives, not only in the form of individual and collective economic instability and poor health, but also in the reproduc­tion of an underclass of illiterate individuals, which presents “most difficult problems for [the] Nation.”145

  1. Literacy is especially preservative of the rights to free expression and political franchise.

First Amendment rights are “so important to the preservation of the free­dom in a democratic society”146 that they constitute “the very foundation of constitutional government” and “maintain the security of the Republic.”147 In Reynolds v. Sims, and more recently in Bush v. Gore, the Court ruled equal access to the franchise to be fundamental “because [it is] preservative of other basic civil and political rights . . . .”148

The Supreme Court has repeatedly emphasized that education is indis­pensable to the exercise of free expression and political franchise, reasoning that “some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.”149 The Court believed—decades before the fed­eral government emphasized the importance of education with the passage of the Elementary and Secondary Education Act—that “‘education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both dem­onstrate our recognition of the importance of education to our democratic society.’”150 Indeed, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools”151 because the “[t]he classroom is peculiarly the ‘marketplace of ideas.’”152 The most fundamental role of education is to give children the ability to read and write so as to prepare them to contribute to the marketplace of ideas that are the lifeblood of freedom of thought, expression, and belief. Education therefore enables them to “study, to engage in discussions and exchange views with other students, and, in general to learn [their] profession.”153 And because literacy is essential for citizens to be informed of “election issues and govern­mental affairs,”154 “public schools [inculcate] fundamental values necessary to the maintenance of a democratic political system”155 and “preserve [our] democratic system of government”156 by “prepar[ing] students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.”157

But to maintain some aura of First Amendment freedom in our democratic system and especially in our schools, children must acquire sufficient literacy skills so as to “[put] the decision as to what views shall be voiced largely into the hands of each of us … [because] no other approach would comport with the premise of individual dignity and choice upon which our political system rests.”158 Furthermore, the Court has clearly established that “the Constitution protects the right to receive information and ideas,”159 especially in the education context.160 In fact, in its First Amendment jurisprudence, the Supreme Court has presumed that citizens possess basic literacy skills as a prerequisite to holding that the government has not deprived them of their first amendment rights. Thus, in FCC v. Pacifica Foundation, by a vote of 5–4, the Court rejected the argument that an FCC regulation punishing broadcasters for use of expletives over radio transmissions would burden listeners’ First Amendment rights because “[t]he Commission’s holding does not prevent willing adults from purchasing [George] Carlin’s record, from attending his performances, or indeed, from reading the transcript reprinted as an appendix to the Court’s opinion.”161

However, as research shows, illiterate children have severely underdevel­oped cognitive, memory, visual, auditory, and oral language skills. Children who grow up in an environment with “low levels of engagement with educa­tion lack the cultural capital necessary to navigate the educational system.”162 Literacy also gives children “both status and identity as it [becomes] the medium of shared experience; it facilitate[s] the temporal integration of their social histories as the highly valued artefacts [sic] of family life [become] the prized commodity of the schools.”163 Thus, illiterate children face a struggle at the inception of the development of their political, artistic, and personal thoughts and expression and are consequently unlikely to overcome those obstacles in the educational system later on.

Moreover, without literacy, children lose the opportunity to acquire valu­able political information. As technology exponentially advances each year and the world progresses further into the digital and information age, literacy becomes ever more essential to the exercise of free speech and political fran­chise. In 2011, Americans received most of their news about national and international issues from the television and internet, with newspapers coming in third and the radio fourth.164 But among 18–29 year-olds, 65 percent of people received their news from the internet while only 15 percent used the radio.165 Another study shows that in 2013, almost 6 out of 10 children, ages 3 to 17, used the Internet at home, nearly 6 times as many as in 1997.166 Justice Thomas acknowledged this trend in Federal Communications Commission v. Fox Television stations, Inc., noting that “[t]raditional broadcast television and radio are no longer the ‘uniquely pervasive’ media forms they once were. For most consumers, traditional broadcast media programming is now bundled with cable or satellite services. Broadcast and other video programming is also widely available over the Internet.”167 This trend is important in the context of the Supreme Court’s 1997 holding in Reno v. American Civil Liberties Union that speech on the Internet is equally worthy of the First Amendment’s historical protections. In Reno, the Court emphasized the “phenomenal” growth of the Internet and its importance to “encouraging freedom of expres­sion in a democratic society.”168 But since then, the Internet has evolved even more from a forum where the “most relevant” forms of communication were “electronic mail,” “automatic mailing list services,” “newsgroups,” and “chat rooms,”169 to one where participants share and receive countless political and personal beliefs in the form of news articles, videos, music, pictures, memes (new-age political cartoons), and blogs (informal and personalized websites), among others. Other internet resources such as social networking websites (Facebook and Twitter), video-sharing websites (YouTube), and artistic and literary programs (iMovie, MovieMaker, Garageband, Kindle, and iTunes), put these forms of expression at children’s fingertips at earlier ages and make them indispensible to expression, communication, political knowledge and forming “relationships between people and relationships between people and organizations”170 in the twenty-first century.

But because children lacking the most basic literacy skills cannot pos­sibly access even newspapers because they cannot read, understand basic to intermediate vocabulary, or easily grasp new concepts, it is irrefutable that they lack the skills essential to access Internet resources for their “self-education and individual enrichment.”171 The Internet does not simply involve “traditional print literacy transferred to on-line environments,” but requires “more sophisticated reading and writing strategies” and involves “unique processes and skills and competencies for participation in the new times.”172 Because the Internet features both conventional and unconventional text, such as hyperlinks and hypermedia, children must acquire “skills and abilities beyond those required for the comprehension of conventional, linear print.”173 Those skills include “rapidly locating the most useful information within complex ICT networks such as the Internet;” “reading and critically evaluating that information for validity and utility;” “writing effectively with word processing software;” and “communicating information clearly to others with e-mail.”174 And because thousands of new websites, articles, and social media posts are created every day,175 illiterate children fall further behind their counterparts each day. Furthermore, because illiterate children fail to develop their vocabulary through reading and writing, have significantly diminished cognitive, memory, visual, auditory, and oral language skills,176 it is quite unlikely that turning to radio or televised news sources will in any way compensate for their already diminished political awareness so that they can form and articulate even basic political viewpoints. Even more, illiterate students cannot “explore the unknown, and discover areas of interest and thought not covered by the prescribed curriculum.”177

Beyond protecting one’s right to express oneself and acquire valuable po­litical information, the First Amendment also protects individuals’ ability to define their identity.178 But in order to define their personal identity, children need the tools necessary to acquire information, and to form and express political thought. While the constitution may not guarantee children the most effective political speech or exercise of political franchise, schools that deprive children of the opportunity to acquire basic literacy skills burden them on a more fundamental level. These children, especially the youngest students, face a significant, if not insurmountable, impediment to their development at an age when their language acquisition should be at its height.179 To hold that the Constitution guarantees a right to acquire basic literacy skills, then, is not to assert that it guarantees the most effective speech or franchise, it is to hold that it protects against their complete deterioration.

  1. Literacy is preservative of the right of access to justice.

The Due Process Clause of the Fourteenth Amendment guarantees certain protections so that individuals can access the justice system. In Douglas v. California, the Supreme Court, relying on the Equal Protection Clause and on Procedural Due Process, found that a Fourteenth Amendment violation occurs when the rich have access to a meaningful appeal, while indigents have only a “meaningless ritual.”180

When children—especially poor children and children of color—are deprived of the right to acquire basic literacy, certain rights the Court has identified as essential components of fair process are reduced to “meaningless rituals” and constructively denied. With impaired reading, writing, cognitive, and oral language skills, illiterate individuals cannot possibly make a claim or defend themselves in civil or criminal court. The Court acknowledged this in Reece v. Georgia, reasoning that it would be “utterly unrealistic” for even a “semi-literate” defendant “of low mentality” “to raise his objection . . . before indictment” without the assistance of counsel and that it would violate his due process rights not to provide it.181 Indeed, even if illiterate individuals were able to acquire counsel—which would be nearly impossible outside of the criminal context as illiterate individuals are significantly less likely to be able to afford a lawyer—they would be unable to read and understand a contract with their lawyer or to effectively communicate with their lawyer about the case. Thus, illiterate individuals are likely to be left utterly helpless when seeking to remedy a legal wrong, which is especially troubling when they seek to vindicate their violated constitutional rights.

Illiteracy also serves as a bar to justice after criminal prosecution. In Lewis v. Casey, the Supreme Court—even while reversing the District Court’s system-wide injunction requiring remedying inadequate legal assistance programs in Arizona prisons—distinguished the case of illiterate inmates, whom the Court found were actually injured by the circumstances. The prison, Justice Scalia explained, would have had to provide “special services” to the illiterate prisoners in order to protect the constitutional guarantee of adequate access to courts.182 Most significantly, Scalia concluded by emphasizing that illiteracy is a “particular disability” in society.183

Moreover, besides showing that literacy is critical to protecting all of the essential rights within the ambit of the Due Process Clause, the access to justice cases provide an analogy to a scenario in which the Court has identified a threshold, a quantum of a right, below which the right has been function­ally denied. In a potential lawsuit, plaintiffs may argue that an education that fails to provide them with even basic literacy is a functional denial of any education whatsoever. Indeed, Rodriguez left open the possibility that states could unconstitutionally fail to provide a minimum quantum of education.184

  1. Depriving children of the opportunity to acquire basic literacy skills deprives them of their right to equal dignity.

Recent Supreme Court precedent has previewed the availability of a new form of constitutional analysis: “substantive due process flecked with equality concerns.”185 Under this doctrine, advanced primarily by Justice Kennedy, the “Equal Protection Clause can help to identify and correct inequalities . . . vindicating precepts of liberty and equality under the Constitution.”186 “[R] ights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. . . . This inter­relation of the two principles furthers our understanding of what freedom is and must become.”187 Thus, in M.L.B. v. S.L.J. the Court “invalidated under due process and equal protection principles a statute requiring indigent moth­ers to pay a fee in order to appeal the termination of their parental rights.”188 In Eisenstadt v. Baird, the court “invoked both principles to invalidate a prohibition on distribution of contraceptives to unmarried persons but not married persons.”189 In Skinner v. Oklahoma, the court invalidated “under both principles a law that allowed sterilization of habitual criminals.”190 And in Obergefell v. Hodges, the court invalidated under both principles state laws barring same-sex couples from marrying.191

While the exact definition of “dignity” remains the subject of scholarly debate,192 it is clear that it is closely related with social status and esteem, autonomy, personal choice, and freedom of identity, thought and expression, privileges and responsibilities, and stability.

