How can we make something better if we can’t agree what something is? In The New Yorker, Jill Jepore offers a review essay that raises a key question: Is Education a Fundamental Right? It’s an important question, but it sidesteps an even more fundamental problem: What IS education in the first place? If we can’t agree on that—and we can’t—we won’t be able to make progress toward improving schools.

As brainy observers such as Larry Cuban and Peter Greene have reminded us recently, when we can’t agree on the fundamental goals of education, we won’t be able to formulate sensible plans to improve it.

Prof. Lepore offers an insightful review of Justin Driver’s The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind. Driver examines the key SCOTUS case of Plyler v. Doe, in which undocumented migrants sued for the right to send their kids to public schools.

The case raised difficult questions: Can education be considered a fundamental right? Do undocumented Americans have a right to send their kids to public schools, the way they have the right to fire protection if their house is ablaze?

As historians like Prof. Cuban have long pointed out, the question of whether or not education is a basic right needs to take its place in line with all the other fundamental questions about education. Is it a right? Is it a public utility? Is it a tool of class domination?

In every tough case, these multiple visions of the basic goals of education bump uncomfortably along together. Partisans of various political agendas and reform proposals usually insist on one or more definition of the fundamental purpose of education, even though they almost never notice that they are doing so.

The Plyler v. Doe case was no exception. As Prof. Lepore’s review demonstrates, leading voices in that case relied on different unexamined assumptions about the true nature of American education. Consider the following excerpts:

Education is a Right:

Prof. Lepore asks,

Is education a fundamental right? The Constitution, drafted in the summer of 1787, does not mention a right to education, but the Northwest Ordinance, passed by Congress that same summer, held that “religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” By 1868 the constitutions of twenty-eight of the thirty-two states in the Union had provided for free public education, open to all. Texas, in its 1869 constitution, provided for free public schooling for “all the inhabitants of this State,” a provision that was revised to exclude undocumented immigrants only in 1975.

Education is a Public Good:

During the Plyler hearings,

Witnesses presented testimony about economies: educating these children cost the state money, particularly because they needed special English-language instruction, but not educating these children would be costly, too, in the long term, when they became legal residents but, uneducated, would be able to contribute very little to the tax base.

Education is An American tradition:

As one lawyer in the Plyler case put it,

An educated populace is the basis of our democratic institutions. . . .  A denial of educational opportunities is repugnant to our notions that an informed and educated citizenry is necessary to our society.

Education is A vehicle for fixing social inequities:

In a related recent case, Lepore writes,

the Detroit plaintiffs . . . identified the absolute denial of education as a violation of the equal-protection clause, and ruled that no state can “deny a discrete group of innocent children the free public education that it offers to other children residing within its borders.” Dismissed by a district court in June, the case is now headed to the Sixth Circuit on appeal.

Education is An imposition on non-White/non-middle class children:

Lepore notes,

If the schoolhouse is a mini-state, it has also become, in many places, a military state.

Education is A public utility:

She records this interchange during the Plyler hearings:

Marshall: Could Texas deny them fire protection?

Hardy: Deny them fire protection?

Marshall: Yes, sir. F-i-r-e.

Hardy: Okay. If their home is on fire, their home is going to be protected with the local fire services just—

Marshall: Could Texas pass a law and say they cannot be protected?

Hardy: —I don’t believe so.

Marshall: Why not? If they could do this, why couldn’t they do that?

Hardy: Because . . . I am going to take the position that it is an entitlement of the . . . Justice Marshall, let me think a second. You . . . that is . . . I don’t know. That’s a tough question.

Marshall: Somebody’s house is more important than his child?

Who is correct? They all are. Education is a right, a public good, a public utility, a means for economic advancement, a tool of class domination . . . all at the same time.

With all these unrecognized assumptions about the basic nature of education, it is hardly surprising that improving education has remained such a chimera. Even regarding a SCOTUS case explicitly dedicated to figuring out if education is a right, lawyers, activists, and historians all appealed unreflectively to all the other fundamental goals of education as well. And, of course, there are many others we could add to the list. Depending on whom you ask and on the case at hand, the basic nature of American education can and has been defined as all of the following:

• A private matter;
• A religious affair;
• A consumer product;
• A national security imperative…
• And many more.

Is education a fundamental right? Yes. Is it also all those other things? Also yes. Whenever Americans have a disagreement about the goals of education, they pull from this bubbling cauldron of conflicting and confusing fundamental goals to make their cases. And none of them are wrong.

In the end, they point to the reason why it is so difficult to fix schools. Not only is it difficult to tell what is broken; it is difficult even to find out what schools should do if they were fixed.