One of the nuggets buried in the controversial new book written by Sen. Rick Santorum, "It Takes a Family: Conservatism and the Common Good," is an offhanded statement that there is no constitutional right to an education in the United States. Sen. Santorum writes that "[We] cannot help noticing that schools are not once mentioned in the federal Constitution." He advocates more home-schooling, as a means of returning to the basics: We should buck up and do as our forefathers intended, sitting on stiff-backed chairs beside our fireplaces and doing our book-learning at home.

	Post-Gazette Click illustration for larger version. Ken Gormley and Vanessa Browne-Barbour are professors at Duquesne University School of Law. They recently participated in a conference on American Education Law held at Oxford University, England.

The senator may be right that the Framers nowhere explicitly bestowed a right to public schooling in the federal Constitution. That should come as no surprise: Public education was not part of our nation's culture in the 1780s. Most American families, including those in Pennsylvania, were living in rough cabins on the frontiers, or eking out livelihoods by tilling small scratches of soil.

Yet we should not limit ourselves, 218 years later, to the resources available when the first Constitutions were drafted. Would we restrict our children to reading books that were published in the 1780s, to gain their knowledge about science and politics and literature and math today?

Home-schooling has advanced in impressive ways. It is a wonderful luxury for those who can afford it. But what about those families in which the parents themselves are uneducated and do not possess the tools to teach? What about those families who cannot put a meal on the table for their children at lunchtime? Don't these kids have a right to an education, as well?

Sen. Santorum's own children, as recent news accounts have reported, have attended cyber-schools, linked to the public schools and paid for by Pennsylvanians' tax dollars. The Internet and cyber-schooling were not available in the 1780s. Yet this is an example of a creative development that has benefitted his and many other children, as our definition of a suitable public education expands infinitely with new technology and previously un-imagined repositories of knowledge.

Ever since 1973, when the U.S. Supreme Court decided San Antonio v. Rodriguez, concluding that education was not a fundamental right under the 14th Amendment, the U.S. Constitution has proven impotent in correcting the dysfunctions and gross disparities that exist within our public education systems.

Perhaps that was inevitable. As Sen. Santorum correctly notes, the nation's Founders opted against creating a national system of public schools and universities. The matter was left to each state to handle.

Yet it was hardly unimportant. Many Framers viewed education as a crucial province of government. For Thomas Jefferson, it was essential to provide citizens with the skills necessary to perform their civic duties and to make the Constitution work. John Adams considered it to be a matter of utmost national concern. Contrary to Sen. Santorum's suggestion, the Framers viewed education -- even two centuries ago -- to be fundamental to achieving and preserving the lofty ideals of this Republic.

The new frontier, if we are to confront the bedeviling issue of providing a decent education to all children, lies in the 50 state constitutions. Every state constitution in the Union contains some provision dealing with education. The Pennsylvania Constitution, in Article III, Section 14, requires the legislature to maintain and support "a thorough and efficient system of public education."

The highest courts of at least 13 states have declared that education is a fundamental right for their citizens. Fifteen states have scrapped their systems of public education entirely, using their state constitutions to build modern, more equitable systems in their place.

The first step towards achieving this ambitious goal, in Pennsylvania, is to adopt a simple amendment to the state Constitution which provides: "Education shall constitute a fundamental right for all citizens of this commonwealth." Such language would make education a constitutional priority. It would bring our text in line with modern times, and make explicit that in this commonwealth, educating our children is mandatory rather than optional.

It would also nudge courts to examine irregularities in public education using "strict scrutiny." Maintaining dysfunctional systems of public education simply would not be OK.

The amendment of our state constitution to bring this commonwealth in line with the 21st century would be a positive and sensible step. We now live in an era in which public education is justly viewed as one of the most important rights for any parent or child -- along with life, liberty and property.

Although Sen. Santorum may be correct that the Framers did not include the word education in the U.S. Constitution when they drafted it in 1787, it is doubtful that they would have viewed it as optional today.

If forward-thinking legislators take the initiative to draft an "education is a fundamental right" amendment to the Pennsylvania Constitution, and place it before the voters, the odds are high that an overwhelming margin of our fellow citizens will agree.