“The fifth freedom is freedom from ignorance. It means that every[one], everywhere, should be free to develop his [or her] talents to their full potential – unhampered by arbitrary barriers of race or birth or income.” Lyndon B. Johnson This article argues that education is a fundamental human right that the U.S. Supreme Court has failed to recognize because of the Court’s bias towards negative, rather than positive rights. Viewed from the limited perspective of rights as liberties, the concern with declaring a fundamental right to education is that education legislation would be strictly scrutinized, thus causing the undesired result of preventing the enactment of laws regarding education. This would not be a concern if the Court embraced a constitutional analysis that specifically applied to positive rights and duties. Recognizing the fundamental right to public education as a positive right would correct a major inconsistency in U.S. constitutional law and bring fundamental rights doctrine more in line with broader societal understandings of social justice. The article concludes that in order to safeguard the fundamental right to public education, a new form of fundamental rights analysis for all positive rights must be developed. The details of such an analysis will take time to develop, but must begin with an understanding that traditional strict scrutiny analysis cannot be applied in the same way to positive rights as it is to negative rights.
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