In thinking about education and property, much of the dynamic is driven by disentitlement. In 1973, the U.S. Supreme Court’s decision in San Antonio Independent School District v. Rodriguez made the right to education a constitutional orphan.
The Court refused to find that the Equal Protection Clause included protection for equal education.
Nor was education the kind of bulwark of liberty, namely the kind that supports participation in the political process, that received any special protection under the First Amendment.
Although the Court suggested that there might be a right to a basic education, the Justices have yet to endorse this principle.
In the intervening years, education has been searching for a constitutional home, and property has presented itself as a possibility. Law professor Matthew Shaw, for example, has argued that education is a protected property interest under substantive due process.
Although the odds of succeeding with such a claim have dimmed considerably since the Supreme Court rejected a substantive due process right to reproductive freedom in 2022,
the notion that education has property-like qualities persists. Often, these qualities are equated with privilege and exclusion rather than equity and inclusion.
Even so, scholars still hope that treating education as a form of property can promote access for disadvantaged children. For instance, Professor Shaw cites Plyler v. Doe
as the Supreme Court opinion that comes closest to ensuring a right to education for vulnerable students.
He believes that the decision rested on unspoken recognition of a vested property interest in public education.
In Plyler, the Court declared that Texas violated the Equal Protection Clause when it allowed public schools to bar undocumented students or charge them tuition.
The opinion did not declare a right to a basic education but instead offered a mélange of reasons for its holding. Some justifications were rooted in property-like entitlements, but others reflected a fraught discourse over immigration by invoking conceptions of the public good as well as norms of fundamental human decency.
The Court’s recent opinion overturning the right to an abortion has sparked calls to challenge Plyler as similarly misguided judicial activism,
so it seems timely and worthwhile to consider the likely staying power of the decision’s varied rationales.
First, this Essay will consider competing conceptions of property as they bear on education. To make property-like entitlements consistent with full access to education, scholars have modified traditional doctrinal principles to serve broader objectives of distributive fairness. For critics of property-based approaches, though, even elastic interpretations of the concept cannot reliably advance equal educational opportunity. As a result, some scholars have adopted alternative approaches that focus on education as a public good or a human right.
Next, this Essay will discuss how property-like concepts played a complex role in finding a right to education in Plyler. Undocumented families invoked an entitlement based on residency in the school district to deflect exclusion based on their immigration status. Although property-like claims figured significantly in the case, other factors were at work as well. The trope of childhood innocence allowed undocumented children to counter arguments that they should be punished for their parents’ decision to enter the country illegally. The students’ blamelessness became a shield against the inherited stigma that came with their parents’ immigration status.
This Essay closes with a reflection on Plyler’s likely fate if it were to return to the Court today. Residency remains an important way to allocate educational resources. However, its power derives from policymaking rather than any constitutional guarantee. Meanwhile, Congress and the states have grown bolder in enacting restrictive legislation that denies public benefits to undocumented individuals. Only Plyler has stood in the way of extending these policies to elementary and secondary education. Interestingly, the decision’s most enduring argument may be based not on property-like entitlements but on the innocence of children. The fear that dehumanizing border-enforcement practices threaten fundamental democratic values is likely to remain a critically important element of any defense of Plyler.