In the context of a potential lawsuit, an argument utilizing this framework would assert that depriving this group of students of literacy deprives them of the dignity that the Constitution promises to each individual. To prove this argument, the plaintiffs would have to show: (1) that the Constitution guarantees equal access to dignity; (2) that literacy is entwined with dignity; and (3) that state action grants this dignity to some, while denying it to others.

  1. The Supreme Court’s precedents discuss the right to equal dignity

The Supreme Court has discussed the constitutional right to equal dignity in five contexts: the right to social status and esteem; the right to individual autonomy and personal choice; the freedom to define one’s identity, thought, expression, and existence; the right to possess privileges and responsibilities; and the right to lead a somewhat stable life.

The right to social status and esteem is a common thread in the Supreme Court’s equal dignity jurisprudence. More specifically, the right to live free from stigma has deep roots in the Supreme Court’s constitutional jurispru­dence, beginning with libel laws that eroded First Amendment freedoms. Thus, “the legitimate state interest underlying the law of libel is the compensa­tion of individuals for the harm inflicted on them by defamatory falsehood” and the “individual’s right to the protection of his good name ‘reflects no more than our basic concept of the essential dignity and worth of every hu­man being—a concept at the root of any decent system of ordered liberty.”193

The right to social status and esteem has also been historically encom­passed by the liberty clause of the Fourteenth Amendment, even before the Court developed the equal dignity doctrine, in the form of the stigma plus doctrine. The Supreme Court in Wisconsin v. Constantineau recognized that “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,” and that loss of reputation is “coupled with some other tangible element” there is a loss of a protected liberty interest.194

The Court expanded the role of social status in its dignity jurisprudence in Lawrence, where it reasoned that a criminal sodomy ban imposed stigma on the defendants who would “bear on their record the history of their criminal convictions.”195 Justice O’Connor’s concurring opinion in that 5-4 decision emphasized that “[t]he Texas sodomy statute subject[ed] homosexuals to ‘a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass . . . cannot be reconciled with’ the Equal Protection Clause.” In the same vein, the Court in U.S. v. Windsor emphasized that it was a statute’s imposition of disadvantages and separate status that cast “stigma upon all who enter into same-sex marriages.”196 Finally, in its most recent discussion of equal dignity, the Obergefell Court emphasized that dignity means being able to lead “more open and public lives,” and to have a “shift in public attitude toward greater tolerance.”197 Thus, dignity is most closely intertwined with the concept that each individual should be free from disadvantages that cast stigma on them by way of creating a separate status that disrupts their public lives. One should also note that these references to dignity as social status significantly overlap with the concept of dignity as personal autonomy.

Equal dignity also encompasses “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.”198 That means that individuals must be left alone in “their own private lives and still retain their dignity as free persons.”199 In Obergefell, the Court expanded the role of the right to individual choice in the equal dignity doctrine by emphasizing the future implications of those choices, reasoning that “choices about marriage shape an individual’s destiny,” and that “there is dignity in the bond between two men or two women who seek to marry in their autonomy to make such profound choices.”200

Dignity encompasses not only those intimate and personal choices, but also those political choices that are integral to our democratic system. Thus, in McNabb v. U.S., the Court stated that in a “democratic society . . . respect for the dignity of man is central.”201 That theme was vital to the holding in Romer v. Evans, in which the Court reasoned that an amendment to the Colo­rado Constitution that prohibited all legislative, executive, or judicial action designed to protect gay and lesbian people from discrimination violated the Equal Protection Clause because it “infringed the fundamental right of gays and lesbians to participate in the political process.”202

There can be no doubt that the preservation of the right to define one’s thought, expression, existence and identity, is closely intertwined with the right to individual and political autonomy. To be sure, such values served as the driving force in the Supreme Court’s jurisprudence in the same-sex intimacy and marriage cases.203 In Lawrence, the Court held that choices central to “personal dignity and autonomy,” are secured by the right to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”204 Indeed, the Court held that liberty actually “presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”205 According to the Court’s logic, then, when individuals are left alone to control these characteristics, they are able to define their own identity and make a full claim to dignity.206 Thus, in Obergefell, the Court reasoned that when individuals are granted the full right to marry, then “two persons together can find other freedoms, such as expression, intimacy, and spirituality.”207

The right to secure privileges and responsibilities is central to equal dignity. Thus, in Obergefell and Windsor, the Court extended the right to receive marriage benefits from the state, reasoning that same-sex couples “seek [marriage] for themselves because of their respect – and need – for its privileges and responsibilities.”208 The Windsor Court emphasized the significance of those responsibilities for “the definition and regulation of marriage [that] date[] back to the Nation’s beginning” and the indignity that is cast upon the “hundreds of thousands of person” to whom they were withheld.209

Finally, the Supreme Court has recognized that dignity flows from the ability to lead a stable life. This theme was especially important in Oberge­fell, where the Court reasoned that same-sex couples who seek state recogni­tion of their marriages “seek[ ] relief from the continuing uncertainty their unmarried status creates in their lives.”210 Most significant, however, was the Court’s reference to same sex couples’ children, where it reasoned that “without the recognition, stability, and predictability that marriage offers, children suffer the stigma of knowing their families are somehow lesser.”211

Although Justice Kennedy might be unwilling to extend dignity outside of the same-sex marriage context, he is quite progressive on first amendment issues, as illustrated by his opinions in Citizens United v. FEC,212 which di­rectly relate to political autonomy. This commitment might make him willing to extend dignity to the education context.

  1. Depriving children of the right to receive basic literacy education deprives them of their dignity, as defined by the Supreme Court

The Supreme Court has made clear on multiple occasions that illiteracy is stigmatized in American society. In Plyler, the Court made clear that il­literacy “mark[s]” children with a lifelong stigma, explaining:

By depriving the children of any disfavored group of an education, we fore­close the means by which that group might raise the level of esteem in which it is held by the majority. . . . The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The inestimable toll of that deprivation on the social, economic, intellectual, and psychological well-being of the individual, and the obstacle it poses to indi­vidual achievement, make it most difficult to reconcile the cost or the principle of a status-based denial of basic education within the framework of equality embodied in the EPC . . . Section 21.031 imposes a lifetime hardship on a dis­crete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives.213

The Court’s discussion of the stigma fits neatly within the concept of dignity as social status. Because illiterate children will face insurmountable obstacles compared to their literate counterparts in cognitive functioning, economic mobility, healthy living, and political speech and expression,214 they will enter an “underclass [that] presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.”215

Moreover, children who are denied the opportunity to acquire literacy skills are deprived of the dignity that flows from personal and political autonomy. As discussed above, illiterate individuals are significantly more likely than their literate counterparts to have their autonomy completely eroded by their lack of education with respect to their chances of interact­ing with the juvenile and criminal justice systems, health-related behavior, development of their political viewpoints, free speech, and exercise of their political franchise. Thus, these children will be unable to effectively manage their health by researching health conditions and by interpreting and acting on essential health information. This information may be crucial to deeply intimate decisions, such as whether to receive an abortion,216 receive or reject life-saving treatment to protect their dignity,217 or choose between a risky yet life-saving treatment and a more modest or safer treatment, all of which “originate within the zone of conscience and belief.”218 Furthermore, because illiterate children will be unable to learn about basic political information due to their poorly developed reading, writing, and vocabulary skills, they will be unable to exercise informed political choices at the core of their right to free speech and political franchise. Thus, illiterate children will be closed off from the part of our democratic society that is so central to the dignity of every citizen.

Similarly, states that fail to teach children basic literacy skills deprive them of their dignity because they impede their ability to define their thoughts, expression, existence, and identity. Research shows that illiterate children have diminished cognitive abilities, which, in conjunction with their poor reading, writing, and vocabulary skills, impairs their cognition and their verbal, memory, visual, auditory, and oral language skills that are so impor­tant to freedom of expression.219 These impediments make it impossible for children to access basic political, literary, or scientific information through the Internet, television, newspapers, or even the radio, which will further burden their speech and expression. Without the proper tools, to define their own “concept of existence, of meaning, of the universe, and of the mystery of human life,”220 they will be deprived of autonomy to shape their identity and make a claim to basic dignity.

Finally, illiterate children are forced to live a life characterized by in­stability and uncertainty both in their educational, personal, and economic lives. Such children develop “a feeling of uncertainty.”221 This conclusion is supported by studies showing that illiterate and poorly educated adults are more likely to face economic immobility, increased incarceration, signifi­cantly lower incomes, homelessness, and single parenthood.222 Thus, these individuals will face uncertainty while trying to secure some means of sus­tenance for themselves and their family. Moreover, because these individuals will be less able than their literate counterparts to research and act on health information, they will face an uncertain future with respect to the fate of their health. The same analysis applies to these individuals’ general attitude, demeanor, and sentiments.

The Court has also acknowledged that deprivation of literacy was a tactic used to dehumanize slaves,223 and that literacy requirements have served as a means to discriminate against populations by barring them from voting.224

Moreover, the Court has identified the lasting effects of stigma on children, particularly on their ability to obtain a meaningful education. In Brown v. Board of Education, the Court, in barring school segregation on equal protec­tion grounds, said that such a “sense of stigma and inferiority . . . affects the motivation of a child to learn.” “To separate them from others of similar age and qualifications,” the Court declared, “solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”225

  1. Holding that the right to basic literacy education is fundamental is not a slippery slope

In San Antonio School Dist. v. Rodriguez, the Supreme Court expressed hesitation in reaching the issue of whether education was a fundamental right. Most significant was the Court’s fear that deciding this issue would lead to a slippery slope resulting in a requirement to hold other positive rights as fundamental as well. The Court found it hard to distinguish the role of educa­tion from that of food, clothing, and shelter in deriving enjoyment from the benefits of the First Amendment.226

But the Court’s fear in Rodriguez was unwarranted in two respects. First, it mischaracterized the nexus between food, clothing, and shelter and First Amendment rights by assuming those resources are just as preservative of that right. While it is inarguable that the child who has little to no access to food, clothing, and shelter is unlikely to ever have the opportunity to exercise her First Amendment rights because she would have lacked the proper environ­ment to survive, the Supreme Court has never emphasized that food, cloth­ing, and shelter are “necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.”227 Indeed, the nexus between education and exercise of First Amendment rights is much closer than that between food, clothing, and shelter and the exercise of such rights, because education directly inculcates one with the tools necessary to speak, read, write, communicate, and acquire basic knowledge.

