Conventional wisdom frames the “right to education” as a question of whether the federal Constitution guarantees adequate public-school funding; on that view, after Rodriguez, the United States lacks such a right. That framing misdescribes the legal order and flattens what courts and legislatures already do: It ignores state constitutional duties to maintain systems of public schools, the judicially enforceable quality baselines that many states have articulated, federal nondiscrimination guarantees, and a century of parental-liberty jurisprudence.
This Article reconstructs a conditions-based right to education grounded in American positive law and organized around four pillars: access to free and compulsory schooling, baseline quality standards, parental liberty to select lawful educational forms, and equal, nondiscriminatory treatment. This claim does not posit a new federal cause of action; it uses international human rights norms as a descriptive yardstick—particularly the 4-A criteria of availability, accessibility, acceptability, and adaptability—rather than binding law, for evaluating those conditions in the United States. Doctrinally, this Article integrates state adequacy rulings with private options, and clarifies limits grounded in neutral, generally applicable curricular standards and compulsory attendance. Practically, it offers a framework to assess state compliance and a policy blueprint that aligns funding, quality, equality, and pluralism. Reframing the inquiry from “is there a federal right?” to “are the conditions for a right to education secured in America?” shows that the United States already implements much of a holistic right to education—and identifies the concrete gaps jurisdictions must close to complete it.
* Assistant Professor of Law, University of St. Thomas School of Law, Minnesota. This Article was written and edited while I served as Visiting Assistant Professor of Law and Rodes Fellow in the Church, State & Society Program at Notre Dame Law School, and later as Olin-Searle Fellow in Law at Yale Law School. I am grateful for helpful feedback from Fr. Matthew Kuczora and Professors Richard Albert, Samuel L. Bray, Nicole Garnett, Marah McLeod, Jeff Pojanowski, Haley Proctor, Gabriel Rauterberg, Sebastián Salazar, and Julian Velasco. I also thank the participants at the Stanford Constitutional Law Center Work in Progress Conference (January 2025). Special thanks to Emmet Guillen for his excellent research assistance.
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