RETHINKING EDUCATION THEFT THROUGH THE LENS OF INTELLECTUAL PROPERTY AND HUMAN RIGHTS

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.

The full text of this Essay can be found by clicking the PDF link to the left.

* Regents Professor of Law and Communication and Director, Center for Law and Intellectual Property, Texas A&M University. An earlier version of this Essay was presented at the Columbia Law Review Property and Education Symposium. The author is grateful to Professors LaToya Baldwin Clark and Timothy Mulvaney for organizing this Symposium and to Professors Margaret Chon, Rachel Moran, Timothy Mulvaney, Madhavi Sunder, Erika Wilson, other Symposium participants, and the Law Review editors for their valuable comments and suggestions.

INTRODUCTION

In the past few years, courts, policymakers, and commentators have paid considerable attention to how the law engages with education. Later this term, the United States Supreme Court will decide Students for Fair Admissions Inc. v. President & Fellows of Harvard College, which addresses whether institutions of higher education can factor race into admissions decisions. 1 980 F.3d 157 (1st Cir. 2020), cert. granted, 142 S. Ct. 895 (2022); see also Yuvraj Joshi, Racial Indirection, 52 U.C. Davis L. Rev. 2495, 2556–67 (2019) (discussing the future of affirmative action that this litigation may have shaped). Politicians, prosecutors, and law enforcement officials have also actively pushed for increased criminal penalties for enrollment fraud or what they have called “education theft.” 2 Kyle Spencer, Can You Steal an Education? Wealthy School Districts Are Cracking Down on “Education Thieves”, Hechinger Rep. (May 18, 2015), https: //hechingerreport.org/can-you-steal-an-education/ [https://perma.cc/HXK5-MQDM]. See generally LaToya Baldwin Clark, Education as Property, 105 Va. L. Rev. 397, 403–21 (2019) [hereinafter Baldwin Clark, Education as Property] (discussing the use of residency, criminal, civil, and education laws to combat the phenomenon of “stealing education”); LaToya Baldwin Clark, Stealing Education, 68 UCLA L. Rev. 566 (2021) [hereinafter Baldwin Clark, Stealing Education] (discussing the phenomenon of “stealing education”); La Darien Harris, Note, The Criminalization of School Choice: Punishing the Poor for the Inequities of Geographic School Districting, 44 J. Legis. 306 (2018) (discussing the criminalization of residency requirement violations). Invoking property rights to emphasize the conduct’s wrongfulness, 3 Cf. Mark A. Lemley, Romantic Authorship and the Rhetoric of Property, 75 Tex. L. Rev. 873, 896 (1997) (reviewing James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (1996)) (noting that “‘infringement’ may be a morally neutral term, but ‘theft’ is clearly wrong”). this label refers to an intentional violation of residency requirements for school enrollment to obtain “a seat in a classroom that the taxpayers . . . have designated for a resident child”—such as when a parent or legal guardian falsifies a nonresident child’s home address. 4 Baldwin Clark, Education as Property, supra note 2, at 411; see also id. at 406 & n.47 (listing the statutory provisions that criminalize theft of education); Baldwin Clark, Stealing Education, supra note 2, at 592–98 (discussing those laws); Harris, supra note 2, at 319–27 (discussing laws criminalizing theft of education in Connecticut, Maryland, Ohio, Oklahoma, Pennsylvania, and the District of Columbia).

In academic literature, Professor LaToya Baldwin Clark wrote a pioneering article entitled Education as Property, which explores the phenomenon of “stealing education” and criticizes local school districts and law enforcement authorities for perpetuating stratification and inequality through surveillance and punishment. 5 Baldwin Clark, Education as Property, supra note 2, at 421–24. See generally LaToya Baldwin Clark, Barbed Wire Fences: The Structural Violence of Education Law, 89 U. Chi. L. Rev. 499 (2022) [hereinafter Baldwin Clark, Barbed Wire Fences] (arguing that the structure of U.S. education not only fails to address Black childhood poverty but has also caused tangible harm to poor Black children); Baldwin Clark, Stealing Education, supra note 2 (arguing that laws against “stealing education” contribute to raceclass opportunity hoarding and segregation). Professor Erika Wilson discusses how the maintenance of predominantly white school districts can generate a process of “social closure” that enables one group to monopolize advantages by closing off opportunities to other groups, usually racialized minorities. 6 See Erika K. Wilson, Monopolizing Whiteness, 134 Harv. L. Rev. 2382, 2388–414 (2021). Professor Rachel Moran laments how increased commodification, segmentation, and stratification have undermined the “democratic promise of higher education.” 7 See Rachel F. Moran, City on a Hill: The Democratic Promise of Higher Education, 7 U.C. Irvine L. Rev. 73, 75 (2017). And Professors Michelle Wilde Anderson and Nicole Stelle Garnett have separately written about the changing educational landscapes, covering issues such as school closures and the formation and dissolution of school districts. 8 See generally Michelle Wilde Anderson, Making a Regional District: Memphis City Schools Dissolves Into Its Suburbs, 112 Colum. L. Rev. Sidebar 47 (2012); Margaret F. Brinig & Nicole Stelle Garnett, Catholic Schools and Broken Windows, 9 J. Empirical Legal Stud. 347 (2012); Nicole Stelle Garnett, Disparate Impact, School Closures, and Parental Choice, 2014 U. Chi. Legal F. 289.

