Common or public education has traditionally been a state and local concern. In the landmark 1954 desegregation case of Brown v. Board of Education, the Supreme Court recognized that education is “perhaps the most important function of state and local governments.” While all fifty state constitutions contain variously worded provisions recognizing their responsibility to provide public education, the U.S. Constitution does not refer to schools or include any article pertaining to education. In San Antonio v. Rodriguez, the nation's highest court concluded that public education is not a federal fundamental right, but rather a function of the state, reserved for the states by the Tenth Amendment.

Even after the Court's decision in Rodriguez, debate over whether education is a fundamental right persisted. Plyler v. Doe revisited ...