Stanford Law Review Volume 70 March 2018 ARTICLE The Constitutional Compromise to Guarantee Education Derek W. Black* Abstract. Although the U.S. Supreme Court refused to recognize education as a fundamental right in San Antonio Independent School District v. Rodriguez, the Court in several other cases has emphasized the possibility that the Constitution might afford some protection for education. New litigation is attempting to fill that void. This litigation comes at a perfect time. Segregation, poverty, and achievement gaps are all rising, while state courts and federal agencies have recently retreated from enforcing educational equity. New litigation, however, has yet to offer a theory of why the Constitution should protect students’ educational rights, relying instead on the fact that the Court has consistently emphasized the importance of education. Prompting a significant doctrinal shift to protect education will require more than laudatory dicta. It will require a compelling affirmative constitutional theory. This Article offers that theory. It demonstrates that the Framers of the Fourteenth Amendment specifically intended to guarantee education as a right of state citizenship. This simple concept was obscured by the unusually complex ratification of the Amendment. First, the Amendment required the assent of Confederate states that were no longer part of the Union. Second, Congress expressly indicated that it would not readmit those states to the Union until they ratified the Fourteenth Amendment and rewrote their state constitutions. Third, education was part of the deal: Congress permitted states to retain discretion over education but expected state constitutions to affirmatively guarantee education. Through this process, education became an implicit right of the Fourteenth Amendment’s Citizenship Clause. As a right of state citizenship and consistent with historical practices * Professor of Law, University of South Carolina School of Law. I would like to thank Josh Eagle, Ben Means, Ned Snow, Josh Weishart, and my anonymous peer reviewers for their thoughtful comments and suggestions. I would also like to thank Susan DeJarnatt for allowing me to present my arguments to two different audiences at Temple University. The feedback I received was invaluable to both this project and a future one. Additionally, I would like to thank Daniel Farbman for suggestions on source materials. And I would like to thank Robert Wilcox for supporting my research and all the editors of the Stanford Law Review for their careful attention to detail and substance. 735 The Constitutional Compromise to Guarantee Education 70 STAN. L. REV. 735 (2018) and goals, this Article argues that the Fourteenth Amendment prohibits states from partisan and other illegitimate manipulations of educational opportunity. 736 The Constitutional Compromise to Guarantee Education 70 STAN. L. REV. 735 (2018) Table of Contents Introduction ............................................................................................................................................................ 738 I. Modern Dilemmas: Localism, Privilege, and Entrenchment ........................................... 748 A. The Danger of Localism .............................................................................................................. 749 B. Privileging the Majority ............................................................................................................. 752 C. Entrenching Power and Advantage ..................................................................................... 753 II. The Promises and Pitfalls of Prior Theories and Litigation .............................................. 755 A. Scholarly Attempts to Rework Rodriguez ......................................................................... 756 B. Scholarly Theories to Move Beyond Rodriguez ............................................................. 757 C. New Litigation Claims ................................................................................................................. 761 D. Limits of Current Strategies ..................................................................................................... 764 III. The Fourteenth Amendment’s Guarantee: Educated Citizens in a Republican Form of Government .............................................................................................................................. 765 A. Constitutionalizing Full Citizenship ................................................................................... 768 B. The Meaning of Full Citizenship: Status, Voting, and Education ....................... 772 C. Education, Readmission, and the Ratification of the Fourteenth Amendment........................................................................................................................................ 775 1. The educational imperative in the South ................................................................ 777 2. Conditions on Southern readmission to the Union .......................................... 778 3. Education as inherent in a republican form of government ........................ 781 4. The uniform inclusion of education clauses in Southern constitutions ............................................................................................................................ 783 5. A new nationwide consensus of the states emerges .......................................... 790 6. The constitutional, structural, and political virtues of an education compromise ............................................................................................................................. 794 7. Why the right has been overlooked .......................................................................... 797 IV. Protecting Citizens’ Education in a Republican Form of Government ............................. 800 A. Education as a Process-Based Constitutional Right .................................................... 802 B. State Constitutional Efforts to Shield Education from Manipulation ............. 808 1. Common school funds ....................................................................................................... 810 2. Isolating education from localized decisionmaking ......................................... 812 3. Uniform systems of education ...................................................................................... 813 C. Identifying Procedural Principles and Protections ...................................................... 816 1. Unstable funding ................................................................................................................... 816 2. Political manipulation and targeted disadvantage ............................................. 819 3. Systemic disadvantage ....................................................................................................... 824 D. Causes of Action and Congressional Power ..................................................................... 829 E. A Response to Doctrinal and Political Reservations ................................................... 833 Conclusion ............................................................................................................................................................... 836 737 The Constitutional Compromise to Guarantee Education 70 STAN. L. REV. 735 (2018) Introduction While desegregation,1 school funding litigation,2 and federal policy3 significantly reduced educational inequality during the second half of the twentieth century, that inequality has steadily increased ever since. The percentage of intensely racially segregated nonwhite schools, for instance, has more than tripled over the last twenty-five years.4 In 2013, low-income students became a majority in public schools for the first time in history.5 The average black student now attends a school where nearly 70% of her peers are poor—almost double the percentage from 1993.6 To make matters worse, in the past decade, states have drastically cut education funding—by more than 20% in some states.7 State supreme courts that previously intervened to block egregious cuts of this sort have largely disengaged in recent years.8 Even the 1. See Rucker C. Johnson, Long-Run Impacts of School Desegregation & School Quality on Adult Attainments 2, 15-33 (Nat’l Bureau of Econ. Research, Working Paper No. 16664, 2011), https://perma.cc/QWV7-36TY (identifying the positive effects of school desegrega- tion). 2. See C. Kirabo Jackson et al., The Effect of School Finance Reforms on the Distribution of Spending, Academic Achievement, and Adult Outcomes 15-17 (Nat’l Bureau of Econ. Research, Working Paper No. 20118, 2014), https://perma.cc/2DWF-V5QF (finding that school funding litigation resulting in court-mandated reforms reduced school funding inequity). 3. See Derek W. Black, The Congressional Failure to Enforce Equal Protection Through the Elementary and Secondary Education Act, 90 B.U. L. REV. 313, 336-40 (2010) (recounting how the federal government originally used the Elementary and Secondary Education Act to promote additional resources for low-income students, school funding equity, and school desegregation); see also Elementary and Secondary Education Act of 1965, Pub. L. No. 89-10, 79 Stat. 27 (codified as amended in scattered sections of 20 U.S.C.). 4. See, e.g., Gary Orfield et al., Civil Rights Project, UCLA, Brown at 62: School Segregation by Race, Poverty and State 3 & fig.2 (2016),