The Troubling Right To A Meaningful Education

It would strike few people as far-fetched to expect that our system of compulsory education, the public school system, provided less than a right to a “basic minimum education.” It certainly costs enough to expect some minimal efficacy, both in taxes and opportunity costs. Some schools do a fabulous job of educating young people. Some do not. Sometimes, the problem is the school. Sometimes, the problem is the students. You can require a student to come to school, but you can’t make him learn.

But what about students who want to learn but whose schools are just awful?

[I]n Gary B. v. Whitmer, a divided panel of the U.S. Court of Appeals for the Sixth Circuit concluded that the Fourteenth Amendment’s Due Process Clause protects a fundamental right to a “basic minimum education” that is potentially violated when the state fails to provide adequate public schools. The majority opinion by Judge Clay, joined by Justice Stranch, is over 60 pages. Judge Murphy authored a 23-page dissent.

The majority’s discussion of the problem shouldn’t surprise anyone. Bad public schools are bad, and students who attend bad public schools get screwed.

Plaintiffs in this appeal are students at several of Detroit’s worst performing public schools. They credit this substandard performance to poor conditions within their classrooms, including missing or unqualified teachers, physically dangerous facilities, and inadequate books and materials. Taken together, Plaintiffs say these conditions deprive them of a basic minimum education, meaning one that provides a chance at foundational literacy.

And, indeed, these schools clearly deprive their students of a basic minimum education, which, to be clear, is a million miles below a good education. But the visceral sense of failure and outrage at schools failing students isn’t really the question at issue, which is whether this is a right protected by the Constitution under substantive due process and equal protection. It’s mentioned nowhere in the Constitution, so it would have to be one created by the court. And that’s what the panel does.

A review of the Supreme Court’s education cases, and an application of their principles to our substantive due process framework, demonstrates that we should recognize a basic minimum education to be a fundamental right.

Judge Clay makes a compelling case for why a basic minimum education should be a fundamental right.

The recognition of a fundamental right is no small matter. This is particularly true when the right in question is something that the state must affirmatively provide. But just as this Court should not supplant the state’s policy judgments with its own, neither can we shrink from our obligation to recognize a right when it is foundational to our system of self-governance.

Access to literacy is such a right. Its ubiquitous presence and evolution through our history has led the American people universally to expect it. And education—at least in the minimum form discussed here—is essential to nearly every interaction between a citizen and her government. Education has long been viewed as a great equalizer, giving all children a chance to meet or outperform society’s expectations, even when faced with substantial disparities in wealth and with past and ongoing racial inequality.

Cool, right? Except it’s not without problems.

Whatever one thinks about the state of public schools in Detroit (the focus of this case), I think it’s fair to observe this case is something of an outlier given the trajectory of constitutional law jurisprudence, on both the Sixth Circuit and the Supreme Court. For the past two decades, the Supreme Court has been out of the business of recognizing or discovering new constitutional rights, Obergefell and Lawrence being notable exceptions, and there is little precedent for the recognition of positive rights that impose affirmative obligations on governments for the provision of services to citizens.

The Supreme Court has been reluctant, but not so reluctant as to refuse all substantive due process arguments for rights to be recognized. So why not this time?

The complaint in this case alleges school conditions that would significantly impair any child’s ability to learn. If I sat in the state legislature or on the local school board, I would work diligently to investigate and remedy the serious problems that the plaintiffs assert. But I do not serve in those roles. And I see nothing in the complaint that gives federal judges the power to oversee Detroit’s schools in the name of the United States Constitution. That document does not give federal courts a roving power to redress “every social and economic ill.”

The question isn’t whether students should have a “basic minimum education,” which strikes me as a bar far too low, but whether federal courts should become Super School Boards, overseeing curriculum, teacher attendance and performance and the purchase of textbooks. Judge Clay raises some nuts and bolts problems.

Yet, the argument that the ability to read, to think, seems a necessary component of a participatory democracy. How can one exercise the franchise if one can’t read? How can one have the opportunity to pursue “life, liberty and happiness” if one can’t perform the basic functions required of a citizen?

Whether this puts federal judges in the position of running public schools is a matter of whether they assume the affirmative job of sticking their noses into the nuts and bolts or limit their involvement to disapproving of the failures. Much like oversight of prison crowding, the courts can tell states to figure it out or do the job for them. Sure, there’s a lawfare problem, where individuals will come to judges asking for relief for the social ills created by the failure of others, but holding a basic right to be fundamental isn’t the same as judges micromanaging classrooms.

As for the Supreme Court, while its humility in creating new rights out of thin air is a virtue, the right to a basic minimum education deserves to be the substantive due process exception. Indeed, some might even argue that the right to an education ought to be greater than the basic minimum if we’re to have a functioning democracy. But one step at a time, and this is a good step.

18 thoughts on “The Troubling Right To A Meaningful Education

  1. Dan

    “holding a basic right to be fundamental isn’t the same as judges micromanaging classrooms.”

    Isn’t it? I mean, they **could** simply hold this with no further elaboration (as they are wont to do, and as you’ve repeatedly complained about in the past), but then they’re setting the country up for (at least) decades of litigation, and an utterly inconsistent patchwork of rulings by judges who know about as much about education as they do about a kangaroo’s rectum, and which may eventually (perhaps by the end of this century, if the republic lasts that long) be made more uniform by a group of justices, who also know about as much about education as they do about the aforementioned kangaroo’s rectum. The “lawfare problem” you hand-wave away is really the central problem.

    In the alternative, the Supremes could prepare thorough standards/guidelines/requirements to define the minimum acceptable level of education. This would have the advantage of helping with uniformity, but what do they know, and why should they be in charge of this? Mencken applies here too, I’m afraid.

