It usually surprises people that “serve and protect” on the side of a police cruiser is just a marketing ploy, not a duty. But if you are educated in the Detroit public schools, it might not matter as you can’t read what it says on the side of the RMP because the educational conditions are so atrocious, overcrowding, lack of teachers, vermin and worse, that schools fail to provide the opportunity of literacy.
An outrage? Absolutely, particularly given the fact that education isn’t some vague gimme, but something paid for through taxes. Unlike the myriad cries of newfound “rights,” like the right to health care, it hardly seems like a stretch to expect a right to something the government takes money to provide. Then again, it’s not as if the cops are free.
The question was posed in Gary B. v. Snyder before Judge Stephen J. Murphy III in the Eastern District of Michigan. Notably, the question was not a “right to literacy,” which is an outcome and beyond anything the government can guarantee, but rather the right to access to literacy, the opportunity to learn to read. In almost every discussion of rights these days, this critical distinction is missed. And there is little doubt that kids in Detroit were being denied the opportunity, regardless of what they might make of it.
[Judge Murphy] conceded that the conditions at some Detroit schools were “nothing short of devastating.”
The word “conceded” is a peculiar choice, as the judge wasn’t an adversary in the proceedings, nor doubted the allegations in the complaint that the schools were failing.
Mark Rosenbaum, a lawyer with Public Counsel, a public interest law firm in California that led the legal team that represented the students, said he planned to appeal the decision. “In 2018, you shouldn’t have to file lawsuits so that kids get access to teachers and books,” he said, calling the condition of the city’s schools a civil rights issue.
“Historically, access to literacy has been a tool to subordinate certain groups and certain communities and to keep those communities down,” he said.
If this reads like a social justice polemic rather than a legal argument, the sort that would gather tons of likes on Facebook but come to a crashing defeat in court, that’s exactly what happened. While access to education, meaning being entitled to go to school at all, is a right, what happens after that has never been held to be a fundamental right.
Plaintiffs’ due-process claim turns on whether access to literacy is a fundamental right. To make that determination the Court must first define what is a “fundamental right.” The Supreme Court recently explained:
The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, has not been reduced to any formula. Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries.
This quote is from Obergefell v. Hodges, and conceals in its inspiration no words upon which to frame a winning argument. But Judge Murphy, likely with a smile on his face, notes that it’s not quite true.
The Supreme Court has, however, historically employed a formula of sorts: fundamental rights are only those “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”
While not a whole lot more utilitarian, there is a message in there that “rights” are those things that have been “deeply rooted” in history and tradition. In Obergefell, the right was “marriage.” about as deeply rooted in tradition as it gets. But literacy?
The Supreme Court is historically “reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended.” By granting an asserted right the imprimatur of “fundamental” under the due process clause, the court “to a great extent, place[s] the matter outside the arena of public debate and legislative action.” Errantly done, the liberty protected by the Due Process Clause can be “subtly transformed” into a court’s policy preferences—however well-intentioned the preferences may be. (Citations omitted.)
Creating new positive rights has been seen as a legislative choice, as it lends itself to judges using the Due Process Clause as a mechanism for promoting their “well-intentioned” values under the guise of law.
Even when the Supreme Court has ventured to recognize a right as fundamental, it has typically limited them to “negative rights”—i.e., the right to be free from restraint or barrier.
While the claim on behalf of Detroit school children could have been framed as negative right, the “denial of access to literacy,” that wasn’t the case presented.
But the relief sought is exclusively positive in nature: Plaintiffs believe that Defendants must implement “evidence-based programs for literacy instruction and intervention,” universally screen students for literacy problems, and establish an accountability system, to name a few. See ECF 1, PgID 131–32. In sum, the Complaint points exclusively to a positive-right argument: Plaintiffs are entitled to a minimum level of instruction on learning to read, yet the State, vis-à-vis Defendants, has failed to give it to them.
The court recognized the obvious value of a decent education and its importance to those students being denied it in Detroit, but that failed to address any aspect of what gave rise to a fundamental right.
School districts at the time of the Constitution’s ratification were formed “when a group of farms came together and decided to construct a public building for schooling, where their children could gather and be taught reading, writing, and moral codes of instruction.” Id. at 112. The history evinces a deep American commitment to education, but runs counter to the notion that ordered society demands that a state provide one.
The irony of this action, and the court’s holding, is that it may well have produced a different outcome, or at least had a shot at success, had the plaintiffs not pursued a critical theory course and, instead, argued law. The students of Detroit may well have been deprived twice in this case, the first time of an education and the second of competent counsel who was more concerned with obtaining relief for their clients and less with promoting a politically correct social justice agenda.