Second, the Rodriguez Court assumed, without discussing, that education lacks the deep roots in this nation’s history that would distinguish it from food, clothing, and shelter. As already argued, education had special counte­nance in this nation’s colonial era, when the colonies sought to secure it for all children, especially indigent ones. It was exalted by our nation’s found­ers as imperative to the maintenance of our republic and necessary for the maturity of the nation. Indeed, many of our founders focused their political stances and actions on securing education for all children, including black children and young girls. Finally, the right to education, derived from the Northwest Ordinance, was implicitly recognized and in need of no explicit mention in the Constitution. The founders regarded education as such a basic imperative for the nation that they could not fathom a successful nation that did not educate its citizenry.

  1. How can students to successfully argue that they have not been provided with the minimal education guaranteed by the Constitution?

If a group of students were to launch a successful litigation against their school to secure literacy as a fundamental right, their school must, of course, fail to provide them with the minimum federal standard of education. That standard should be defined by four guidelines. First, it must be constrained by the Supreme Court’s Rodriguez opinion holding that the Texas school-funding scheme did not deprive appellee students of a minimal standard of education. Second, it should be informed by the Rodriguez Court’s discussion of essential elements of any public education. Third, because the founders envisioned that states would be able to protect individuals’ fundamental right to literacy education, their insights into a minimum standard of education are important to articulating the federal educational standard. Thus, the minimum federal educational standard should also be informed by states’ constitutional and legislative standards for a minimum education. Finally, the standard should be informed by the latest research demonstrating which resources are essential to maintain an educational institution’s capacity to teach students basic literacy skills.

The most important constraint on the articulation of a minimum standard of education is the Supreme Court’s opinion in Rodriguez, where, by hold­ing that a Texas school-funding scheme did not deprive appellee students of a minimum educational program, the Court identified a constitutionally adequate education that cannot be challenged as depriving students of a mini­mum standard of education. However, because the majority, concurring, and dissenting opinions failed to detail which educational programs the school district provided appellees, those facts must be gleaned from the appellees’ and appellants’ briefs and expert witness testimony.

The appellees (Plaintiff students) contended that that the Texas state-fund­ing program failed to provide them with a minimum educational program, reasoning that the allocation to the low-income districts of $356 in per pupil local, state, and federal funds228 (which equals $1,938.19 today when adjusted for inflation),229 failed to “assure a district any particular number or quality of teachers.”230 They further noted the defendant’s failure to demonstrate what courses were offered in the schools, whether there were teaching aids and equipment, whether they offered extracurricular activities, such as music, drama, and art, how many hours of education they offered, and the quality of their physical plant and teaching facilities.231 Based on this evidence, or lack thereof, the appellees’ expert witnesses testified that the state failed to provide students with a minimum educational program.232

The appellants (the State of Texas), without introducing any formal evi­dence,233 argued that no deprivation of minimum education occurred because the state provided the following services or resources to students: twelve years of schooling,234 one classroom teacher for every twenty-five students, one special service teacher for every twenty classroom teachers, one principal for the first twenty classroom teachers and an additional principal for each additional thirty classroom teachers, one superintendent for school districts with at least one four-year high school, supervisors and counselors based on the number of classroom teachers, vocational teachers, professional personnel for special education, minimum salaries for teachers, funds toward operating costs beyond salaries at the rate of $660 per teacher, allotments for student transportation, free textbooks for all public school children, media and service centers to make facilities and services available to schools in an area where it would be too costly for individual school districts to provide, and elaborate regulations with which schools must comply to be accredited.235

The appellees and appellants identified three essential characteristics of a school that, together, the Supreme Court, state constitutions, and the latest research demonstrate are essential to a minimum standard of education: the presence of a sufficient number of well-qualified teachers; adequate facili­ties conducive to learning; and an adequate curriculum. That each of these three elements is essential to a minimum standard of education is supported by the Supreme Court’s subsequent opinions, state minimum educational standards, and the latest educational research. I will discuss each of the three characteristics in the following paragraphs.

Likely the most indispensable element of a minimum standard of education is the presence of a sufficient number of qualified teachers, as the Supreme Court has emphasized this feature the most. In Ambach v. Norwick,236 the Court stated that without teachers, students could hardly be expected to achieve their academic goals because teachers are “crucial to the continued good health of a democracy.”237 This is because teachers “play a critical part in developing students’ attitude toward government and understanding of the role of citizens” 238 in society by serving as “role model[s] for [their] students, exerting a subtle but important influence over their perceptions and values”239 and influencing their attitudes “toward government, the political process, and a citizen’s social responsibility.”240 Thus, beyond highlighting teachers’ roles in imparting to students an education, the Court emphasized their importance in providing students the very tools the founders believed made education a fundamental right­—those that are essential to the “continued good health of a democracy” and maintenance of the Republic. Moreover, the Court emphasized that this was true of all teachers, “not just those responsible for teaching the courses most directly related to government history, and civic duties”241 because teachers are in “direct, day-to-day contact with students both in the classrooms and in the other varied activities of a modern school.”242

Even states whose constitutions offer the least educational protection em­phasize the paramount significance of teachers. In both Montana and Ohio, for example, the state supreme courts have held that an adequate state education requires teachers.243 Oklahoma and West Virginia have gone beyond those protections by requiring “competent teachers.”244 The Ohio state supreme court has further emphasized that “it is virtually impossible for students to receive an adequate education with a student-teacher ratio of [more than thirty students per classroom teacher].”245 As of 2011, over thirty states have supported this conclusion by enacting legislation for class size reduction.246

Numerous studies support the conclusion that the presence of quality teachers is integral to students’ minimum academic achievement. These studies demonstrate that, within grade levels, “the single most dominant factor affecting student academic gain is teacher effect.”247 Consistent with common sense, students placed with more qualified teachers have an “extreme advantage” in terms of academic achievement,248 with one study revealing that students score up to 50 percentile points higher in their classes when placed with better qualified teachers.249 That study further demonstrated that lower achieving students are the first to benefit from teacher effectiveness, while students of all achievement levels still achieve excellent gains.250 Most important for the purposes of this article are statistics providing substantial evidence that teaching experience significantly improves students’ vocabulary and reading,251 which reinforces the conclusion that teachers are demonstra­bly imperative to providing students with a basic literacy education. Beyond academic outcomes, however, teachers also have “substantial influences” on behavioral outcomes, high school graduation, college attendance, earnings,252 and absences.253

The ratio of teacher to students in a classroom has also been shown to substantially affect students’ academic performance by exerting pressure on teachers and students.254 With more students per classroom, the potential for distraction is greater, while in small classes teachers have more opportuni­ties to “engage children and keep them on task.” 255 This is especially true with relatively young students, such as four to five year olds, who are more likely to be disengaged when working on their own as opposed to working with teachers or peers.256 Similar results have been observed in secondary students, for whom an increase in class size is positively correlated with a decrease in on-task behavior.257 From a logical perspective, these results may be attributed to the fact that class size significantly affects the amount of teacher interactions with individual students directly concerning the substan­tive content of subject knowledge,258 the number of students requiring the teacher’s attention,259 and active interaction with the teacher at the primary and secondary levels.”260 Furthermore, studies have shown that in smaller primary schools, teachers have more freedom to deal with and correct any negative behavior for low and medium attaining pupils.”261 Thus, “when seen as a percentage of all observations, there was between two and three times more of these [negative] behaviors in smaller classes of 15 compared to larger classes of 30.”262

In conclusion, teachers are indispensable to a minimum standard of edu­cation because they guide children’s minds at a time when they are the most vulnerable to corruption, but also possess the highest potential for success. Teachers instill in children the tools to develop not only basic literacy skills but also the critical thinking skills they will use, as the founders envisioned, to shape and maintain the nation’s democratic future. Teachers shape our future leaders and, ultimately, the fate of our nation.

While teachers are the most integral part of a basic education, no public education system can be effective in teaching children basic literacy skills and democratic values without adequate facilities and resources.

The Supreme Court emphasized the necessity of providing students adequate school facilities in the Brown v. Board of Education line of cases. While Brown was premised on the idea that “separate but equal” facilities are inherently unequal because of the effect of racial classifications, deseg­regation remedies such as busing fell out of favor with the Court over time. Instead the Court instituted remedies to compensate for what it felt were more objective ramifications of racial segregation, rather than simply focusing on social stigma. Facilities, the Court concluded, are “the most important indicia of racially segregated school systems”263 and in order to ensure that students in majority Black schools received the same minimal standard of education as students in majority white schools, “simple corrective action [was] taken with regard to the maintenance of buildings and the distribution of equip­ment.”264 Thus, the Supreme Court explicitly identified adequate facilities as a necessary component for a minimal standard of equal education.

Various state constitutions underscore two key qualities that school fa­cilities must embody in order to satisfy a minimum standard of education. First, school facilities must create a structural environment conducive to students’ ability to master the curriculum. The Arizona state constitution, for example, requires students be provided with “adequate capital facilities,”265 which means “facilities and equipment necessary and appropriate to enable students to master the educational goals set by the legislature.”266 Similarly, the Ohio Supreme Court has held that its constitution requires an efficient system, which means one that includes teachers, buildings, equipment,267 and sufficient funds to provide students with a safe and healthy learning environment.268 Ohio requires not only adequate capital, but also mandates that school districts provide personnel and facilities that keep students safe from harm. Similarly, Connecticut specifically focuses on making their stu­dents comfortable enough to learn, requiring “minimally adequate physical facilities and classrooms which provide enough light, space, heat, and air to permit children to learn.”269 Other state constitutions, recognizing the necessity of creating a school environment attuned to students’ specific needs in the twenty-first century, require additional services such as special education and technology programs. Thus the New Jersey Supreme Court has held that “adequate physical facilities are an essential component” of the state’s constitutional mandate270 as well as “kindergarten and pre-school programs, facilities maintenance, alternative school programs, school-to-work and college transition programs, and technology programs.”271 Like New Jersey, the Montana Supreme Court also held that an adequate state education required state curriculum and learning standards, teacher pay, expenditure of fixed costs and costs of special education, and setting stan­dards for adequate performance.272

The second component of minimally adequate facilities emphasized by state constitutions are up-to-date instructional materials, such as textbooks, pencils, and sufficient technology, so that students may engage with their coursework independent of teacher interactions. Connecticut requires students to be provided with “minimally adequate instrumentalities of learning such as desks, chairs, pencils, and reasonably current textbooks.” West Virginia also requires “good physical facilities, instructional materials and personnel.”273 The need for these resources is supported by the latest educational research.

