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2022 BYU Educ. & L.J. 69 (2022)
Reimagining the Right to Public Education

handle is hein.journals/byuelj2022 and id is 73 raw text is: Reimagining the Right to Public Education Logan Miller, UCLA School of Law INTRODUCTION Critiques of the United States public education system abound.1 Many of these critiques expose the reality that the public school sys- tem regularly fails to do what it purports to do. Others discuss how the public school system in fact achieves some of its more insidious purposes. When the reality of the public schooling experience - espe- cially for students from marginalized communities - is juxtaposed with the lofty rhetoric surrounding public education, a substantial dis- juncture is evident: there is a gap between the idealized notions of public education and the actual learning environments and outcomes for many public school students. For these students, schools are all too often experienced as little more than impoverished holding facilities that perpetuate inequality.3 To address this disjuncture and the fail- ures and inequities in public schooling, scholars, advocates, families, See, e.g., Barry Friedman & Sara Solow, The Federal Right to an Adequate Education, 81 GEO. WASH. L. REV. 92, 93 (2013) (By all accounts the American system of primary and sec- ondary education is in terrible shape. Not only are there rampant inequalities, the system is dis- serving even its median and often its best students.) (citing WAITING FOR SUPERMAN: How WE CAN SAVE AMERICA'S FAILING PUBLIC SCHOOLS 3-5 (Karl Weber ed., 2010)); Derek W. Black, Unlock- ing the Power of State Constitutions With Equal Protection: The First Step Toward Education as a Federally Protected Right, 51 WM. & MARY L REV. 1343, 1352-57 (2010); Areto A. Imoukuede, Education Rights and the New Due Process, 47 IND. L. REV. 467 (2014) (...the U.S. is in the midst of what some, including myself, have characterized as 'a national education crisis.' (citing Den- nis J. Condron & Vincent J. Roscigno, Disparities Within: Unequal Spending and Achievement in an Urban School District, 76 SOc. EDUC. 1, 20 (2003))). 2 See infra note 116. As an example, see Kenneth J. Fasching-Varner et al., Beyond School- to-Prison Pipeline and Toward an Educational and Penal Realism, 47 EQUITY & EXCELLENCE IN EDUC. 410 (2014) (stating that the education system is functioning as it was intended-to dis- enfranchise many (predominately people of color) for the benefit of some (mostly white), based on economic principals of the free market.). s Zelman v. Simmons-Harris, 536 U.S. 639, 676, 681-82 (2002) (Thomas, J., concurring) (Today many of our inner-city public schools deny emancipation to urban minority students .. . urban children have been forced into a system that continually fails them ... Although one of

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