In a Wall Street Journal op-ed yesterday, lawyers Theodore J. Boutrous Jr. and Joshua S. Lipshutz lament that the California supreme court declined to grant review of their claim that California’s teacher-tenure and dismissal laws violate the state constitution. Specifically, they argue that the state laws “make it nearly impossible for school districts to remove grossly ineffective teachers from the classroom” and thereby “deprive [public-school students] of essential educational opportunities and create egregious inequality.” The California supreme court’s refusal to entertain their claim, they contend, “demonstrates why the federal courts must intervene and recognize that the U.S. Constitution guarantees a fundamental right to education.”

As a matter of policy, I’m very inclined to embrace the claim that the state laws on tenure and dismissal have dismal effects (and to support reform of those laws). But the “fundamental right to education” under the federal Constitution that Boutrous and Lipshutz are arguing for would have radical effects far beyond striking down such laws.

Boutrous and Lipshutz weakly claim that their argument for a “fundamental right to education” can be reconciled with the Supreme Court’s 1973 ruling in San Antonio Independent School District v. Rodriguez, which, they say, held only that “education is not a fundamental right in the context of school funding.” But the Court in Rodriguez left open only the possibility that “some identifiable quantum of education [might be] a constitutionally protected prerequisite to the meaningful exercise” of First Amendment speech rights or of the right to vote.

Boutrous and Lipshutz contend that the Court in 1986 “made clear that whether education is a fundamental right is ‘not yet definitively settled.’” (Emphasis added.) But the Court actually said in that case that its precedents establish that “education is not a fundamental right” and that what is “not yet definitively settled” is the much narrower matter “whether a minimally adequate education”—adequate, that is, to enable meaningful exercise of speech and voting rights—“is a fundamental right.” (Emphasis added.) (Boutrous and Lipshutz use a similarly narrow phrasing on one occasion, but they speak much more broadly in several other instances.)

It’s no surprise—and not an encouraging sign—that Goodwin Liu was one of two California supreme court justices to issue a statement dissenting from the court’s denial of review. The arch-activist Liu, after all, as part of his campaign for the courts to invent constitutional welfare rights, would invalidate Congress’s method for allocating federal funds to states for the education of low-income children and would also strike down California’s system of school finance. Further, in a presentation that he somehow failed to disclose to the Senate in the course of his failed Ninth Circuit nomination, Liu called for Rodriguez to “be swept into the dustbin of history”—with the consequence that systems of school finance and all other aspects of public education would be subjected to federal judicial micromanagement.