St. Mary's Law Journal
State constitutions are affirmative grants of power under which both stated and implied fundamental rights can be sought. A proposed test for fundamental rights under the Texas Constitution looks at three factors: the history of the topic within the Texas Constitution and case law; the actual language used in the controlling provision; and the importance of that value to the people of Texas. The declaration of a constitutional right as fundamental certainly has implications for future relationships between the people and the government.
The Edgewood v. Kirby case has the potential to change much in Texas. The case stands for another step taken by the Texas judiciary toward protecting human rights, privileges, and responsibilities stated or implied in the Texas Constitution. Although the Texas Supreme Court did not find equality of opportunity for education to be a fundamental right, the topic is still a viable issue in the case, and the door is open in the future for such a finding.
Albert H. Kauffman, Applying Edgewood v. Kirby to Analysis of Fundamental Rights Under the Texas Constitution, 22 St. Mary’s L.J. 69 (1992).