Schooling as a Fundamental Right:
Should an Equal Education Amendment be Enacted?

©2009 Gary K. Clabaugh, Ed. D.


Section 1. Equality of Educational opportunity under the law shall not be denied or abridged by the United States or any state on account of race, sex, income or place of residence.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.



In making No Child Left Behind the law of the land, Congress and President Bush got their school reform priorities backwards. Now the Obama administration persists in this error. Before demanding that no child be left behind, we first must remedy the educational inequalities that limit the learning of millions of America's youngsters. Otherwise the demand is farcical.

The Present Situation

Consider the School District of Philadelphia, PA. Nearly 80 percent of its K-12 students live at or near the poverty level; and financial neediness spawns profound educational deficits. Yet a typical Philadelphia student has $2,215 less spent per year on his or her schooling than a typically less disadvantaged Philadelphia area suburban student. As a matter of fact, six Philadelphia area suburban districts spend over $5,000 more per pupil per year than Philadelphia.[1] Given the School District of Philadelphia's maximum class size of thirty-two, that equals $160,000.00 more per classroom, per year spent in those suburbs.

It would be one thing if such educational inequalities were quirkily confined to the Philadelphia area or even to Pennsylvania. But inequalities in per student spending persist across the nation. Here is a brief sampler of the spending inequalities that disadvantage so many American children.




Palo Alto Unified, CA $10,709

Victor Valley Union High, CA $5,125


Yonkers, NY $15,148

North Syracuse, NY $9,856


Atlanta, GA $11,502

Columbia County, GA $6,580


Pittsburgh, PA $12,242

Reading, PA $7,340

$4,902 [2]

These differences are typical of differences throughout the nation. Yet America's politicians demand that no child be left behind.

In general, low per pupil spending correlates with inadequate family income and depressed property values. This is why needy kids living in impoverished areas typically go to under-resourced schools. Even when family income is roughly comparable, however, dramatic per-pupil spending inequalities still persist. In Illinois, for example, the Chicago area Arlington Heights School District, with a median household income of $81,495, spends an average of $14,595 per child. Plainfield, another Chicago area Illinois district, with a median household income of $97,112, spends just $6,582. This is a remarkable difference of $8,033 per child. And this time it favors the lower income district. [3]

Granted, greater per student spending is no guarantee of educational quality. But the conservative pundits who assure us that schools won't be made better by throwing more money at them are hypocritical. In what other area of life would they argue similarly? Would they demand the same results from Army divisions that were unequally funded? Would they expect equally good results from automobile racing teams with unequal resources? Would they be surprised that the other guy's house is nicer when he paid more for it?

Why Care?

This nations endemic educational inequality makes no moral or practical sense. And it certainly does not enhance the nation's competitiveness —a concern that topped the list of complaints about our schools in A Nation At Risk — the prominent 1983 report on American education, from the National Commission on Excellence in Education. You may remember that it fueled the widespread dissatisfaction with the state of America's public schools that has been with us ever since.

It is hard to overstate the importance of the nation's educational inequalities. In Brown v. Board of Education, 347 U.S. 483 (1954), a unanimous Court recognized that "education is perhaps the most important function of state and local governments." Yet child after child is disadvantaged simply because of where they live. Such inequality is profoundly unfair to all impacted students, parents and educators.

What is more, given the importance of schooling to the electoral process, free speech and national competitiveness, it is unwise for the nation.

Judicial Remedy Fails

There was a time when the judiciary seemed to offer a solution. In the early 1970's a number of state and federal courts ruled that this sort of educational inequality violated the disadvantaged student's rights under the Equal Protection Clause of the Fourteenth Amendment. However, in the landmark SAN ANTONIO SCHOOL DISTRICT v. RODRIGUEZ, 411 U.S. 1 (1973), the US Supreme Court provided a different interpretation. They ruled that the right to an equal education, indeed the right to any schooling whatsoever, is neither explicitly nor implicitly guaranteed by the Constitution.

The court acknowledged that inequalities between school districts do, in fact, deprive many U.S. youngsters of equal educational opportunity. But a majority of the justices were quick to add that there was "... no evidence that the financing system discriminates against any traditionally definable category of "poor" people or that it results in the absolute deprivation of education."

In other words, since educational inequality impacts a wide variety of "poor" people, and no youngsters are totally dispossessed of public schooling, just short changed, the equal protection clause of the Constitution does not apply. One wonders if the justices would have reached the same conclusion if one of their own grandchildren were included among the victims. But, of course, their grandchildren, not to mention the children and grandchildren of most Congressmen and Executive branch officials, go to private school.

