At the Very Apex: What the Supreme Court’s Student Speech Cases Have to Teach Us About a Constitutional Right to Education

A Constitutional Right to Education

In San Antonio Independent School District v. Rodriguez (1973), the Court, in an opinion by Justice Lewis Powell, declined to recognize education as a fundamental right under the U.S. Constitution. In doing so, it did not deny the significance of education. The Court admitted that certain fundamental freedoms, like freedom of speech and the right to vote, are partially dependent on education for their full and effective utilization. But the Court reasoned that the Constitution does not protect citizens’ ability to effectively employ their rights. The Court noted that it has never “presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice” (p. 36). Although the Court in Rodriguez allows some room for recognizing a minimal right to education, suggesting that an absolute denial of education or the utterly inadequate provision of education might be grounds for judicial intervention, the thrust of Rodriguez is to resist the idea of a fundamental educational right: “Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected” (p. 35).

The Court later elaborated on what Penelope Preovolos (1980, p. 75) calls the “unheld holding” of Rodriguez, that access to some basic level of education is deserving of constitutional protection. In Plyler v. Doe (1982), the Court invalidated a Texas law that allowed the state to withhold funds from school districts that educated illegal aliens. Although the Court reiterated its conclusion from Rodriguez that “[p]ublic education is not a ‘right’ granted to individuals by the Constitution” (p. 221), it required the law to “further some substantial goal of the State” because of the detrimental impact that a complete denial of education has on the individual and society (pp. 221–224). The Court explained that denying education to a discrete group of children “imposes a lifetime hardship on a discrete class of children” and denies “them the ability to live within the structure of our civic institutions, and foreclose[s] any realistic possibility that they will contribute in even the smallest way to the progress of our Nation” (p. 223). ¹ Finding that the law did not further such a substantial goal, the Court struck it down. Although the Court has not squarely addressed the question of an educational right since Rodriguez and Plyler, the Court has since recognized that “this Court has not yet definitively settled whether a minimally adequate education is a fundamental right. . .accorded heightened equal protection review” (Papasan v. Allain, 1986, p. 287). At least one lower federal court has relied on this open question to conclude that the Constitution does protect a right to a minimum education. In a decision that was later vacated and now lacks precedential effect, the Sixth Circuit Court of Appeals recognized a fundamental right to a basic minimum education, meaning one that provides access to a foundational level of literacy (Gary B. v. Whitmer, 2020).

Scholars and legal commentators have also chimed in on whether education ought to be recognized as a fundamental right protected by the Constitution. Providing perhaps the most comprehensive constitutional justifications for such a right, Susan Bitensky (1992) argues that a right to education could have any number of foundations within the Constitution, though her conclusions and methods are not without their detractors (Maggs, 1992). Bitensky’s foundations stem from (1) the Due Process Clause of the Fourteenth Amendment (Gard, 1973; Imoukhuede, 2014; Tribe, 1985), (2) the Privileges and Immunities Clause of the Fourteenth Amendment (Kurland, 1972), (3) the First Amendment’s Free Speech Clause (Gard, 1973), (4) the right to vote (Millhiser, 2005; Preovolos, 1980), and (5) the Ninth Amendment and its recognition that the Constitution does not deny other rights held by the people (Chambers, 1987). Finding another constitutional foundation, Goodwin Liu (2006) contends that the Fourteenth Amendment’s Citizenship Clause obligates Congress to provide a floor of educational opportunity across states as a guarantee of national citizenship. Derek Black (2018, 2019) echoes this foundation for a right to education, delineating an originalist argument for a fundamental right to education grounded in the original intent of the Fourteenth Amendment to guarantee education as a right of state citizenship. Finally, not necessarily relying on any particular constitutional provision, Barry Friedman and Sarah Solow (2013) argue that the right to education can be established through the various interpretative strategies (“modalities”) that the Supreme Court uses in deciding cases: textual analysis, examining original intent, looking at preratification practices, building on judicial precedents, and turning toward widely accepted federal and local governmental practices. Taken together, these interpretive strategies converge on a right to education that has long been an assumed part of social, governmental, legal, and civic practice, even though the Court has never fully recognized this right.