Although intellectual property law seems quite far away from these issues, it is very familiar with the debate on property and education and has much to contribute. Enacted through a constitutional clause that aims to “promote the Progress of Science and useful Arts,” 9 U.S. Const. art. I, § 8, cl. 8. copyright 10 The origin of the U.S. copyright law can be traced back to the English Statute of Anne, which was formally titled “An Act for the Encouragement of Learning.” An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies, During the Times Therein Mentioned 1710, 8 Ann. c. 19 (Eng.). and patent laws provide incentives to ensure the development of knowledge, learning materials, and educational technologies. 11 See William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law 294–310 (2003) [hereinafter Landes & Posner, Economic Structure] (discussing the economic logic of patent law); William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325, 326–33 (1989) [hereinafter Landes & Posner, Economic Analysis] (discussing the basic economics of copyright). Yet, the continuous expansion of intellectual property rights has greatly reduced public access to education. By enabling rights holders to charge supracompetitive prices—prices that exceed what can be charged in a competitive market—intellectual property rights have made textbooks, research materials, and educational technologies unaffordable. 12 See infra text accompanying notes 48–50. Even well-resourced universities have struggled with increased subscription fees for academic and scientific journals. 13 See, e.g., Alex Fox & Jeffrey Brainard, University of California Boycotts Publishing Giant Elsevier Over Journal Costs and Open Access, Science (Feb. 28, 2019), https://www.science.org/content/article/university-california-boycotts-publishing-giant-elsevier-over-journal-costs-and-open [https://perma.cc/E5SW-ZUR3] (reporting the University of California System’s boycott of journal subscriptions from Elsevier due partly to the publisher’s refusal to reduce subscription fees); Ian Sample, Harvard University Says It Can’t Afford Journal Publishers’ Prices, Guardian (Apr. 24, 2012), https://www.theguardian.com/science/2012/apr/24/harvard-university-journal-publishers-prices [https://perma.cc/BD7X-T5XY] (“[A] memo from Harvard’s faculty advisory council said major publishers had created an ‘untenable situation’ at the university by making scholarly interaction ‘fiscally unsustainable’ and ‘academically restrictive’, while drawing profits of 35% or more.”). In addition, because intellectual property law enables rights holders to decide whether to release the protected products and technologies in local languages or commercially unattractive markets, members of marginalized and disadvantaged communities often do not have ready access to those products and technologies even if they manage to secure the needed economic resources. 14 See infra text accompanying notes 63–64.

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. Part I explores the debate on property and education in the intellectual property context. To foreground the problems raised by property rhetoric in general and the “theft” label in particular, this Part revisits the debate on intellectual property rights as property rights. It discusses the ill fit between intellectual property law and the traditional property model as well as the impediments this law has posed to public access to education. This Part then outlines select reforms advanced by courts, policymakers, and commentators both inside and outside the property regime to improve such access. Because this Essay focuses on education, the discussion of intellectual property rights inevitably gravitates toward copyright law—and, to a lesser extent, patent law. Nevertheless, it is worth keeping in mind that other forms of intellectual property rights can also impede public access to education. 15 An example that has received considerable attention during the COVID-19 pandemic is the need for disclosure of tacit knowledge to facilitate the development of vaccines and other health products and technologies. See Peter Lee, New and Heightened Public–Private Quid Pro Quos: Leveraging Public Support to Enhance Private Technical Disclosure, in Intellectual Property, COVID-19, and the Next Pandemic: Diagnosing Problems, Developing Cures (Madhavi Sunder & Sun Haochen eds., forthcoming 2023), https://ssrn.com/abstract=4058717 [https://perma.cc/2NZC-7SMD].

Part II turns to the debate on property and education in the human rights context. The human rights forum is selected for two reasons. First, the norms and practices relating to the human right to education provide important insights into this debate. In fact, commentators have increasingly called for the use of a right to education—both domestically and internationally—to improve public access to education. 16 See infra text accompanying notes 122–126. Second, the human rights forum is accustomed to clashes between competing interests cloaked in rights, such as the tensions and conflicts between the right to education and the right to the protection of the interests resulting from intellectual productions. 17 For the author’s prior work in this area, see generally Peter K. Yu, The Anatomy of the Human Rights Framework for Intellectual Property, 69 SMU L. Rev. 37 (2016) [hereinafter Yu, Anatomy]; Peter K. Yu, Intellectual Property and Human Rights 2.0, 53 U. Rich. L. Rev. 1375 (2019) [hereinafter Yu, Human Rights 2.0]; Peter K. Yu, Intellectual Property and Human Rights in the Nonmultilateral Era, 64 Fla. L. Rev. 1045 (2012) [hereinafter Yu, Nonmultilateral Era]; Peter K. Yu, Intellectual Property, Human Rights, and Methodological Reflections, in Handbook of Intellectual Property Research: Lenses, Methods, and Perspectives 182 (Irene Calboli & Maria Lillà Montagnani eds., 2021); Peter K. Yu, Reconceptualizing Intellectual Property Interests in a Human Rights Framework, 40 U.C. Davis L. Rev. 1039 (2007) [hereinafter Yu, Reconceptualizing Intellectual Property Interests]. The discussion in the human rights forum will therefore help evaluate the effectiveness and limitations of a key line of reform advanced in the previous Part—the introduction of positive rights to foster public access to education.

Part III applies 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.” This Part 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.