The Obsolescence of San Antonio v. Rodriguez in the Wake of the Federal Government’s Quest To Leave No Child Behind

Since the mid-1950s, a sea change in public education has taken place. Public education—a policy concern traditionally reserved to the states—has become a core concern of the federal government. This Note surveys three of the federal government’s most significant appropriations of power: the enactment of the Elementary and Secondary Education Act (ESEA) in 1965; the creation of the Department of Education in 1980; and the passage of the No Child Left Behind Act of 2001 (NCLB), the most recent, and easily most expansive, iteration of the ESEA. This Note also considers the manner in which the Supreme Court has facilitated federal control over education, despite the Court’s refusal to recognize a formal right to education. Finally, this Note argues that the federal government’s incursion into the realm of public education has established an implicit right to education that has rendered San Antonio v. Rodriguez, the Supreme Court’s 1973 decision that denied the existence of a fundamental right to education, obsolete