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116 Yale L.J. 330 (2006-2007)
Education, Equality, and National Citizenship

handle is hein.journals/ylr116 and id is 346 raw text is: GOODWIN LIU

Education, Equality, and National Citizenship
A B ST R ACT. For disadvantaged children in substandard schools, the recent success of
educational adequacy lawsuits in state courts is a welcome development. But the potential of this
legal strategy to advance a national goal of equal educational opportunity is limited by a sobering
and largely neglected fact: the most significant component of educational inequality across the
nation is not within states but between states. Despite the persistence of this inequality and its
disparate impact on poor and minority students, the problem draws little policy attention and
has evaded our constitutional radar. This Article argues that the Fourteenth Amendment
authorizes and obligates Congress to ensure a meaningful floor of educational opportunity
throughout the nation. The argument focuses on the Amendment's opening words, the
guarantee of national citizenship. This guarantee does more than designate a legal status.
Together with Section 5, it obligates the national government to secure the full membership,
effective participation, and equal dignity of all citizens in the national community. Through a
novel historical account of major proposals for federal education aid between 1870 and 1890, I
show that constitutional interpreters outside of the courts understood the Citizenship Clause to
be a font of substantive guarantees that Congress has the power and duty to enforce. This
history of legislative constitutionalism provides a robust instantiation of the social citizenship
tradition in our constitutional heritage. It also leaves a rich legacy that informs the contemporary
unmet duty of Congress to ensure educational adequacy for equal citizenship.
A U T H O R. Assistant Professor of Law, University of California, Berkeley (Boalt Hall). For
helpful comments on earlier drafts, I thank Kathy Abrams, David Caron, Jesse Choper, Anisha
Dasgupta, Dan Farber, James Forman, Phil Frickey, Bruce Fuller, Robert Gordon, Carl Kaestle,
Linda Krieger, Ian Haney-Lopez, Rachel Moran, Robert Post, Diane Ravitch, Rob Reich, Jim
Ryan, Howard Shelanski, Reva Siegel, Steve Sugarman, and John Yoo. For opportunities to
present and refine these ideas, I am indebted to the Center for the Study of Law and Society at
the University of California, Berkeley, the Charles Hamilton Houston Institute for Race and
Justice at Harvard Law School, and the UCLA School of Law faculty workshop. For excellent
research assistance, I thank Elizabeth Mazur, Deborah Slon, Blake Thompson, and Boalt Hall
law librarian Marlene Harmon. I am especially grateful to my wife Ann O'Leary for her support
and belief in this project.

Imaged with the Permission of Yale Law Journal

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