In a landmark decision issued last week in the Gary B. v. Whitmer case, the U.S Court of Appeals for the Sixth Circuit held there is a “fundamental right to a basic minimum education” under the U.S. Constitution. The two-to-one decision of the three-judge panel defined the right in terms of “access to literacy.”
Students in very low performing schools in Detroit brought the case. They claimed that—due to the absence of qualified teachers, crumbling facilities, and insufficient materials— the conditions in their schools were so bad students left school virtually illiterate. As the decision states, “Plaintiffs sit in classrooms where not even the pretense of education takes place, in schools that are functionally incapable of delivering access to literacy.” Because of this, these students attended “schools in name only, characterized by slum-like conditions and lacking the most basic educational opportunities that children elsewhere in Michigan and throughout the nation take for granted.”
The Sixth Circuit Court of Appeals reversed a lower court ruling that had dismissed the case. The court held there is a “fundamental right to a basic minimum education” that provides access to literacy as a matter of “substantive due process” under the Fourteenth Amendment. The U.S. Supreme Court has held that a fundamental right for substantive due process must be “deeply rooted in this Nation’s history and tradition.” Accordingly, the Sixth Circuit discussed in detail the history of education in the United States, especially at the time of the adoption of the Fourteenth Amendment. The Court also relied on the precedent of the Supreme Court’s 2016 ruling in Obergefell v. Hodges that single-sex marriage was a fundamental right as a matter of substantive due process.
This is the first time a court has asserted a federal right to education. In 1973, in San Antonio Independent School District v. Rodriguez, the U.S. Supreme Court ruled that education is not “a fundamental interest” entitled to strict scrutiny analysis under the equal protection clause of the Fourteenth Amendment (although the Court emphasized in the same decision that “education is perhaps the most important function of state and local governments,” as it had previously held in Brown v. Board of Education). Even though the Texas system of educational finance provided the plaintiff students only about half the per-capita funding that students in a neighboring, more affluent district received, the Supreme Court deemed this a “rational” state policy because it promoted local control of education.
In the nearly 50 years since Rodriguez, a number of cases have sought to distinguish and limit the scope of that ruling, but none has succeeded prior to this major pronouncement from the Sixth Circuit.
The Gary B. case has been remanded to the U.S. District Court for the Eastern District in Michigan for a trial and further proceedings. Some of the defendants and the state’s legislative leaders have asked the full panel of judges that constitute the Sixth Circuit Court to reconsider the case en banc.
For procedural reasons, the Sixth Circuit did not decide the claims plaintiffs had raised under the equal protection clause of the Fourteenth Amendment. That issue may be decided by the U.S. District Court for Rhode Island where a decision is currently pending in Cook v. Raimondo, another case seeking to establish a right to education under the U.S. Constitution. The main argument asserted by the Cook plaintiffs is that, in the Rodriguez decision, the Supreme Court left open the question of whether there is a right to the “quantum of education” students need to exercise “meaningfully” important constitutional rights like the right to vote, to serve on a jury, to exercise free speech, and to participate in political activities.
The outcome of the case may bring important relief to students in Detroit. Nonetheless, it is of concern that the scope of the right to education was defined so narrowly. It is to be hoped that Judge Smith in Rhode Island will declare that under the equal protection clause, or other constitutional provisions, students have a fundamental right to a more robust and meaningful education—one that provides the knowledge, skills, experiences, values, and civic_ integration necessary to prepare them to function effectively as civic participants in a democratic society.
- The author is lead counsel for the claimants in the Cook case.