    1. SHG Post author

      This is a tough line to draw clearly, which is why I tried to express it as affirmative v. negative determinations. I agree that judges have neither the business nor competence to dictate education, but they do have the ability to hold what schools are doing inadequate and then turn it back to the schools to correct their inadequacies.

      Is that good enough? Maybe not, but that’s where I would draw the line.

      1. Dan

        “they do have the ability to hold what schools are doing inadequate”

        By what standard? Yes, certainly they have the ability to do this, in that they can decide and order whatever they please. But holding it “inadequate” means that there must be a standard of what “adequate” is. Someone’s going to have to set that standard, and if the Supremes hold that a “basic minimum education” (or whatever other phrasing may be used) is guaranteed by the Constitution, that someone is going to be a judge or a panel of judges–whom both you and I agree “have neither the business nor competence” to do so. Such a holding takes the question away from the legislature, the school board, the state (and federal, FWIW) department of education, any of whom might be presumed (though with significant reservations) to have some competence on the subject. Because it’s now a matter of a Constitutionally-guaranteed right, it can only be hashed out in the courts. And of the three branches of government, the courts are the least well-equipped to be making policy decisions.

  2. Skink

    Not with you, Scott:

    The Due Process Clause is not a “secret repository of substantive guarantees against ‘unfairness.’” BMW of North America, Inc. v. Gore, 517 U. S. 559, 598–599 (1996) (SCALIA, J., joined by THOMAS, J., dissenting);

    “Access to literacy is such a right. Its ubiquitous presence and evolution through our history has led the American people universally to expect it. And education—at least in the minimum form discussed here—is essential to nearly every interaction between a citizen and her government.”

    That literacy is popularly expected is not the measure of a fundamental right. That it is historically necessary to participation in the franchise is historically wrong. Universal learnin’ is of relatively recent vintage. That some aren’t fully educated is and will always be.

    “The Court has long afforded zealous protection against unjustifiable governmental interference with the individual’s rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice. That these may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted. [Footnote 79] These are indeed goals to be pursued by a people whose thoughts and beliefs are freed from governmental interference. But they are not values to be implemented by judicial intrusion into otherwise legitimate state activities.”

    San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36 (1973) (Powell, J.).

    The 6th Circuit recognizes the Supreme Court has repeatedly held there is no fundamental right to education absent a directed impact on a suspect class. That is the clear meaning of Rodriguez and its progeny. But it finds wiggle-room: the Court never said literacy within education wasn’t a fundamental right. That’s nonsense.

    I’m with the dissent. This gets rational basis review and fails like nearly all others that get that review.

    1. SHG Post author

      I wouldn’t expect everyone to agree with me on this, but then, some of us follow law and some of us make it. Doesn’t make you a bad person.

  3. Jim Ryan

    Maybe the answer is Harrison Bergeron-ing of the better schools?
    Then we can begin our descent into true Idiocracy.

  4. B. McLeod

    Decades ago, the federal courts thought they could take over and fix the schools up in Kansas City. That is why those schools are such a model of educational efficacy today.

  5. the Real Kurt

    Unless and until we (the wider we – beyond this establishment) have agreement on what exactly a “right” is, Progressives and other loons will expand them without limit.

    Nobody has a right to access to literacy. Nobody has a right to education.

    Anything that requires that others serve you, or give you anything, isn’t a right.

    Rights are a restriction placed on others against interference in pursuit of one’s peaceful activity. Anything else makes others into slaves.

    The Real Kurt

    1. SHG Post author

      Oddly, there is a right to a free and appropriate public education, but it’s statutory. The question is whether its denial violated due process and equal protection. This isn’t inventing rights out of thin air or some crazy progressive right to be called by their preferred pronouns.

      1. The Real Kurt

        Let’s put it this way: I’m an atheist, so the basis for my position is different than those who aren’t, and who argue the natural rights position, but the outcome is much the same. Rights are not granted by government statute, nor Constitution. They inhere in our nature as human beings.

        At the very most, the Constitution merely enumerates existing rights. Where the Supremes elaborate their logical extensions, they’ve conducted themselves in a righteous (as it were) manner. For instance, yes, there is a right to privacy, but no, there is no right to a job or a basic income. The former requires other not interfere in your life, and the latter would require that someone provide you with something.

        What is granted by statute in the arena of education is not a right, but a government-mandated privilege.

        Now, I say all of this as a parent with 5yo and 10old boys, who go to public school – one of whom has real difficulty with ADD/ADHD. Is there some self-contradiction in my position? If I were rich enough to put them into private school, or to hire private tutors, I’d say yes. But, because of the ways that the laws of this land are written, I don’t believe so – I’m merely subject to the strictures of budget, and do the best I can with what I have.

        1. SHG Post author

          We’re all familiar with the simplistic grasp of “rights.” This is third grade stuff and has no place in adult discussion. Off to reddit with you.

  6. DaveL

    What exactly would a school board, a state, the federal DOE have to do to fulfill their respective obligations towards such a “fundamental right?” It’s clearly not a question of money, Detroit Public schools, on a per pupil basis, are as well-funded as some of the wealthiest and most successful jurisdictions in Michigan. They get about $1.25 for every dollar kids in my own district get.

  7. rxc

    This discussion leaves out a major element of “public education” – parents. The parents who encourage the children to go to school, stay there, spend time at night hitting the books instead of playing ball or going to the movies. In my extended family, the parents who insisted on the kids hitting the books were much more successful than those who did not care. If the parents do not care, then all the bright, shiny schools do not matter.

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