Across the globe, young adults attend university without lifelong debt. In Brazil, Ecuador, and South Africa, higher education is a right.[i] In the United States, however, access depends on income and geography. The Supreme Court has long insisted that education is not a fundamental right under the Constitution.[ii] But with student debt reaching $1.7 trillion and international law moving in the opposite direction, America’s position looks increasingly outdated. This tension raises the question of whether U.S. law should reconsider its refusal to recognize higher education as a right.
In San Antonio Independent School District v. Rodriguez, challenging a Texas school finance system tied to local property taxes, plaintiffs argued that education should be treated as a fundamental right under the Equal Protection Clause.[iii] The Court disagreed, holding that “education, of course, is not among the rights afforded explicit protection under our Federal Constitution.”[iv] By applying only rational basis review, Rodriguez shielded most educational funding decisions from constitutional scrutiny.[v]
Nine years later, the Court drew an important distinction in Plyer v. Doe, striking down a Texas law that excluded undocumented children from K-12 schools.[vi] The Court acknowledged education’s “fundamental role in maintaining the fabric of our society” but stopped short of calling it a constitutional right.[vii] Instead, the opinion crafted a narrow protection for undocumented children, reasoning that denying access to basic education would impose lasting hardship and create a permanent underclass.[viii] Taken together, these cases show that U.S. education remains a policy issue, unlike many nations that recognize it as a right.
International law tells a very different story. Article 13 of the International Covenant on Economic, Social, and Cultural Rights (“ICESCR”), signed by the United States in 1977 but never ratified, provides that “higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.”[ix] Unlike the U.S., the ICESCR treats higher education as a right, requiring member states to expand access over time. To date, 173 countries have ratified the treaty.[x]
National constitutions reinforce this global consensus. Brazil’s Constitution guarantees free public higher education, declaring education to be “the right of all and the duty of the State and of the family.”[xi] Ecuador’s Constitution likewise recognizes education as a fundamental right and guarantees free public higher education through the third level, ensuring tuition-free access through undergraduate study.[xii] South Africa’s Constitution recognizes a right to further education, requiring the state to take reasonable measures to make it progressively available and accessible.[xiii] In these systems, access to higher education is secured as a legal obligation. In the U.S., the judiciary has stepped back from treating education as an enforceable right.
Rodriguez treated education as outside the Constitution’s explicit guarantees.[xiv] Yet about a decade later in Plyer, the Court described education as “perhaps the most important function of state and local governments,” revealing an unresolved tension in its own reasoning.[xv] That tension is even sharper today. In an economy where a high school diploma rarely secures stable employment, access to higher education has become as essential as K-12 once was. Comparative law highlights this point, showing that many nations already treat higher education as a legal right. Even acknowledging it as a quasi-fundamental right could subject tuition and student loan policies to heightened scrutiny, requiring justification for burdens falling disproportionately on low-income families.
Elevating higher education to constitutional status faces resistance. Critics point to the Tenth Amendment, which reserves states the powers not delegated to the federal government, to argue that education has traditionally been left to state authority.[xvi] The Supreme Court echoed this concern in Rodriguez, noting that “the consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States.”[xvii] Debates over eliminating the Department of Education show tension between federal and state control. [xviii] Yet leaving education solely to the states has produced inequities, as years of funding cuts have driven up tuition costs and widened gaps in students’ access to higher education.[xix] Recognizing higher education as a right would not erase the federalism concerns, but it would provide a constitutional safeguard against policies that make college unattainable for millions.
Over 42 million Americans carry student debt, totaling almost $1.7 trillion.[xx] When President Biden attempted to forgive $430 billion in student loans by executive action, the Supreme Court struck down the plan in Biden v. Nebraska, holding that such relief required congressional authorization.[xxi] If higher education were recognized as a right, courts might approach access and affordability differently, viewing tuition not as a political choice but as a constitutional concern.
The United States stands nearly alone among developed nations in refusing to treat higher education as a right. Comparative and international law show that free or low-cost college is not a utopian fantasy but a legal reality for millions worldwide. Recognizing such a right would mark a shift from Rodriguez, but the student debt crisis and divergence from global norms suggest it is time to reconsider. Until then, higher education in the U.S. remains, in practice, optional, unequal, and expensive.
[i] Constitución De La República Del Ecuador [Constitution] Oct. 20, 2008, arts. 26, 356 (Ecuador); S. Afr. Const., 1996, § 29(1)(b); see Constituição Federal [C.F.] [Constitution] art. 205 (Braz.).
