I. Introduction

On January 30, 2018, close to 46 million Americans tuned in to watch President Trump deliver his second State of the Union Address in Washington, D.C.[1] In attendance that night were several DACA[2] recipients invited by Democratic politicians to keep immigration reform fresh in the President’s mind.[3] Toward the end of his speech, President Trump unveiled the four pillars of his plan for immigration reform: (1) a pathway to citizenship for 1.8 million undocumented immigrants who entered the United States at a young age;[4] (2) increased border security; (3) an end to the visa lottery system; and (4) an end to chain migration[5] as a way to “protect[] the nuclear family.”[6] Despite the promise to protect the nuclear family, reports were circulating at the time that the Trump Administration had begun separating families as they entered the United States in an effort to deter further illegal immigration.[7] Less than a week later, on February 8, 2018, seventy-five congressional Democrats sent a letter to the Secretary of Homeland Security to express their outrage at the news.[8]

Two months later, on April 6, 2018, former Attorney General Jeff Sessions announced the implementation of the Zero Tolerance Policy, which would entail the prosecution of aliens who attempted illegal entry or made illegal entries into the United States.[9] As a result, adults who entered the United States illegally were criminally prosecuted. Their children were then separated from them and placed in federal custody, with many subsequently placed in shelters throughout the southwestern United States.[10] Over the course of six weeks, this policy resulted in the forced separation of approximately 2,000 migrant children from their parents and provoked public outcry among the American public.[11]

On June 20, 2018, President Trump rescinded this policy via Executive Order No. 13,841 and ended family separations.[12] Less than a week later, a federal judge for the U.S. District Court for the Southern District of California issued a preliminary injunction enjoining U.S. Immigration and Customs Enforcement (ICE) from detaining parents in custody without their minor children and ordering reunification of all separated family members within 30 days.[13] However, the reunification process did not go as planned, as many children remained separated from their families and in federal custody for months following the injunction.[14]

During the summer of 2018, public outrage over the policy persisted, this time over the living conditions of the newly-unaccompanied minors, with mass media centered on the quality of education available to those living in federally run shelters.[15] Reports of inadequate educational services,[16] sporadic and haphazard instruction,[17] and unqualified teachers[18] focused the debate on the right these children had to an equal education.[19] While some states’ school districts did their best to help,[20] other states refused to fund educational services for unaccompanied minor children in shelters, the argument being that these children did not have the right to access state schools or services while they remained under federal custody.[21]

This Comment joins the developing debate and discusses the right to education in the United States and whether this right should extend to unaccompanied minors as a necessary safeguard against federal abuse and state neglect. Part II begins with an exploration of the educational obligations owed to unaccompanied minors through Acts of Congress,[22] court orders,[23] and agency guidelines,[24] then determines that the federal government has failed to fulfill these obligations.[25] Subsequent analysis will show that efforts to rectify these inadequacies through the federal and state governments are insufficient and unreliable, and that something more substantive is needed.[26] Part III considers the right to education in the United States. It starts with the history of the Fourteenth Amendment and the different methods of constitutional interpretation.[27] It then analyzes three foundational education cases through these interpretation methods to determine if there is a fundamental right to education in the United States,[28] concluding in the affirmative and requesting that the Supreme Court overrule contrary precedent.[29] Ultimately, this Comment concludes that the only way to ensure compliance with the obligations owed to unaccompanied minors is by having the Supreme Court rule that the right to education is a fundamental right protected by the U.S. Constitution.[30]

II. The Current “Right” to Education for Unaccompanied Minors

Unaccompanied minor children who remain in federal shelters are wards of the state.[31] They must rely on the federal government to provide them with the necessities of life, including education.[32] This Part defines what these necessities are, before illustrating the federal government’s failure to fulfill these obligations during the crisis of the Zero Tolerance Policy when thousands of children were detained in shelters for months. One proposed solution to this problem envisions the federal and state governments jointly intervening to provide these obligations.[33] However, an analysis of this solution will show that relying solely on the federal and state governments to solve this issue is inadequate. Only a constitutionally recognized right to education will ensure that the federal and state governments comply with their obligations.

A. Federal “Obligations” to Unaccompanied Minors

In 1997, the Immigration and Naturalization Service (INS) settled a class action lawsuit brought forth by Jenny Lisette Flores,[34] a young woman from El Salvador, alleging that her detention conditions[35] violated the Constitution.[36] The subsequent Flores v. Reno Settlement Agreement (FSA) set forth the minimum standards that INS had to meet for the minors in its custody.[37] Among other requirements, the minimum standards include ensuring that the minors’ basic needs are met, and that they are released from immigration detention “without unnecessary delay.”[38] In 2002, after several years of failing to adequately comply with the FSA standards,[39] President Bush signed the Homeland Security Act of 2002 (HSA),[40] codifying the FSA by abolishing the INS,[41] assigning responsibility for the apprehension, transfer and repatriation of illegal aliens to the Department of Homeland Security (DHS), and assigning responsibility for the care and placement of unaccompanied minors to the Office of Refugee Resettlement (ORR), a program within the Department of Health and Human Services (DHHS).[42] In response to further criticism over the failure to adequately implement the FSA,[43] Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA),[44] borrowing language from the United Nations Convention on the Rights of the Child (CRC)[45] to ensure that the child’s welfare is taken into consideration when making custody and release determinations.[46]

Even though the FSA represents only the bare minimum standards that immigration officials have to meet for unaccompanied minors under their custody, it has repeatedly proven difficult to fully implement[47]—being the subject of repeated litigation over the years.[48] To cope with the 2014 American immigration crisis,[49] President Obama authorized the expansion of family detention centers in Pennsylvania and Texas to detain families together.[50] However, on July 21, 2015, U.S. District Judge Dolly Gee found that the FSA applied to both unaccompanied and accompanied minors,[51] meaning DHS was bound by the agreement to release minors who entered the United States with their parents within the agreement’s specified 20-day deadline to any accompanying parent that would not create a flight risk.[52] More recently, because of President Trump’s Zero Tolerance Policy,[53] the FSA has come under attack as the source of family separation.[54] The policy requires the criminal prosecution of adults who illegally enter the United States, meaning that the children who enter with these adults must be placed in DHHS and ORR custody because they are unable to remain in immigration custody for more than 20 days.[55]

The codification of the FSA in both the HSA and TVPRA requires the ORR to ensure that the “interests of the child” are considered when making decisions related to an unaccompanied minor’s care,[56] and that the minor is placed in the “least restrictive setting” available.[57] For the ORR, shelters are the most common least restrictive setting available—with about 80% of unaccompanied minors placed in shelters.[58] From there, state-licensed, ORR-funded care providers offer the unaccompanied minors in shelters important services, including classroom education in compliance with ORR policy.[59] Potential service providers apply to the ORR and sign cooperative agreements and contracts to provide a range of services, including education.[60] For instance, shelters in Texas are licensed by the Texas Department of Family and Protective Services and receive funding and supervision from the ORR, which provides these educational services for unaccompanied minors.[61] However, as will be shown below, these service providers do not act in the child’s best interest because the quality of educational services they provide is so poor.[62]

B. The Zero Tolerance Policy: An Analysis of the Federal Government’s Failure

One of the major critiques of the ORR system is the lack of transparency about the services being provided to unaccompanied minors in ORR shelters. The ORR published an “Unaccompanied Alien Children Frequently Asked Questions” page on its website on July 9, 2018,[63] in the midst of public outcry against the forced family separations that occurred as a result of the Zero Tolerance Policy.[64] Another “Frequently Asked Questions” page on the DHHS website includes a picture of several students sitting in a classroom and states that fifty separate media outlets, seventy members of Congress, and sixty congressional staff members had recently toured DHHS-funded unaccompanied minor children (UAC) facilities.[65] However, this attempt at transparency rings hollow when one considers the historical lack of accountability that has plagued agencies like the ORR[66] and the many reasons to doubt that unaccompanied minors are actually receiving adequate education in these shelters.[67]

Detailed information about the kind of educational services being provided to unaccompanied minors by service providers in ORR custody is not readily available.[68] In fact, in the wake of the Zero Tolerance Policy, seventeen members of the House Committee on Education and the Workforce sent a letter to then Attorney General Jeff Sessions and the Secretaries of the DHS, DHHS, and Department of Education calling for increased “oversight mechanisms” and answers from the listed agencies to ensure unaccompanied minors were receiving the proper services required by law.[69] Furthermore, there is evidence that the educational services being provided in several shelters are inadequate[70] or even nonexistent.[71] The lack of transparency is not limited to the kind of education services being provided: following the implementation of the Zero Tolerance Policy, for example, the DHHS admitted to losing nearly 1,500 migrant children that it had released from its custody.[72] Finally, even though the ORR claims that unaccompanied minors are only expected to remain in ORR care an average of thirty to thirty-five days,[73] many of the minors separated from their parents during enforcement of the Zero Tolerance Policy were still in ORR custody and shelters several months later.[74]

The lack of transparency is not the only issue that affects the kind of educational services provided to unaccompanied minors. The educational services themselves—when they are provided[75]—are very poor.[76]

Children of different ages and grade levels are taught the same content, side by side.[77] Some of the teachers—despite ORR’s best efforts[78]—are not certified.[79] Furthermore, despite the fact that educational services should be provided in the majority language of the unaccompanied minors,[80] some teachers employed by providers in these shelters cannot speak Spanish.[81] Additionally, the majority of the children in these shelters have experienced extensive psychological trauma[82] as a result of their forced separation, and these shelters are not providing them with treatment that supports active participation in the learning process.[83] This is even more worrisome when one considers the increased length of time these students are spending in these shelters,[84] which will inevitably affect their future studies once they are released from ORR custody.[85]

C. The Education of Unaccompanied Minors Affected by the Zero Tolerance Policy Illustrates the Need for a Fundamental Right to Education

Jeanette Acosta argues for more “robust” educational opportunities for unaccompanied minors as a way to solve some of the deficiencies mentioned above.[86] Acosta looks to a school district in Oakland, California that has developed a program providing academic intervention programs, legal services, and mental health and trauma services to its unaccompanied minor population.[87] In 2007 the school district opened Oakland International High School to serve a student body composed exclusively of English Learners and new arrivals, with unaccompanied minors making up a substantial portion of the student population.[88] The school provided the same kind of “wrap-around” services established by the school district to students navigating the immigration system.[89] Despite these efforts, many unaccompanied minor students still struggled academically, psychologically, and financially.[90]

The first major issue with Acosta’s solution deals with feasibility. In 2015, more than half of all states provided less overall state funding per student than in the years before the recession,[91] meaning a more robust educational policy for unaccompanied minors would require significant federal assistance. However, the Oakland school district that established the integrated service program for its unaccompanied minor population did so with ORR funding that came with certain conditions.[92] If a similar program were to be established in Texas, federal funding would need to be unconditional as it is the state with the largest unaccompanied minor population in the country.[93] This remains unlikely, as the Trump Administration has cut funds to ORR itself.[94] Since Texas school districts are currently struggling to gain even additional English Language Acquisition Programs (Title III) funds,[95] and the Texas Education Agency (TEA) has been openly hostile to providing any kind of free services to unaccompanied minors in ORR custody,[96] it is unlikely that such a program will be starting in a state like Texas anytime soon.[97]

Apart from the fact that Acosta’s suggested solution[98] to this issue would probably not work in many other states, a solution that calls for change within the current system would also be unreasonable. The ORR, being an office within the DHHS,[99] falls under the control of the Executive Branch of government.[100] When Acosta proposed using Oakland as a model for other schools and school districts, she did so with a very different administration in office.[101] The Trump Administration is ambivalent, at best, to the needs of unaccompanied minors,[102] evidenced by its defunding of the very program necessary for Acosta’s approach to work.[103] Furthermore, the FSA has been in force for over twenty years,[104] but has historically proven difficult for executive agencies and programs to implement.[105] It is hard to have faith in a solution that relies so heavily on an Executive Branch that is in the process of undoing some of the most basic protections available to unaccompanied minors.[106]

When several Texas school districts tried providing services to unaccompanied minors in ORR shelters, TEA quickly sprang into action, stating that Texas school districts were not allowed to provide such services,[107] based on Section 25.003 of the Texas Education Code (TEC):

(a) Notwithstanding any other provision of this code, a school district shall charge tuition for a child who resides at a residential facility and whose maintenance expenses are paid in whole or in part by another state or the United States. (b) A tuition charge under this section must be submitted to the commissioner for approval. (c) The attendance of the child is not counted for purposes of allocating state funds to the district.[108]

TEA stated that Texas school districts could still provide services to unaccompanied minors voluntarily, but due to declining school funds, most of these school districts were unable to continue providing these services.[109] Therefore, the final critique of Acosta’s argument is the fact that even if more robust educational opportunities were put in place to help unaccompanied minors, in states with laws like those in Texas,[110] these educational opportunities would not benefit unaccompanied minors like those affected by the Zero Tolerance Policy, who remain in ORR custody for months.[111] With the population of unaccompanied minors in shelters increasing over the years[112] and with the increasing amount of time that these minors are remaining in ORR custody, realizing a solution for them should be prioritized.[113]

While Acosta’s proposal has some merit, a solution that only looks to the federal and state governments without a corresponding check from another branch of government to ensure that unaccompanied minors receive the educational services that have been promised to them, is insufficient. Only a fundamental right to education will ensure that the federal and state governments meet these obligations. Accordingly, this Comment will now turn to the question of whether there is a fundamental right to education under the U.S. Constitution.

