Professor Chris Goodman, "And on the Third Wave: Using Intersectionality to Resurrect Heightened Scrutiny in Public Education Litigation" -- Loyola University Chicago Law Journal

Professor Christine Chambers Goodman's article, "And on the Third Wave: Using Intersectionality to Resurrect Heightened Scrutiny in Public Education Litigation" (SSRN) is published in the Loyola University Chicago Law Journal, 55 Loy. U. Chi. L.J. 449 (2023). The article analyzes the holding in the Supreme Court case San Antonio Independent School District v. Rodriguez that education is not a fundamental right, and its impact in federal and state courts. 

Abtract of "And on the Third Wave: Using Intersectionality to Resurrect Heightened Scrutiny in Public Education Litigation"

This article is part of a Symposium that marks the fiftieth anniversary of San Antonio Independent School District v. Rodriguez, and seeks to address how society could have been different if the Supreme Court had recognized education as a fundamental right. It also considers how the lack of a fundamental right to education may have led to the under-education of our population and may be linked to other issues like economic inequality and the shifting landscape of fundamental rights. This Article focuses on the ties between race and socioeconomic status in public school K–12 education. It analyzes the impact of the Rodriguez holding that education is not a fundamental right, in federal courts as well as in state courts. All state constitutions have education clauses, and in some of them, education is a fundamental right, but there are different interpretations of what the right entails. Some states find it mandates substantive equality for all students, while others find it to be a floor of adequate education for all, without regard to differences above that floor. The increasing reluctance to expanding fundamental rights, especially since the Dobbs v. Jackson Women’s Health Organization decision, means that litigants need to pursue other strategies to achieve educational equity in public school systems. This Article makes the case, drawing upon precedents considering gender and illegitimacy, that impoverished children in low-funded school districts meet the requirements for quasi-suspect class status.