Contextual Task: Educational Goods and Educational Rights

Rights are generally thought to protect certain interests, either welfare interests that protect certain forms of wellbeing or interests in individuals making certain choices (Brighouse, 2002). What sorts of interests would a right to education protect? The answer to this question can partly be determined by thinking about the goals of education, which would articulate the sorts of goods that education is aiming to promote. Broadly speaking, educational goals can be broken down into two major categories: goals involving socialization and goals involving individualization. Socialization goals have to do with helping children to adjust to the social structures and behavioral norms around them. Schools are to inculcate the larger values of the community to children, aiming to help students to “fit in” to the world they will eventually inhabit. Individualization goals, in contrast, seek to develop the inner talents and resources of children, including their ability to take personal responsibility for their choices, and to act with creativity and independent judgment. In Western educational thought, Plato’s Republic is often thought to exemplify socialization goals, where the citizens of the Republic are shaped to perform their special social roles within the community. In contrast, Rousseau’s Emile is often considered to exemplify individualization goals in education, where Emile’s inner nature is to be nurtured and preserved against social corruption.

Another way of conceptualizing educational goals is to articulate whether education should focus on promoting public goods or private goods. An education for public goods is an education that seeks to benefit the larger community (Labaree, 1997). These public goods can be framed in economic terms, such as increasing economic productivity, or in civic terms, such as strengthening democracy (Thomas, 2022). At the same time, however, the way that families and students interact with the school system often reveals a focus on private goods: individual career advancement. Of course, the private goods of education need not revolve around climbing the career ladder—enhancing one’s personal life through artistic or literary enrichment is also a private good.

In the American political tradition, there has been an emphasis on socialization—particularly socializing students in the service of public goods. These public goods were framed in stark terms: the American experiment would fail unless students were inculcated with a uniform set of republican values. Historian David Tyack, looking at the educational thought of the Founders, writes: “Determined to preserve the heritage of the Revolution, to unify the nation, and to inculcate proper principles of government, they advocated a kind of republican indoctrination, hoping that the ensuing enlightenment would bring a salutary uniformity” (1966, p. 41). As we will see, the Supreme Court has also tended to recognize the importance of socialization and inculcation for the public good of preserving the nation. This, in fact, has tended to be the dominant lens through which people interpret the Court’s decisions because it reflects a consideration of the purposes of education. As we will see from the Court’s own words, however, this is not the only educational good that it acknowledges.

Contemporary philosophy of education has developed a more expansive notion of educational goods and has discussed the relationships between the individual and societal goods with considerable nuance. Different educational goods have been proposed—some public, some private, some a mixture of both. The growth and development of individual autonomy—developing the ability to think for oneself, to rule and govern oneself, or to self-create—has been repeatedly affirmed as a primary goal of education, and exemplifies notions of education as individualization. Autonomy is sometimes thought to be simply what we owe to human beings who are capable of rational deliberation, beings who ask, “What shall we do?” (Peters, 1966). Others argue that autonomy serves to benefit individual happiness: individual flourishing and happiness is more likely when individuals choose lives that are most congenial (Brighouse, 2006). Autonomy as an educational goal has important civic dimensions to it as well. In terms of political autonomy, a democratic society is legitimate, and the rule of law preserved, only if that society is accepted by individuals in a “free, rational, and informed way” (Curren, 2009; see also Levinson, 1999). Also, democratic procedures only make sense if voters are exercising a choice that is theirs, that is, a true reflection of their beliefs and values (Newman, 2013), rather than manipulations from outside.

Besides autonomy, other educational goods have been affirmed in the literature. Some have described the purpose of education in terms of human flourishing. Randall Curren (2009) argues that education should:

. . .initiate us into valuable practices through which we may flourish, find satisfaction, develop the insight and judgment essential to managing our lives effectively and gain access to various goods, including the truths we need in order to act with prudent and responsible awareness. (p. 53)

Brighouse, Ladd, Loeb, and Swift (2018) identify human flourishing as the primary aim of education, and identify six capacities essential to flourishing: economic productivity, personal autonomy, democratic competence, healthy personal relationships, treating others as equals, and personal fulfillment. These capacities cover a range of public goods, benefitting society, and private goods, benefitting the individual. Gert Biesta (2010), for his part, endorses an approach to education that recognizes three distinct aims of education: qualification (teaching the skills to “do something”), socialization (adjusting children to existing social expectations), and subjectification (developing the capacity for independent thought and action). While paying particular attention to subjectification, Biesta argues that education usually (and rightly) contains all three elements. A capacity for subjectification is akin to a capacity for autonomy and independent judgment, and is a private good. Goals related to “qualification” are partly private goods, as well, particularly when they are tied to lucrative social rewards on the labor market (e.g., advanced professional degrees in medicine or law).