III. The Right to Education in the United States: Constitutional Analysis of Three Key Cases

In 1973, the Supreme Court rejected the idea that the Constitution explicitly or implicitly protects the right to education in the United States.[114] Despite this ruling, the Court has routinely recognized that education is vital to our democratic society, underpinning many of our essential rights and traditions. In Brown v. Board of Education, for example, the Court used the importance of education as a vehicle to desegregate public schools.[115] Even in San Antonio Independent School District v. Rodriguez, where the Court held that education was not a fundamental right, the Court did not deny the vital role that education plays in our democratic system.[116] Similarly, in Plyler v. Doe, the Court upheld Rodriguez, emphasizing that education was more than just some ‘mere’ governmental service.[117] An analysis of these three cases and a rebuttal to the three common arguments made against a constitutional right to education will support the conclusion that the right to education is fundamental under the Fourteenth Amendment’s Due Process and Equal Protection Clauses.[118] Furthermore, there are special justifications that would warrant the Court to overrule its prior decision on the issue.[119]

A. Background

The Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”[120] The Fourteenth Amendment’s Due Process and Equal Protection clauses, therefore, protect an individual’s liberty interests[121] from being deprived without due process or denied by any state action on an unequal basis.[122] When looking at state action[123] claimed to be in conflict with the Fourteenth Amendment, the Court reviews the challenged action under a self-imposed system of scrutiny.[124] The levels of scrutiny range from rational basis, wherein state action under review is almost always upheld as constitutional, to strict scrutiny, wherein the challenged action is “almost always struck down” as unconstitutional.[125] The distinguishing factor in the Court’s decision to use strict scrutiny rather than rational basis scrutiny under both clauses, is when the challenged action involves a “fundamental right.”[126] With this in mind, the question now turns to whether the right to education is a fundamental right under either, or both, clauses.

Constitutional law scholars have identified six modalities or frameworks employed in constitutional arguments: historical, textual, structural, prudential, doctrinal, and ethical.[127] A historical approach, the starting point for many originalist theories of constitutional interpretation,[128] looks to “the intentions of the framers and ratifiers of the Constitution.”[129] Another subset of an originalist approach to constitutional theory looks to the text of the Constitution to settle any interpretative argument.[130] The structural perspective of constitutional interpretation draws inferences, “from the relationships that the Constitution mandates among the structures it sets up.”[131] Under a prudential framework, policy concerns form the forefront of such an analysis, with a focus on the “costs and benefits” of a particular ruling.[132] A doctrinal approach applies the rules derived from precedent when conducting constitutional analysis.[133] Finally, the ethical modality looks to the American ethos—what exactly it means to be an American—when determining constitutional questions.[134] Professor Bobbitt, in articulating this framework of constitutional interpretation, remarked that Supreme Court justices should employ several of these modalities in one decision to arrive at any particular result.[135] Therefore, this Comment will consider how these different modalities were used in the following cases to illustrate that the right to education is a fundamental right under the U.S. Constitution’s Due Process and Equal Protection Clauses.

B. The Right to Education is Fundamental

1. Brown v. Board of Education.

The Supreme Court’s most famous education case[136] led to the desegregation of all public schools in the United States.[137] In Brown v. Board of Education, the Court reviewed six cases[138] from Kansas, South Carolina, Virginia, and Delaware.[139] In each case, black children had been denied admission to public schools in states with laws allowing the racial segregation of public schools.[140] Therefore, the Court consolidated these cases to consider the overarching issue: whether the segregation of public schools deprived students of the equal protection guaranteed under the Fourteenth Amendment.[141]

The Court unanimously held[142] that the “separate but equal” doctrine had no place “in the field of public education,” citing the detrimental effects of segregation on black children.[143] Although the Court’s decision to strike down this doctrine was based solely on the Fourteenth Amendment’s Equal Protection Clause[144] and did not implicate the Due Process Clause,[145] it emphasized the importance of education for children and society at large.[146] More significantly, when constructing its opinion, the Court “consider[ed] public education in the light of its full development and its present place in American life throughout the Nation.”[147]

To arrive at its conclusion, the Court considered the historical modality of constitutional interpretation. This method is commonly used because it binds the Court to the “constant observance” of the “fundamental principles of the [C]onstitution.”[148] What those principles are, what the Framers intended for them to be, and where we look to determine them, are always subject to debate.[149] Still, the Court has found it useful to derive these principles from the writings made by the Constitution’s Framers.[150] From such sources, the Court is able to make a determination as to what the Framers’ intent on the issue would have been, and rule accordingly.[151] Despite this established framework, the Court in Brown only looked at the status of public education when the Fourteenth Amendment was passed, without considering any other rhetorical source on the issue.[152] At the time of the Fourteenth Amendment’s passage, free public education was virtually unheard of in the South, and the vast majority of black children were illiterate, with some states having laws in place that prevented their education.[153] Using this narrow understanding of the historical method of interpretation, the Court found that the Fourteenth Amendment was passed without a consideration of “its intended effect on public education.”[154]

However, the aforementioned sources will show that in 1779, Thomas Jefferson made an impassioned plea for public education as the best safeguard against tyranny and corruption.[155] Furthermore, prior to the signing of the Constitution, both John Adams and George Mason, two of the delegates to the Constitutional Convention, stressed the need for statewide education in the drafts of their respective states’ constitutions and bills of rights.[156] Had the Brown court considered sources like these, it would have found that the Framers of the Constitution saw education as a bulwark against oppression[157] and as necessary for the preservation of a functioning democracy.[158]

2. San Antonio Independent School District v. Rodriguez.

While Brown might be the Supreme Court’s most famous education decision, the Court’s decision in San Antonio Independent School District v. Rodriguez is arguably its most important.[159] The State of Texas’s school funding system allowed school districts to rely on property taxes as supplemental revenue.[160] The plaintiffs, parents of children in property-poor school districts, alleged that this funding system violated the Equal Protection Clause on two grounds:[161] (1) poor people were a suspect class that was experiencing systematic discrimination, and thus the Court was required to apply strict scrutiny to its analysis of the funding system;[162] and (2) education was a fundamental right, and thus any state action that infringed on this right was also subject to strict scrutiny.[163]

In a 5-4 decision, the Court held that “[e]ducation, of course, is not among the rights afforded explicit protection under our Federal Constitution,” rejecting plaintiffs’ argument that education was a fundamental right because of its link to recognized rights like the right to free speech and the right to vote.[164] However, like in Brown,[165] the Court in Rodriguez again emphasized the important role of education in society yet still found it insufficient to justify labeling it a fundamental right.[166] As a result, the Court reviewed the Texas funding system under rational basis scrutiny, instead of strict scrutiny, and upheld it as constitutional.[167]

The Rodriguez Court used the textual modality of interpretation to hold that education is not fundamental to the Constitution.[168] The textualist modality of constitutional interpretation has two general approaches: original meaning and contemporary.[169] What is commonly referred to as “original-meaning” textualism seeks to understand the text of the Constitution from the perspective of those who took part in writing it and would overlap considerably with the kind of historical argument made above.[170] Meanwhile, a contemporary meaning approach looks to the meaning of the text today.[171] An important feature of the contemporary meaning strand of textualism is its ability to be used as “a valve through which contemporary values can be intermingled with the Constitution.”[172]

The Court’s decision in Rodriguez was based on strict textualism, with the Court refusing to find that the Equal Protection Clause guaranteed the right to education because it was not a fundamental right “explicitly or implicitly guaranteed by the Constitution.”[173] However, under a historical approach to textual interpretation, the Court should have found that the right to education is “implicit” under the Constitution.[174] In addition, using the contemporary meaning approach to textualism, the Court should interpret the word “liberty” in the Fourteenth Amendment in light of the meaning it has today. Constitutional scholars, for example, have proposed that while “liberty” interests can be defined under the strict notion employed by the Court in Rodriguez,[175] the Court’s evolving jurisprudence also acknowledges another approach: finding those rights that are “implicit in the concept of ordered liberty”[176] as fundamental for Fourteenth Amendment purposes.[177] This definition of liberty has two essential prongs: (1) it includes conduct that has a link to historically recognized rights; and (2) is considered with the idea that our understanding of liberty evolves generationally as past “prejudice[s] and presumptions” erode over time.[178]

Under the first prong of the aforementioned liberty definition, the right to education would be fundamental because it is linked to historically recognized rights. For example, the right to education is intrinsically subsumed under the First Amendment’s right to free speech, because without such a right, a speaker cannot “intelligently and persuasively” contribute to the marketplace of ideas.[179] Furthermore, the constitutionally recognized right to vote[180] requires an informed, educated electorate so that voting is not a wasteful and arbitrary endeavor, thus further implicating the right to education.[181] While the Court did reject both of these arguments in Rodriguez,[182] this is not conclusive on the issue as this is a conjunctive analysis.

The second prong of this liberty approach ensures that the Court is not beholden to its understanding of what constituted a fundamental right for Fourteenth Amendment liberty purposes in 1973.[183] Instead, this second prong would consider the meaning of “liberty” in light of how the Court has defined it more recently.[184] For instance, since Rodriguez, the Court has stated that liberty encompasses “choices central to personal dignity and autonomy,”[185] “personal decisions relating to . . . education,”[186] and those rights “not from ancient sources alone,” but also “from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”[187] Therefore, the right to education is fundamental because it underpins historically-recognized rights and because the Court has expanded the scope of what constitutes a fundamental right under the Fourteenth Amendment since its decision in Rodriguez.

The Court’s use of the doctrinal modality in Rodriguez also informed its determination that education is not a fundamental right. The doctrinal approach to constitutional interpretation is simply “the rule of law” that forms the basis of the Anglo-American legal tradition.[188] In its most basic form, the doctrinal approach of constitutional interpretation fully embraces the common law doctrine of stare decisis,[189] calling upon the Court to apply past precedent through “a reasoned process of deriving the appropriate rules and following them in deciding any practical controversy between adverse parties.”[190] Therefore, with a doctrinal approach to constitutional interpretation, it is necessary to consider the Court’s rationale for ruling a certain way in determining the applicable rules. In Rodriguez, the Supreme Court stated that “[i]t is not the province” of the Court to find that a right is fundamental simply because the right is of societal importance,[191] disregarding the arguments made above.[192]

Despite its rationale in Rodriguez, the Court has found that certain rights are fundamental even if they are not “explicit” or “implicit,”[193] precisely because of their societal importance.[194] For example, in United States v. Guest, the Supreme Court determined that the right to interstate travel was fundamental, despite not being mentioned in the Constitution, as it is “concomitant” to the preservation of the Union.[195] Similarly, in Skinner v. Oklahoma, the Court found that the right to procreate, while not appearing anywhere in the Constitution, was nonetheless fundamental to the “survival of the race.”[196] In Reynolds v. Sims, the Court held the right to vote in state elections as fundamental despite not being a constitutional guarantee because it upholds all other basic civil and political rights.[197] Finally, in Griffin v. Illinois, the Court concluded that destitute defendants have a constitutional right to appellate review, a right that is not found anywhere in the Constitution, but is still necessary because of the interests at stake.[198] Accordingly, the right to education is also fundamental, despite not being mentioned anywhere in the Constitution, because it is just as concomitant to the preservation of our country and vital to the survival of our race, it upholds all our other basic civil and political rights, and the interests at stake are too high to not afford it constitutional protection.