Educational research demonstrates the significant role that structural fa­cilities play in students’ academic achievement and learning. One particular study demonstrated a strong relationship between students’ achievement in affective and psychomotor learning274 and school facilities, particularly the number of classrooms, furniture and seats for teachers and students, well-equipped laboratories and libraries, adequate instructional materials for teaching-learning activities, adequate health facilities for students’ first-aid and emergencies, recreational facilities, playgrounds, and bathrooms.275 Furthermore, a 2002 report released by the U.S. Department of Education states that the environmental factors most strongly linked to student achieve­ment are indoor air quality, ventilation, thermal comfort, lighting, acoustics, building age and quality, school and class size, spatial configurations, as well as noise, heat, cold and light.276 Most of these findings are supported by common sense. For example, poor indoor air quality is associated with airborne bacteria, mold, and asthma, which increase absentee rates.277 In turn, high temperatures, humidity, and poor ventilation contribute to poor indoor air quality by increasing the chances of mold278 and causing the buildup of carbon dioxide and contaminants such as perfumes, shampoos, deodorants, materials and cleaning agents, and pathogens, which cause students to experi­ence headaches, drowsiness, and the inability to concentrate.279 Inadequate temperature and humidity further exacerbate student discomfort and decrease their attention spans280 while affecting morale and inhibiting teachers’ abili­ties to teach.281 Lighting, on the other hand, specifically natural light, greatly improves test scores, reduces off-task behavior, and overall plays a significant role in students’ achievement.282 Acoustics can both improve and detract from students’ academic achievement. While students obviously benefit from being able to hear their teachers and peers speak in class, external noise detracts from students’ performance by causing students to experience “increased student dissatisfaction with their classrooms,”283 stress,284 high blood pres­sure,285 feelings of helplessness, inability to concentrate, “lack of extended application to learning tasks,” and diminished reading and verbal abilities.286 Finally, school building age and quality is likely the most important aspect of an educational institution’s physical capacity to support student learning. Better building quality, newer school buildings, better laboratories and li­braries are all correlated to higher student achievement,287 though the degree depends on the study and subject area.288 Building quality has also been linked to student behavior, with better quality buildings being linked to fewer disciplinary incidents289 as well as improved general attitudes, behavior, and relationships between students and staff.290 These studies demonstrate that, overall, a minimum standard of education must provide students with an atmosphere that is not only safe and comfortable, but one that is conducive to learning and where students will be more likely to excel academically.

Instructional resources on the other hand, as emphasized by state con­stitutions, are an indispensable aspect of adequate facilities because they convey valuable academic information to students, especially in the absence of teacher instruction, and thereby serve as valuable resources and support systems for teachers both inside and outside the classroom. As used in this article, “instructional resources” include full courses, course materials, modules, textbooks, streaming videos, tests, software, and “any other tools, materials, or techniques used to support access to knowledge.”291 The central role of instructional materials, especially textbooks, is the accumulation and convenient presentation of essential knowledge in one location,292 but that role “extends beyond the dissemination of information.” Instructional materials also “play an important role in mediating the politics of what is taught” and the methods used to teach students.293 Thus, they enable teachers to devote less time to lecturing and more to spending time with individual students to clarify any material they failed to understand from the textbook.294 They further serve as valuable organizing tools for teachers by offering suggested structures for teaching particular subjects, day-to-day lesson plans, daily ob­jectives, guidance in implementing those objectives, and advice on materials necessary for the accomplishment of the objectives.295

Studies demonstrate a strong relationship between quality instructional material and academic achievement. In general, high quality standards-based textbooks enhance students’ achievement and facilitate “comprehen­siveness, coherence, development of in-depth ideas, and promot[e] sense making, engag[e] students[,] and learning motivation.”296 This improvement in students’ ability to comprehend difficult material, think creatively, and more easily engage in cognitive thinking demonstrates that students with high-quality instructional material achieve better grades in their courses, have lower withdrawal rates, and score better on the final examinations.297

Beyond textbooks, however, in the twenty-first century, when it is almost impossible to gain access to news about important current events, the latest breakthroughs in various fields of study, and multiple self-help resources such as Khan Academy and YouTube, the Internet, computers, and other technol­ogy must be part of any minimum standard of education. Technology serves a number of functions in the classroom, such as bringing “exciting curricula based on real-world problems,” providing students and teachers more “op­portunities for feedback, reflection and revision,” and “building local and global communities.”298 Thus, not only does technology expose students to the most up-to-date and relevant information, thereby enabling them to teach themselves, but it saves teachers time and resources by providing feedback, promoting classroom interaction,299 and enabling teachers to be the facilita­tors in the classroom.300 Studies demonstrate that technology in classrooms and academic achievement are significantly related.301

Finally, and most important for the purposes of this article, a minimum standard of education must implement a curriculum that effectively teaches students basic literacy skills.

Numerous state constitutions emphasize that any educational system must guarantee students the right to learn basic literacy and numeracy skills. The Connecticut Constitution, for example, assures students “minimally adequate teaching of reasonably up-to-date basic curricula such as reading, writing, mathematics, science, and social studies,”302 while the Wisconsin legislature has required that all students be afforded the “opportunity . . . to be proficient in mathematics, science, reading and writing, geography, and history.”303 But other state constitutions have extended even more protections. For example, New Hampshire has extended its curriculum far beyond basic literacy skills, reasoning that “[g]iven the complexities of our society today, the State’s constitutional duty extends beyond mere reading, writing and arithmetic. It also includes broad educational opportunities in today’s society to prepare citizens for their role as participants and as potential competitors in today’s marketplace of ideas.”304 The Washington Constitution further entrenches basic literacy skills as part of a minimum standard of education by reiterating New Hampshire’s principles but also accentuating the importance of literacy to its students’ exercise of their fundamental rights: “the State’s constitutional duty goes beyond mere reading, writing and arithmetic. It also embraces broad educational opportunities needed in the contemporary setting to equip our children for their role as citizens and as potential competitors in today’s market as well as in the marketplace of ideas. Education plays a critical role in a free society. It must prepare our children to participate intelligently and effectively in our open political system to ensure that system’s survival. It must prepare them to exercise their First Amendment freedoms both as sources and receivers of information. It must also prepare them to be able to inquire, to study, to evaluate and to gain maturity and understanding. The constitutional right to have the State ‘make ample provision for the educa­tion of all [resident] children’ would be hollow indeed if the possessor of the right could not compete adequately in our open political system, in the labor market, or in the marketplace of ideas.”305 Thus, various state constitutions not only guarantee their students the right to attain basic literacy skills, but they treat those skills as such a fundamental building block that the skills themselves become an afterthought.

While scholars, educators, and lawyers may disagree among themselves as to what qualities a minimum standard of education must possess, they would be hard-pressed to deny that teachers, adequate facilities, and basic literacy instruction are all indispensable to that standard. Most educators and scholars are likely to argue that even these three elements, without more, are not enough to ensure their students excel academically. And although my analysis does not establish a thoroughly clear standard of education, it should provide litigators with the basic guidelines to define such a standard for a federal court.


Any successful lawsuit must take all necessary steps bridge the gap be­tween the Supreme Court’s deplorable lack of knowledge regarding the effects of poor education on children in the Rodriguez opinion to the present-day context, where it is largely assumed that education is indispensable to the maintenance of our Republic. Our generation must convince the Supreme Court that the meaning of “liberty” has infinitely changed not only since the ratification of the Constitution, but since the Court’s Rodriguez opinion. Our arguments must also undermine the assumption that an individual let alone our nation can somehow function and prosper while remaining illiterate. We must convince the Court that “[n]othing is more important for the public weal, than to form and train up youth in wisdom and virtue.”306



