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Goodwin Liu and the Right to an Education

March 29, 2010

The New York Times has an editorial this morning on the nomination of Goodwin Liu, a law professor at UC-Berkeley, to the 9th Circuit Court of Appeals.  What does this have to do with education?  Mr. Liu is perhaps the foremost legal scholar in the United States today on the connection between constitutional law and education.  Among legal scholars, he’s been one of my absolute favorites (along with Tim Wu).  Having written some fascinating pieces on education and rights law, Mr. Liu’s nomination is “raising some hackles” (in the words of the Times):

Mr. Liu, who is 39, has written extensively on the Constitution and education law, among other areas. His views are not uniformly liberal — he has written in support of school vouchers and charter schools, market-oriented policies that many liberals and labor unions strongly oppose. But Mr. Liu’s conservative critics are taking aim at his support for affirmative action, gay marriage rights, and national health care, and his endorsement of the view that the Constitution is a document that evolves over time.

Mr. Liu is also talked about as a possible Supreme Court nominee in the near future.  Most exciting for me is his article, “Education, Equality, and National Citizenship,” published in the Yale Law Journal in 2006.  In it, Liu argues that under the citizenship clause of the 14th Amendment, we as citizens are endowed with certain unenumerated rights, as yet unrecognized by the Supreme Court, including the right to education.  This is key.  A long line of Supreme Court cases, including San Antonio v. Rodriguez and Plyler v. Doe, hold that education is not a right under the Constitution (the tortured analysis of Roe v. Wade notwithstanding).

Here’s what’s going on: Since the 60′s and 70′s, there has been a movement among legal progressives to establish new positive rights under the Constitution (e.g., the right to housing, healthcare, fair wage, education, etc.).  Across the board, and on the backs of countless of legal rationalizations (including the right to education as incident to the 1st amendment, since the right to communicate and receive information is meaningless unless one has an education), these cases have failed.  Liu’s article offers a new stratagem for pursuing this right to education, and signals that he, along with many others, is still willing to find a way to make education a right.  Of course, if it were established as such, the implications would be far-reaching (see the history of equity and adequacy lawsuits in the last 30 years).

Goodwin Liu is an amazingly accomplished and brilliant man.  I agree with the Times that he would make an excellent addition to the 9th Circuit (and maybe, one day, the Supreme Court).  I really encourage you to read the Yale Law Journal article if you have the time.  This is exciting stuff. I kind of wish he could just skip the 9th Circuit, go straight to the Supreme Court, and set Clarence Thomas straight.

Updated 11:31am for sentence structure

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