Instead of the doctrinal principle the majority used in Rodriguez,[199] the Court, in reconsidering the issue, should use the principle established in Justice Marshall’s dissent.[200] He agreed with the majority that the Court should remain focused on the Constitution’s text when identifying a fundamental interest, but he also argued that as the “nexus” between interests like education and constitutionally recognized rights draws sufficiently close,[201] then those interests should be subject to constitutional protection.[202] This reasoning is more in line with Supreme Court precedent than the majority’s arbitrarily narrow stance on the issue.[203] Another way to read the majority’s opinion, then, to reconcile it with the Court’s precedent and Marshall’s dissent, is to say that Rodriguez only narrowly applies to those situations where the government is not completely depriving some students of educational services.[204] However, a complete deprivation of educational services to some students would draw the nexus between education and constitutionally recognized rights sufficiently close to warrant constitutional protection.[205]

The Rodriguez Court also used a variant of the structural modality by refusing to strike down the Texas funding system because of the potential consequences to the relationship between the states and national government.[206] A structural mode of argument considers whether “the institutional relationships promulgated by the Constitution require or are incompatible with or tolerate a particular answer” to a constitutional interpretation question.[207] This essentially means drawing an inference from the structures and institutions set in place by the Constitution and using that inference to derive the principle that will help settle the dispute brought forth before the Court.[208] The Rodriguez Court’s structural argument will be analyzed in depth below, in the federalist discussion.[209] However, using the structural modality of interpretation, an argument could be made that because the Constitution guarantees “a Republican form of government,”[210] then a right to education should be inferred from this structure.[211]

3. Plyler v. Doe.

Less than a decade after Rodriguez, the Supreme Court reconsidered the issue of education as a fundamental right[212] in Plyler v. Doe. In 1975, Texas revised its Education Code to withhold state funds from school districts for the education of undocumented children and allow school districts to deny undocumented children enrollment in public schools.[213] The plaintiffs filed suit on behalf of undocumented schoolchildren, arguing that the revised law violated the Equal Protection Clause.[214]

This time, the Court sided with the plaintiffs; under a “heightened” standard of review, the Court held that the revised law violated the Equal Protection Clause and was therefore unconstitutional.[215] The Court used a higher level of scrutiny for two reasons.[216] First, although it reiterated its previous holding in Rodriguez that education is not a fundamental right, the Court noted that “neither is it merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation.”[217] Once more, the Court emphasized the importance of education in its decision and the effect its deprivation would have on undocumented students.[218] Second, while undocumented immigrants were not a suspect class for Equal Protection purposes, undocumented children warranted special consideration because it was not their decision to illegally enter the country but that of their parents.[219] A final important note from Plyler was that because the case was decided under the Equal Protection Clause, its holding applied narrowly to those students residing with their parents in the school district who were denied access to an education that other similarly situated students enjoyed.[220]

The Plyler Court, in imposing a heightened level of scrutiny to review the Texas legislation, invoked the prudential modality of constitutional interpretation.[221] A prudential argument is similar to a policy argument in that it is “actuated by the political and economic circumstances surrounding the decision.”[222] The Court determined that the legislation “impose[d] a lifetime hardship” on the affected children by depriving them of the right to attend school.[223] Even more importantly, the Court carefully considered the potential economic ramifications of upholding the legislation, remarking that the legislation would prevent these children from contributing to American society as adults.[224] Furthermore, two political circumstances can also help explain the Court’s decision to use the prudential framework. First, by the time the Plyler decision was made, the Court had spent the past decade expanding the suspect classifications that warranted constitutional protection.[225] Second, and perhaps less obvious, the increasing visibility of undocumented immigrants in society could have helped shape the Court’s decision to strike down the statute.[226]

The Court’s decision to treat the undocumented children in Plyler as a quasi-suspect class was also informed by the ethical modality. The ethical modality derives principles from the moral commitments reflected in the Constitution; it is an assessment centered on the American ethos.[227] In Plyler, the Court found that the Texas legislature was antithetical to the ideals enshrined in the Fourteenth Amendment, namely that the government is prohibited from enacting obstacles “to advancement on the basis of individual merit.”[228] The fact that the legislation was completely denying the right to education, something more substantial than some “mere” governmental service, to innocent children ensured that the Court would not uphold the statutory provision under the usual rational basis review.[229] Instead, the Court invoked strong nationalistic themes in the majority opinion, so that an attack on the holding could almost be seen as un-American.[230] In the end, the Court essentially used Plyler to carve a Fourteenth Amendment suspect classification exception for similarly-situated children confronted with the complete deprivation of educational services.[231]

C. Evaluating Common Concerns with a Fundamental Right to Education

Since the Court’s decision in Rodriguez, there have been many arguments on both sides of the debate about whether the Court should recognize a fundamental right to education.[232] This Comment will now turn to evaluating three of the most common arguments against such a finding.

The strongest argument against education being considered a fundamental right is the fact that historically, education has been in the exclusive domain of the states, and as such, states are best equipped to handle such matters.[233] This federalism argument is usually composed of three parts. First, state legislatures are best equipped to deal with these issues because, unlike Supreme Court justices, they can be held accountable.[234] Second, the unique market forces at play (such as the free flow of information and the freedom of mobility)[235] combine to create a kind of “competitive federalism” which forces jurisdictions to provide their citizens with the best political and social environment or risk losing them to more progressive jurisdictions.[236] Finally, competitive federalism is also inherently less risky than inflexible Supreme Court decisions because state legislatures are not bound by the same kind of constraints as Supreme Court justices.[237] However, this argument is ahistorical. When sweeping societal change has occurred, it has almost always been forced upon several holdout states, even when a majority of surrounding jurisdictions have implemented such changes into their own state constitutions.[238] The question would then become: how much longer after the Supreme Court’s decision in Rodriguez must we wait before all fifty states have language in their constitutions recognizing education as a fundamental right?[239]

Judicial incompetence is another commonly cited argument against Supreme Court recognition of education as a fundamental right.[240] Similar to a federalist argument, it envisions leaving the implementation of education policy to the states, as the most capable actors in handling such a complicated issue.[241] This line of argument, while federalist in nature, also implicates the separation of powers doctrine.[242] Under the Constitution, the Legislative Branch, not the Judicial Branch, has exclusive rulemaking authority.[243] Therefore, by making education a fundamental right and creating policy, the Court would be overstepping its constitutional boundaries.[244] However, constitutional scholars argue that it has always been the Framers’ intent that the Judiciary’s role be that of an active, oppositional, and independent branch of government vis-à-vis the Legislative and Executive Branches.[245] In this way, the Judiciary also “provides substantive protections for citizens in areas where lawmakers are reluctant to enter.”[246] Furthermore, it is the Legislature’s role to adapt the law to align with society’s shifting values, a role that it cannot fulfill efficiently without the help of the Judiciary.[247]

A final major argument against giving fundamental right status to education looks at the structure of the Constitution’s text.[248] Proponents look to the Bill of Rights and argue that because a majority of the enumerated rights are written in the negative,[249] a fundamental right should not impose an affirmative governmental duty to act.[250] Therefore, it was the Framers’ intent that the government’s duty is to simply avoid infringing on rights, not create them.[251] However, the Sixth Amendment requires the government to provide an “accused” a “speedy and public trial,” to ensure that they are informed of “the nature and cause of the accusation,” and “to have the Assistance of Counsel for his defense,” which are all examples of affirmative governmental duties.[252] Furthermore, the Incorporation Doctrine also places an affirmative duty on the federal government to ensure that the states are complying with the Fourteenth Amendment.[253] Finally, not allowing the government an affirmative role in ensuring that fundamental rights are secured would be inconsistent with the ideals expressed in the Constitution[254] and those that underpin democracy.[255]

D. Justifying the Court’s Departure from Stare Decisis

Based on the analysis above, education is a fundamental right that warrants constitutional protection because it is “objectively, ‘deeply rooted in this Nation’s history and tradition,’ . . . ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’”[256] Therefore, we must call upon the Supreme Court to overrule constitutional precedent.[257] However, because of the doctrine of stare decisis, this is easier said than done.[258] The Court is generally hesitant to overrule precedent unless it can justify its decision with additional factors.[259] Some of the factors that the Court will consider, alongside the possibility that its previous decision was erroneous, include: whether circumstances have changed,[260] if prior decisions are now unworkable,[261] or if the legal underpinnings which the decision was based upon have been eroded.[262]

The Court should overrule its decision in Rodriguez because the circumstances that the Court relied on to make its determination have drastically changed.[263] At the moment, the United States ranks twenty-seventh in the world in education,[264] a far cry from when it stood at the very top of the rankings as recently as the early 1990s.[265] As an example, in West Coast Hotel Co. v. Parrish, the Court overruled Adkins v. Children’s Hospital[266] and upheld Washington’s minimum wage law for women as a safety measure meant to alleviate some of the Great Depression’s harsh effects,[267] bringing an end to the laissez-faire economic policy that the Court had adopted since its decision in Lochner v. New York.[268] Like the crisis of the Great Depression necessitated the Court to reconsider its previous economic stance in West Coast Hotel Co. to help those affected by it,[269] the education crisis that has affected the United States for years[270] should also force the Court to reconsider its determination that education is not a fundamental right,[271] so that it can apply the level of scrutiny that violation of such a right warrants.[272]

Another “special justification”[273] that the Court could use to support its decision to overrule precedent is the doctrine of workability.[274] Constitutional precedent will be deemed unworkable if “lower courts cannot apply it coherently and consistently.”[275] In Payne v. Tennessee, the Court based part of its rationale for overruling precedent on unworkability because the precedent had been decided by the “narrowest of margins” and included a “spirited dissent[] challenging the basic underpinnings.”[276] Similarly, the Court’s decision in Rodriguez was also a hotly contested 5-4 decision[277] and contained dissents by Justices Brennan[278] and Marshall[279] attacking the opinion’s basic premise.[280]

Finally, when the legal underpinnings that supported precedent have been eroded, the Court will use that as the justification to overrule it.[281] In Brown, the Court justified overruling the separate but equal doctrine established in Plessy v. Ferguson, because in the intervening half century since that decision, the doctrine had been discredited in subsequent cases.[282] Furthermore, the Court realized that even if separate “physical facilities and other ‘tangible’ factors” were equal, “intangible” considerations ensured segregated public education facilities would always be inherently unequal.[283] Similarly, after the Court’s decision in Rodriguez, Justice Brennan encouraged lawyers to pursue their constitutional claims in state supreme courts,[284] which the U.S. Supreme Court felt was the appropriate institutional actor to handle such claims.[285] However, this solution has proven inherently problematic, as state courts on their own have failed to rectify the complex issues of educational inequity.[286] Using the Rodriguez plaintiffs as an example, in 2004, more than thirty years after the Court’s decision, the school district that formed the basis for the suit was still receiving less resources than nearby school districts, with this difference in funding translating to standardized test scores significantly below the state average.[287]

E. Request to the Supreme Court: Overrule Rodriguez

On November 28, 2018, a class action lawsuit was filed in the United States District Court for the District of Rhode Island.[288] The complaint alleged that Rhode Island was in violation of the Fourteenth Amendment’s Equal Protection and Due Process Clauses because its students were being denied “a meaningful opportunity to obtain an education adequate to prepare them to be capable citizens.”[289] If the Court were to ever rule on the question presented in Cook v. Raimondo,[290] it should find that the right to education is a fundamental right under both the Equal Protection and Due Process Clauses based on the previous analysis,[291] consider the “special justifications” discussed above[292] and in the complaint,[293] and overrule the erroneous precedent it established back in 1973.[294] A rejection of Rodriguez would allow the Court to review any state or federal action infringing on education under the strictest scrutiny and offer victims of such abuse an additional safeguard.

IV. Conclusion

The difficulties that unaccompanied minors have faced in obtaining a quality education for years, brought to light by the nation’s focus on the effects of the Zero Tolerance Policy,[295] illustrates why the need for a fundamental right to education is so important. Unaccompanied minors cannot realistically rely on the Executive Branch, eager to undo many of the basic protections they are afforded in this country, to ensure that their right to an education is secured.[296] Neither can they realistically rely on the states, many suffering from shortages in funding[297] or inability, due to state law,[298] to provide them with an adequate education.[299] Due to an increasingly polarized political system, it is also unlikely that Congress will be able to pass legislation anytime soon that could benefit unaccompanied minors trapped in the inadequacies of the ORR system.[300]

Instead, the Court must provide these protections, as it has done in the past,[301] by recognizing that the right to an education is fundamental, regardless of where the student resides.[302] A constitutionally recognized right to education would force the Executive Branch and the various agencies responsible for the education of unaccompanied minors to maintain the standards set forth by the Court.[303] Any federal action that threatened these standards, like the kind currently underway,[304] would be subjected to the strictest scrutiny,[305] and would be unlikely to survive. Furthermore, a constitutionally recognized right to education would also permit the Court to review state laws under that same level of scrutiny to determine if such laws are justified by a compelling governmental interest.[306] Therefore, a law like the one that Texas currently has in place[307] would also probably be struck down as unconstitutional.[308] Thus, states and federal agencies, like the ORR, would be encouraged to work together to provide the kind of robust educational services that Acosta advocated for.[309]

Whether it is unaccompanied minors trying to secure the minimal services guaranteed to them under federal law and policy,[310] Rhode Island students hoping to improve the quality of education provided to them by a negligent state,[311] or poor students of color in Detroit fighting for the right to literacy,[312] education is fundamental. Now, the Supreme Court of the United States has the opportunity to reconsider and correct its decision in Rodriguez by finding that the right to education is fundamental. Without such a recognition, the future of education in the United States, once the world’s role model for public education success, is bleak: the gap in educational achievement among demographic groups remains;[313] the discrepancy in per-pupil spending, even among schools within the same school district, continues to worsen;[314] the public education system itself is under attack;[315] and the United States’s position in the world continues to slip with each new ranking.[316]

Of course, this is not to say that a single Supreme Court decision will dramatically reverse course. There are many issues with the American education system that will require solutions not only from the Judiciary, but also extensive work and cooperation from both the Legislative and Executive Branches. However, an affirmation from the nation’s highest court is the necessary first step in that process. Supreme Court decisions are not important simply because they create law. They also have a powerful symbolic effect,[317] which has emboldened and uplifted marginalized communities time and time again. Remarking on the 30th anniversary of the Supreme Court’s decision in Plyler, Professor Michael A. Olivas stated, “The decision was the best our country has to offer: compassion, a fierce belief in reducing inequality, and political and personal courage.”[318] To move forward as a nation, we must call upon the Supreme Court to be that compassionate and courageous one more time.

