A bold decision by a federal appeals court recognizing a right under the U.S. Constitution to a basic minimum education, in the form of access to literacy, has cheered education-equity advocates and may be felt far beyond the substandard Detroit schools that are the subject of the underlying lawsuit.
“This was a real breakthrough,” Michael A. Rebell, a professor and the director of the Center for Educational Equity at Teachers College, Columbia University, said in reference to the by a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, that revived a lawsuit brought by a handful of Detroit schoolchildren against the state of Michigan alleging horrendous conditions in the city’s schools.
“This is the first indication [in more than four decades] that there may really be an opening for some kind of broad-based federal right to education,” said Rebell, who filed a friend-of-the-court brief on the side of the Detroit children and is also spearheading a similar suit in Rhode Island.
The earlier ruling Rebell referred to was , a landmark U.S. Supreme Court decision in 1973 which rejected a 14th Amendment equal-protection clause challenge to Texas’ school funding system by residents of a small, property-poor school district, the Edgewood Independent School District, which covers part of San Antonio.
The nearly half-century-old decision was long considered to have foreclosed efforts to use the federal courts for broad-based equity or adequacy lawsuits.
But in recent years, scholars and litigators have advanced a range of new arguments for recognizing education as a right, to some degree or another, under the U.S. Constitution or under federal statutory law.
“It’s quite remarkable that in 2020, there are multiple cases in federal courts that are alleging a federal right to education,” said Kimberly Jenkins Robinson, a University of Virginia law professor and the editor of a new book of scholarly essays on the topic, appropriately titled A Federal Right to Education: Fundamental Questions for Our Democracy.
She said that the Supreme Court’s Rodriguez ruling had pushed litigants toward the state courts to seek broad improvements over the last 40 or more years, with only modest success.
“Despite decades of litigation, the state courts have not effectively been able to hold the states accountable for providing an adequate and equitable education,” Robinson said.
An Open Question
In the most recent decision, the 6th Circuit panel ruled 2-1 in Gary B. v. Whitmer to revive a lawsuit seeking an as-yet unspecified remedy from the state of Michigan for deficient conditions in the Detroit schools, which the state government had control over from the 1990s until recently.
Several recent lawsuits in the federal courts have advanced theories of a federal right to education under the U.S. Constitution or under federal statutes.
Gary B. v. Whitmer
A federal lawsuit alleges that conditions in the Detroit public schools are so poor that they deny students a federal right of access to literacy, which is necessary for effective political participation. On April 23, a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, recognized a 14th Amendment due process right to a minimum basic education, or access to literacy. It is unclear whether the state plans to appeal.
Cook v. Raimondo
This suit filed on behalf of 14 students in Rhode Island alleges that state officials have failed to provide the state’s students with a meaningful opportunity to obtain an adequate education to prepare them to be capable citizens. A federal district court heard arguments in December on the state’s motion to dismiss and a decision is pending.
Williams v. Reeves
In this suit, a group African-American women whose children attend poor schools in Mississippi assert that the removal of a school uniformity clause from an earlier state constitution has caused significant disparities in the educational resources, opportunities, and outcomes for students based on their race. In April, a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, revived the suit and backed the contention that the removal of the uniformity clause violated the 1870 federal law that readmitted Mississippi to the Union after the Civil War.
Martinez v. Malloy
A federal suit in Connecticut alleged that various state laws and policies kept inner-city students from receiving a minimally adequate education. In 2018, a federal district court dismissed the suit, holding that there was no fundamental right under the U.S. Constitution to a minimally adequate education.
Source: Education Week
The lawsuit alleges that the plaintiff children’s schools are five of the lowest-performing in the state, and that conditions in those schools are so bad—due to the absence of qualified teachers, crumbling facilities, and insufficient materials—that the schools fail to provide access to literacy. The suit has vivid descriptions mentioning mice, cockroaches, and other vermin in classrooms, unsuitable drinking water, outdated learning materials, and insufficient learning outcomes.
“The degrading of the Detroit schools started in the 1990s,” under state control, said Mark D. Rosenbaum, the legal director of Public Counsel, a Los Angeles-based public interest law firm that is spearheading the Detroit suit.
A federal district court had dismissed the suit. In the 6th Circuit, the plaintiffs drew widespread support in friend-of-the-court briefs from the Detroit public school system, from scholars, and others.
The 6th Circuit panel rejected two of the theories advanced by lawyers for the plaintiffs, one based on the 14th Amendment’s equal-protection clause and one based on compulsory attendance requirements.
But the majority recognized the right to a basic minimum education and access to literacy as part of the 14th Amendment’s guarantee of “substantive due process,” which is how the Supreme Court has recognized rights beyond procedural due process that aren’t mentioned in the Constitution, such as the right to privacy and bodily integrity.
“Plaintiffs contend that access to literary, as opposed to other educational achievements, is a gateway milestone, one that unlocks the basic exercise of other fundamental rights, including the possibility of political participation,” said the majority opinion by Judge Eric L. Clay. “While the [U.S.] Supreme Court has repeatedly discussed this issue, it has never decided it, and the question of whether such a right exists remains open today.”
The majority marshaled much support for the idea that the Supreme Court has not completely foreclosed the recognition of some form of basic education as a federal right by starting with the Rodriguez decision itself—the same decision that held there was no broad, fundamental U.S. constitutional right to education.