The distribution of these types of private goods raises questions of equity in provision. To give only some students access to lucrative qualifications can be unfair, particularly when the selection hinges on race, gender, or class background. The value of such qualifications is “positional.” A positional good “is a good, valuable to some people only on condition that others do not have it” (Hollis, 1982). For example, the more common a professional degree, the less lucrative having that degree becomes. The educational opportunities leading to these high-value qualifications tend to become subject to intense social competition. Fairness and equity in providing access to such positional private goods thus becomes acute. In contrast, some private goods are not positional in nature—for example, education for health and nutrition is not positional because the value of this knowledge is not diminished by other people possessing it. In such cases, providing students with adequate access to the good—adequate learning about health and nutrition—is sufficient. Civic education is not usually considered a positional good because its value does not diminish if widely possessed. ² Equity in providing access to a public good like civic education is less important than adequacy in provision across a population. Indeed, emphasizing equality of educational provision is often a sign that a private educational good is under consideration.

Private Goods in Supreme Court Decisions

This discussion of public and private goods gives us something to look for as we read the Court’s educational decisions—what goods have been endorsed? One of the Court’s definitive statements about the purposes of education is found in the 1954 Brown v. Board of Education decision. In that decision, Chief Justice Earl Warren, writing for the Court, stated:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. (p. 493)

Two things should be noted in this statement. First, education is described as a “right,” at least where local governments have undertaken to provide it. Second, there is a multifaceted view of the goals of education, many of which have been discussed in the educational literature. Most of the goods outlined in Brown are public goods achieved through processes of what Biesta (2010) would call “socialization”—improving students’ “performance” of public responsibilities, inculcating them into “cultural values,” helping “adjust” them to the environment. These are all framed in terms of public goods, benefitting “our democratic society” rather than benefitting the individual.

Private goods, however, are also considered. The Court nods to the educational function that Biesta (2010) calls “qualification” as schools provide “professional training,” which benefits both society and the individual. The language of equality in opportunities to succeed also suggests that private goods are in play. The Court stipulated that children may not “reasonably be expected to succeed” without education, and then immediately explained that education must then “be made available to all on equal terms.” The need for equal provision is only pressing, remember, if educational success is being conceptualized as a positional, private good; otherwise, an adequate provision would be sufficient. If one student leaves with more employable skills than another, then that student has the advantage in obtaining individual “success.” This would be unfair, however, and demands a remedy. Thus, the idea that schools must equalize educational opportunities for private individuals to “succeed in life” in the labor market underscores the need for equality of opportunity in the Brown decision. The Brown decision acknowledges the existence of positional goods and therefore also recognizes some private goods.

Another seminal statement from the Court about the purposes of education can be found in Wisconsin v. Yoder (1972). This decision dealt with the ability of the Amish to remove their children from Wisconsin public education after the eighth grade. In that decision, the Court stated that providing public schools ranks at the very “apex” of government responsibilities (p. 213), but that the state’s mandatory attendance law must still yield to the religious beliefs of parents—at least in the unique case offered by Wisconsin’s Amish community. In drawing this conclusion, the Court had to distinguish some of its previous decisions. Of particular interest was the Court’s holding in Prince v. Massachusetts (1944), a case involving a parent whose child was being asked to distribute religious literature, which affirmed a governmental obligation to override parents’ rights in the name of child welfare. In that decision, the Court had stated: “It is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent well developed men and citizens” (p. 165). In that decision, the Court had affirmed the strength of both private and public goods in child-rearing and education. Children, in Prince, were shown to have an individual interest in developing their capacities for freedom and independence, in addition to the family and community interest. This relates to Biesta’s notion of subjectification and to philosophical discussions of autonomy.