Alan Sanchez

  1. Nearly 46 Million Viewers Watch President Trump’s State of the Union Address, Nielsen (Jan. 31, 2018), https://www.nielsen.com/us/en/insights/article/2018/viewers-watch-president-trump-s-state-of-the-union-2018/ [https://perma.cc/L62S-ADYX].

  2. DACA refers to Deferred Action for Childhood Arrivals, an executive policy launched by President Obama in June 2012, allowing those who entered the United States at a young age to avoid deportation by remaining lawfully present in the country. See President Barack Obama, Remarks by the President on Immigration (June 15, 2012), (transcript available at https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-immigration [https://perma.cc/YX7C-A2N9]); see also Memorandum from Janet Napolitano, Sec’y of Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Prot. (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf [https://perma.cc/AA5M-MHLW]. The future of the policy is uncertain, as it has come under attack by the current Administration, with the result that no new applications for DACA are being accepted, although renewals of already existing DACA applications can still be filed. See Brian Harper et al., Explainer: What is DACA?, Ams. Soc’y Council Ams. (Dec. 5, 2019), https://www.as-coa.org/articles/explainer-what-daca [https://perma.cc/69FC-V875].

  3. Katie Reilly, These Democrats Are Bringing ‘Dreamers’ to President Trump’s State of the Union Address, Time (Jan. 29, 2018, 2:02 PM), https://time.com/5123287/state-union-daca-dreamers-democrat-guests/ [https://perma.cc/2ZXP-MSBQ].

  4. This policy would basically extend citizenship to those who meet the eligibility requirements for the current DACA system, which required entry into the United States before one’s 16th birthday. See Julia Gelatt & Sarah Pierce, The Trump Immigration Plan: A Lopsided Proposal, Migration Pol’y Inst. (Jan. 2018), https://www.migrationpolicy.org/news/trump-immigration-plan-lopsided-proposal [https://perma.cc/5GYC-WA2G]; Memorandum from Janet Napolitano, supra note 2.

  5. See John Burnett, Explaining 'Chain Migration,’ npr (Jan. 7, 2018, 8:06 AM), https://www.npr.org/2018/01/07/576301232/explaining-chain-migration [https://perma.cc/FZ3H-AEF8].

  6. President Donald J. Trump, State of the Union Address (Jan. 30, 2018) (transcript available at https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-state-union-address/ [https://perma.cc/PDP9-X7JX]).

  7. Molly Hennessy-Fiske, U.S. Is Separating Immigrant Parents and Children to Discourage Others, Activists Say, L.A. Times (Feb. 20, 2018, 3:00 AM), https://www.latimes.com/nation/la-na-immigrant-family-separations-2018-story.html [https://perma.cc/65MP-YRWH].

  8. Letter from Congressional Democrats to Kirstjen Nielsen, Sec’y, Dep’t Homeland Sec. (Feb. 8, 2018), https://homeland.house.gov/imo/media/doc/DemsLetterDHSFamilies.pdf [https://perma.cc/6E6H-FBFS].

  9. Press Release, Dep’t of Justice, Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry (Apr. 6, 2018), https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry [https://perma.cc/9LY7-ZK69] (“Attorney General Jeff Sessions today notified all U.S. Attorney’s Offices along the Southwest Border of a new ‘zero-tolerance policy’ for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien.”).

  10. Why Are Families Being Separated at the Border? An Explainer, Bipartisan Pol’y Ctr.: Immigration Blog (June 13, 2018), https://bipartisanpolicy.org/blog/why-are-families-being-separated-at-the-border-an-explainer/ [https://perma.cc/3LH8-VG3P]; see also Aura Bogado, Here’s a Map of Shelters Where Immigrant Children Have Been Housed, Reveal (June 26, 2018), https://www.revealnews.org/article/heres-a-map-of-shelters-where-immigrant-children-have-been-housed/ [https://perma.cc/84YV-CHBG].

  11. Katie Reilly, Nearly 2,000 Children Have Been Separated from Their Families During Trump Border Crackdown, Time (June 16, 2018), http://time.com/5314128/trump-immigration-family-separation-2000-children/ [https://perma.cc/P4VH-UYUV].

  12. Exec. Order No. 13,841, 83 Fed. Reg. 29,435 (June 25, 2018).

  13. Ms. L. v. U.S. Immigration & Customs Enf’t (ICE), 310 F. Supp. 3d 1133, 1149 (S.D. Cal. 2018).

  14. Catherine E. Shoichet, 171 Kids from Separated Families Are Still in Custody. Most Won’t Be Reunited with Their Parents, CNN, https://www.cnn.com/2018/11/08/politics/separated-families-reunification-update/index.html [https://perma.cc/W3QQ-3TS9] (last updated Nov. 8, 2018, 8:22 PM).

  15. See Mark Keierleber, Child Immigrants in Federal Custody Are Entitled to an Education. Here’s How It Works, 74 Million (June 21, 2018), https://www.the74million.org/child-immigrants-in-federal-custody-are-entitled-an-education-heres-how-it-works/ [https://perma.cc/N65M-CKJV].

  16. See Danya Perez-Hernandez, Teachers Question Education Provided to Migrant Children in Detention, Monitor (June 20, 2018), https://www.themonitor.com/2018/06/20/teachers-question-education-provided-to-migrant-children-in-detention/ [https://perma.cc/6M9R-D7SX].

  17. See Dana Goldstein & Manny Fernandez, In a Migrant Shelter Classroom, ‘It’s Always Like the First Day of School,’ N.Y. Times (July 6, 2018), https://www.nytimes.com/2018/07/06/us/immigrants-shelters-schools-border.html [https://perma.cc/TZ7E-27H9].

  18. See Shelby Webb, TEA: Schools Cannot Use State Funds to Educate Migrant Children in Shelters, Hous. Chron., https://www.chron.com/news/houston-texas/houston/article/TEA-Schools-cannot-use-state-funds-to-educate-13194609.php [https://perma.cc/436W-4TZ4] (last updated Aug. 31, 2018, 10:13 AM).

  19. See Rhonda M. Carter, All Children Deserve an Education, No Matter Their Immigration Status, S. Seattle Emerald (July 20, 2018), https://southseattleemerald.com/2018/07/20/all-children-deserve-an-education-no-matter-their-immigration-status/ [https://perma.cc/46U6-4YZY].

  20. See Hank Stephenson, TUSD to Discuss Educating Hundreds of Immigrant Children Being Detained in Tucson, Tucson.com (July 23, 2018), https://tucson.com/news/local/tusd-to-discuss-educating-hundreds-of-immigrant-children-being-detained/article_d7ce29ff-def0-5f16-8d82-cbeebd3e048a.html [https://perma.cc/9YNY-JLG7].

  21. See Letter from Leo Lopez, Assoc. Comm’r for Sch. Fin., Tex. Educ. Agency, to Administrators Addressed (Aug. 31, 2018), https://tea.texas.gov/About_TEA/News_and_Multimedia/Correspondence/TAA_Letters/Unallowable_double_funding_for_unaccompanied_children_held_in_custody_by_or_for_the_federal_government_being_served_by_Texas_public_schools/ [https://perma.cc/RCK5-TADV].

  22. See Homeland Security Act of 2002, 6 U.S.C. §§ 279(b)(1)(A), (b)(1)(G), (g)(2) (2018) (outlining the Office of Refugee Resettlement’s duties to unaccompanied alien children in federal custody and the infrastructure housing them as well as the definition of “unaccompanied alien child.”); William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 8 U.S.C. § 1232 (outlining the children that fall within the exception to the general rule that unaccompanied minors are returned to their resident country).

  23. Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997), https://www.aclu.org/sites/default/files/assets/flores_settlement_final_plus_extension_of_settlement011797.pdf [https://perma.cc/LBU4-3ZEZ].

  24. Office of Refugee Resettlement, U.S. Dep’t of Health & Human Servs., ORR Guide: Children Entering the United States Unaccompanied § 3 (2015), https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied [https://perma.cc/23J4-XXLV].

  25. See discussion infra Sections II.A–.B.

  26. See discussion infra Section II.C.

  27. See discussion infra Section III.A.

  28. See discussion infra Section III.B.

  29. See discussion infra Sections III.C–.E.

  30. See discussion infra Part IV.

  31. See Flores v. Meese, 942 F.2d 1352, 1354–55 (9th Cir. 1991), rev’d sub nom, Reno v. Flores, 507 U.S. 292 (1993).

  32. Id. at 1368 (Tang, J., concurring).

  33. See Jeanette M. Acosta, Note, The Right to Education for Unaccompanied Minors, 43 Hastings Const. L.Q. 649, 666–69 (2016).

  34. Stipulated Settlement Agreement, supra note 23. This settlement arises out of a case originally filed in 1987 and decided in 1988. See Flores v. Meese, 681 F. Supp. 665 (C.D. Cal. 1988), aff’d, 942 F.2d 1352 (9th Cir. 1991), rev’d sub nom, Reno v. Flores, 507 U.S. 292 (1993).

  35. Flores v. Meese, 934 F.2d 991, 995 (9th Cir. 1990), vacated and superseded on reh’g, 942 F.2d 1352 (9th Cir. 1991), rev’d sub nom, Reno v. Flores, 507 U.S. 292 (1993); Rebeca M. López, Codifying the Flores Settlement Agreement: Seeking to Protect Immigrant Children in U.S. Custody, 95 Marq. L. Rev. 1635, 1648 (2012).

  36. Flores, 934 F.2d at 995.

  37. Stipulated Settlement Agreement, supra note 23, at 7–8.

  38. These basic requirements include access to basic necessities for habitability, contact with family members also arrested, separate accommodations from unrelated adults, and a policy favoring release to related family members or a licensed program. Id. at 7–8, 10.

  39. See Office of the Inspector Gen., U.S. Dep’t of Justice, Unaccompanied Juveniles in INS Custody (2001), https://oig.justice.gov/reports/INS/e0109/exec.htm [https://perma.cc/995G-HZZP] (report containing “28 recommendations to address the issues” that the [Office of the Inspector General] identified during review of “the treatment of unaccompanied illegal juveniles held in the custody of the Immigration and Naturalization Service (INS)”).

  40. President George W. Bush, Remarks by the President at the Signing of H.R. 5005 the Homeland Security Act of 2002 (Nov. 25, 2002) (transcript available at https://georgewbush-whitehouse.archives.gov/news/releases/2002/11/20021125-6.html [https://perma.cc/Q665-DZKX]); see also William A. Kandel, Cong. Research Serv., R43599, Unaccompanied Alien Children: An Overview 3 (2017).

  41. Homeland Security Act of 2002, 6 U.S.C. § 291 (2012).

  42. Wendy Young & Megan McKenna, The Measure of a Society: The Treatment of Unaccompanied Refugee and Immigrant Children in the United States, 45 Harv. C.R.-C.L. L. Rev. 247, 249 (2010).

  43. See Kandel, supra note 40, at 4.

  44. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 8 U.S.C. § 1232 (2012).

  45. For example, some scholars have suggested that the TVPRA has borrowed the “best interests of the child” language from Article 3 of the Convention to appoint independent advocates for unaccompanied minors that act in the child’s “best interest”; this is the same kind of language that is found throughout the TVPRA. See G.A. Res. 44/25, Convention on the Rights of the Child, art. 3 (Nov. 20, 1989); see also 8 U.S.C. § 1232; Olga Byrne, Promoting a Child Rights-Based Approach to Immigration in the United States, 32 Geo. Immigr. L.J. 59, 84–86; William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110–457, 122 Stat. 5044 (2008) (stating legislators were trying to stay “[c]onsistent with the provisions of . . . the Convention of the Rights of the child”).

  46. About the Program, Off. Refugee Resettlement, https://www.acf.hhs.gov/orr/programs/ucs/about [https://perma.cc/JZU9-CD7M] (last updated May 18, 2019).

  47. See Kandel, supra note 40, at 4. In fact, the Trump Administration filed an ex parte application and memorandum on June 21, 2018 to have the FSA relaxed so that it could indefinitely detain minors alongside their parents, which was denied in an order from U.S. District Judge Dolly Gee on July 9, 2018. Defendants’ Memoradum of Points and Authorities in Support of Ex Parte Application for Relief from the Flores Settlement Agreement, Flores v. Sessions, No. CV 85-4544-DMG (AGRx) (C.D. Cal. June 21, 2018); Order Denying Defendants’ “Ex Parte Application for Limited Relief from Settlement Agreement,” Flores v. Sessions, No. CV 85-4544-DMG (AGRx) (C.D. Cal. June 21, 2018). In the meantime, the Trump Administration has attempted to modify the FSA through new DHS regulations, with a notice of proposed rulemaking published on September 7, 2018 and with the commenting period concluded on November 6, 2018. Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45,486 (Sept. 7, 2018) (to be codified at 8 C.F.R. pts. 212 and 236).

