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.