Imagine the ideal public-school teaching scenario. The classroom is cheerful and has stimulating visuals, posters, charts, and artwork. The textbooks are plentiful and the latest edition. The teacher is well qualified, the teacher-to-student ratio is low, and the school has other professional staff for health and guidance. Students who need individual attention get it. The school building is safe, comfortable, and clean. We can easily picture a student graduating from high school, attending college, and finding a fulfilling job with a comfortable salary. The student becomes a productive member of society who votes in elections, pays taxes, opens a bank account, pays bills, and fully engages in the community.
The Detroit School Experience
Now picture the educational experience alleged by students at Detroit’s lowest performing schools. In the 2015–16 academic year, none of the school district’s buildings complied with health and safety codes. Compl. at ¶87, Gary B. v. Whitmer, 957 F.3d 616 (6th Cir. 2020) (No. 16 Civ. 13292). Classroom temperatures regularly exceeded 90 degrees due to malfunctioning furnaces. The same classrooms were so cold in winter that students and teachers could see their breath and wore winter closing inside. The facilities had mice, rats, cockroaches, and black mold. Educator vacancies were common, and their empty spots covered by non-certified paraprofessionals, substitutes, or misassigned teachers who lacked subject-matter knowledge. The books were old, damaged, or missing. Despite these conditions, students were expected to learn the same topics and become literate. These are the alleged conditions for the student plaintiffs in Gary B. v. Whitmer. These students plead for a fundamental constitutional right to a minimum education, one that allows them to become literate.
Is There a Federal Fundamental Right to a Basic Minimum Education?
On April 23, 2020, a panel of judges for the Court of Appeals for the Sixth Circuit ruled 2–1 that the federal Constitution affords “a fundamental right” to a “basic minimum education.” Gary B. v. Whitmer, 957 F.3d 616, 620 (6th Cir. 2020). This decision meant students were entitled to have access to literacy through their normal public schooling. Less than a month later, a majority of Sixth Circuit judges voted to rehear the case en banc. Gary B. v. Whitmer, 958 F.3d 1216 (6th Cir. 2020). As a result, the previous decision and judgment of the court were vacated, the mandates were stayed, and the appeal was restored to the docket as pending. On June 10, 2020, the en banc Sixth Circuit dismissed the case as moot based on the settlement agreement reached by the appellants and the governor of Michigan.
Although they did not obtain their original goal, the Gary B. plaintiffs provide a roadmap for future litigants to argue that there is a federal constitutional right to a basic minimum education and access to literacy.
What Is a Fundamental Right?
A proper education has long been recognized as vital to our country’s success yet American students do not have a federal fundamental right to a basic minimum education. There is no national education system, and there is no mention of education in the U.S. Constitution. The Fourteenth Amendment protects the rights the Founders explicitly included in the Constitution but also, as interested by the Supreme Court, recognized some “fundamental” rights.
The Supreme Court has developed a two-prong analysis to recognize rights not written in the Constitution as “fundamental.” Gary B., 957 F.3d at 643. The first prong of the Supreme Court's fundamental-rights analysis looks to whether the right in question is deeply tied to "this Nation's history and tradition" and is "implicit in the concept of ordered liberty." The second prong of a fundamental-rights analysis explores whether the Court can identify the right with a "careful description."
The Supreme Court has evaluated claims concerning the constitutionality of state-provided education. While the Supreme Court has not yet held that education is a "fundamental right” under the Constitution, it has held, in San Antonio Independent School District, that the Equal Protection Clause of the Fourteenth Amendment requires that when a state establishes a public-school system, no child living in that state may be denied equal access to schooling. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). While many state supreme courts have addressed a right to adequate education under state constitutions, the U.S. Supreme Court has not yet addressed whether the adequacy of schooling is a federal constitutional right, either under the Due Process or Equal Protection clauses of the Fourteenth Amendment.
Gary B v. Whitmer
The plaintiffs in the Gary B v. Whitmer litigation sought to change that by arguing that the students’ denial of an adequate education had deprived them of “life, liberty or property” under the federal Due Process Clause. The student plaintiffs sued Michigan state officials for the abysmal conditions in their schools. They alleged that the physical facilities, amenities, and resources available to the Detroit students violated their substantive due-process rights. Gary B., 957 F.3d at 616–18. Academically, the proficiency rates of the students in the Detroit schools were near to zero. In one of the schools, 100% of sixth graders were non-proficient in both reading and math.