  1. Washington v. Glucksberg, 521 U.S. 702, 719 (1997) (citing Moore v. East Cleveland, 431 U.S. 494, 503 (1937) (plurality opinion)).
  2. John E. Haubenreich, Education and the Constitution, 87 Peabody J. Educ. 436, 439 (2012).
  3. Id.; The Old Deluder Satan Act in 1647, Constitution Society, (last visited on Nov. 13, 2016) (“And it is further ordered, that when any town shall increase to the number of one hundred families or householders, they shall set up a grammar school, the master thereof being able to instruct youth so far as they may be fitted for the university, provided that if any town neglect the performance hereof above one year that every such town shall pay 5 pounds to the next school till they shall perform this order.”).
  4. Haubenreich, supra note 2, at 439 (citing R. F. Butts, Public Education in the United States: From Revolution to Reform (1978)).
  5. E. Jennifer Monaghan, Learning to Read and Write in Colonial America 31 (2007) (emphasis added).
  6. Haubenreich, supra note 2, at 439.
  7. Ga. Const. of 1777, art. LIV (“Schools shall be erected in each county, and supported at the general expense of the State, as the legislature shall hereafter point out.”); Mass. Const. of 1780, ch. V, § II (“Wisdom and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of the rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislators and magistrates, in all future periods of this Commonwealth, to cher­ish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools, and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevo­lence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor and all social affections, and generous sentiments among the people.”); N.H. Const. of 1776, § LXXXIII (“Knowledge and learning generally dif­fused through a community, being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various arts of the county being highly conducive to promote this end, it shall be the duty of the legis­latures and magistrates, in all future periods of this government, to cherish the interests of literature and the sciences, for the promotion of agriculture, arts, sciences, commerce, trade, manufactures, and natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections and generous sentiments among the people.”). N.C. Const. of 1776, art. XLI (“That a school or schools shall be established by the Legislature, for the convenient instruction of youth, with such salaries to the masters, paid by the public, as may enable them to instruct at low prices; and all useful learning shall be duty encouraged, and promoted, in one or more universities.”); Pa. Const. of 1776, § 44 (“A school or schools shall be established in each county by the legislature, for the convenient instruction of youth, with such salaries to the masters paid by the public, as may enable them to instruct youth at low prices; And all useful learning shall be duly encouraged and promoted in one of more universities.”); Vt. Const. of 1777, § XL (“A school or schools shall be established in each town, by the legislature, for the convenient instruction of youth, with such salaries to the masters, paid by each town; making proper use of school lands in each town, thereby to enable them to instruct youth at low prices. One grammar school in each county, and one university in this state, ought to be established by discretion of the General Assembly.”); Haubenreich, supra note 2, at 444.
  8. Dennis P. Duffey, The Northwest Ordinance as a Constitutional Document, 95 Colum. L. Rev. 929, 937 (1995).
  9. The Northwest Ordinance of 1787, art. 3 (emphasis added).
  10. Duffey, supra note 8. at 938.
  11. Id. at 933.
  12. Id. at 933, 951 (“[T]he principles reflected in the Ordinance – expansionism, development, imperialism, risk (both physical and economic), commercialism, and a certain strain of utopianism – do not figure prominently in presently recognized constitutional documents. Thus the Ordinance has a special claim to constitutional authority insofar as it is a founding text of those aspects of our political traditions that draw upon the principles it contains.”).
  13. Id. at 946 (arguing that the Constitution primarily addressed structural problems with the Union).
  14. Id. at 942 (footnote omitted).
  15. Id. at 946 (arguing that the Constitution primarily addressed structural problems with the Union).
  16. Id.
  17. Id. at 950.
  18. Haubenreich, supra note 2, at 444.
  19. Id. at 448.
  20. Id. at 446.
  21. Id.
  22. Id.
  23. Id. at 447.
  24. U.S. v. Butler, 297 U.S. 1, 66–67 (1936).
  25. See Elementary and Secondary Education Act, 20 U.S.C. § 6301 (2012); Individual and Disabilities Education Act, 20 U.S.C. 1400 et seq. (2012).
  26. Franklin’s views may be described as a combination of “a revised Puritan ethic and the secular principles of the Enlightenment.” John Hardin Best, Franklin and the Enlightened Education in America, in Benjamin Franklin on Education 8 (Lawrence A. Cremin ed., 1962).
  27. Gordon Wood, Empire of Liberty: A History of the Early Republic, 713 (2009).
  28. Best, supra note 26, at 1–2. Franklin was enrolled in grammar school at the age of eight and later studied under George Brownell, a master in writing and arithmetic, where he excelled in writing. Id. at 3.
  29. Benjamin Franklin, Proposals Relating to the Education of Youth In Pennsylvania 28 J. Gen. Educ. 256, 256 (1976).
  30. Abraham Blinderman, Three Early Champions of Education: Benjamin Frank­lin, Benjamin Rush, and Noah Webster 7 (1976).
  31. See Best, supra note 26, at 10 (commenting on Franklin’s faith in “the common man and confidence in his ability to rule himself wisely”).
  32. Blinderman, supra note 30, at 10–11.
  33. Id.; see also Best, supra note 26, at 9 (“Franklin never confused the progress in material things with the improvement of man’s character. The one may aid the other, but they are not equated in Franklin’s thinking.”). Consider, for example, that Franklin’s attitude towards the French-Indian war was one of disdain. He commented, “[t]he only crime of these poor wretches [the Conestoga Indians] seems to have been that they had a redish-brown skin and black hair . . . .” Id. at 10 (alterations in original).
  34. Blinderman, supra note 30, at 12.
  35. Best, supra note 26, at 3.
  36. Blinderman, supra note 30, at 12. Franklin also devoted a great number of years to es­tablishing the first subscription library in the Colonies and proposed a “modern school” in Philadelphia for “improving the citizen and society.” Best, supra note 26, at 5. “The Academy” as it was called, “would not only prepare young men for college; it would also officer a complete ‘secondary’ education for the trades and professions.” Id. at 13.
  37. See Best, supra note 26, at 9 (commenting on Franklin’s deep “sense of justice” and commitment to “greater humanitarianism”). Franklin felt strongly about the propriety of educating women at a young age when he debated his peers on the subject. Id. at 22, 25.
  38. Blinderman, supra note 30, at 13. Indeed, from his infancy, Franklin was always pas­sionate about reading; see also Best, supra note 26, at 22–23.
  39. Blinderman, supra note 30, at 10–11.
  40. Id. at 14.
  41. Best, supra note 26, at 13.
  42. Benjamin Rush, Autobiography of Benjamin Rush: His “Travels Through Life” Together with his Commonplace Book for 1789–1813, 72 (1948).
  43. Blinderman, supra note 30, at 18.
  44. Wood, supra note 27, at 475.
  45. See Federalist No. 10 (James Madison).
  46. Blinderman, supra note 30, at 18.
  47. Dagobert D. Runes, The Selected Writings of Benjamin Rush 97 (1947).
  48. Rush foresaw boys participating in athletics and young girls participating in music and dancing. Blinderman, supra note 30.
  49. Id. at 18–19.
  50. Rush felt that children were not ready for arithmetic, geography, natural history, and conversation. Id. at 18.
  51. Id. at 19.
  52. Id. at 18.
  53. Id. at 21.
  54. Wood, supra note 27, at 504. Indeed, what makes Rush’s views on education more mun­dane is that “[v]irtually every American reformer [during the creation of the union], male or female, endorsed the education of women.” Id. at 504.
  55. Blinderman, supra note 30, at 21.
  56. Id. at 18.
  57. Id. at 25.
  58. Id.
  59. Webster believed that his book had inspired the constitutional convention, “but Madison regarded ‘sketches of American Policy’ as only one of many similar proposals for estab­lishing a strong central government.” Id. at 25–26.
  60. Id.
  61. Id. at 26.
  62. Id.
  63. Id. at 28.
  64. Id. at 29.
  65. Lawrence v. Texas, 539 U.S. 558, 572 (2003) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J. concurring)).
  66. Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).
  67. Washington v. Glucksburg, 521 U.S. 702, 721 (1998).
  68. Obergefell, 135 S. Ct. at 2598.
  69. Id.
  70. See Bush v. Gore, 531 U.S. 98, 107 (2000) (“The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum re­quirement for nonarbitrary treatment of voters necessary to secure the fundamental right [to vote for the President] . . . .”) (emphasis added).
  71. See Lawrence v. Texas, 539 U.S. 558, 574 (2003) (citing Planned Parenthood of Southern Pennsylvania v. Casey, 505 U.S. 833 (1997)) (“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment . . . .”).
  72. The Plyler case arose out of a May 1975 action by the Texas Legislature which “revised its education laws to withhold from local school districts any state funds for the education of children who were not ‘legally admitted’ into the United States. The 1975 revision also authorized local school districts to deny enrollment in their public schools to children not ‘legally admitted’ to the country . . . .”). Plyler v. Doe, 457 U.S. 202, 205 (1982).
  73. Id. at 222.
  74. Id.
  75. While Justice Powell, writing for the majority in Rodriguez, reasoned that the Texas school financing system was not so inadequate as to deprive children of some minimal threshold of education, he explicitly recognized the possibility that at some point, a state could be enjoined from further depriving educational rights: “Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short.” While there exists some language in the Rodriguezopinion indicating that the Court held that there exists no fundamental right to education, see Erwin Chemerinsky, The Conservative Assault on the Constitution 35 (2010), that language is misleading. On page 35 of its opinion, the Court ultimately stated an obvious proposition: that education is not “[a]mong the rights afforded explicit protection under our Federal Constitution.” Rodriguez, 411 U.S. at 35 (emphasis added). Indeed, this is the same language that the Plyler Court cited when it stated in dicta that “public education is not a ‘right’ granted to individuals by the Constitution. Plyler 457 U.S. at 221 (1982) (citing Rodriguez, 411 U.S. at 35). Any reliance on Rodriguez or Plyler for the proposition that education is not a fundamental right is thus misplaced—not having to address the issue of whether education is a funda­mental right implicitly guaranteed by the Constitutionboth opinions simply stated that education is not explicitly guaranteed. This interpretation of the cases is supported by the fact that in Plyler, Justice Powell, again writing for the majority, refused to allow states to completely deprive children’s access to public schools while identifying literacy as the minimal threshold of education below which the states had unlawfully crossed. Plyler, 457 U.S. at 223.
