Thursday, April 06, 2006

William Taylor

With respect to education as a fundamental right, even as a congenital optimist, I do not see any likelihood that in the foreseeable future the federal courts would revisit the Rodriguez conclusion that education, while terribly important, was not fundamental. I leave it to others to figure out whether elevating education to fundamental right status is the key to winning more state cases. I do think that the some of the members of the Rodriguez court were troubled by the notion that other kinds of service also had a claim to be fundamental (e.g. police and fire services as necessary to preserve life, etc.) and that going down that road might enmesh the judiciary in supervising the state appropriations process. I also think that Justice White (with his highly developed sense of rationality) was correct in concluding that the Texas system did not meet a rational basis test. (These days of course the activist right on the court will throw out legislation it doesn’t like without having any defensible standard.)

I do have one putatively constructive suggestion. I along with a couple of others, was responsible for drafting and inserting into the No Child Left Behind Act a provision which places on the State the responsibility of ensuring that LEAs and schools have the capacity to carry out their education duties under the Act. For example, States must describe the specific steps they will take “to ensure that poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out of field teachers…”

I believe there is no more important facet of equity than that suggested above. I also believe that the provision is and will be widely flouted by States and that there is no clear path to remedy because the act does not specify a right of action by private parties. So my hope is that all the great minds assembled a this conference will figure out ways to make this promise of equality (or something very close) a reality.

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