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Education and the 20th Century s Rights Revolution Have We Overlooked Government by Consent John C Eastman1 Chapman University School of Law PEPG 05 25 Preliminary draft Please do not cite without permission Prepared for the conference Adequacy Lawsuits Their Growing Impact on American Education Kennedy School of Government Harvard University October 13 14 2005 1 Professor of Law Chapman University School of Law and Director The Claremont Institute Center for Constitutional Jurisprudence The author wishes to thank Chapman Law Student Kristi Collins for her stellar contribution to the research for this article and also former Chapman Law Students Monica Edwards and Cecilia Aguayo who collected much of the research at an earlier phase of this project I Introduction In 1998 I published a somewhat provocative article in the American Journal of Legal History entitled When Did Education Become a Civil Right An Assessment of State Constitutional Provisions for Education 1776 1900 2 Starting with the Supreme Court s doctrinaire positive law holding in San Antonio Independent School District v Rodriquez3 that education was not a fundamental right for purposes of federal constitutional analysis because there was no mandate for education to be found either directly or indirectly in the federal Constitution I undertook a comprehensive review of education provisions in the constitutions of the several states At first glance one might have concluded that under the Rodriguez formulation the states would be treating education by which I mean state financed education as a fundamental right The state constitutions from the outset after all contained pretty significant provisions addressing education My review of the first century and a quarter of our nation s history led me to draw just the opposite conclusion however As described more fully below most of the education provisions in state constitutions adopted during the eighteenth and nineteenth centuries were only hortatory and

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