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73 Nat'l Law. Guild Rev. 129 (2016)
The Fundamental Right to Literacy: Relitigating the Fundamental Right to Education after Rodriguez and Plyler

handle is hein.journals/guild73 and id is 139 raw text is: 




Malhar   Shah
                                          THE  FUNDAMENTAL RIGHT
                                          TO LITERACY:  RELITIGATING
                                          THE  FUNDAMENTAL RIGHT
                                               TO  EDUCATION   AFTER
                                            RODRIGUEZ AND PLYLER

   In 1973, and again in 1982, the Supreme Court of the United States avoided
addressing whether  education is a fundamental right guaranteed by the
United States Constitution. Subsequent federal courts have, unfortunately,
mistakenly interpreted those two opinions as holding that education is not a
fundamental right, even in the absence of language indicating such a holding.
In the 1973 case, San Antonio Independent School District v. Rodriguez, the
Supreme  Court rejected a challenge to a Texas city's school funding scheme
and refused to reach the fundamental right issue because [e]ven if it were
conceded  that some identifiable quantum of education is a constitutionally
protected prerequisite to the meaningful exercise of either right, we have no
indication that the present levels of educational expenditures in Texas provide
an education that falls short. In its 1982 opinion, Plyler v. Doe, the Supreme
Court invalidated a Texas statute prohibiting undocumented children from
receiving a public education under the Equal Protection Clause of the Four-
teenth Amendment  without reaching the fundamental right question. But the
Plyler Court's opinion, when addressing the total deprivation of education
experienced by undocumented  children, implicitly identified deprivation of
basic literacy skills as the line below which states could not fall.
   This article is intended, in five sections, to pick up where the Plyler Court
left off and to serve as the substantive basis for potential litigation seeking to
secure a holding that the U.S. Constitution guarantees the fundamental right
to acquire basic literacy skills. I will argue that, from a strictly historical
perspective, the founders believed that education was such a foundational
principle of the nation as to need no explicit mention in the Constitution.

Malhar Shah is a third-year student at Harvard Law School who received his
bachelor's degree from the University of California, Riverside. For providing
unbelievable inspiration and support, I am incredibly grateful to Mark Rosenbaum,
Anne Hudson-Price, Kathryn Eidmann, and Alisa Hartz. For his essential historical
insight into founding-era thoughts and sentiments, I am incredibly grateful to
Jorge Gomez. And for providing thought provoking feedback on previous drafts
I am indebted to Ryan Cohen, Nathan Goetting David Grespass, Kathryn Taylor,
Meredith Osborne, and Amanda   Goetting. The errors are mine. Finally, this
article is dedicated to my best friend Sebastian Cy Gomez, whose education was
unfortunately cut short. May he rest in peace.

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