In Yoder, the Court agreed that some degree of education is necessary to prepare citizens to participate effectively and intelligently in democratic politics and to be self-sufficient participants in society. These are public goods. In addition, however, the Court endorsed the idea of a right to knowledge that individual students possess. “No one can question,” wrote Justice Burger for a unanimous Court, “the State’s duty to protect children from ignorance” (p. 222). The notion of a right to knowledge embedded in this statement may seem obscure until it is recognized that duties correlate with rights. If the government has a duty to provide something to an individual, the corollary is that the individual has a right to receive it. ³ To speak of the existence of the duty to protect the children from ignorance is functionally the same thing as to speak of children’s right to knowledge. The idea that individuals have a right to knowledge relates again to Biesta’s notion of subjectification, and to the educational aim of autonomy, a private interest in directing our own lives. While agreeing with those who stressed the importance of education, then, and adding one of their own in a right to knowledge, the Court still ruled in favor of the Amish opting out of school, concluding that the group was, in fact, already adequately fulfilling their basic educational responsibility (see p. 225).

Dialogical Task: Student Speech Rights and the Trumping Power of Education

In both Brown and Yoder, then, we see that the provision of both public and private educational goods is being assumed in each case—resources from philosophy of education have made this clear. With these tools in the background, we now bring the student free speech cases into conversation with the notion of a constitutional right to education, which was raised in Rodriguez and Plyler, and with the student free speech cases involving the First Amendment and guaranteed freedoms of expression. In analyzing these strands, we find more examples of the Court invoking private goods of education, and we also see the force of educational considerations as they are used to impinge on student enumerated rights.

One of the Court’s first forays into individual student speech rights, Tinker v. Des Moines Independent Community School District (1969), is often considered to be the high-water mark of the Court’s student rights jurisprudence. The Court in Tinker declared unconstitutional a school’s decision to suspend students for wearing black armbands to school in protest of the Vietnam War. At the outset, the Court held that:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. (p. 506)

After affirming that students do possess constitutional rights, the Court allowed that school officials could only censor student expression if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others” (p. 513). Note here, as in Brown, the language of educational “rights.” Although the Court does not describe in detail what those rights are, it worried that speech could disrupt the school and harm the learning of other students. Students have a “right” to learn, the decision implies, and an undisrupted learning environment is a prerequisite to that end. The student speech was protected because the speech did not materially disrupt that right.

Tinker established the framework for the Court’s student rights cases by pitting individual student expressive rights against other pressing educational concerns. Student individual rights are to be “applied in light of the special characteristics of the school environment” (p. 506). Students had speech rights, yes, but the Court acknowledged that there is also something unique about schools that necessitates a modification of the rights within those spaces. ⁴ Schools are special partly because of their responsibility to provide educational goods. Speech is to be protected, but if that speech disrupts the educational process, then First Amendment protections do not apply in schools.

In its next two student speech cases, Bethel School District No. 403 v. Fraser (1986) and Hazelwood v. Kulmeier (1988), the Supreme Court continued the framework set out in Tinker, looking to see if educational concerns justified limitations on students’ free speech rights. Fraser involved a student, Matthew Fraser, giving a sexually suggestive and innuendo-laden speech at a school assembly. Following the speech, Fraser was suspended from school and prohibited from speaking at commencement. The Court in Bethel ruled that this action did not violate Fraser’s speech rights. In that decision, the Court focused on democratic socialization and social order (public goods) rather than on individual meaning and success. In upholding Fraser’s punishment, the Court distinguished the civically valuable political speech in Tinker from Fraser’s “vulgar and lewd” speech and held that school officials have the authority to discipline students for such speech because it “undermine[s] the school’s basic educational mission” (p. 685). The Court stated that part of the educational mission involves “inculcating the habits and manners of civility” that were “indispensable to the practice of self-government” (p. 681). Citing Ambach v. Norwick (1979), the Court endorsed the “inculcat[ion of] fundamental values necessary to the maintenance of a democratic political system” (p. 681). This civic education includes learning how to account for the “sensibilities of others” and respecting the “boundaries of socially appropriate behavior” (p. 681). The educational goals of socialization and value inculcation were important enough to overcome students’ speech rights under the First Amendment.