The decision was not unanimous. Justice Marshall and Justice Douglass vigorously dissented. In fact Marshall, with Douglass concurring, wrote:

... the majority's holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens. The Court does this despite the absence of any substantial justification for a scheme that arbitrarily channels educational resources in accordance with the amount of taxable wealth within each district or state."

Justice Marshall emphasized the unlikelihood of a political solution to this inequality.

The right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned, is far too vital to permit state discrimination on grounds as tenuous as those presented by this record. Nor can I accept the notion that it is sufficient to remit these appellees to the vagaries of the political process which, contrary to the majority's suggestion, has proved singularly unsuited to the task of providing a remedy for this discrimination.  I, for one, am unsatisfied with the hope of an ultimate "political" solution sometime in the indefinite future while, in the meantime, countless children unjustifiably receive inferior educations that "may affect their hearts and minds in a way unlikely ever to be undone...." [4]

Marshall's skepticism concerning political solutions has proven accurate. Thirty-three years after Rodriquez, shameful educational inequalities still persist and the political process has proven a totally inadequate remedy. That is why it is time to consider amending the Constitution to guarantee equal educational opportunity to every child in America.

Lasting Change

Unlike the Johnson era Great Society legislation that lost its momentum in the Reagan years, a constitutional amendment would apply the consistent and persistent pressure necessary to sustain educational equalization from congress to congress and administration to administration. Plus, judicial scrutiny would pack the muscle necessary to insure state cooperation.

Would an equal education amendment have sufficient support to pass in the federal legislature? Would the required two thirds of the states ratify it? Probably not given the present economic emergency. But just raising the issue of a constitutional amendment focuses attention on the inequities.

What would an Equal Education Amendment look like? It might read something like this.


Section 1. Equality of Educational opportunity under the law shall not be denied or abridged by the United States or any state on account of race, sex, income or place of residence.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.


Who would oppose such an amendment? In a nation where a proposed minimum wage of $15,000 a year was widely denounced in Congress as excessive and inflationary before it squeaked through, and where many are content to let their fellow citizens suffer financial ruin because of medical bills, there will be no scarcity of opponents.

What would be the stated grounds of opposition? One would be that an equal education amendment establishes excessive federal control over what are properly state and local matters. But that concern seems bogus now that Republicans took the lead in the most massive federal infringement of state and local control of schooling in our history — No Child Left Behind.

A far more potent source of opposition would come from those who benefit from the present inequality. Barring massive new spending to raise all boats, they would have to forfeit some of the advantage their children presently enjoy. The Catholic lobby might oppose the amendment as well, since parochial school kids would not benefit.

The Central Role of the Federal Government

It is entirely possible to raise all educational boats to an equal resources level, but differences in state wealth means that this task necessarily falls to the Federal government. How likely is it that such massive federal funding will be forthcoming? Given present priorities and the recession, not likely. Besides, the cost of maintaining our present imperial stance in the world — an estimated trillion dollars to invade Iraq, for example — bleeds off the requisite resources.

Make no mistake; the federal government commands the necessary resources to provide every child in America with equal educational opportunity. But to do this legislators and the White House would have to rearrange national priorities. We would, for example, have to invest far more in our children and far less in warfare. That means the entire military-industrial complex would oppose it. We might also have to cut farm subsidies for agribusiness. We might even have to raise taxes on corporations and the rich to Eisenhower era levels. Of course any and all of this would discomfort the powerful people who finance our politician's elections.

The Real Advantage

Given these realities, perhaps the real advantage of putting an Equal Education Amendment on the table would be to force hands and reveal agendas. It puts a question out there that most politicians dearly want to dodge. Namely, what is more important to you, providing every American child with equal educational opportunity, or serving special interests? It's high time that we ask that question.

In the meantime, let's at least be more honest. If President Obama were to again address the nation's school children, for instance, perhaps he could urge them to do their best even though the nation is not willing to give them all an equal chance. That way the disadvantaged kids would at least know what they are up against.


[1] "Education Funding & Quality, The Public Interest Law Center of Philadelphia, 2007,

[2] Ibid.

[3] Gaps in Per Pupil Expenditure (PPE) Between the Highest- and Lowest-Spending Large School Districts in the Same State*, 2003-04 (Includes only districts with enrollments of 10,000 or more), Source: U.S. Census Bureau, Public Education Finances2004 (Washington, DC: U.S. Department of Commerce, 2006), table 17, National Center for Educational Statistics,

[4]Op. cit.