Finding the Constitutional Right to Education in San Antonio School District v. Rodriguez


John H. Ryskamp


In Lawrence v. Texas, the Supreme Court abolished the scrutiny regime because it impermissibly interfered with an important fact, liberty. And yet, even in earlier cases which ostensibly upheld the scrutiny regime, it is difficult to see that the Court ever did so to the detriment of facts it considered important. In short, the Court often (always?) found itself raising the level of scrutiny for a fact in the same case it upheld the regime, leaving us to wonder if the scrutiny regime ever actually had any effect at all, or even whether the Court felt it was relevant. As we shall see, the precedent in this regard is one of the first cases to uphold the scrutiny regime, United States v. Carolene Products, Inc. Scrutiny cases in which the Court sustains the scrutiny regime, but also elevates scrutiny for a particular fact, show the Court engaging in its alternative and little-known method for evaluating the importance of facts. Carolene Products shows us that the Court asks if maintenance and government are indicia of the fact. If they are, the Court exempts them from the scrutiny regime. Thus, in cases, such as San Antonio School District v. Rodriguez, which seem to threaten a fact (such as education in the case of San Antonio), what we find instead is the vindication of a fact the Court finds important. The scrutiny regime is not decided because it is not reached. This is how the Court laid the groundwork for the elimination of scrutiny regime in Lawrence. Problematizing the scrutiny regime for important facts meant checkmate for the scrutiny regime. The end game was in sight from the moment the scrutiny regime was established because the Court grew a body of alternative jurisprudence within the very cases which sustained the scrutiny regime. Putatively the scrutiny regime had no boundaries; thus, once the Court adjudicated a fact outside the regime, as it did in Lawrence, the reign of the regime had ended. The alternative jurisprudence of the Court came into its own.


Constitutional Law | Education Law | Human Rights Law | Law and Society | Public Law and Legal Theory | Social Welfare Law | Taxation-Federal | Taxation-State and Local | Taxation-Transnational | Tax Law

Date of this Version

April 2006