Two years after Fraser, the Court in Hazelwood applied similar reasoning to again justify limiting students’ speech rights. At issue in Hazelwood was an administrator’s decision to censor two articles in the school-sponsored student newspaper. The Court upheld the principal’s decision to censor the stories and held that schools have the authority to control avenues of school-sponsored speech so long as their decisions are “reasonably related to legitimate pedagogical concerns” (p. 273). Unlike the speech in Tinker, which the Court said was more akin to pure political speech, the speech in Hazelwood could reasonably be seen to conflict with the educational goals of the school, thus justifying its censorship. Schools need to have a coherent curriculum to achieve their goals, whatever those goals may be, whether they aim at socialization or individuation, public or private goods. Schools need to be able to speak with a clear voice. This need for coherence trumps student speech rights because student speech can undermine certain curricular goals. In both Bethel and Hazelwood, students’ free speech rights are trumped by educational interests.

The same thing occurs in the Supreme Court’s more recent student speech cases, including Morse v. Frederick (2007), which again privileged educational concerns above student speech rights. In this decision, we also see education described not simply as a social good, however, but also as an individual good. At issue in Frederick was a principal’s decision to suspend a student for displaying a banner that read “Bong Hits 4 Jesus,” which the student unfurled at a school-sponsored activity (p. 2622). In finding that the principal’s actions were constitutional and did not violate the student’s First Amendment speech rights, the Court carved out another exception to the “material and substantial disruption” standard from Tinker. The Court held that schools have the authority to restrict student expression that reasonably can be interpreted as promoting illegal drug use. In coming to this conclusion, the Court stated that deterring drug use by schoolchildren is an “important—indeed, perhaps compelling interest” of public schools (p. 2628). To justify this proposition, the Court used previous cases to discuss the harms of illegal drug use by schoolchildren:

Drug abuse can cause severe and permanent damage to the health and well-being of young people. School years are the time when the physical, psychological, and addictive effects of drugs are most severe. Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound; children grow chemically dependent more quickly than adults, and their record of recovery is depressingly poor. And of course the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted. (p. 2628)

Note that the compelling government interests are framed in terms of protecting both private and public educational goods—drugs harm both the individual user and the school. Although the Court was certainly concerned about the negative health consequences of student illegal drug use, the Court also emphasized the negative educational impacts that stem from student illegal drug use. The social interest in protecting the “educational process,” and in sending a clear message about the individual harms of drug use, trumps student expression. Frederick highlights again the Court’s recognition of private goods and illustrates again the power of educational considerations to overcome speech rights.

Finally, the Court’s most recent student speech case, Mahanoy Area School District v. B.L. (2021), also supports this trend, even though the ruling supported student speech rights. Recall that Levy, the student, had been suspended from the cheerleading squad after posting a disparaging message about the cheer program. The Court, in an opinion by Justice Stephen Breyer, ruled that because this speech occurred off-campus, and because it did not materially disrupt the school, it was speech that was protected under the First Amendment. While providing that schools can indeed be concerned with student off-campus speech, the Court was also concerned with the educational value of preserving realms of free thought. One reason to protect off-campus speech, the Court reasoned, was that schools need to send the message that unpopular speech in the marketplace of ideas is worthy of protection. In elaborating on this point, the Court stated:

America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. (p. 2)

Even in this case dealing with a student’s off-campus speech, the goals of education are still preeminent. Protecting off-campus speech sends the educational message to students about the importance of preserving a free discourse that includes unpopular ideas. Student free speech, in this context, supports the school’s educational mission. In Mahanoy, however, it was also decided that, as a point of fact, Levy’s speech was not disruptive of the other aspects of the school’s educational mission. The Court left open the door that even off-campus student speech could be censored if it is disruptive to a school’s educational mission. Such is the far-reaching power of educational interests.

