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Florida Constitution Revision Commission

PUB 700289: Individually Enforceable Right to Education by John H Ryskamp

ARTICLE I: DECLARATION OF RIGHTS, New Section.

Catchline: Individually Enforceable Right to Education

According to the fundamental case in United States Constitutional law, West Virginia v. Barnette, a fact is an individually enforceable right if it is

 

1. a fact of human experience

2. which history demonstrates

3. is unaffected by assaults upon it.

 

That is, if a fact is a robust, resilient and recurrent fact of human experience, it is an individually enforceable right and enjoys a level of scrutiny above minimum scrutiny. Underlying the recent recognition of the right to education in several States (beginning with New Jersey), is the factual finding that education meets the Barnette test.

 

Note that, according to the Barnette Court, when facts meet the test of an individually enforceable right, they are placed "beyond the reach of majorities and officials" and become "legal principles to be applied by the courts." In practical terms, control of the money relating to education is removed from the political system and placed in the court. Resistance by the political system to this removal is why so many facts, known to pass the Barnette test, are still in the political system.

 

The current language of the Florida Constitution does not embody the right to education. A "fundamental value of the people" is not an individually enforceable right and does not mean that the fact involved enjoys a level of scrutiny above minimum scrutiny. A "paramount duty of the state to make adequate provision" does not mean that an individual has the right to force the state to maintain the fact. Every lawyer and judge knows that this is true.

 

Therefore, the Constitution must revised to state:

 

No individual shall be deprived of education.