Should free college be a legal right in the United States?
Friday, July 26, 2019 at 11:54PM
David H. K. Nguyen

Free college tuition is a hotly debated topic especially as we edge toward another election.  In many states, community colleges have already become tuition free. Some politicians have argued that this is not enough.  Senator Bernie Sanders and Elizabeth Warren, both 2020 presidential candidates, have included tuition free higher education as part of their presidential platform. This post will explore some of the current political arguments for free higher education including some specifics of the proposals, look at the legal argument for making changes to current tuition policies, and conclude by examining how the proposal of free higher education lines up with prior rulings on education.      

Warren and Sanders are not the only ones proposing free higher education, but they have had loud voices in the fight.  Both have proposed legislative changes to make free higher education possible.  According to a piece in the Atlantic, Warren is calling for universal free public college which will be paid for with an “‘ultra-millionaire tax’ - an annual 2% tax on families with $50 million or more in wealth.” She particularly points to higher education and the subsequent debt that it results in for many families as being a burden on black Americans and sees current tuition as undercutting civil rights. As described on Sander’s webpage, he has also proposed a need for higher education, saying it is essential to compete in the global economy.  He has proposed legislation that would provide $70 billion a year in assistance for higher education tuition.  Two-thirds would come from the federal government and one-third from states.   

Some legal scholars have also taken up the argument for changes to current college tuition policies.  Heidi Gilchrist, an Assistant Professor of Legal Writing at Brooklyn Law School, has written a law review article saying that higher education is a human right.  She argues that “although the right to higher education may sound lofty or like a luxury at first glance, it is not. To deny someone with capacity access to higher education is to deny them their full dignity and potential as a human being.” She sites international law as well as civil rights and education laws including Brown v. Board of Education(1954)Plyer v. Doe(1982), and Tayyari v. New Mexico State University(1980) as support for free higher education.  In each case, the decisions included an argument that education was a right that should not be denied. 

John R. Brooks, an Associate Professor of Law at Georgetown University Law Center calls higher education “quasi-public good.” He makes a case not for free higher education but for subsidizing it through taxes and creating more income-driven repayment plans.  He argues higher education is now essential and has a direct connection to social mobility, so therefore needs to be attainable and currently is not for many people.  

As discontent grows over the cost of higher education in the U.S., the words of the U.S. Supreme Court Justices in Brown v. Board of Education, “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms,” will need to be further examined. The new question proposed by politicians and legal advocates seems to be is K-12 education enough anymore or is higher education essential? Most seem to agree that current tuition trends mean that the opportunity of higher education is not equally available to all.  

This is a guest post from Leah Arambel; she has been a professor of English for the last fourteen years and coordinator of the Reading Across the Disciplines program for the last six years at American River College in Sacramento, California, and a doctoral student in the Higher Education Leadership program at Oregon State University.     

Article originally appeared on Highereducationlaw.org (http://www.highereducationlaw.org/).
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