[ii] See David Dorsey, Education Is Still (for Now) Not a Fundamental Right Under the U.S. Constitution, Kansas Pol’y Inst. (Sep. 17, 2020), https://kansaspolicy.org/education-is-still-for-now-not-a-fundamental-right-under-the-u-s-constitution/ [https://perma.cc/6ELW-ZCAC] (“Education is not a constitutionally protected right. That is an assertion made by the U.S. Supreme Court every time it has been challenged.”).
[iii] See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 4–6 (1973) (describing plaintiffs’ challenge to Texas’s school finance system).
[iv] See id. at 35, 40 (holding that education is not a fundamental right and declining to apply strict scrutiny to Texas’s school finance system).
[v] See id. at 40 (“[T]his is not a case in which the challenged state action must be subjected to the searching judicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally protected rights.”).
[vi] See Plyer v. Doe, 457 U.S. 202, 230 (1982) (striking down Texas law excluding undocumented children from public schools).
[vii] See id. at 221 (acknowledging education as fundamental but stops short of calling it a fundamental right under the Constitution).
[viii] See id. at 223 (“Section 21.031 imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives.”).
[ix] See International Covenant on Economic, Social, and Cultural Rights, art. 13, Dec. 16, 1966, 993 U.N.T.S. 3 (calling for the “progressive introduction of free education” at the higher education level); see also Ann M. Piccard, The United States’ Failure to Ratify the International Covenant on Economic, Social and Cultural Rights: Must the Poor Be Always with Us., 13 The Scholar 231, 232 (2010) (noting President Carter signed the ICESCR in 1977, but no progress has been made toward ratification).
[x] See Committee on Economic, Social and Cultural Rights, United Nations Hum. Rts. Off. of the High Comm’r, https://www.ohchr.org/en/treaty-bodies/cescr [https://perma.cc/RX3Y-K2T6] (last visited Oct. 15, 2025) (reporting 173 member states parties to the ICESCR).
[xi] See Constituição Federal [C.F.] [Constitution] art. 205 (Braz.) (declaring education a universal right and duty of the State and family).
[xii] See Constitución De La República Del Ecuador [Constitution] Oct. 20, 2008, arts. 26, 356 (Ecuador) (recognizing education as a right and mandating that undergraduate public higher education be tuition-free).
[xiii] See S. Afr. Const., 1996, § 29(1)(b) (“Everyone has a right . . . to further education, which the state, through reasonable measures, must make progressively available and accessible.”).
[xiv] See generally San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (holding that education is not a right clearly protected by the Constitution).
[xv] See Plyer, 457 U.S. at 222 (acknowledging education’s societal role).
[xvi] See U.S. Const. amend. X; see also Jeanne Allen, So You Want to Abolish the Department of Education? Here’s What You Need to Know., Forbes (Nov. 12, 2024, 5:53 PM), https://www.forbes.com/sites/yassprize/2024/11/12/so-you-want-to-abolish-the-department-of-education-heres-what-you-need-to-know/ [https://perma.cc/9YYV-4C87] (“The sentiment has always lurked . . . that the federal government should not have anything to do with education.”).
[xvii] See Rodriguez, 411 U.S. at 58 (emphasizing limits on judicial intervention in education policy).
[xviii] See Ask the Expert: Trump’s Actions to the Department of Education, MSUToday (Mar. 18, 2025), https://msutoday.msu.edu/news/2025/03/ask-the-expert-trumps-actions-to-the-department-of-education [https://perma.cc/V2QY-SUNB] (“[S]taffing at the Department of Education has been cut in half, signaling . . . potential closure.”).
[xix] See Michael Mitchell et al., Funding Down, Tuition Up: State Cuts to Higher Education Threaten Quality and Affordability at Public Colleges, Ctr. on Budget and Pol’y Priorities, https://www.cbpp.org/research/funding-down-tuition-up [https://perma.cc/ZA58-S3XV] (last updated Aug. 15, 2016) (“Years of cuts in state funding . . . have driven up tuition and harmed students’ . . .”).
[xx] See Lyss Welding, Average Student Loan Debt in 2025, BestColleges, https://www.bestcolleges.com/research/average-student-loan-debt/ [https://perma.cc/433Y-992M] (last updated Aug. 29, 2025).
[xxi] See Biden v. Nebraska, 600 U.S. 477, 494 (2023) (holding that the HEROES Act did not authorize the Secretary of Education to cancel $430 billion in student debt).
