Education Rights and the New Due Process
41 Pages Posted: 15 Aug 2015
Date Written: 2014
Abstract
Government has a duty to act, if for no other purpose than to protect human dignity. This Article continues a “fundamental rights as duties” project begun in The Fifth Freedom: The Constitutional Duty to Provide Public Education by demonstrating that education is essential to both the liberty and democracy components to human dignity. It argues that without an educated citizenry, liberty and democracy are empty concepts, devoid of meaning for all but the economically privileged and socially advantaged.
The Article describes how the U.S. Supreme Court’s anti-equality bias as well as its libertarian bias against positive rights, previously described in The Fifth Freedom, can be overcome by applying a new, dignity-based due process clause analysis, similar to that suggested in Kenji Yoshino’s recent article, The New Equal Protection. The new due process would be based in a human dignity jurisprudence that applies the insights from the capabilities approach pioneered by developmental economist, Amartya Sen, and legal scholar, Martha Nussbaum.
The Article also draws insightful parallels between the right to education and the right to privacy, demonstrating that like the right to privacy, education is also essential to liberty. The Article argues that the right to public education, based on a new dignity-based, due process clause protection, is even stronger than the right to privacy. This is because unlike the right to privacy, education is essential to both the liberty and the democracy components of human dignity.
Keywords: Constitutional Law, Education, Due Process, Equal Protection, Dignity, Human Dignity, Rights, Fundamental Rights, Liberty, Positive Rights, Capabilities, Capabilities Approach
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