  48. See Kandel, supra note 40, at 3.

  49. In the first half of 2014, tens of thousands of women and children began fleeing increased violence and crime in the “Northern Triangle”—made up of the countries of Honduras, Guatemala and El Salvador—and headed north into Mexico, hoping to seek asylum or refugee status in the United States. See Jonathan T. Hiskey et al., Am. Immigration Council, Understanding the Central American Refugee Crisis: Why They Are Fleeing and How U.S. Policies Are Failing to Deter Them 1–3 (2016), https://www.americanimmigrationcouncil.org/sites/default/files/research/understanding_the_central_american_refugee_crisis.pdf [https://perma.cc/YKH2-H7Z7]; see also Christine M. Hernández, Unaccompanied Alien Children: A Crisis in Our Immigration Courts, 45 Colo. Law., Oct. 2016, at 35, 35–36 (describing the crisis in greater detail as it pertained to unaccompanied minor children).

  50. See Dora Schriro, Weeping in the Playtime of Others: The Obama Administration’s Failed Reform of ICE Family Detention Practices, 5 J. Migration & Hum. Security 452, 461 (2017); Amanda Sakuma, The Failed Experiment of Immigrant Family Detention, NBC News (Aug. 3, 2015, 11:35 AM), https://www.nbcnews.com/news/latino/failed-experiment-immigrant-family-detention-n403126 [https://perma.cc/6V9M-H8XR].

  51. Order Re Plaintiff’s Motion to Enforce Settlement of Class Action and Defendants’ Motion to Amend Settlement Agreement at 4–5, 9, Flores v. Johnson, No. CV 85-04544 DMG (AGRx) (C.D. Cal. 2015).

  52. Id. at 7–9.

  53. See Dep’t of Justice, supra note 9.

  54. See Linda Qiu, Republicans Misplace Blame for Splitting Families at the Border, N.Y. Times (June 14, 2018), https://www.nytimes.com/2018/06/14/us/politics/fact-check-republicans-family-separations-border.html [https://perma.cc/45H8-QHUP]; see also Sari Horwitz & Maria Sacchetti, Sessions Vows to Prosecute All Illegal Border Crossers and Separate Children from Their Parents, Wash. Post (May 7, 2018, 5:07 PM), https://www.washingtonpost.com/world/national-security/sessions-says-justice-dept-will-prosecute-every-person-who-crosses-border-unlawfully/2018/05/07/e1312b7e-5216-11e8-9c91-7dab596e8252_story.html?utm_term=.102e7f9f5425 [https://perma.cc/D4X4-NWW8]; W. Gardner Selby, Ted Cruz Says Child-Parent Separations at Border Tied to a Court Order, Politifact (June 18, 2018), https://www.politifact.com/texas/statements/2018/jun/18/ted-cruz/ted-cruz-says-child-parent-separations-border-tied/ [https://perma.cc/KMC7-H386].

  55. See Dara Lind & Dylan Scott, Flores Agreement: Trump’s Executive Order to End Family Separation Might Run Afoul of a 1997 Court Ruling, Vox, https://www.vox.com/2018/6/20/17484546/executive-order-family-separation-flores-settlement-agreement-immigration [https://perma.cc/8HQQ-TYPC] (last updated June 21, 2018, 10:42 AM); Amanda Holpuch, US to Remove Limit on How Long Immigrant Children Can Be Detained, Guardian (Aug. 21, 2019, 12:25 PM), https://www.theguardian.com/us-news/2019/aug/21/us-to-remove-limit-on-how-long-immigrant-children-can-be-detained [https://perma.cc/SU8M-2M5Y].

  56. Homeland Security Act of 2002, 6 U.S.C. § 279(b)(1)(B) (2012).

  57. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 8 U.S.C. § 1232(c)(2).

  58. Olga Byrne & Elise Miller, Ctr. on Immigration & Justice, The Flow of Unaccompanied Children Through the Immigration System 4 (2012), https://storage.googleapis.com/vera-web-assets/downloads/Publications/the-flow-of-unaccompanied-children-through-the-immigration-system-a-resource-for-practitioners-policy-makers-and-researchers/legacy_downloads/the-flow-of-unaccompanied-children-through-the-immigration-system.pdf [https://perma.cc/XG8V-ENVF].

  59. See Kandel, supra note 40, at 8; see also Office of Refugee Resettlement, supra note 24.

  60. Acosta, supra note 33, at 667–68.

  61. Terri Langford & Jessica Hamel, Interactive: Federal Children’s Shelters in Texas, Tex. Trib. (June 24, 2014), https://www.texastribune.org/2014/06/24/federal-childrens-shelters-texas/ [https://perma.cc/W83P-JCJ8].

  62. See infra Section II.B.

  63. Unaccompanied Alien Children Frequently Asked Questions, Off. Refugee Resettlement (July 9, 2018), https://www.acf.hhs.gov/orr/resource/unaccompanied-alien-children-frequently-asked-questions [https://perma.cc/X759-55MQ].

  64. See Jennifer Epstein, Trump’s Family Separations Bedevil Republicans As Public Outrage Grows, Bloomberg (June 18, 2018, 3:00 AM), https://www.bloomberg.com/news/articles/2018-06-18/trump-s-family-separations-bedevil-gop-as-public-outrage-grows [https://perma.cc/AMR9-W6Y3]; see also Matt Viser, Trump Reverses Course After Outcry over Separating Children from Parents, Boston Globe (June 20, 2018, 8:25 PM), https://www.bostonglobe.com/news/politics/2018/06/20/trump-reverses-course-zero-tolerance-after-outcry-over-separating-children-from-parents/eX1Bn9TaeSrW54X1RkLacM/story.html [https://perma.cc/8KFT-B4G6]; Dave Elias, Public Outcry Causes Trump to End Separation Between Families at Border, NBC2 (June 20, 2018, 5:31 PM), https://www.nbc-2.com/story/38471334/public-outcry-causes-trump-to-end-separation-between-families-at-border [https://perma.cc/QW7K-BD38].

  65. See Frequently Asked Questions Regarding Unaccompanied Alien Children, HHS.GOV, https://www.hhs.gov/programs/social-services/unaccompanied-alien-children/faqs/index.html [https://perma.cc/TQJ9-FE9T] (last updated Aug. 7, 2018).

  66. Claudia Valenzuela et al., Nat’l Immigrant Justice Ctr., Freedom of Information Act Litigation Reveals Systematic Lack of Accountability in Immigration Detention Contracting 3 (2015), http://www.immigrantjustice.org/sites/immigrantjustice.org/files/images/NIJC Transparency and Human Rights Project August 2015 Report FINAL2.pdf [https://perma.cc/GL56-G8SA] (“Notwithstanding President Obama’s 2009 directive to increase government transparency, it took four years, one federal lawsuit, two depositions of ICE officers deemed experts in immigration detention contracting and inspections, and a federal court order to obtain documents for more than 100 of the country’s largest detention facilities.”).

  67. See infra note 76 and accompanying text.

  68. See Acosta, supra note 33, at 669 (remarking that the only evidence they could find that service providers were adhering to ORR grant requirements were from provider websites, ORR’s grant application, and anecdotal evidence from a provider’s program director); see also Lauren Camera, Unaccompanied and Uneducated: The Billions Spent at the Border, U.S. News (Sept. 28, 2018, 6:00 AM), https://www.usnews.com/news/the-report/articles/2018-09-28/unaccompanied-and-uneducated-the-billions-spent-at-the-border [https://perma.cc/X352-8HL4].

  69. Letter from Comm. on Educ. & the Workforce, U.S. House of Representatives, to Alex M. Azar, Sec’y, U.S. Dep’t of Health & Human Servs. (June 28, 2018), https://edlabor.house.gov/imo/media/doc/Forced Separation Oversight Letter 6.28.2018.pdf [https://perma.cc/M5XN-MQRY] (regarding educational services, the letter called for details of the following: (1) the Administration’s process to ensure that every unaccompanied minor was receiving the required educational assessment and services, (2) ORR’s process for evaluating and monitoring the educational services being provided, (3) the credentials and experiences of those providing the educational services, and (4) “in the event of indefinite family detention in DHS custody,” what processes were “in place to ensure timely assessment and delivery of educational services”).

  70. See U.S. Gov’t Accountability Off., GAO-16-180, Unaccompanied Children: HHS Can Take Further Actions to Monitor Their Care 24–27 (2016) (noting that the kind of classroom instruction and the expertise of the teachers employed varied between sites, several documents needed to verify that the proper services were being provided were missing, and ORR monitoring and oversight of the facilities was inconsistent—with some facilities going several years without a single monitoring visit); Goldstein & Fernandez, supra note 17 (noting that lawyers and educators with first-hand knowledge find some teachers are not state certified, some teachers cannot speak Spanish to effectively communicate to students, and the age range in some classes is so wide that it renders the classes ineffective); see also Perez-Hernandez, supra note 16.

  71. See Monique Judge, A New Tent City in the Texas Desert and Other Changes Being Imposed on Migrant Children in the US, Root (Sept. 30, 2018, 1:45 PM), https://www.theroot.com/a-new-tent-city-in-the-texas-desert-and-other-changes-b-1829423839 [https://perma.cc/S6AU-KESD]; see also Editorial Board, Hundreds of Children Are Still Separated from Their Parents. When Will This End?, Wash. Post (Oct. 1, 2018, 6:35 PM), https://www.washingtonpost.com/opinions/hundreds-of-children-are-still-separated-from-their-parents-when-will-this-end/2018/10/01/16c563e6-c5b1-11e8-9b1c-a90f1daae309_story.html [https://perma.cc/6ZYR-N6SF].

  72. Garance Burke, Federal Agency Says It Lost Track of 1,488 Migrant Children, AP News (Sept. 19, 2018), https://www.apnews.com/aad956b7281f4057aaac1ef4b5732f12 [https://perma.cc/NS9H-TXU6].

  73. See Acosta, supra note 33, at 666.

  74. See Editorial Board, supra note 71; see also The ORR and DHS Information-Sharing Agreement and Its Consequences, Just. for Immigrants, https://justiceforimmigrants.org/wp-content/uploads/2019/10/Updated-formated-MOA-backgrounder-10.2.19.pdf [https://perma.cc/EWY8-FBQQ] (last updated Oct. 2019).

  75. See Editorial Board, supra note 71.

  76. See Rebecca Klein & Dana Liebelson, Here’s What School Is Really Like for Some Migrant Children Separated from Their Parents, Huffington Post (July 6, 2018, 8:36 AM), https://www.huffingtonpost.com/entry/school-for-migrant-children_us_5b3e8490e4b07b827cbeb479 [https://perma.cc/8UFN-4RHX]; see also Goldstein & Fernandez, supra note 17; Perez-Hernandez, supra note 16.

  77. See Sarah Green, Migrant Children at Detention Camps Receiving Little Education, Supporting Educ. (July 26, 2018), http://www.supportingeducation.org/2018/07/26/migrant-children-detention-camps-receiving-little-education/ [https://perma.cc/AQ6R-CVRN].

  78. See Acosta, supra note 33, at 668; Letter from Leo Lopez, supra note 21; see also Eva-Marie Ayala, Texas Public Schools Can’t Use State Money to Educate Detained Migrant Children, Officials Say, Dall. Morning News (June 24, 2018, 6:00 AM), https://www.dallasnews.com/news/education/2018/08/30/texas-public-schools-cant-use-state-money-educate-detained-migrant-children-officials-say [https://perma.cc/XE44-TEGT].

  79. See Goldstein & Fernandez, supra note 17.

  80. See Acosta, supra note 33, at 668.

  81. See Kylie Diebold et al., Educating Unaccompanied Children in U.S. Shelters, Forced Migration Rev. Online (Mar. 2019), https://www.fmreview.org/education-displacement/diebold-evans-hornung [https://perma.cc/6W9M-YT2D] (“A qualified teacher may not always be available to complete the initial educational assessment, meaning that a lesser-trained staff member may step in. When there are vacant teaching positions, candidates who do not meet all the ideal criteria (bilingual, certified to teach English language learners, and with knowledge about unaccompanied children) may be offered positions to prevent a gap in educational services to children.”).

  82. See Alison Eck, Psychological Damage Inflicted by Parent-Child Separation Is Deep, Long-Lasting, PBS (June 20, 2018), https://www.pbs.org/wgbh/nova/article/psychological-damage-inflicted-by-parent-child-separation-is-deep-long-lasting/ [https://perma.cc/W3CG-DU3W]; see also Yasemin Saplakoglu, Separated Migrant Children Face Lasting Psychological Trauma, Live Sci. (June 20, 2018), https://www.livescience.com/62874-psychological-harms-separated-migrant-children.html [https://perma.cc/8CPR-BCAT].

