Columbia Law Review
This Essay problematizes the increased propertization and commodification of education and calls for a rethink of the emergent concept of “education theft” through the lens of intellectual property and human rights. This concept refers to the phenomenon where parents, or legal guardians, enroll children in schools outside their school districts by intentionally violating the residency requirements. The Essay begins by revisiting the debate on intellectual property rights as property rights. It discusses the ill fit between intellectual property law and the traditional property model, the impediments the law has posed to public access to education, and select reforms that have emerged both inside and outside the property regime. The Essay then turns to the debate on property and education in the human rights context. It argues that the norms and practices relating to the human right to education provide important insights into the debate. It also states that the discussion in the human rights forum will help evaluate the effectiveness and limitations of introducing positive rights to foster public access to education. The Essay concludes by applying the insights gleaned from the debate on property and education in the intellectual property and human rights contexts to the phenomenon surrounding so-called “education theft.” Specifically, the Essay calls for the development of a more sophisticated understanding of property rights in their historical and socioeconomic contexts, a careful evaluation of the expediency of criminalizing residency requirement violations, and an exploration of potential technological solutions to address problems raised by these violations.
Columbia Law School
Peter K. Yu,
Rethinking Education Theft Through the Lens of Intellectual Property and Human Rights,
Colum. L. Rev.
Available at: https://scholarship.law.tamu.edu/facscholar/1840