  76. Ralf St. Clair defines literacy as a capability, which “refers to what people are actually able to be and do, rather than to what resources they have access to. It focuses on develop­ing people’s capability to choose a life that they have reason to value.” Ralf St. Clair, Why Literacy Matters: Understanding the Effects of Literacy Education for Adults 34. (2010). Viewed this way, literacy is not only one of many skills that children acquire in the educational context or a “supplement to human thought,” but is also a “for­mative structure for that thought” that provides children with the basis for acquiring and mastering new abilities. Id. at 87.
  77. Plyler, 457 U.S., at 221 (emphasis added).
  78. St. Clair, supra note 76, at 6.
  79. Plyler v. Doe, 457 U.S. 202, 219 (1982).
  80. Wisconsin v. Yoder 406 U.S. 205 (1972) (emphasis added).
  81. Yoder, 406 U.S. at 238 (White, J., concurring).
  82. St. Clair, supra note 76, at 86-87; see, e.g., Plyler, 457 U.S. 202; Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Yoder, 405 U.S. 205.
  83. Brown, 347 U.S. at 691.
  84. Oh Dae Kwon et al., Effect of Illiteracy on Neuropsychological Tests and Glucose Metabo­lism of Brain in Later Life, 22 J. Neuroimaging 292, 292 (2012); Karl Magnus Petersson et al., Cognitive Processing in Literate and Illiterate Subjects: A Review of Some Recent Behavioral and Functional Neuroimaging Data, 42 Scandinavian J. Psychol. 251, 251 (2001); Alfredo Ardila et al., Illiteracy: The Neuropsychology of Cognition Without Reading, 25 Archives Clinical Psychol. 689, 693 (2010).
  85. Ardila, supra note 84, at 696; see also St. Clair, supra note 76, at 25.
  86. “Phonological processing is an auditory processing skill. It relates to words, but occurs in the absence of print. It involves detecting and discriminating differences in phonemes or speech sounds under conditions of little or no distraction or distortion . . . . Working memory is the system responsible for the transient holding and processing of new and already stored-information and is an important process for reasoning, comprehension, learning and memory updating.” Ardila, supra note 84, at 696; Illiterate adults perform more poorly than schooled literates on neuropsychological memory measures such as wordlist learning and recall, story learning and recall, verbal paired associates, digits backwards, number-months, and complex figure drawing. Id. at 699–700.
  87. Id. at 703–04.
  88. Id. at 705–06; Aphasia is a communication disorder that results from damage or injury to language parts of the brain. It’s more common in older adults, particularly those who have had a stroke. Aphasia gets in the way of a person’s ability to use or understand words. Aphasia does not impair the person’s intelligence. People who have aphasia may have difficulty speaking and finding the right words to complete their thoughts. They may also have problems understanding conversation, reading and comprehending written words, writing words, and using numbers. An Overview of Aphasia, WebMD, (last visited May 3, 2016).
  89. Letter Naming Fluency is a standardized, individually administered test that provides a measure of risk and is based on research by Marston and Magnusson. Students are presented with a page of upper- and lower-case letters arranged in a random order and are asked to name as many letters as they can. If they do not know a letter, the examiner provides the name of the letter. The student is allowed 1 minute to produce as many letter names as he/she can, and the score is the number of letters named correctly in 1 minute. Students are considered at risk for difficulty achieving early literacy benchmark goals if they perform in the lowest 20 percent of students in their district. Students are considered at some risk if they perform between the 20th and 40th percentile using local norms. Students are considered at low risk if they perform above the 40th percentile using local norms. DIBELS Letter Naming Fluency, University of Oregon, (last visited May 3, 2016).
  90. Metalinguistic skills “involve the awareness and control of linguistic components of language. Simply put, it implies the ability to think and discuss language. These skills require an awareness of others as listeners and an ability to recognize significant details that indicate changes in speech.” Katy Connolly, What Are Metalinguistic Skills and What Do They Look Like in My Child?, Northern Shore Pediatric Therapy (Mar. 25, 2013),
  91. St. Clair, supra note 76, at 91–92.
  92. Ardila, supra note 84, at 697.
  93. Visuaspatial and visuoconstructional ability involves the “perception of spatial aspects of visual stimuli” and the ability to build, assemble, or draw objects. Shari R. Waldstein, Health Effects on Cognitive Aging, in The Aging Mind: Opportunities in Cognitive Research 206 (Paul C. Stern & Laura L. Carstensen eds., 2000).
  94. Verbal memory coding refers to the interpretation of verbal stimuli. Andreas Jansen et al., Assessment of Verbal Memory by fMRI: Lateralization and Functional Neuroanatomy, 111 Clin. Neurol. Neurosurg. 57, 57–58 (2009).
  95. Visual memory coding is the “process of encoding images and visual sensory information” into one’s memory. Luke Mastin, Memory Encoding, (last visited May 3, 2016).
  96. “Metalinguistic awareness (MA) is defined as an awareness or bringing into explicit consciousness of linguistic form and structure in order to consider how they relate to and produce the underlying the meaning of utterances. MA is also termed metalinguistic ability. The construct describes the ability to make language forms objective and explicit and to attend to them in and for themselves. MA is the ability to view and analyze lan­guage as a ‘thing,’ language as a ‘process,’ and language as a ‘system.’” Jill Kerper Mora, Metalinguistic Awareness As Defined Through Research, San Diego State University 1, (last visited Dec. 10, 2016).
  97. Ardila, supra note 84, at 701–02.
  98. See supra note 90 and accompanying text.
  99. Ardila, supra note 84, at 702.
  100. Verbal fluency is a “cognitive function that facilitates information retrieval from memory. Successful retrieval requires executive control over cognitive processes such as selective attention, selective inhibition, mental set shifting, internal response generation, and self-monitoring.” Janet Paterson, Verbal Fluency, in Encyclopedia of Clinical Neuropsy­chology 2603, 2603 (Jeffrey S. Kreutzer et al. eds., 2011).
  101. Semantic verbal fluency refers to cognitive function that facilitates phonemic retrieval of words from language, which requires people to access their mental lexicon and involves executive control processes. “[S]erious deficits in either verbal ability or executive control should manifest themselves in poor performance in the fluency tasks. Therefore, the fluency tasks can be used as an efficient screening instrument of general verbal functioning.” Zeshu Shao et al., What Do Verbal Fluency Tasks Measure? Predictors of Fluency Performance in Older Adults, ­5 Frontiers In Psychol. 1, 1 (2014).
  102. Phonemic verbal fluency refers to cognitive function that facilitates retrieval from memory, such as words that begin with certain letters. Claudia Rodriguez-Aranda & Monica Martinussen, Age-Related Differences in Performance of Phonemic Verbal Fluency Measured by Controlled Oral Word Association Task (COWAT): A Meta-Analytic Study, 30 Developmental Neuropsychology 697, 697–98 (2006).
  103. “Executive functions (EFs) make possible mentally playing with ideas; taking the time to think before acting; meeting novel, unanticipated challenges; resisting temptations; and staying focused. Core EFs are inhibition [response inhibition (self-control—resisting temptations and resisting acting impulsively) and interference control (selective attention and cognitive inhibition)], working memory, and cognitive flexibility (including creatively thinking ‘outside the box,’ seeing anything from different perspectives, and quickly and flexibly adapting to changed circumstances).” Adele Diamond, Executive Functions, 64 Annu. Rev. Psychol. 135, 136 (2013).
  104. Plyler v. Doe, 457 U.S. 202, 219 (1982) (emphasis added).
  105. St. Clair, supra note 76, at 100.
  106. Id. at 109.
  107. Id. at 99.
  108. Id. at 106, (citing Stephen Reder & John Bynner, Tracking Adult Literacy and Numeracy: Findings from Longitudinal Data 1 (2009)).
  109. Marianne McTavish, ‘I Get My Facts from the Internet’: A Case Study of the Teaching and Learning of Information Literacy in In-School and Out-Of-School Contexts, 9 J. Early Childhood Literacy 3, 5 (2009).
  110. St. Clair, supra note 76, at 112.
  111. Id. at 112.
  112. Id. at 114.
  113. Id. at 109 (citing Richard Blundell et. al., Human Capital Investment: The Returns from Education and Training to the Individual, the Firm and the Economy, 20 Fiscal Stud. 1, 17 (1999)).
  114. Id. at 114.
  115. Id. at 101 (citing Irwin Kirsch et al., America’s Perfect Storm: Three Forces Changing Our Nation’s Future 4 (2007)).
  116. Irwin Kirsch et al., America’s Perfect Storm: Three Forces Changing Our Na­tion’s Future 3 (2007).
  117. Zelman v. Simmons-Harris, 536 U.S. 639, 683–84 (2002) (Thomas, J., concurring).
  118. Plyler v. Doe, 457 U.S. 202, 222 (1982).
  119. See, e.g., Alliance for Excellent Education, Saving Futures, Saving Dollars: The Impact of Education on Crime Reduction and Earning 3 (2013) (finding a direct correlation between lower-educational achievement and increased arrest/incarceration rates).
  120. Ruben Rosario, Ruben Rosario: Troubled Youths Get a Message of Hope, Pioneer Press, (Nov. 12, 2015)
  121. See id.
  122. Brief for Amici Curiae at 9, A.M. v. Holmes, 830 F.3d 1123 (10th Cir. 2016) (Nos. 14-2066), *9 (citing Human Impact Partners, Health Impact Assessment of School Discipline Policies 2 (2013)).
  123. See, e.g., Weili Ding et al., The Impact of Poor Health on Education: New Evidence Using Genetic Markers, 28 J. Health & Econ. 578, 595–96 (2008) (finding that depression and obesity both lead to a decrease of 0.45 GPA points on average).
  124. St. Clair, supra note 76, at 99–100.
  125. Kirsch et al., supra note 116, at 17.