  83. See Goldstein & Fernandez, supra note 17.

  84. See The ORR and DHS Information-Sharing Agreement and Its Consequences, supra note 74.

  85. See Alexandra Villarreal, ‘It’s Not Just’: Immigrant Families Seeking Asylum Held Indefinitely at Pennsylvania Detention Center, NBC Wash. (Apr. 6, 2017), https://www.nbcwashington.com/news/national-international/Immigrants-Berks-Asylum-Detention-Supreme-Court-418574003.html [https://perma.cc/W9V6-GJZF]. Even then, if a child is released from ORR, there is typically no monitoring done to ensure that the sponsor has actually enrolled the unaccompanied minor in a local school. See Acosta, supra note 33, at 666.

  86. See Acosta, supra note 33, at 669–74.

  87. Id. at 671.

  88. Id. at 672.

  89. Id. at 673.

  90. Id. at 673–74.

  91. Michael Leachman et al., A Punishing Decade for School Funding, Ctr. on Budget & Pol’y Priorities (Nov. 29, 2017), https://www.cbpp.org/research/state-budget-and-tax/a-punishing-decade-for-school-funding [https://perma.cc/GZT9-XGRY].

  92. See Acosta, supra note 33 (the funding is only for students who arrived in the preceding three years).

  93. See Sarah Pierce, Migration Policy Inst., Unaccompanied Child Migrants in U.S. Communities, Immigration Court, and Schools 3 (2015), https://www.migrationpolicy.org/sites/default/files/publications/UAC-Integration-FINAL.pdf [https://perma.cc/HS7Z-FBB7].

  94. Meredith Hoffman, Trump Has Quietly Cut Legal Aid for Migrant Kids Separated from Parents, Vice (May 31, 2018, 1:24 PM), https://www.vice.com/en_us/article/a3a798/trump-has-quietly-cut-legal-aid-for-migrant-kids-separated-from-parents [https://perma.cc/Q9FQ-JKTV].

  95. Title III funds are provided by the Department of Education as part of the English Language Acquisition, Language Enhancement, and Academic Achievement Act to states to help their English Learning students, particularly immigrant youth, achieve proficiency in English and meet the academic requirements of the schools they are enrolled in. 20 U.S.C. §§ 6811–6812 (2012). States are required to set aside 15% of the funds they receive to distribute to school districts who see major enrollment increases. Grace Chen, Public Schools Struggle to Accommodate Unaccompanied Migrant Children, Pub. Sch. Rev. (Jan. 9, 2020), https://www.publicschoolreview.com/blog/public-schools-struggle-to-accommodate-unaccompanied-migrant-children [https://perma.cc/2GXA-VFAD].

  96. See Letter from Leo Lopez, supra note 21; see also Ayala, supra note 78.

  97. See Chen, supra note 95.

  98. See Acosta, supra note 33, at 669–74.

  99. Refugee Act of 1980, 8 U.S.C. § 152.

  100. U.S. Const. art. II, § 2, cl. 1.

  101. In 2014, for example, President Obama asked Congress for an additional $1.57 billion to deal with the “steep influx of children caught crossing the border illegally,” the bulk of which was meant for ORR use. Susan Carroll, Obama Budget Request Soars for Migrant Children Traveling Alone, Hous. Chron. (June 9, 2014), https://www.houstonchronicle.com/news/houston-texas/houston/article/Obama-budget-request-soars-for-migrant-children-5540454.php [https://perma.cc/3XNW-GS2W].

  102. See Dep’t of Justice, supra note 9.

  103. See Hoffman, supra note 94.

  104. See Stipulated Settlement Agreement, supra note 23, at 3.

  105. See generally Jessica G. Taverna, Note, Did the Government Finally Get it Right? An Analysis of the Former INS, the Office of Refugee Resettlement and Unaccompanied Minor Aliens’ Due Process Rights, 12 Wm. & Mary Bill Rts. J. 939 (concluding that the various agencies in charge of implementing protections that unaccompanied minors are entitled to, have historically failed because their ability to implement these protections came second to the main concerns of the Executive Branch at the time, like terrorism or border security).

  106. See Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45,486 (Sept. 7, 2018) (to be codified at 8 C.F.R. pts. 212 and 236).

  107. Letter from Leo Lopez, supra note 21; Texas Won’t Pay for Educating Kids in Migrant Shelters, CBS DFW (Aug. 31, 2018, 1:45 PM), https://dfw.cbslocal.com/2018/08/31/texas-wont-pay-education-migrant-kids-shelters/ [https://perma.cc/Y5CG-543J].

  108. Tex. Educ. Code § 25.003.

  109. See Texas Won’t Pay for Educating Kids in Migrant Shelters, supra note 107.

  110. See Educ. § 25.003.

  111. See Ailsa Chang, More than 200 Migrant Children Are Still in Federal Custody, Separated from Families, npr (Oct. 23, 2018, 4:47 PM), https://www.npr.org/2018/10/23/659988658/more-than-200-migrant-children-are-still-in-federal-custody-separated-from-famil [https://perma.cc/R5G4-ZMY8].

  112. Kate Sullivan, Record 14,000 Unaccompanied Immigrant Children in US Custody, HHS Confirms, CNN, https://www.cnn.com/2018/11/23/politics/hhs-record-14000-immigrant-children-us-custody/index.html [https://perma.cc/UKR9-E5ZA] (last updated Nov. 23, 2018, 4:48 PM).

  113. See The ORR and DHS Information-Sharing Agreement and Its Consequences, supra note 74.

  114. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).

  115. Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).

  116. Rodriguez, 411 U.S. at 35.

  117. Plyler v. Doe, 457 U.S. 202, 221 (1982).

  118. See infra Sections III.B–.C.

  119. See infra Section III.D.

  120. U.S. Const. amend. XIV, § 1.

  121. See Griswold v. Connecticut, 381 U.S. 479, 487 (1965) (Goldberg, J., concurring) (“[T]he Due Process Clause protects those liberties . . . ‘ranked as fundamental.’” (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934))); see also Obergefell v. Hodges, 135 S. Ct. 2584, 2602 (2015) (“[T]he liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.”).

  122. See generally Viktor Mayer-Schönberger, Substantive Due Process and Equal Protection in the Fundamental Rights Realm, 33 Howard L.J. 287 (1990) (explaining the history of fundamental rights under both clauses and how these clauses work to protect these rights).

  123. Federal action that conflicts with substantive due process is also included in this analysis. U.S. Const. amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law.”). Furthermore, the Courts have also found, under the Doctrine of Reverse Incorporation, that the Fifth Amendment contains an Equal Protection component to it as well. See Bolling v. Sharpe, 347 U.S. 497, 498–500 (1954) (applying its holding in Brown, based on Fourteenth Amendment Equal Protection grounds, to the federal government, saying that it would be “unthinkable” that the Constitution prohibits the states from discrimination while still allowing it in the federal context).

  124. See Matthew R. Grothouse, Implicit in the Concept of Ordered Liberty: How Obergefell v. Hodges Illuminates the Modern Substantive Due Process Debate, 49 J. Marshall L. Rev. 1021, 1056 (2016).

  125. Id. at 1057–58.

  126. Id. Furthermore, there are unique instances in which the Court will find that fundamental rights under one clause inform the finding of a fundamental right in the other clause. Id. at 1063. In the case of education, the unique interplay between the Court’s consideration of whether it is ‘fundamental’ despite being argued under the Equal Protection Clause in both Rodriguez and Plyler, could see the Court utilize this ‘converging Clause’ approach if it found that the right to education is fundamental under one of the two. Id.

  127. See Philip Bobbitt, Constitutional Fate: Theory of the Constitution 7, 93 (1982).

  128. For a more detailed discussion of the usage of the historical and textual modalities under the originalist framework of constitutional interpretation, see Jamal Greene, Pathetic Argument in Constitutional Law, 113 Colum. L. Rev. 1389, 1425–27 (2013). Such a discussion, however, is beyond the scope of this Comment.

  129. Philip Bobbitt, Constitutional Interpretation 12 (1991).

  130. See Greene, supra note 128, at 1425 (positing two strands of constitutional textualism—contemporary and historical meaning textualism, the latter of which overlaps significantly with the historical modality of interpretation).

  131. Bobbitt, supra note 129, at 12–13. See generally Charles L. Black, Jr., Structure and Relationship in Constitutional Law 11 (1969) (proposing the argument for the structural method of constitutional interpretation more generally).

  132. Philip Bobbitt, Methods of Constitutional Argument, 23 U.B.C. L. Rev. 449, 453–54 (1989).

  133. Id. at 454.

  134. Bobbitt, supra note 129, at 13.

  135. See Bobbitt, supra note 127, at 94 (making the argument that Supreme Court decisions should not be predicated on any one modality, but instead, a judge should, “employ all the tools that are appropriate, often in combination, to achieve a satisfying result”).

  136. Michael A. Olivas & Ronna Greff Schneider, Education Law Stories: Law and Society in the Classroom, in Education Law Stories 1, 2 (Michael A. Olivas & Ronna Greff Schneider eds., 2008).

  137. Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954).

  138. Leland Ware, The Story of Brown v. Board of Education: The Long Road to Racial Equality, in Education Law Stories, supra note 136, at 19, 37.

  139. Brown, 347 U.S. at 486.

  140. Id. at 487–88.

  141. Id. at 486, 488.

  142. Chief Justice Warren spent the months after the Court’s recess persuading all the Justices on the Court to sign on to the ruling so that public school segregation could be struck down in a unanimous decision. See Ware, supra note 138, at 41.

  143. Brown, 347 U.S. at 494–95, 494 n.11 (including “a sense of inferiority,” diminished mental and educational development, and psychological issues).

  144. Id. at 495.

  145. The Court did not consider whether public school segregation also violated the Due Process Clause because its finding that such segregation did violate the Equal Protection Clause resolved the issue on its own. Id.

  146. Id. at 493 (discussing “the importance of education to our democratic society,” and how an education is the cornerstone of “good citizenship,” instilling in children the values and training necessary to be productive and contributing members of society).

  147. Id. at 492–93.

  148. Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 287 (1977) (quoting the Massachusetts Constitution of 1780, drafted by John Adams).

  149. See Bobbitt, supra note 127, at 10.

  150. See Robert J. Hume, The Use of Rhetorical Sources by the U.S. Supreme Court, 40 L. & Soc’y Rev. 817, 817–18, 823 (2006) (discussing justices’ usage of “rhetorical sources” by founding fathers like Thomas Jefferson, Robert Yates (“Brutus”) and James Wilson to justify their holdings); see also Matthew J. Festa, Dueling Federalists: Supreme Court Decisions with Multiple Opinions Citing The Federalist, 1986–2007, 31 Seattle U. L. Rev. 75, 75–77 (2007) (discussing the use of The Federalist Papers in Supreme Court opinions).

  151. See Greene, supra note 128, at 1427–28.

  152. See Brown, 347 U.S. at 489–90.

  153. Id.

  154. Id. For an example of what a detailed historical argument in favor of the right to education considers, see generally Malhar Shah, The Fundamental Right to Literacy: Relitigating the Fundamental Right to Education After Rodriguez and Plyler, 73 Nat’l Law. Guild Rev. 129 (2016).

  155. 79. A Bill for the More General Diffusion of Knowledge, 18 June 1779, Founders Online, http://founders.archives.gov/documents/Jefferson/01-02-02-0132-0004-0079 [https://perma.cc/3UAL-R77C] (last visited Apr. 4, 2020) (suggesting implementation of a public education bill because despite the best intentions to create an efficient government without corruption, over time, government leaders will always turn tyrannical and thus, the best weapon against such an occurrence, is to “illuminate, as far as practicable, the minds of the people at large, and more especially to give them knowledge of those facts”); see also Quotations: Thomas Jefferson Memorial Inscriptions, Nat’l Park Serv., https://www.nps.gov/thje/learn/photosmultimedia/quotations.htm [https://perma.cc/M5WP-EHTA] (last updated Apr. 10, 2015) (“Establish the law for educating the common people. This it is the business of the state to effect and on a general plan.” (quoting Letter from Thomas Jefferson to George Washington (Jan. 4, 1786), https://founders.archives.gov/documents/Washington/04-03-02-0419 [https://perma.cc/SJQ7-CSUX])); Letter from Thomas Jefferson to George Wythe (Aug. 13, 1786), https://founders.archives.gov/documents/Jefferson/01-10-02-0162 [https://perma.cc/4X7K-473L].

  156. See Charles R. Kesler, Education and Politics: Lessons from the American Founding, 1991 U. Chi. Legal F. 101, 111 (1991).

  157. See supra note 155 and accompanying text.

  158. See supra note 156 and accompanying text.

  159. See Shah, supra note 154, at 152–53, 161 (concluding that the Rodriguez decision was not only wrongly decided, but that it is now a generational responsibility to “convince the Supreme Court that the meaning of ‘liberty’ has infinitely changed”).

  160. The Texas funding system provided all Texas school districts the same base fund. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 9–10 (1973). This seems to have been a determinative factor in the Court’s decision to uphold the Texas funding system. Id. at 36–37 (arguing that Texas exceeded even a hypothetical minimum “quantum of education” because the system did not provide “an absolute denial of educational opportunities to any of its children”).