A Justice With Education Experience
The author of the Rodriguez opinion was Justice Lewis F. Powell Jr., who had just joined the high court months before the Texas case was heard. He had been a member of the Richmond, Va., school board through most of the 1950s, and on the Virginia state board of education, including a period as its chairman, in the 1960s.
“This case is more troublesome for me than it otherwise would be because of my long association with public education,” Powell wrote to one of his law clerks in October 1972, the same month the case was argued.
Powell embraced the assignment he received to write the opinion for the court holding that there was no fundamental right to education and that the Texas school finance system, which included wide disparities in funding because of its reliance on property taxes, did not violate the equal-protection clause.
Speaking for the 5-4 majority, Powell rejected the Texas plaintiffs’ claim that education was a fundamental personal right because it was essential to the effective exercise of First Amendment freedoms of expression and to the intelligent use of the right to vote.
“Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short,” Powell wrote.
However, Powell suggested that the Constitution might be violated if “a state’s financing system occasioned an absolute denial of educational opportunities to any of its children,” or if the state failed “to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.”
This was a sort of keystone for the 6th Circuit majority in the recent Detroit case. “Thus, the [Supreme] Court never ruled on the right to such a basic minimum education, and as shown more explicitly in its later cases, saved the question for another day,” the appeals court said.
Those later cases where the 6th Circuit found further evidence that the right to a minimum education was still left open were , the 1982 decision that struck down efforts by Texas to keep undocumented immigrant students out of its public schools; , a 1986 decision about claims by some Mississippi students that they were denied the economic benefits of U.S.-granted school lands; and , a 1988 ruling upholding a fee North Dakota schools charged for riding the bus.
In Plyler, the court noted the conclusion in Rodriguez that education was not a fundamental constitutional right, but it spoke at length about education providing “the basic tools by which individuals might lead economically productive lives to the benefit of us all” and how “education has a fundamental role in maintaining the fabric of our society.”
With Papasan, the 6th Circuit seized on that decision’s characterization of how the Supreme Court had left open the question of a minimal right to education.
“A Rodriguez and Plyler indicate, this court has not yet definitively settled the [question of] whether a minimally adequate education is a fundamental right,” the high court said in Papasan.
Finally, in Kadrmas, the 6th Circuit court looked to a characterization by Justice Thurgood Marshall, in a dissent in that case, that the Supreme Court has “explicitly left open” the question of “whether a state constitutionally could deny a child access to a minimally adequate education.”
Robinson, who also edited a book about the legacy of the Rodriguez case, said the Supreme Court “left the door open” to recognizing a right to a basic minimum education and “has acknowledged that the door was left open.”
Martha Minow, a professor and former dean at Harvard Law School, observed that the 6th Circuit court also found support for its decision in other cases, including the Supreme Court’s 1954 landmark desegregation in Brown v. Board of Education of Topeka.
“This decision says there is a denial of a federal right and it’s not just a denial of equal opportunity,” said Minow, who is a scholar of the Brown decision and filed a brief in the Detroit case supporting the plaintiffs. “I think the direct through-line to Brown is there.”
Federal 69ý Standards?
The dissenter on the 6th Circuit panel, Judge Eric E. Murphy, interpreted those four Supreme Court precedents differently. In each, he said, the court stated or repeated that “education is not a fundamental right.”
And he pointed to language in another case for support. In Ambach v. Norwick, a 1979 decision upholding a New York state law that barred permanent certification for teachers who were not U.S. citizens, or seeking citizenship, there is a footnote that says: “A [Rodriguez] recognized, there is no inconsistency between our recognition of the vital significance of public education and our holding that access to education is not guaranteed by the Constitution.”
The author of that opinion, including that footnote, was Justice Powell.
Murphy wondered in his dissent whether the majority’s recognition of a basic minimum right “will immerse federal courts in a host of education disputes far outside our constitutionally assigned role to interpret legal texts.”
Will courts “compel states to raise their taxes to generate the needed funds?” Murphy said. “Or order states to give parents vouchers so that they may choose different schools? How old may textbooks be before they become constitutionally outdated? What minimum amount of training must teachers receive? Which HVAC systems must public schools use?”
Federal judges have no special insights into such questions of educational policy, he said.
Jonathan H. Adler, a law professor at Case Western Reserve University in Cleveland, echoed the dissenting judge, saying the majority’s opinion is an “outlier” that is likely to be overturned.
“It’s hard not to root for the students,” he said. “What the case describes is awful. But as pure doctrinal matter, this is a substantial departure from where the law has been.”
As for the next steps in the Detroit case, it’s a little unclear. The original lead defendant, Republican Gov. Richard B. Snyder, has been replaced in the litigation by current Gov. Gretchen Whitmer, a Democrat.
Whitmer’s office gave a cautious reaction when the opinion came out, saying the governor of course supported access to literacy and improving the Detroit schools.
Michigan Attorney General Dana Nessel, a Democrat who took office in 2019, tried unsuccessfully to file a brief in the case for herself in support of the plaintiffs, even though her office was defending against the lawsuit. (The 6th Circuit did not accept her brief for filing.)
The state legally has the right to seek review by the full 6th Circuit or the Supreme Court. And the full 6th Circuit could decide to rehear the case on its own even if the state does not appeal.
So, as the case returns to the trial court, several observers suggested that a settlement is a distinct possibility.
“It’s time for this case to go from the courtroom to the classroom,” said Rosenbaum, the lead lawyer for the students, adding that he wasn’t concerned about the case reaching the Supreme Court and potentially setting a national precedent.
“You don’t file suits to make law,” he said. “You file suits to make change.”
