The fundamental right to literacy: reading, writing, and computing

Summary

_Since the Supreme Court first ruled that there is no fundamental right to a public education (San Antonio Indep. Sch. Dist. v. Rodriguez) in 1973, a growing movement has sought to establish a derivative constitutional right — one to a basic minimum education or literacy — through the substantive due process clause of the Fourteenth Amendment. However, the world has modernized since the 1970s, along with the parameters of literacy required to function meaningfully in society. The modern campaign for a fundamental right to literacy must thus include computing and navigating the Web. Incorporating this additional tenet may have several benefits: 1) cementing the State's responsibility to teach computer literacy within the twenty-two State Constitutions that currently recognize a right to education; 2) raising generational awareness of the importance of "net neutrality" or common carriage; and 3) strengthening the case for a constitutional right to literacy, the establishment of which would improve the national standard of education and reduce the ability of tech giants to victimize the public._

-- By KatiaBogomolova - 15 Apr 2021

The campaign for a right to literacy, ft. computing and the Internet

How it started

Since the 1970s, teams of university professors, litigators, and civil rights leaders have campaigned and petitioned for states and the federal government to recognize a right to a basic minimum education (for K-12 students). The impetus for this claim came from the dicta of Rodriguez in 1973, which entertained the possibility of a future court finding a fundamental right to "some quantum of education." Despite the advances of school integration mandated by Brown v. Board, the Civil Rights Act, and other State and local legislation, public schools around the country leave much to be desired. Within New York City, alone, the literacy rate among high school graduates is estimated around 78%, with certain school districts falling behind by all metrics of academic success. This lag results in poor career outcomes and often perpetuates cycles of poverty within underserved communities.

How it's going

Starting in the second half of the 20th Century, twenty two States have penned State constitutional provisions guaranteeing a right to education. Also notably, in Gary B. v Whitmer (April 2020), the Sixth Circuit found a fundamental right to a basic minimum education and literacy within the Substantive Due Process and Equal Protection Clauses of the Fourteenth Amendment. (The opinion has since been vacated, awaiting a rehearing en banc, but the parties settled before the rehearing could occur.) Using the Washington v. Glucksberg test, the Court found that literacy is deeply rooted in U.S. history and tradition, as well as implicit in the concept of ordered liberty. It did not make explicitly clear whether the asserted right was carefully described, but this was assumed, as another requirement of the test. Although no longer good law, Gary B. has reignited the spark driving similar litigation across several circuits, with particular concern around the "careful description" requirement.

What's missing today?

With increasing professional and public reliance on the Internet and a knowledge of computing, educational disparities have exponentially worsened. As a result, numerous cohorts of high school graduates enter civic society and the professional world with minimal or no understanding of computers, the Internet, and the systems behind them. This significant gap in education rides the coattails of underfunded schools lacking sufficient technology and equipment with which to instruct students. This reality renders even qualified educators unable to teach students computing. In other words, even in states where a right to education is guaranteed, computing is often a secondary or tertiary budgetary concern, resulting in a severe lack of updated, usable technology. Although there is no "quick-fix," particularly in urban areas, State commitments to providing a satisfactory standard of public education following their constitutional provisions have brought about significant improvements. Adding computing competency to the public and legal definitions of basic literacy/education will help equalize academic outcomes and enable the right to be more "carefully described," hopefully paving the way for SCOTUS recognition.

Finding even a State right to computing competency will improve academic and civic outcomes.

Why is it necessary?

Web centralization and the implied social contract of social media platforms do a lot more harm when a critical mass of their user base is unaware. As companies who profit from trivial but continuous engagement, Facebook and the other platform companies pervert the quest for cognition and connection that their users intend them to fulfill. Their algorithms reward sensationalist, reaction-provoking content and their bottom lines are reliant on degrading attention spans and an ever-increasing desire for new content consumption, presented in abridged, often misleading packages. Facebook notoriously muddies its self-description as a publisher or neutral platform, depending on the context — evading scrutiny and avoiding liability wherever possible. Moreover, social media platforms are able to prey on users' data in a largely unnoticed violation of privacy as long as the users enter into the implied contract of social media use uninformed. Even when concerns of private surveillance attracted national attention, a critical mass of social media users were unperturbed, lacking the requisite knowledge to parse this information or to change their behaviour online.

Public naïveté, a feeder of the unhinged social media spying systems, will be greatly reduced by the guarantee of computing literacy promised and delivered by states. Currently, the national standard of education is a suggested Common Core, which recommends basic computer training (which does not extend far beyond the ability to type). Even though the Common Core similarly suggests levels of competency for reading and writing, states that have codified a constitutional requirement to provide literacy have reformed their public education systems over time to focus on that which they have committed to providing. If codified within the definition of general literacy, computing competency will create a pathway toward systematically educating students about the Web; while it will not immediately remedy to educational disparities or mass surveillance, it may well start a conversation around how to teach this topic.

The next step is another attempt at SCOTUS recognition

In general, that computing is an essential part of modern day society is common knowledge. It is a growing matter of public conscience, particularly in spaces of policymaking and academia. Therefore, incorporating computing competency into the definition of basic literacy required to participate in civic affairs will elevate the ongoing struggle for recognizing the right to literacy, as a whole. In the wake of Gary B., perhaps greater awareness and a more narrowly tailored description of a right to literacy will help advance the claim.