  161. Id. at 4–5, 17.

  162. Id. For the purposes of this Comment, the suspect class analysis is not particularly relevant. However, the Court did not find that property-poor people constituted a suspect class warranting the Court to review Texas’s funding system under strict scrutiny. Id. at 28–29.

  163. Id. at 17.

  164. Id. at 35–36.

  165. Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).

  166. The Court reasoned that the “importance of education will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic legislation.” Rodriguez, 411 U.S. at 30, 35 (meaning rational basis review).

  167. Id. at 37–40, 55.

  168. See id. at 2, 35–36.

  169. See Bobbitt, supra note 127, at 25–26.

  170. See Greene, supra note 128, at 1425; see also supra Section III.B.1.

  171. See Bobbitt, supra note 127, at 36; see also Greene, supra note 128, at 1425.

  172. See Bobbitt, supra note 127, at 36.

  173. Rodriguez, 411 U.S. at 33–35.

  174. See supra Section III.B.1.

  175. Grothouse, supra note 124, at 1059–60 (referring to this kind of liberty definition as limited “to rights ‘deeply rooted in this Nation’s history and tradition’” (quoting Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997))).

  176. Glucksberg, 521 U.S. at 720–21 (citing Palko v. Connecticut, 302 U.S. 319, 325–26 (1937)).

  177. Grothouse, supra note 124, at 1060–61. Grothouse discusses three ways that liberty interests are defined: (1) “deeply rooted” interests; (2) interests “implicit in the concept of ordered liberty”; and (3) interests “limited to constitutional rights,” with each definition having its merits and flaws. Id. at 1058–62.

  178. Id. at 1061.

  179. This argument was actually advanced by the Rodriguez plaintiffs. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).

  180. Reynolds v. Sims, 377 U.S. 533, 561–62 (1964).

  181. Rodriguez, 411 U.S. at 35–36.

  182. Id. at 36.

  183. See Grothouse, supra note 124, at 1061.

  184. Id.

  185. Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).

  186. Lawrence v. Texas, 539 U.S. 558, 573–74 (2003) (citing Casey, 505 U.S. at 851).

  187. Obergefell v. Hodges, 135 S. Ct. 2584, 2602 (2015).

  188. See Bobbitt, supra note 127, at 41.

  189. For a discussion of the doctrine of stare decisis as it applies, in particular, to constitutional arguments, see Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723 (1988).

  190. Bobbitt, supra note 127, at 41.

  191. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973).

  192. See discussion supra Section III.B.2.

  193. Rodriguez, 411 U.S. at 33–34.

  194. In his dissent, Justice Marshall attacked the majority’s premise on the issue by offering examples of the Court’s jurisprudence where a right was deemed fundamental because of “the importance of the interests at stake,” even if it was not “recognize[d] from the text of the Constitution itself.” Id. at 99–100 (Marshall, J., dissenting).

  195. United States v. Guest, 383 U.S. 745, 758 (1966).

  196. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).

  197. Reynolds v. Sims, 377 U.S. 533, 561–62 (1964).

  198. Griffin v. Illinois, 351 U.S. 12, 18–19 (1956).

  199. Namely, that the right to education is not fundamental because it is not explicitly or implicitly mentioned in the Constitution, regardless of education’s societal importance. Rodriguez, 411 U.S. at 33–34.

  200. In an interview, Justice Ruth Bader Ginsburg noted, “Dissents speak to a future age. It’s not simply to say, ‘My colleagues are wrong.’ . . . The greatest dissents do become court opinions, and gradually over time, their views become the dominant view, so that’s the dissenter’s hope. They are writing not for today but for tomorrow.” Ruth Bader Ginsburg and Malvina Harlan, npr (May 2, 2002, 12:00 AM), https://www.npr.org/templates/story/story.php?storyId=1142685 [https://perma.cc/CJ92-ELNQ].

  201. The nexus between the right to vote and the right to effective speech is an example. Rodriguez, 411 U.S. at 35.

  202. Id. at 102–03 (Marshall, J., dissenting).

  203. See Brooke Wilkins, Note, Should Public Education Be a Federal Fundamental Right?, 2005 BYU Educ. & L.J. 261, 284.

  204. Rodriguez, 411 U.S. at 36–37 (making a potential argument that because the Texas funding system was not an “absolute denial of educational opportunities,” it did not meet the “prerequisite” required to consider whether there was an infringement of a fundamental right).

  205. The lack of educational services provided to unaccompanied minors in federal shelters would fail to meet the Rodriguez Court’s “identifiable quantum of education” necessary to require constitutional protection. Id.

  206. Id. at 44.

  207. Bobbitt, supra note 129, at 14–15.

  208. See Black, Jr., supra note 131, at 13–15 (showing this sort of inference from structure by using the famous McCulloch v. Maryland case as an example); see also Greene, supra note 128, at 1433. Black first argued that Marshall’s decision to uphold the Bank of the United States was based not on the Necessary and Proper Clause, but rather, on the inferred powers that Congress had stemming from the enumerated powers under Article I, Section 8 of the Constitution. Id. Second, he argued that Marshall’s decision to strike down Maryland’s tax on the Bank was predicated not on the Supremacy Clause of Article IV, but on the “warranted relational properties between the national government and the government of the states, with the structural corollaries of national supremacy.” Id. at 14–15.

  209. See discussion infra Section III.C.

  210. U.S. Const. art. IV, § 4.

  211. An argument based on the structural interpretation framework, would look something like the following (based on the outline provided by Professor Bobbitt): (1) a statement is made about the Constitution’s structure that is not in controversy (the Constitution provides for a Republican form of government); (2) from this statement about the Constitution’s structure, a relationship can be inferred (a Republican form of government requires the active participation of an informed citizenry because only well-informed citizens would realize the importance of participating and electing the kind of representatives needed to keep the Republic alive); (3) “a factual assertion about the world is made” (without a right to education, citizens would remain uninformed and unable to understand complex issues that are important to electing representatives and thus, this ignorance would render them unable to participate in the Republican process); and (4) a conclusion is made and forms the basis of the Court’s rule (therefore, a Republican form of government requires that the right to education be a fundamental right under the Constitution). See Bobbitt, supra note 129, at 16; see also Thomas J. Walsh, Education as a Fundamental Right Under the United States Constitution, 29 Willamette L. Rev. 279, 288 (1993) (making this exact argument).

  212. Plyler v. Doe, 457 U.S. 202 (1982).

  213. Id. at 205.

  214. Id.

  215. Id. at 208–09, 223–24, 230, 238. This higher standard meant that the Texas revision would only be “rational” if it “further[ed] some substantial goal of the State.” Id. at 223–24. However, the Court found that the revision could not be justified as furthering a substantial state interest, rejecting all of Texas’s justifications, including conservation of state resources, protection against an influx of undocumented persons, and the fact that the children in Plyler were unlikely to contribute to the state’s economy because they were deportable at any moment. Id. at 227–30.

  216. Id. at 219–24.

  217. Id. at 221.

  218. Id. at 221–23.

  219. Id. at 219–20.

  220. See id. at 205, 230. This means Plyler’s holding would not apply to unaccompanied minors under federal custody, who are essentially “outside” the jurisdiction of the nearby school district.

  221. See id. at 224; Bobbitt, supra note 127, at 61.

  222. See Bobbitt, supra note 127, at 61.

  223. Plyler, 457 U.S. at 223.

  224. Id.

  225. Michael A. Olivas, No Undocumented Child Left Behind: Plyler v. Doe and the Education of Undocumented Schoolchildren 23–25 (2012).

  226. Zita Arocha, 1980s Expected to Set Mark as Top Immigration Decade, Wash. Post (July 23, 1988), https://www.washingtonpost.com/archive/politics/1988/07/23/1980s-expected-to-set-mark-as-top-immigration-decade/9ecd472f-e691-4d49-a0f4-00a3200250f5/ [https://perma.cc/FDX7-JNUN]. In fact, a few years after this decision, President Reagan would give amnesty to about 2 million undocumented immigrants. Ingrid Rojas, The 1986 Immigration Reform Explained, ABC News (May 5, 2013, 2:17 PM), https://abcnews.go.com/ABC_Univision/Politics/1986-amnesty/story?id=18971179 [https://perma.cc/DG23-BFDT].

  227. See Bobbitt, supra note 129, at 13.

  228. Plyler, 457 U.S. at 221–22.

  229. Id. at 221, 224–25.

  230. See id. at 222–24.

  231. See Olivas, supra note 225, at 26.

  232. See Walsh, supra note 211, at 294.

  233. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 44 (1973) (arguing that the question of whether a right to education is fundamental implicated the relationship between national and state power, with the balance weighing in favor of the states in this instance due to the potential impact on the federal system).

  234. Professor Lund makes the argument that because Supreme Court justices are not elected, they do not have the incentive that forces government officials to consider the consequences of their decisions. Nelson Lund, Federalism and Civil Liberties, 45 U. Kan. L. Rev. 1045, 1062 (1997). Furthermore, Supreme Court decisions are harder to correct because of the stare decisis doctrine, and their national reach affects more people than a single state decision. Id. Professor Lund also points to the effect that offending state policies could have on the state’s population. See Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 Mich. L. Rev. 1555, 1600 (2004). Because citizens are entitled to receive free flow of information, and are constitutionally allowed to emigrate between the states, this represents another check on state legislatures that Supreme Court justices do not have to contend with. Id. at 1600 n.168. Actual emigration does not have to take place in order to deter states from deciding on offensive policies because just the mere threat of emigration could prevent businesses from entering the state’s economy as businesses would be unable to find low-wage workers willing to work under such conditions. Id. at 1600, nn.168–70.

  235. See Lund, supra note 234, at 1062–63.

  236. For a more detailed understanding of the concept of competitive federalism, see Lund & McGinnis, supra note 234, at 1599–1601 (noting that federal systems are like free markets and the competition that results between jurisdictions with different social and political policies will lead to societal progression with the least amount of risk). Furthermore, Professors Lund and McGinnis argue that technological progression over time has made federalism a more attractive concept—there are fewer obstacles for people to receive information and to emigrate now than ever before. Id. at 1599–1601. Therefore, because the Supreme Court’s decisions always come with a host of potential issues, the Court should reconsider federalism as the safest approach to securing civil liberties. See id. at 1598–1603.

  237. Id. at 1600–02.

  238. See Lawrence G. Sager, Cool Federalism and the Life-Cycle of Moral Progress, 46 Wm. & Mary L. Rev. 1385, 1387–89 (2005) (creating a historical model based off the development of gay marriage rights throughout the country but also finding it applicable to the abolition of segregation under the Jim Crow era and the extension of women’s rights). Sager’s model posits that the first stage in creating societal progress is the “invention” stage where a small number of states will pass legislation in favor of moral progress. Id. at 1387. Following this is the “propagation” stage where there might be growing acceptance of these ideas, but also growing opposition. Id. at 1388. Finally, the “consolidation” stage sees the implementation of these ideas throughout the nation, usually in the form of “federal judicial judgment in the name of the Constitution.” Id.

  239. As of 2014—more than forty years after Rodriguez—forty-four state constitutions have language recognizing public education as a fundamental right or at least some educational requirements that a state must provide its students. Trish Brennan-Gac, Educational Rights in the States, Am. B. Ass’n (Apr. 1, 2014), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/2014_vol_40/vol_40_no_2_civil_rights/educational_rights_states/ [https://perma.cc/4SZE-M8UJ]. However, a large amount of those states did not pass such provisions until the 1990s. Id.

  240. See Wilkins, supra note 203, at 289.

  241. In Missouri v. Jenkins, a federal district court was forced to take an active role in shaping educational policy. See Missouri v. Jenkins, 515 U.S. 70, 75–80 (1995) (illustrating that because the federal district court was reviewing a school district’s desegregation plan, the federal court became bogged down in administrative policy and was forced to rule on salary increases, funding of educational programs, facility improvements, and educational procedure). In his concurrence, Justice Thomas remarked that the District Court’s activism in deciding how the school district should desegregate was an example of the Judiciary going beyond its “constitutionally mandated role” by depriving the States and its representatives the powers conferred unto them under the Constitution. Id. at 138 (Thomas, J., concurring).

  242. The Federalist No. 51 (James Madison).

  243. U.S. Const. art. I, § 1.

  244. Jenkins, 515 U.S. at 99; see also Jeffrey S. Sutton, San Antonio Independent School District v. Rodriguez and Its Aftermath, 94 Va. L. Rev. 1963, 1980 (2008) (arguing that if the Supreme Court had found for the plaintiffs by making public education a fundamental right, there would have been a multitude of unintended consequences). Primarily, the Court was ill-equipped to create a remedy that could apply to fifty different states with fifty different laws. Id. at 1978–79. Besides the complexity of administrating a uniform rule across the country, a finding for the plaintiffs would also inevitably lead the Court down a slippery slope of deciding the constitutionality of curriculum choices, class sizes, team memberships, etc. Id. at 1980.