The students argued that these conditions deprived them of a basic minimum education, defined as one that produces a chance at foundational literacy. They alleged that the education provided was so poor that many students attending these schools were functionally illiterate, resulting in adults who are effectively denied their rights to free speech, voting, and other enumerated constitutional rights.
In a groundbreaking 2–1 decision, a panel of the Sixth Circuit adopted the substantive Due Process argument, recognizing a fundamental right to access to literacy. Gary B., 957 F.3d at 661. The Sixth Circuit panel reviewed Supreme Court precedent relating to fundamental rights and education and applied the two-prong fundamental-rights analysis. Its historical analysis of the role of public education in the United States concluded that "free state-sponsored schools" were a priority at the time of adoption of the Fourteenth Amendment, making it clear that access to literacy was “deeply rooted in this Nation's history and tradition." The court stressed not only the importance of education but also how access to literacy was necessary "for even the most limited participation in our country's democracy." The court concluded that access to literacy satisfied the first prong of the substantive Due Process test.
The Sixth Circuit panel further determined that a basic minimum education "is implicit in the concept of ordered liberty It discussed the second prong of the fundamental-rights analysis: to describe the right in question specifically enough to settle the case at hand. The court clarified that the right it was establishing "only guarantees the education needed to provide access to skills that are essential for the basic exercise of other fundamental rights and liberties, most importantly participation in our political system.” The Sixth Circuit panel specified that a right to literacy would require the state to provide the basic infrastructure through which students could plausibly achieve literacy, which includes not just literacy rates but also elements such as building conditions, teachers, and educational materials. Each state would determine the holistic composition of necessary resources and the trial court would evaluate whether these elements were adequately provided.
The Sixth Circuit panel held that the plaintiffs adequately pled they had been denied a basic minimum of education, and thus had been deprived of access to literacy. The panel reasoned that basic literacy education is essential to the exercise of other fundamental rights including speech, press, and religion. One cannot effectively vote, answer a jury summons, pay taxes, or even read a road sign if illiterate. The panel expressed, where "a group of children is relegated to a school system that does not provide even a plausible chance to attain literacy, we hold that the Constitution provides them with a remedy." Id. at 662.
Unfortunately, the groundbreaking decision was short-lived. Under the settlement agreement, the governor would immediately allocate $3 million to support the literacy of the named plaintiffs and commit to supporting ongoing literacy initiatives in Detroit schools with an additional $94.4 million in literacy-specific funding, contingent on the legislature's approval. The agreement created two task forces to monitor the quality of Detroit education and advise the governor.
Aftermath of Gary B.
Reaching this settlement agreement, despite the original holding being vacated, could be considered a victory for the plaintiffs. This settlement will likely benefit current students in the Detroit public schools but lacks any concrete support for future generations of students. Although the United States spends more per student than most other counties, other countries have improved their educational outcomes by implementing significant policy reforms instead of just adding to the educational budget.
Downsides of Recognizing a Fundamental Right
The dissent in Gary B. v. Whitmer recognizes some legitimate concerns with courts granting a positive right to basic education. Gary B., 957 F.3d at 663 (Murphy, J., dissenting). Effective education policymaking requires multiple solutions and not just financial assistance. These are complex issues that a court cannot reasonably oversee or implement. Recognizing a federal right to literacy would require courts to monitor school systems for violations and prescribe remedies. As the dissent notes, judges are not experts in education and have no specialized knowledge qualifying them to make decisions concerning educational policy. Id. at 672 (Murphy, J., dissenting). Further, allowing judges to recognize “new” fundamental rights may compromise the will of individuals by giving power to make policy to unelected judges instead of to elected representatives. Id. at 655 (Murphy, J., dissenting).
Finally, courts traditionally (Rodriguez, 411 U.S. at 40) give states the power to evaluate and make financial decisions concerning allocation of public funds for public education because they are in the best position to know what their specific state system needs. Id. at 655 (Murphy, J., dissenting). Giving federal judges power to oversee Detroit’s school system, financially and in regard to curriculum, would disrupt this balance and leave the federal government to create a standardized system for funding, not taking into consideration each state’s individual needs.
Despite the en banc Sixth Circuit dismissing the appeal as moot and vacating the panel decision, federal court litigants in other circuits will likely continue to bring claims advocating for a right to access to literacy. The Sixth Circuit panel’s original decision serves as powerful guidance for litigants in other circuits who may wish to bring similar fundamental-rights claims.
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