Abstract

Excerpted From: Breanna K. Bollig, Improving Public Schools: What Advocates Can Learn from Indian Education Rights, 52 Journal of Law and Education 1 (Fall, 2023) (369 Footnotes) (Full Document)

A unique feature of the United States is that most children who attend public schools do not have a federal right to education. Unlike 174 other countries' constitutions, the United States Constitution does not mention “education.” The U.S. Supreme Court has even rejected the idea that education is a fundamental right implicitly protected by the U.S. Constitution. Congress has also declined to create a federal right to education for all children in the United States by enacting a federal statute. As a result, most public-school students cannot turn to the United States Constitution, a federal law, or even a federal court to defend their right to an adequate education. Remarkably, however, a federal right to education does exist for Indian children in the United States as a result of the distinct history and political relationship between the United States and tribal nations. In effect, Indian education rights operate under a completely different legal framework than the right to education that is maintained by most public-school students. For instance, the Bureau of Indian Education (BIE) school system in the United States exists under a federal right to education, while public school systems operate under a state right to education.

While every state constitution in the U.S. provides a right to education, it has become very clear that a state right to an education is not enough--especially when it comes to ensuring adequate and equitable public schools. For illustration, states have been steadily decreasing public school funding. After the recession in 2008, nearly every state made large cuts to public education. In fact, states were routinely cutting over $1,000 per student each year. Despite recovering from the recession in 2012, the majority of states have declined to return their schools to their pre-recession funding levels. With these decreases in funding, states have also reduced teachers' rights and benefits. Consequently, between 2009 and 2012, public schools lost 300,000 teaching positions. Not only did this drive teachers out of the profession, but the national number of people pursuing education degrees fell by 30%. The persisting teacher shortage continues to cause school districts to cancel courses, increase class sizes, assign teaching overloads, and hire substitute teachers to fill full-time positions. And further, states had no choice but to waive certification, overlook college degree requirements, and even let college interns teach full-time.

Additionally, research reveals that, “minority and low-income children in the United States receive inferior educational opportunities.” In 2018, school districts with the highest rates of poverty in the United States received approximately $1,000 less funding per student than school districts with the lowest rates of poverty, and this disparity worsens when race is taken into account. School districts in the United States that have the most students of color receive $1,800 less per student than districts serving the fewest students of color. Altogether, schools in the United States with 75% or more white students receive twenty-three billion dollars more than schools with 75% or more nonwhite students. With this lack of funding it is undeniable that low income and minority public school students are disproportionately impacted by the teacher shortage and are receiving inferior resources, course offerings, textbooks, technology, classrooms, and libraries, among other things.

This is especially troublesome because underfunded school districts--where most minority students attend school--are most impacted by insufficient funding from the Individuals with Disabilities Education Act (IDEA). Consistently, schools with mostly minority students struggle to identify children with disabilities and provide adequate special education accommodations and services. This only fuels other educational inequities, such as academic and school discipline racial disparities, which have substantial and lasting implications. Even in schools where most students are white, minority students are overrepresented in special education. Overrepresentation presents a major problem because the misidentification of a disability may be a means to further school segregation as minority children with disabilities are more likely to be removed from the general education classroom and be educated in an inferior and more restrictive separate environment. For instance, only 33% of Black children with disabilities spend more than 80% of their day in the more rigorous general education classroom compared to 55% of white children with disabilities.

Most problematic with inadequate and inequitable public schools, however, is that they persist despite state court challenges. As of 2019, litigation involving school finance issues and the state right to education has already occurred in 44 states. Between 1973 and 1987, when advocates first turned to state courts to address inequitable public schools, plaintiffs prevailed in only 7 of the 22 lawsuits that challenged inequitable school-funding schemes. Beginning in 1989, advocates began achieving much more success by moving away from equity and equality arguments, and focusing on how school finance systems are inadequate. Thus, state courts were more receptive to the idea that students require a minimum level of resources. Starting around 2009, however, state courts have shown reluctance in intervening in educational finance policy. Recent lawsuits challenging inadequate public schools have even failed in states with strong constitutional precedent and recognition of education as a fundamental right. This recent resistance is not because of a lack of legal precedent or a lack of evidence of student performance failure and inadequate educational resources, but rather state court concerns of institutional efficacy or whether the judiciary should be able to compel the legislature to provide a sufficient education. Another major barrier in state court litigation is that the language of the right to education in state constitutions varies from state to state. Differing language gives room for various interpretations among states and, subsequently, leaves the right to education in some states extremely vulnerable and ineffective.

Unbeknownst to most education advocates, though, is that Indian education rights provide critical lessons on how to improve schools and the right to education. Just as tribal nations--as separate sovereigns that are capable of enacting their own laws--are considered “laboratories of legal innovation,” there is massive potential for studying Indian education rights. With its successes and failures, education advocates can look to Indian education rights to better develop a strategy to improve public schools. In fact, education advocates could have much needed guidance in asking vital questions surrounding inadequate and inequitable public schools. For example, how should the states and the federal government share the responsibility of education in the United States? How should a federal right to education be created? How can we better hold inadequate and inequitable schools accountable? What other strategies can we use to improve inadequate and inequitable schools?

Overall, understanding Indian education rights and its distinctive legal framework could help finally overcome inadequate and inequitable public-school systems. Part I of this article will review Indian education law in-depth by summarizing and synthesizing relevant federal law and its historical context. Part II will describe the current state of Indian education, looking to both current research involving Indian education and the Stephen C. v. Bureau of Indian Education case, in which advocates of Indian education rights accomplished groundbreaking work in improving a BIE school. Part III will then begin to explore what education advocates can learn from Indian education rights in addressing inadequate and inequitable public schools.

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While public schools were not founded on the dark assimilation tactics as BIE schools were, public schools are still overcoming barriers stemming from segregation and systematic racism. The history of Indian education indicates that the path to recovering from a destructive history is a long and complicated one. BIE schools even today have not recovered and fail to provide adequate and equitable education opportunities. There are unique factors involving Native American history that likely contribute to the difficulties in improving BIE schools, including the remote nature of BIE schools, the fact that BIE schools are operated by the same department that once sought to eliminate the “Indian problem,” and the lack of public awareness regarding Indian education rights and BIE schools. Nonetheless, there are still countless lessons that advocates can learn as they strive to improve public schools and create another federal right to education--just as the federal government once did in the 1700s.