  245. See The Federalist No. 51 (James Madison); see also Bruce G. Peabody & John D. Nugent, Toward a Unifying Theory of the Separation of Powers, 53 Am. U. L. Rev. 1, 44–45 (2003) (arguing that despite all the emphasis placed on a notion of “negative” separation of powers, meaning preventing encroachments by one branch on another, the real danger lies “where one or more branches cedes authority, becomes a passive political actor, or fails to express and assert its special institutional character on a consistent basis”).

  246. See Bruce G. Peabody, Legislating from the Bench: A Definition and Defense, 11 Lewis & Clark L. Rev. 185, 220 (2007) (citing Maxwell S. Peltz, Second-Parent Adoption: Overcoming Barriers to Lesbian Family Rights, 3 Mich. J. Gender & L. 175 (1995)).

  247. See Richard Lavoie, Activist or Automaton: The Institutional Need to Reach a Middle Ground in American Jurisprudence, 68 Alb. L. Rev. 611, 621 (2005).

  248. See generally Laurence H. Tribe, The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence, 99 Harv. L. Rev. 330 (1985) (arguing that a structural review of the Constitution will find that many of the rights protected by it are phrased in a way that implies that they already belong to an individual, and thus, the government’s duty is to simply not impose on them, rather than expend energy or resources to meet an individual’s needs).

  249. U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or . . . abridging the freedom of speech, or of the press . . . .”); U.S. Const. amend. III (“No Soldier shall . . . be quartered in any house, without the consent of the Owner . . . .”); U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects . . . shall not be violated . . . .”).

  250. See Tribe, supra note 248, at 330.

  251. DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989) (stating that the Due Process Clause does not confer on the government an affirmative right to act).

  252. See Walsh, supra note 211, at 295.

  253. Archibald Cox, The Role of the Supreme Court in American Society, 50 Marq. L. Rev. 575, 585 (1967).

  254. U.S. Const. pmbl. (“We the People of the United States, in Order to . . . promote the general Welfare, and secure the Blessings of Liberty . . . do ordain and establish this Constitution for the United States of America.”).

  255. See Marie A. Failinger, An Offer She Can’t Refuse: When Fundamental Rights and Conditions on Government Benefits Collide, 31 Vill. L. Rev. 833, 883 (1986) (arguing that the government is unlike individuals, in that individuals do not have the obligation to help other individuals in society because they are autonomous beings with responsibility only to themselves, whereas democratic government was created with the “explicit and implicit purpose[] . . . to act affirmatively in securing the welfare of others”). Although determining what kind of affirmative duties a fundamental right to education would impose on the government is beyond the scope of this Comment, a common suggestion put forth envisions the Court defining the contours of a “minimally adequate education,” and the states implementing those guidelines. See Kristen Safier, The Question of a Fundamental Right to a Minimally Adequate Education, 69 U. Cin. L. Rev. 993, 1018–20 (2001).

  256. Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (first quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934); then quoting Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937); and then quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)).

  257. Namely, the Supreme Court must overrule its decisions in Rodriguez and Plyler, where it found that education, despite being an important governmental service, is not a fundamental right warranting the strictest scrutiny for claims based on a violation of that right. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973); Plyler v. Doe, 457 U.S. 202 (1982).

  258. By the end of the 2016 term, the Supreme Court had, in its almost 230 years of existence, overruled precedent just 236 times. Gov’t Publ’g Office, Supreme Court Decisions Overruled by Subsequent Decision (2016), https://www.govinfo.gov/content/pkg/GPO-CONAN-REV-2016/pdf/GPO-CONAN-REV-2016-13.pdf [https://perma.cc/4MNE-E859].

  259. Arizona v. Rumsey, 467 U.S. 203, 212 (1984).

  260. See generally George Costello, Cong. Research Serv., RL33172, The Supreme Court’s Overruling of Constitutional Precedent: An Overview 1, 4 (2005).

  261. See Lee Epstein et al., The Decision to Depart (or Not) from Constitutional Precedent: An Empirical Study of the Roberts Court, 90 N.Y.U. L. Rev. 1115, 1138 (2015).

  262. See Albert P. Blaustein & Andrew H. Field, “Overruling” Opinions in the Supreme Court, 57 Mich. L. Rev. 151, 156–57 (1958).

  263. See Planned Parenthood v. Casey, 505 U.S. 833, 854–55 (1992).

  264. Aria Bendix, The US Was Once a Leader for Healthcare and Education – Now It Ranks 27th in the World, Bus. Insider (Sept. 27, 2018, 10:46 AM), https://www.businessinsider.com/us-ranks-27th-for-healthcare-and-education-2018-9 [https://perma.cc/M55E-KXST]. A more detailed summary shows that the United States in 2015 ranked eighth in reading, eleventh in science, and just thirtieth in math around the world. Lauren Camera, U.S. Students Show No Improvement in Math, Reading, Science on International Exam, U.S. News (Dec. 3, 2019, 3:00 AM), https://www.usnews.com/news/education-news/articles/2019-12-03/us-students-show-no-improvement-in-math-reading-science-on-international-exam [https://perma.cc/3C25-L6WT].

  265. U.S. Education Slips in Rankings, CBS News (Sept. 13, 2005, 10:14 AM), https://www.cbsnews.com/news/us-education-slips-in-rankings/ [https://perma.cc/6TYV-SZB9].

  266. W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 400 (1937).

  267. Id. at 399.

  268. Lochner v. New York, 198 U.S. 45, 64 (1905) (striking down a New York law which limited the amount of hours a bakery employee could work per week as abridging the fundamental right to contract).

  269. See W. Coast Hotel Co., 300 U.S. at 399.

  270. Despite the fact that the high school graduation rate has reached an all-time high of 80%, less than half of these graduates are proficient in reading and math, a trend that, from 2009 to 2013, had improved very little. Donna Martin, Education Crisis Sweeping the United States, Guardian Liberty Voice (May 14, 2014), https://guardianlv.com/2014/05/education-crisis-sweeping-the-united-states/ [https://perma.cc/L4B6-6EYW].

  271. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).

  272. See Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1281–84 (2007) (summarizing that government action infringing upon a fundamental right is subject to strict judicial scrutiny).

  273. Arizona v. Rumsey, 467 U.S. 203, 212 (1984).

  274. The first time the Court decided to overrule constitutional precedent based on the doctrine of unworkability was in Garcia v. San Antonio Metropolitan Transit Authority, finding inconsistency in lower court decisions based on the same issue. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531 (1985).

  275. Lauren Vicki Stark, The Unworkable Unworkability Test, 80 N.Y.U. L. Rev. 1665, 1671 (2005).

  276. Payne v. Tennessee, 501 U.S. 808, 829 (1991).

  277. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).

  278. Id. at 62–63 (Brennan, J., dissenting) (arguing that the Texas school-financing system was subject to strict scrutiny and should be struck down as unconstitutional because the right to education was “inextricably linked” to upholding First Amendment rights).

  279. Id. at 70, 98–101 (Marshall, J., dissenting) (arguing that the majority’s opinion is flawed because not all rights that are deemed fundamental and worthy of strict judicial review are “explicitly” or “implicitly” guaranteed by the Constitution, such as the rights to interstate travel, to procreate, to vote, and to appeal from criminal conviction).

  280. Id. at 35, 62, 99–100 (holding that education is not a fundamental right because it is not explicitly mentioned under the Constitution and mere societal importance is not enough to make a right fundamental and any legislation that affects it worthy of stricter judicial review).

  281. Planned Parenthood v. Casey, 505 U.S. 833, 860–61 (1992).

  282. Brown v. Bd. of Educ., 347 U.S. 483, 491–92 (citing Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); Sipuel v. Bd. of Regents, 332 U.S. 631 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Okla. State Regents, 339 U.S. 637 (1950)).

  283. Brown, 347 U.S. at 493.

  284. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977).

  285. Rodriguez, 411 U.S. at 44.

  286. See Michael Heise, The Story of San Antonio Independent School Dist. v. Rodriguez: School Finance, Local Control, and Constitutional Limits, in Education Law Stories, supra note 136, at 51, 71–72.

  287. Id. at 74.

  288. Complaint at 1, Cook v. Raimondo, No. 1:18-CV-645 (D.R.I. Nov. 28, 2018), https://www.tc.columbia.edu/media/news/images/2018/november/CookvRaimondoFINAL.pdf [https://perma.cc/PG7P-QFSS].

  289. Id. at 2, 6.

  290. Id. at 2.

  291. See supra Sections III.B–.C.

  292. See supra Section III.D.

  293. Complaint, supra note 288, at 2, 16.

  294. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).

  295. Andrew Ujifusa & Corey Mitchell, Educating Migrant Children in Shelters: 6 Things to Know, Educ. Wk. (June 20, 2018), http://www.edweek.org/ew/articles/2018/06/20/6-things-to-know-about-the-trump.html [https://perma.cc/L2BC-FZSF].

  296. See Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45,486, 45,492 (Sept. 7, 2018) (to be codified at 8 C.F.R. pts. 212 and 236).

  297. See Leachman et al., supra note 91.

  298. See Letter from Leo Lopez, supra note 21.

  299. See generally Safier, supra note 255 (concluding that a fundamental right to a minimally adequate education is essential because relying on state-by-state litigation will not create national education reform and that regardless of success in some states, there are still other states whose educational systems are still failing their students).

  300. Jeffrey D. Grynaviski, Congress Used to Pass Bipartisan Legislation – Will It Ever Again?, Conversation (Jan. 4, 2019, 6:35 AM), http://theconversation.com/congress-used-to-pass-bipartisan-legislation-will-it-ever-again-107134 [https://perma.cc/8Z4K-545M].

  301. See discussion supra Section III.B.

  302. Plyler v. Doe, 457 U.S. 202, 230 (1982).

  303. Once a right is fundamental under the Constitution, it cannot be infringed upon by state or federal action. Reno v. Flores, 507 U.S. 292, 301–02 (1993). Furthermore, a finding that a right is fundamental would apply equally to unaccompanied minors as it would to U.S. citizens. Plyler, 457 U.S. at 215 (“Use of the phrase ‘within its jurisdiction’ thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. That a person’s initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State’s territorial perimeter.”). Furthermore, once a right is determined to be fundamental under the Fourteenth Amendment, it may apply equally to the federal government through the Fifth Amendment’s Due Process Clause through the doctrine of Reverse Incorporation. See Bolling v. Sharpe, 347 U.S. 497, 498–99 (1954).

  304. See Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45,486, 45,486 (Sept. 7, 2018) (to be codified at 8 C.F.R. pts. 212 and 236).

  305. Washington v. Glucksberg, 521 U.S. 702, 719–21 (1997).

  306. See Fallon, Jr., supra note 272, at 1269.

  307. Tex. Educ. Code § 25.003.

  308. The Court would probably not find any of Texas’s interests to be compelling enough to keep unaccompanied minors within the state’s boundaries from receiving an adequate education. See Plyler, 457 U.S. at 227–30.

  309. See Acosta, supra note 33, at 669–74.

  310. See discussion supra Section II.A.

  311. Alia Wong, The Students Suing for a Constitutional Right to Education, Atlantic (Nov. 28, 2018), https://www.theatlantic.com/education/archive/2018/11/lawsuit-constitutional-right-education/576901/ [https://perma.cc/7S7V-95WM].

  312. Alia Wong, Students in Detroit Are Suing the State Because They Weren’t Taught to Read, Atlantic (July 6, 2018), https://www.theatlantic.com/education/archive/2018/07/no-right-become-literate/564545/ [https://perma.cc/P57H-T62S].

  313. Lauren Camera, Achievement Gap Between White and Black Students Still Gaping, U.S. News & World Rep. (Jan. 13, 2016), https://www.usnews.com/news/blogs/data-mine/2016/01/13/achievement-gap-between-white-and-black-students-still-gaping [https://perma.cc/Q9KZ-S9MR].

  314. Marguerite Roza et al., Do Districts Fund Schools Fairly?, Educ. Next, Fall 2007, at 69, 69–70, https://www.educationnext.org/files/ednext_20074_68.pdf [https://perma.cc/6PAS-SQRK].

  315. Erika Christakis, Americans Have Given Up on Public Schools. That’s a Mistake., Atlantic (Oct. 2017), https://www.theatlantic.com/magazine/archive/2017/10/the-war-on-public-schools/537903/ [https://perma.cc/C8TA-WJG7].

  316. See Amrutha Gayathri, US 17th in Global Education Ranking; Finland, South Korea Claim Top Spots, Int’l Bus. Times (Nov. 27, 2012, 2:24 AM), https://www.ibtimes.com/us-17th-global-education-ranking-finland-south-korea-claim-top-spots-901538 [https://perma.cc/MYS5-C8NR].

  317. Linda Greenhouse, Law and Symbolism at the Supreme Court, N.Y. Times (June 25, 2015), https://www.nytimes.com/2015/06/25/opinion/law-and-symbolism-at-the-supreme-court.html [https://perma.cc/V2TA-BCNW].

  318. Thomas G. Dolan, Undocumented Students and Education: 30 Years After Plyler v. Doe, Hisp. Outlook Higher Educ., Dec. 17, 2012, at 27, 27.