A Right to Education in Light of Student Speech Rights Cases

What have we learned from the speech cases? First, the ability of schools to achieve educational goals is always the controlling factor. These goals are forceful enough to trump student speech rights under the First Amendment. Second, although educational goals of civic socialization and inculcation are prominent, the Court has also endorsed educational goals related to private goods, such as the health considerations expressed in Frederick. This continues the multifaceted approach to educational goods seen in Brown, Prince, and Yoder. Within the interplay of these ideas, we now argue, a constitutional right to education is being assumed. Among other things, our argument lends support to Friedman and Solow’s (2013) modality argument. Under the interpretative strategy looking at precedent, specifically, we see a right to education as implicitly assumed in the student rights cases, forming a line precedent in support of a constitutional right to education.

To see why this analysis points to an educational right, consider what is meant by a “right.” In its simplest terms, a right is an entitlement to perform (or not) actions or to exist (or not) within a certain state. It is an entitlement of such strength that the State has a duty to protect it, even in the face of strong competing interests. Ronald Dworkin (1977) puts it another way:

Individual rights are political trumps held by the individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them. (p. xi)

A chief feature of rights, then, is that they have the power and force to overcome—trump—other considerations. In addition, as we have already seen, the existence of a governmental duty correlates with the existence of a right, and vice versa. A constitutional right implies, then, a duty that the constitutional society must defend—a duty that trumps other considerations.

The issue we want to consider is whether there is a conflict between the Supreme Court’s refusal in Rodriguez to fully recognize a fundamental constitutional right to education with how education is being used in the student speech cases to trump enumerated rights. To override an established, enumerated right, the overriding consideration needs to be of greater weight, or more force, than that which is overridden. Even constitutional rights are not absolute. Typically, a constitutional right can be overridden for two reasons. First, a constitutional right can be overridden when it conflicts with another, more important right—a higher right that is more forceful. Second, speech and privacy rights can be overridden in the face of a “compelling government interest.” The initial question, then, is whether we should interpret the students’ rights cases as involving a conflict between different rights (educational rights versus speech rights) or as a conflict between student speech rights and a compelling government interest. Our analysis of the Court’s educational thought suggests that both interpretations lead to the inescapable conclusion that education is a fundamental constitutional right. We discuss each path in turn.

Conclusion

Throughout its jurisprudence on students’ First Amendment rights, the Supreme Court has held that students’ First Amendment rights must bend to students’ educational interests. Hence, the Court itself has implicitly recognized that students’ educational interests ought to be considered rights on the same footing as, or higher than, students’ First Amendment rights. Although discussions of the contours and potential hurdles to realizing such a right (see, e.g., Black, 2019) are beyond the scope of this article, recognizing such a right will allow the Court to fill in the analytical gap that currently exists within its students’ right jurisprudence and—as the contours of the right take shape—it will better allow courts and commentators to know when and how students’ constitutional rights should give way to their educational interests. In addition to clarifying the relationship of the Court’s students’ rights jurisprudence to its other education cases, such a right could be leveraged by advocates to enhance education through systemic change (Bitensky, 1992), as has often been the strategy in school finance litigation, and to improve educational opportunities for individuals. As Scott Bauries (2014) argues, an individual right to education ought to have an individual remedy, meaning that individuals can rely on such a right to challenge—and improve—the specific education that they are receiving. Perhaps most importantly, though, recognizing that students have a constitutional right to education would demonstrate the deep significance that education holds in our participatory democracy and would reaffirm our commitment to ensuring that every child receives an education that prepares them for the future and for participation in civic life (Thomas, 2022).

The implications of this analysis extend beyond judges alone. Few decisions by educators regarding student rights will be considered by the Supreme Court. They will not be adjudicated on legal grounds or receive official constitutional review. They will be hidden from public scrutiny, decided in classrooms, hallways, and offices. The reasoning of many educators in such moments, the process by which they weigh different goods and rights claims, is of crucial importance to American education and the larger society. The reasoning of educators may sometimes parallel the reasoning we have seen from the Court: educational goods are of such vital importance that they justify severely limiting the expressive activities of students. Our analysis points to the implications of this judgment: If we are to limit student freedoms for the sake of educational goods, those educational goods must be vitally important and vigorously promoted. It would be a contradiction to use educational considerations to limit student rights, and then to deliver a lackluster educational experience. The standard for educational efforts is elevated. This analysis, then, should encourage educators to reflect on whether their actions are consistent with the idea that education is a fundamental individual right, as something worthy of the strongest protections in the constitutional order.