Banned and defunded: The constitutional attack on public education

By Annika Corrick

In recent years, attacks on public education have increased, with actions such as book bans and cuts to education funding becoming more widespread. While often discussed in political terms, these issues present several constitutional and legal implications. Not only do these actions affect educational systems across the country, but also infringe upon constitutional protections endowed by the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. 

Across school districts, book bans are increasing significantly. According to the American Library Association (ALA), 2022 alone saw over 1,500 book challenges, a dramatic increase in comparison to previous years. These bans primarily target books that discuss sensitive issues, such as race, gender, and sexual identity. While supporters of these bans argue they are necessary to protect children from controversial content, the legal consequences should not be ignored, especially when looking at how they limit students’ First Amendment rights. 

In Board of Education v. Pico (1982), the U.S. Supreme Court addressed the constitutionality of removing books from public school libraries for ideological reasons. In this case, the Island Trees School District in New York removed several books from its library, claiming they consisted of "anti-American," "anti-Christian," and "anti-Semitic" content. The Court ruled that this action violated the First Amendment, as students have a constitutional right to receive information, and the government cannot interfere with that right. As Justice Brennan stated in opinion, “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books.”

The ideas established in Pico directly connect to the debates over book bans occurring today. When school boards remove books for ideological reasons, they are controlling students' exposure to diverse ideas and perspectives along with their access to information. Under Pico’s interpretation of the First Amendment, this censorship can be considered an unconstitutional restriction of students’ right to receive information as it directly interferes with students’ free speech and educational opportunities. 

Furthermore, defunding public education raises another set of constitutional concerns. In recent years, funding cuts to public education, particularly in low-income areas, have intensified. These cuts often result in fewer resources, such as books, technology, and qualified teachers, unfairly affecting already disadvantaged students. These disproportionate gaps in education quality have constitutional implications as well, specifically in relation to the Equal Protection Clause of the Fourteenth Amendment. 

The Equal Protection Clause mandates that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” In the context of public education, this clause has been used to challenge discriminatory practices that disproportionately affect marginalized groups, including students of color and students from low-income families. One of the most significant cases regarding equal protection and education funding is San Antonio Independent School District v. Rodriguez (1973), where the U.S. Supreme Court ruled that disparities in funding between wealthy and poor school districts did not violate the Equal Protection Clause. The Court argued it doesn’t require absolute equality and instead demanded that no person should be denied the same rights and opportunities as others in the same situation. Ultimately, the Court determined that education is not a fundamental right under the Constitution, allowing for a variety of levels of funding based on local tax revenues.

However, this decision became controversial.​​ Those who disagree with the Rodriguez decision argue that it enables  systemic inequality in education by allowing wealthier districts to have significantly more resources than poorer districts. Though Rodriguez has not been overturned, many legal scholars and advocates continue to challenge this decision, arguing that education is essential to equal opportunity and failure to provide equitable resources across districts violates the Equal Protection Clause.

The efforts to defund public education, whether through budget cuts or underestimating funding to private school voucher programs, worsen existing inequalities and further violate the Equal Protection Clause. Research by the National Center for Education Statistics (NCES) shows a significant gap between districts with wealthier students and those in more low-income communities. In districts where a majority of students are from marginalized backgrounds,  per-pupil funding is often significantly lower, leading to disparities in the quality of education provided. This current system of unequal funding violates the core ideas of equal protection, continuing to allow education quality to be determined by the financial resources available to a given district. Because quality of education disproportionately affects low-income districts, this primarily harms students based on their status or race. According to the Equal Protection Clause, this constitutes either intentionally or unintentionally discriminating against certain groups of students because it denies them equal access to educational opportunities. 

Moreover, efforts to reduce federal funding for public education also violate constitutional principles when it comes to the federal government’s role in ensuring equal protection under the law. While state governments hold significant authority over education policy, the federal government has a responsibility to ensure all students have access to quality education, regardless of their background. This authority also aligns with the federal government's job to enforce the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin. Thus, if defunding public education results in discriminatory effects, it is a violation of federal civil rights protections and requires judicial action.

Both book bans and defunding public education present a variety of constitutional challenges. While book bans conflict with the First Amendment’s protection of free speech and access to information, as seen in Pico, defunding efforts also unfairly impact students of lower-income minority communities and violate the Equal Protection Clause. Even as cases like Rodriguez spark controversy over these disparities, these defunding efforts continue to perpetuate systemic inequalities, potentially violating the Equal Protection Clause.

While this shows the importance of protecting constitutional rights in the context of public education, it is as crucial to see how these book bans and defunding efforts might infringe on students’ fundamental rights to access diverse ideas and receive a more equal, quality education. These attacks hinder students’ ability to have access to diverse ideas and pursue an education like their wealthier counterparts. By limiting students’ exposure and academic abilities, these policies deepen systemic inequalities and leave marginalized students with fewer resources to navigate complex social, political, and economic realities.