126  Richard Blundell et. al., Human Capital Investment: The Returns from Education and Training to the Individual, the Firm and the Economy, 20 Fiscal Stud. 1, 17 (1999); St. Clair, supra note 76, at 108–09.

  1. St. Clair, supra note76,at 110.
  2. Kirsch et al., supra note 116, at 18.
  3. St. Clair, supra note 76, at 118.
  4. Id. at 119-20 (citing Don Nutbeam, Literacies Across the Lifespan: Health Literacy, 9 Literacy & Numeracy Stud. 47, 47–55 (1999)).
  5. Id. at 124 (“[P]eople with lower numeracy skills find it harder to make the right health choices in the face of quantitative information.”).
  6. Id. at 118 (citing John Bynner et al., Improving Adult Basic Skills: Benefits to the Individual and to Society 7 (2001)).
  7. Id. at 117 (citing Leon Feinstein et al., The Social and Personal Benefits of Learning: A Summary of Key Research Findings 10 (2008)).
  8. Leon Feinstein et al., The Social and Personal Benefits of Learning: A Sum­mary of Key Research Findings 10–11 (2008).
  9. St. Clair, supra note 76, at 119–20 (citing Petter Lundborg, The Health Returns to Education: What Can We Learn from Twins? 21 (2008)).
  10. Id. (citing Petter Lundborg, The Health Returns to Education: What Can We Learn from Twins? 21 (2008)).
  11. Id. at 118 (citing John Bynner et al., Improving Adult Basic Skills: Benefits to the Individual and to Society 9 (2001)).
  12. Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).
  13. St. Clair, supra note 76, at 135 (citing Samantha Parsons & John Brynner, Illumi­nating Disadvantage: Profiling the Experiences of Adults with Entry Level Literacy or Numeracy over the Lifecourse 65–77 (2007)).
  14. Id. at 138.
  15. Id. at 138 (citing Denny Taylor, Family Literacy: Young Children Learning to Read and Write (1993) (“Growing up in an environment where literacy is the only op­tion, they learned of reading as one way of listening, and of writing as one way of talking. Literacy gave the children both status and identity as it became the medium of shared experience; it facilitated the temporal integration of their social histories as the highly valued artifacts of family life became the prized commodity of the schools”)).
  16. See infra, part (A)(d)(2).
  17. St. Clair, supra note 76, at 135 (citing Greg Brooks et al., Effective and Inclusive Practices in Family Literacy, Language and Numeracy: A Review of Programmes and Practice in the UK and Internationally 12 (2008)).
  18. Id. at 136 (citing Feinstein et al., The Social and Personal Benefits of Learning: The Social and Personal Benefits of Learning: A Summary of Key Research Findings 11 (2008)).
  19. Plyler v. Doe, 457 U.S. 202, 219 (1982).
  20. Cox v. Louisiana, 379 U.S. 558, 574 (1964).
  21. De Jonge v. Oregon, 299 U.S. 353, 365 (1937).
  22. Reynolds v. Sims, 377 U.S. 533, 562 (1964); Bush v. Gore, 531 U.S. 98, 107 (2000).
  23. Plyler, 457 U.S. at 221 (citing Wisconsin v. Yoder, 406 U.S. 205, 221 (1972)).
  24. Id. at 222–23 (quoting Brown v. Board of Education of Topeka, 347 U.S. 483, 691 (1954)) (emphasis added).
  25. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 512 (1969).
  26. Id.
  27. Brown, 347 U.S. at 493.
  28. Katzenbach v. Morgan, 384 U.S. 642, 655 (1966).
  29. Ambach v. Norwick, 441 U.S. 68, 77 (1979)
  30. Plyler v. Doe, 457 U.S. 202, 221 (1982) (quoting Abington School District v. Schempp, 374 U.S. 203, 230 (1963)) (emphasis added).
  31. Board of Education v. Pico, 457 U.S. 853, 867–68 (1982); See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986) (“[P]ublic education must prepare pupils for citizen­ship in the Republic . . . . It must inculcate the habits and manners of civility as values in themselves conductive to happiness and as indispensable to the practice of self-government in the community and the Nation.”) (alteration in original); Healy v. James, 408 U.S. 19, 180–81 (1972) (“[t]he vigilant protection of constitutional freedom is nowhere more vital than in the community of American schools.”) (alteration in original).
  32. Cohen v. California, 403 U.S. 15, 24 (1971).
  33. Stanley v. Georgia, 394 U.S. 557, 564 (1969).
  34. Pico, 457 U.S. at 867 (“[T]he Constitution protects the right to receive information and ideas . . . .”).
  35. FCC v. Pacifica Foundation, 438 U.S. 726, 760 (1996) (Powell, J., concurring). Pacifica involved an FCC order declaring that the radio station “Pacifica” “could have been subject of administrative sanctions” for playing the monologue of a comedian who listed and repeated over and over again a certain set of “filthy words”—words “you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say, ever.” Id. at 729–30.
  36. St. Clair, supra note 76, at 93.
  37. Id. at 138 (citing Denny Taylor, Family Literacy: Young Children Learning to Read and Write (1984)) (“Growing up in an environment where literacy is the only op­tion, they learned of reading as one way of listening, and of writing as one way of talking. Literacy gave the children both status and identity as it became the medium of shared experience; it facilitated the temporal integration of their social histories as the highly valued artifacts of family life became the prized commodity of the schools.”).
  38. Internet Gains on Television as Public’s Main News Source: More Young People Cite Inter­net than TV, PewResearchCenter (Jan. 4, 2011),
  39. Id.
  40. Home Computer Access and Internet Use, Child Trends Databank 2 (Dec. 2015),
  41. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 533–34 (2009) (Thomas, J., concurring).
  42. Reno v. American Civil Liberties Union, 521 U.S. 844, 885 (1997).
  43. Id.
  44. McTavish, supra note 109, at 6.
  45. Board of Education v. Pico, 457 U.S. 853 (1982); see McTavish, supra note 109, at 5 (“What appears to be crucial for success . . . are ‘the abilities to “read” a range of printed, electronic and visual texts; master the new communication technologies via spoken and written language; locate, manage, evaluate and use information or knowledge; and engage critically with media and other texts.”).
  46. McTavish, supra note 109, at 5–6.
  47. Julie Coiro, Exploring Literacy on The Internet: Reading Comprehension on the Internet: Expanding Our Understanding of Reading Comprehension to Encompass New Literacies Reading, 56 The Reading Teacher 458, 458 (2003).
  48. McTavish, supra note 109, at 6.
  49. Every minute there are 571 new websites created, 1.8 million new likes on Facebook, 204 million emails sent, and 278,000 tweets created. Revealed, What Happens in Just ONE Minute on the Internet: 216,000 Photos Posted, 278,000 Tweets and 1.8m Facebook Likes, (July 30, 2013),
  50. Supra note 162.
  51. Board of Education v. Pico, 457 U.S. 853, 868 (1982).
  52. Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).
  53. Edward Finegan, Language: Its Structure and Use 505 (Karen Judd ed., 5th ed. 2008).
  54. Douglas v. People of State of Cal., 372 U.S. 353, 355 (1963); see also Griffin v. Illinois, 76 S. Ct. 585, 591 (1956) (“There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”).
  55. Reece v. Georgia, 350 U.S. 85, 90 (1955).
  56. Lewis v. Casey, 518 U.S. 343, 344 (1996) (citing Bounds v. Smith, 430 U.S. 817 (1977)).
  57. Id. (“Only one named plaintiff, Bartholic, was found to have suffered actual injury—as a result of [Arizona Department of Corrections’] failure to provide the special services he would have needed, in light of his particular disability (illiteracy), to avoid dismissal of his case.”) (emphasis added); see also Glenn v. Secretary of Health and Human Services, 814 F.2d 837 (7th Cir. 1987) (holding that claimant, who could perform sedentary work, was not “illiterate,” and was thus not entitled to disability benefits).
  58. Supra note 75 and accompanying text.
  59. See Kenji Yoshino, The Supreme Court, 2014 Term – Comment: A New Birth of Freedom?: Obergefell v. Hodges, 129 Harv. L. Rev. 147, 168, 173–75 (2015).
  60. Obergefell v. Hodges, 135 S.Ct. 2584, 2604 (2015).
  61. Id. at 2603.
  62. Id. at 2604 (citing M.L.B. v. S.L.J., 519 U.S. 102, 119–24 (1996)).
  63. Id. (citing Eisenstadt v. Baird, 405 U.S. 438, 446–54 (1972)).
  64. Id. (citing Skinner v. Oklahoma, 316 U.S. 535, 538–43 (1942)).
  65. Id. at 2584.
  66. See, e.g., Laurence Tribe, Equal Dignity: Speaking its Name, 129 Harv. L. Rev. Forum 16 (2015); Kenji Yoshino, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 Yale L.J. 1694, 1738 (2008) (“Dignity in these passages is concerned with respect, honor, and social standing, and concerns the right of persons to be respect as an equal member of the polity rather than denigrated, subordinated, or excluded.”).
  67. See Gertz v Welch, 418 U.S. 323 (1974) (emphasis added).
  68. Wisconsin v. Constantineau, 400 U.S. 433, 510 (1971).
  69. Lawrence v. Texas, at 539 U.S. 558, 575 (2003).
  70. U.S. v. Windsor, 133 S. Ct. 2675, 2681 (2013).
  71. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
  72. Lawrence, 539 U.S. at 573 (2003) (quoting Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992)) (emphasis added).
  73. Id. at 558.
  74. Obergefell, 135 S. Ct. at 1599 (emphasis added).
  75. McNabb v. U.S., 318 U.S. 332, 342 (1943).
  76. Romer v. Evans, 512 U.S. 620, 625 (1996).
  77. See Romer, 512 U.S. 620; Lawrence, 539 U.S. 558; Obergefell, 135 S. Ct. 2584.
  78. Lawrence, 539 U.S. 558, 574 (2003) (quoting Planned Parenthood of Southern Pennsylvania v. Casey, 505 U.S. 833, 851 (1997)).
  79. Id. at 562 (emphasis added).
  80. See Obergefell v. Hodges, 135 S. Ct. 2584, 2584 (2015) (“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”).
  81. Id.
  82. Obergefell, 135 S. Ct. at 2594.
  83. U.S. v. Windsor, 133 S. Ct. 2675, at 2691 (2013).
  84. Obergefell, 135 S. Ct. at 2595.
  85. Id. at 2600.
  86. 558 U.S. 310.
  87. Plyler v. Doe, 457 U.S. 202, 223 (1982) (emphasis added).
  88. See supra Part (A)(2)(a)(1).
  89. Plyler, 457 U.S. at 219.
  90. See Roe v. Wade, 410 U.S. 113 (1973).
  91. See Washington v. Glucksberg, 521 U.S. 702 (1997) (holding there is a fundamental right to refuse life-saving treatment).
  92. Planned Parenthood v. Casey, 505 U.S. 833, 852 (1992).
  93. Supra Part (A)(2)(a)(1).
  94. Lawrence, 539 U.S. at 574.
  95. St. Clair, supra note 76, at 94.
  96. Supra note 139.
  97. Regents of Univ. of California v. Bakke, 438 U.S. 265, 387-88 (1978) (“Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slav­ery. Uprooted from his homeland and thrust into bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of his master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave.”) (emphasis added); see also South Carolina v. Katzenbach, 383 U.S. 301, 310–12 (1966) (“[A]s of 1890 in . . . States [with literacy tests], more than two-thirds of the adult Negroes were illiterate while less than one-quarter of the adult whites were unable to read or write,” because “[p]rior to the Civil War, most of the slave States made it a crime to teach Negroes how to read or write.”).
  98. See, e.g., Katzenbach v. Morgan, 86 S. Ct. 1717, 1725 (1966); see also Oregon v. Mitchell, 400 U.S. 112, 216 (1970) (“Congress could have determined that racial prejudice is prevalent throughout the Nation, and that literacy tests unduly lend themselves to discriminatory application, either conscious or unconscious.”); Id. at 147 (Douglas, J., concurring in part) (“[Literacy tests] have been used at times as a discriminatory weapon against some minorities, not only Negroes but Americans of Mexican ancestry and American Indians.”).
  99. Brown v. Board of Education of Topeka, 347 U.S. 483, 691 (1954).
  100. San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 37 (1973) (“Furthermore, the logi­cal limitations on appellees’ nexus theory are difficult to perceive. How, for instance, is education to be distinguished from the significant personal interests in the basis of decent food and shelter? Empirical examination might well buttress an assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process, and that they derive the least enjoyment from the benefits of the First Amendment.”) (footnote omitted).
  101. Plyler v. Doe, 457 U.S. 202, 221 (1982) (citing Wisconsin v. Yoder, 406 U.S. 205, 221 (1972)).
  102. Rodriguez, 411 U.S. at 12.
  103. CPI Inflation Calculator,, (last visited on Dec. 10, 2016).
