In more than one occasion, the United States Supreme Court has declined to recognize a constitutional right to education. So has the Sixth Circuit. Nevertheless, in Gary B, et al., v Whitmer, et al. (Case No. 18-1855/1871, April 23, 2020), the Sixth Circuit reversed field in a split decision.
Plaintiffs in Gary B were students who attended the five worst public schools in the City of Detroit. Interestingly, they did not sue the school district. Instead, they sued the Governor of the State of Michigan, the State Superintendent, and several other state officials; alleging violations of the Due Process and Equal Protection Clauses of the federal constitution. The complaint alleged, among other things: absent or unqualified teachers; poor and dangerous facilities; inadequate books and materials; and, the worst academic achievement scores in the nation. Given the procedural posture of the case, the Court treated plaintiffs’ allegations as true and construed them in the light most favorable to plaintiffs.
The majority’s analysis of plaintiffs’ substantive claims begins 20 pages into the opinion. First, the majority addressed plaintiffs’ equal protection claims, which alleged defendants discriminated against them by failing to provide plaintiffs the same “access to literacy” as other Michigan students. The majority concluded the trial court correctly dismissed this claim because plaintiffs had not alleged any disparity in the state’s allocation of resources between their schools and others. At the same time, the majority suggested lines of argument plaintiffs might pursue to amend their complaint when the case returned to the trial court.
Then the majority turned to plaintiffs’ due process claims. First, plaintiffs’ allegation the state’s compulsory attendance laws deprived them of their constitutionally-protected liberty by detaining them in “schools in name only.” The majority concluded the trial court had correctly dismissed this claim as well, but only because plaintiffs’ complaint did not sufficiently articulate the factual basis of the claim. The majority noted that if plaintiffs had alleged they were forced to attend a school where they were simply warehoused and provided no education at all, they would have stated a viable claim. Perhaps, the Court suggested, plaintiffs would pursue leave to amend this claim at the trial court level.
The majority then turned to what it characterized as the “central issue:” that plaintiffs “have a fundamental right to a basic minimum education, meaning one that provided access to literacy.” After a lengthy and free-wheeling analysis, the majority created such a right, based on the historical prevalence and significance of public education and the assertion a basic minimum education was implicit in the concept of ordered liberty. Having done so, the majority described the contours of the new constitutional right as follows:
Importantly, the right defined in this opinion is narrow in scope. It does not guarantee an education at the quality that most have come to expect in today’s America (but than many are nevertheless denied). Rather, the right 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. … [T]his amounts to an education sufficient to provide access to a foundational level of literacy – the degree of comprehension needed for participation in our democracy.
The dissenting judge did not disagree with the gravity of plaintiffs’ allegations. In fact, the dissenting opinion clearly stated that, “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.” Instead, the dissent would decline to solve the problem by creating a new constitutional right because there was “…nothing in the complaint that gives federal judges the power to oversee Detroit’s schools in the name of the United States Constitution. [A] document [that] does not give federal courts a roving power to redress ‘every social and economic ill.’”
Gary B. deserves our attention going forward. Several important questions remain unanswered. Is the Sixth Circuit’s decision a harbinger of things to come or merely a passing anomaly? How many similar cases will be filed and which school districts will be affected? If plaintiffs prove their case, how much more will the necessary infrastructure, supplies, and teachers cost? Who will pay the bill? Or, perhaps the question is not about money, per se, but how it is managed. But to the extent lack of money is the problem, what will be the relationship between additional financial inputs and student achievement? Which of these questions will be answered and managed by the courts, as opposed to the state legislature and local school boards? Suffice to say, it is too early to make many predictions about the ultimate effect of Gary B.