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- Title
POSITIVELY FUNDAMENTAL NEGATIVE RIGHTS: REIMAGINING A POSITIVE RIGHT TO EDUCATION AS A NEGATIVE RIGHT AGAINST ARBITRARY CONFINEMENT.
- Authors
CARDEN, MICHAEL P.
- Abstract
This Note explores the issue of access to adequate education by examining the liberty rights of students at chronically underperforming public schools. The issue was previously considered by the Sixth Circuit Court of Appeals in 2020, in Gary B. v. Whitmer. After delineating positive and negative rights and addressing the dearth of positive rights in the U.S. Constitution, the Note turns to the explicit and implicit adoption of the negative rights framework within federal education jurisprudence, as well as case law on arbitrary confinement. The Note then considers the factual allegations and liberty-based legal argument advanced by the Gary B. plaintiffs: schools that fail to provide a basic minimum level of education are schools in name only. Compulsory attendance laws and truancy policies, in this 'warehousing' context, arbitrarily confine students, infringing upon the right to personal liberty guaranteed by the Due Process Clause. In order to remedy this constitutional violation, plaintiffs argued, the State must provide students with some basic level of educational attainment. This Note argues that the Gary B. plaintiffs strategically sought to mask the goal of establishing a positive right to education in the language and dress of negative rights. Such a strategy exemplifies the weak philosophical and logical underpinnings of the broader negative/positive rights dichotomy. Although this negative rights argument may seem appealing--especially given the Court's rejection of a positive right to education promulgated in San Antonio Independent School District v. Rodriguez in 1973--whether future litigants find success with this approach may require the Court to reconsider or ultimately abandon the negative/positive rights dichotomy.
- Subjects
RIGHT to education; UNITED States. Constitution; JURISPRUDENCE; SCHOOL attendance; EDUCATIONAL attainment
- Publication
Boston College Law Review, 2024, Vol 65, Issue 2, p689
- ISSN
0161-6587
- Publication type
Article