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.
Politicians, prosecutors, and law enforcement officials have also actively pushed for increased criminal penalties for enrollment fraud or what they have called “education theft.”
Invoking property rights to emphasize the conduct’s wrongfulness,
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.
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.
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.
Professor Rachel Moran laments how increased commodification, segmentation, and stratification have undermined the “democratic promise of higher education.”
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.
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,”
and patent laws provide incentives to ensure the development of knowledge, learning materials, and educational technologies.
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.
Even well-resourced universities have struggled with increased subscription fees for academic and scientific journals.
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.
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.
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.
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.
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.