  104. Brief for Appellees at 17, San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) (No. 71-1332), 1971 WL 134333, at *17.
  105. Id. at *18.
  106. Id. at *19.
  107. Appellants argued that this evidence constituted hearsay. Id. at *8.
  108. Brief for Appellants at 38, San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) (No. 71-1332), 1971 WL 137565 at *38.
  109. Reply Brief for Appellants at 15–16, San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) (No.71-1332), 1971 WL 136439, at *15–16.
  110. Ambach v. Norwick, 441 U.S. 68 (1979).
  111. Id. at 86.
  112. Id. 77.
  113. Id. 78–79.
  114. Id. 79.
  115. Id.
  116. Id. 78.
  117. Columbia Falls Elm. Sch. Dist. 6 v. State, 109 P.3d 257, 262 (Mont. 2005); Miller v. Korns, 140 N.E. 773, 776 (Ohio 1923).
  118. Miller v. Childers, 238 P. 204, 206 (Okla. 1924); Pauley v. Kelley, 255 S.E.2d 859, 877 (W.V. 1979).
  119. DeRolph v. State, 677 N.E.2d 773 (Ohio 1997).
  120. Peter Blatchford et al., Examining the Effect of Class Size on Classroom Engagement and Teacher–Pupil Interaction: Differences in Relation to Pupil Prior Attainment and Pri­mary vs. Secondary Schools, 21 Learning & Instruction 715, 715 (2011) [hereinafter Teacher-Pupil Interaction]
  121. William L. Sanders & June C. Rivers, Research Progress Report: Cumulative and Residual Effects of Teachers on Future Student Academic Achievement, University of Tennessee Value-Added Research and Assessment Center 6 (Nov. 1996), http://beteronderwi­; see c.f. Jonah E. Rockoff, The Impact of Individual Teachers on Student Achievement: Evidence from Panel Data, 94 Am. Econ. Rev. 247, 251 (2004) (suggesting that raising teacher quality is a “key instrument in improving student outcomes.”); Elizabeth Leisy Stosich, Teaching and Teacher Education: Building Teacher and School Capacity to Teach to Ambitious Standards in High-Poverty Schools, 58 Teaching and Teacher Educ. 43, 44 (2016) (“Mounting evidence suggests that teachers have the largest effect on student achievement of any school-based factor and that this effect is especially pronounced for low-income students . . . .”) (citations omitted).
  122. Sanders & Rivers, supra note 254, at 6; see Rockoff, supra note 254, at 251 (“There is already substantial evidence that principals’ opinions of teacher quality are highly cor­related with student test scores.”) (citations omitted).
  123. Sanders & Rivers, supra note 254, at 7.
  124. Id.
  125. Rockoff, supra note 254, at 251.
  126. James Cowan & Dan Goldhaber, National Board Certification and Teacher Effectiveness: Evidence from Washington State, 9 J. Res. Educ. Effectiveness 233, 233 (2016).
  127. Seth Gershenson, Linking Teacher Quality, Student Attendance, and Student Achievement, 11 Educ. Fin. & Pol’y 125 (2016) (suggesting that teachers have statistically significant effects on student absences by affecting student attitudes and preferences).
  128. Teacher-Pupil Interaction, supra note 253, at 717.
  129. C.f. id. (citing J.D. Finn et al., The “Why’s” of Class Size: Student Behavior in Small Classes, 73 Rev. Educ. Res. 321 (2003)); H.M. Cooper, Does Reducing Student-to-Teacher Rations Affect Achievement?, 24 Educ. Psychologist 79 (1989).
  130. Peter Blatchford et al., Teachers’ and Pupils’ Behavior in Large and Small Classes: A Systematic Observation Study of Pupils Aged 10/11 Years, 97 J. Educ. Psychol. 454 (2005).
  131. Teacher-Pupil Interaction, supra note 253, at 723 (“The results for secondary pupils indi­cated that . . . [a] five pupil increase in class size was associated with the odds of on task behavior decreasing by almost a quarter.”)
  132. Id. at 725.
  133. Id.
  134. Id.
  135. Id. at 726.
  136. Id. at 727.
  137. C.f. Swann v. Charlotte-Mcklenburg Bd. of Ed., 402 U.S. 1, 2 (1971); Milliken v. Bradley, 433 U.S. 267, 283 (1977); Missouri v. Jenkins, 515 U.S. 70, 89 (1995).
  138. Swann, 402 U.S. at 18.
  139. Roosevelt Elementary Sch. Dist. v. Bishop, 950 P.2d 1141 (Ariz. 1997).
  140. Id.
  141. Miller v. Korns, 140 N.E. 773, 776 (Ohio 1923).
  142. DeRolph v. State, 667 N.E.2d 773 opinion clarified, 678 N.E.2d 886 (1997) and order clarified 669 N.E.2d 518 (1995) (emphasis added).
  143. CCJEF v. Rell, 990 A.2d 206, 2015 (Conn. 2010).
  144. Abbott by Abbott v. Burke, 693 A.2d 417, 437 (N.J. 1997).
  145. Abbott by Abbott v. Burke, 710 A.2d 450, 473 (N.J. 1998).
  146. Columbia Falls Elm. Sch. Dist. 6 v. State, 109 P.3d 257, 262 (Mont. 2005).
  147. Pauley v. Kelly, 255 S.E.2d 859, 877 (1979).
  148. Affective learning refers to “an increasing internalization of positive attitudes toward the content or subject matter,” while psychomotor learning refers to “physical skills such as speed, dexterity, grace, use of instruments, expressive movement, and use of the body in dance or athletics.” Alfred P. Rovai et al., Development of an Instrument to Measure Perceived Cognitive, Affective, and Psychomotor Learning in Traditional and Virtual Classroom Higher Education Settings, 12 Internet & Higher Educ. 7, 8 (2009).
  149. C.f. Haastrup Timilehin Ekundayo, School Facilities as Correlates of Students’ Achieve­ment in the Affective and Psychomotor Domains of Learning, 8 European Scientific J. 208, 211–13 (2012).
  150. Mark Schneider, Do School Facilities Affect Academic Outcomes?, Nat’l Clearinghouse for Educ. Facilities 16–17 (Nov. 2002),
  151. Id. at 2 (citing G. Smedje & D. Norback, The School Environment: Is It Related to the Incidence of Asthma in the Pupils?, 5 Indoor Air ’99 445 (1999); K. G. Rosen & G. Richardson, Would Removing Indoor Air Particulates in Children’s Environments Reduce Rate of Absenteeism–A Hypothesis, 234 Sci. Total Env’t 87 (1999); Environmental Protection Agency, Indoor Air Quality and Student Performance, EPA Report Number EPA 402-F-00-009 (2000),; American Lung Association, Asthma in Children Fact Sheet (2002),
  152. Id. at 3 (citing David Harner, Effects of Thermal Environment on Learning Skills, 12 Educ. Facility Planner 4 (1974); D. P. Wyon et al., The Effects of Moderate Heat Stress on Mental Performance, 5 Scandinavian J. Work Env’t & Health 352 (1979)).
  153. Id.
  154. Id. at 6 (citing J. King & R. W. Marans, The Physical Environment and the Learn­ing Process, Report Number 320-ST2 (1979); C. McGuffey, Facilities, in Improving Educational Standards and Productivity: The Research Basis for Policy (H. Waldberg ed., 1982)).
  155. Id. (citing Heschong Mahone Group, Daylighting in Schools: An Investigation into the Relationship Between Daylighting and Human Performance, Pacific Gas and Electric (Aug. 20, 1999),; J. M. Lowe, The Interface Between Educational Facilities and Learning Climate in Three Elementary Schools (1990) (Ph.D. dissertation, Texas A&M University) (on file with author)) (“[P]roblems caused by working conditions may result in higher absenteeism, reduced effort, lower effectiveness in the classroom, low morale, and reduced job satisfaction.”).
  156. Id. (citing Heschong Mahone Group, Daylighting in Schools: An Investigation into the Relationship Between Daylighting and Human Performance, Pacific Gas and Electric (Aug. 20, 1999), (indicating that students with the most classroom daylight progressed twenty percent faster in one year on math tests and twenty-six percent faster on reading tests than those students who learned in environments that received the least amount of natural light); see also id. (citing P. Plympton et al., Daylighting in Schools: Improving Student Performance and Health at a Price Schools Can Afford (June 16, 2000) (paper presented at the American Solar Energy Society Conference), available at
  157. Id. at 6–7 (citing G. Earthman & L. Lemasters, Where Children Learn: A Discussion of How a Facility Affects Learning (Feb. 1998) (paper presented at the annual meeting of Virginia Educational Facility Planners)).
  158. Id. at 7 (citing K. Fisher, A Critical Pedagogy of Space (2000) (Ph.D. dissertation, Uni­versity of South Australia) (on file with author)).
  159. Id.
  160. Id.
  161. Id. at 8 (citing C. McGuffey, Facilities, in Improving Educational Standards and Productivity: The Research Basis for Policy (H. Waldberg ed. 1982); G. Earthman & L. Lemasters, Review of Research on the Relationship Between School Buildings, Student Achievement, and Student Behavior (Oct. 1996) (paper presented at the annual meeting of the Council of Educational Facility Planners International); G. Earthman & L. Lemasters, Where Children Learn: A Discussion of How a Facility Affects Learning (Feb. 1998) (paper presented at the annual meeting of Virginia Educational Facility Planners)).
  162. Id. at 8 (citing R. Phillips, Educational Facility Age and the Academic Achievement of Upper Elementary School Students (1997) (D. Ed. dissertation, University of Georgia) (on file with author); M. Edwards, Building Conditions, Parental Involvement and Student Achievement in the D.C. Public Schools (1992) (M.A. thesis, Georgetown University) (on file with author)).
  163. Id. at 9 (citing C. McGuffey, Facilities, in Improving Educational Standards and Productivity: The Research Basis for Policy (H. Waldberg ed. 1982)).
  164. Id. at 9 (citing PricewaterhouseCoopers, Building Performance: An empirical Analysis of the Relationship Between Schools’ Capital Investment and Pupil Performance (2001)).
  165. Jared Robinson et al., The Impact of Open Textbooks on Secondary Science Learning Outcomes, 43 Educ. Researcher 341, 341 (2014).
  166. See Daniel Attakumah & Vincent Tulasi, Relationship Between Textbook Availability and Academic Achievement in Public Senior High Schools in the Volta Region, 5 JEPPA 1, 1 (2015).
  167. Id.
  168. See id. (citing Jerry G. Gebhard, Teaching English as a Foreign or Second Lan­guage (1996)).
  169. Id.
  170. Id. at 2; see also id. at 3 (suggesting that the presence of textbooks increases student achieve­ment) (citing Dean T. Jamison et al., Improving Elementary Mathematics Education in Nicaragua: An Experimental Study of the Impact of Textbooks and Radio on Achievement, 73 J. Educ. Psychol. 556 (1981)); id. (finding that students’ achievement test scores in science, mathematics, and language are strongly linked to being in classes with textbooks); id. at 16 (finding a “significant relationship” between core subject textbook availability and public senior high school academic achievement in core subjects).
  171. Robinson et al., supra note 298, at 343.
  172. Elissa Alsafran & Davis S. Brown, The Relationship Between Classroom Computer Technology and Students’ Academic Achievement, 15 Res. Higher Educ. J. 1, 5 (2012).
  173. Id. at 6.
  174. Id. at 5–6.
  175. Id. at 12. Although this study revealed that, in the U.S., there is no relationship between technology in classrooms and students’ academic achievement, the authors clarified that the result was the result of the fact that technology is improperly utilized as an instruction tool in math and science classrooms. Id.
  176. CCJEF v. Rell, 990 A.2d 206, 253 (Con. 2010) (emphasis added).
  177. Vincent v. Voght, 514 N.W.2d 388, 396 (N.D. 2000).
  178. Claremont School Dist. v. Governor, 142 N.H. 462, 474 (N.H. 1997).
  179. Seattle Sch. Dist. No. 1. v. State, 585 P.2d 71, 94–95 (Wash. 1978).
  180. Blinderman, supra note 30, at 10–11; see also Best, supra note 26, at 9 (“Franklin never confused the progress sin material things with the improvement of man’s character. The one may aid the other, but they are not equated in Franklin’s thinking.”).


Malhar Shah is a third-year student at Harvard Law School who received his bachelor’s degree from the University of California, Riverside. For providing unbelievable inspiration and support, I am incredibly grateful to Mark Rosenbaum, Anne Hudson-Price, Kathryn Eidmann, and Alisa Hartz. For his essential historical insight into founding-era thoughts and sentiments, I am incredibly grateful to Jorge Gomez. And for providing thought provoking feedback on previous drafts I am indebted to Ryan Cohen, Nathan Goetting David Grespass, Kathryn Taylor, Meredith Osborne, and Amanda Goetting. The errors are mine. Finally, this article is dedicated to my best friend Sebastian Cy Gomez, whose education was unfortunately cut short. May he rest in peace.

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