J. Benson

Wayne State University Law School (UNITED STATES)
Over the past three decades, in the absence of a federal constitutional right to education in the United States, education reform activists have utilized state constitutional provisions that establish a substantive right to a quality education to seek court decisions and settlements that promote improved conditions within public schools. Several of these lawsuits have sought to define an enforceable right to a quality education for all students in a state, while others have sought to lessen funding disparities between schools and to improve access and services that students receive.

While the constitutions in over 30 states mandate, in some form, that the State provide a quality education, 17 states require only that the state “maintain and support” a system of free schools in a nondiscriminatory manner. To compound the problem, courts in eight of those 17 states with constitutional language similar to Michigan’s have adopted an expansive interpretation of the language that includes a mandate for states to provide a quality or “adequate” education. Michigan courts have declined to find such a right within the general language of our state constitution .

As a result, our state is one of only nine states in the country with no substantive provisions giving students a right to receive a quality or adequate education, which means that Michigan is in the bottom tier of state constitutional protections for education.

We seek to work with those committed to improving education in this state to explore the question of whether to advocate for an amendment to the state constitution through the ballot initiative process that would create a substantive right to a quality education for every child in Michigan.

In exploring this issue, it is important to note that strong constitutional “rights” language has not necessarily ensured that the educational systems in those states are better than in states with weaker constitutional language. Similarly, advocates in many states with weaker constitutional provisions have made significant progress in improving their systems of education through favorable court verdicts or settlements.

The challenge we face, therefore, is to evaluate language that results in the creation of an enforceable legal right to a quality or adequate education that can lead to meaningful reform within a state.

To that end this paper will offer an overview of the different language and wording options for state constitutional language that mandates or promotes quality education. It details the options for drafting a potential constitutional amendment and, through a discussion of the experiences states with similar language, illustrates arguments for and against each option.