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University of Miami Law Review

Abstract

A vociferous debate rages over the measures that should be taken to prevent high-profile incidents of mass school shootings like that at Marjory Stoneman Douglas High School in Florida on February 14, 2018, or, more recently, that at Santa Fe High School in Texas on May 18, 2018. Heightened security and surveillance measures, such as metal detectors and closed-circuit television (“CCTV”) monitoring, have been proposed in a variety of school districts. These measures, however, have been shown to have only a deleterious effect on learning outcomes and the relationships between students and school faculty, and they may even be hazardous to the physical health of students. Rather than relying on ineffective security measures that arguably violate student Fourth Amendment rights, this Article argues that the long-dormant federal right to education should once again be enforced to stand in conflict with the increasingly expansive individually focused Second Amendment right to bear arms. A number of scholars have done important work addressing the failures of tighter security and visual surveillance methods in primary and secondary schools, particularly Professor Jason Nance, who has written a series of papers on the use of surveillance in public schools and the observable effects on students. While these scholars have made excellent recommendations for reform of school security apparatuses, they do not make the arguments that are necessary to connect these reforms to the enforcement of a federal right, making the institution of such reforms much less likely.

This Article argues for the recognition of a historical right to education that originally arose with the readmission of formerly Confederate states into the Union in conjunction with the ratification of the Fourteenth Amendment. This Article frames this argument in the context of the Parkland shooting that occurred in February of 2018. This Article takes the novel view that this right to education has been underenforced and can be revived to take its place among other fundamental rights incorporated against the states in much the same fashion as the right to bear arms. A recognized right to education would make many of the reforms called for by other education law scholars much easier to implement.

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