Document Type


Publication Date


Journal Title

Columbia Law Review




Property law is having a moment, one that is getting education scholars’ attention. Progressive scholars are retooling the concepts of ownership and entitlement to incorporate norms of equality and inclusion. Some argue that property law can even secure access to public education despite the U.S. Supreme Court’s longstanding refusal to recog- nize a right to basic schooling. Others worry that property doctrine is inherently exclusionary. In their view, property-based concepts like resi- dency have produced opportunity hoarding in schools that serve affluent, predominantly white neighborhoods. Many advocates therefore believe that equity will be achieved only by moving beyond property-based claims, for instance, by recognizing education as a public good or human right.

The Court has upheld a constitutional right of access to public schools on just one occasion. In Plyler v. Doe, the Justices found that Texas could not bar undocumented students from schools or charge them tuition. The Court did not declare education a fundamental right or alienage a suspect classification. Instead, the opinion relied on several rationales, some property-based and some not. Residency, for instance, featured prominently in the case, but so did a trope of childhood innocence. Recently, there have been calls to revisit Plyler, making this an opportune moment to evaluate how its reasoning will fare. Despite growing interest in property-based entitlements as a strategy for inclusion, Plyler’s fate will likely turn on considerations that transcend property: the blamelessness of children, the cruelty of relegating them to a lifetime of illiteracy, and the implications that such deliberate indifference has for our democratic integrity.

First Page


Last Page


Num Pages


Volume Number


Issue Number



Columbia Law School

File Type



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.