Divided Sixth Circuit Panel Discovers Constitutional Right to a "Basic Minimum Education"

In a 2-1 decision sure to provoke substantial debate, a court concludes that states are obligated to provide citizens with a certain degree of education.

Today, in 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.

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. Thus, assuming the state seeks en banc or Supreme Court review, I am highly doubtful that its holding will survive.

There's lots more to say about the opinion, but in the meantime here are some excerpts, starting with the opening from Judge Clay's opinion for the court:

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.

In 2016, Plaintiffs sued several Michigan state officials, who they say are responsible for these abysmal conditions in their schools. Plaintiffs allege that state actors are responsible, as opposed to local entities, based on the state's general supervision of all public education, and also on the state's specific interventions in Detroit's public schools. The state argues that it recently returned control to local officials, and so it is now the wrong party to sue.

Plaintiffs' underlying claims, brought under 42 U.S.C. § 1983, are all based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Plaintiffs argue that while other Michigan students receive an adequate education, the students in Plaintiffs' schools do not, amounting to a violation of their right to equal protection of the laws. They also argue that the schools they are forced to attend are schools in name only, and so the state cannot justify the restriction on their liberty imposed by compulsory attendance. And in their most significant claim, Plaintiffs ask this Court to recognize a fundamental right to a basic minimum education, an issue the Supreme Court has repeatedly discussed but never decided.

While the district court found that Defendants were in fact the proper parties to sue, it dismissed Plaintiffs' complaint on the merits. First, it found that Plaintiffs had not alleged a proper comparator for their equal protection claim, nor had they highlighted any state policy or action that was not supported by a rational basis. Second, it found that Plaintiffs had not sufficiently pleaded their compulsory attendance theory, and so the court only viewed their due process claim as seeking an affirmative fundamental right. Third, the court held that a basic minimum education is not a fundamental right, and so Plaintiffs' due process claim was dismissed. Plaintiffs then appealed.

Though Plaintiffs failed to adequately plead their equal protection and compulsory attendance claims, the same cannot be said for their central theory: that they have been denied a basic minimum education, and thus have been deprived of access to literacy. 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. Furthermore, under this circuit's precedents, Defendants are proper parties to sue in this case. Accordingly, we affirm in part and reverse in part the district court's order, and remand this case for further proceedings.

As noted above, the majority opinion is quite long, and it spends considerable time developing the argument that there is an affirmative, fundamental constitutional right to a basic minimum education, and seeking to address the concern that recognizing such a right contravenes the admonition of Washington v. Glucksberg suggesting courts should largely be out of the business of recognizing previously undiscovered rights.

Judge Clay concludes:

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.

Where, as Plaintiffs allege here, a group of children is relegated to a school system that does not provide even a plausible chance to attain literacy, we hold that the Constitution provides them with a remedy. Accordingly, while the current versions of Plaintiffs' equal protection and compulsory attendance claims were appropriately dismissed, the district court erred in denying their central claim: that Plaintiffs have a fundamental right to a basic minimum education, meaning one that can provide them with a foundational level of literacy. . . .

Judge Murphy has a forceful dissenting opinion that I expect will capture the attention of either the en banc court or the Supreme Court. It begins:

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." Lindsey v. Normet, 405 U.S. 56, 74 (1972). It instead gives federal courts a limited power "to say what the law is." Marbury v. Madison, 5 U.S. 137, 177 (1803). And the law has long been clear: Unlike the right to free speech in the First Amendment or the right to a jury trial in the Seventh, education "is not among the rights afforded explicit protection under our Federal Constitution." San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973). So, while I agree with the majority that the defendants have not shown that this case is moot, I must respectfully dissent from its view that the complaint alleges a valid "substantive due process" claim.

The plaintiffs argue that the Due Process Clause imposes a one-size-fits-all duty on all 50 states to devote an unspecified level of taxpayer dollars to an unspecified level of education. Their novel request for a positive right to education will "mark a drastic change in our understanding of the Constitution." Harris v. McRae, 448 U.S. 297, 318 (1980). The Due Process Clause has historically been viewed, consistent with its plain text, as a negative limit on the states' power to "deprive" a person of "liberty" or "property." U.S. Const. amend. XIV, § 1. It has not been viewed as a positive command for the states to protect liberty or provide property. A state's decision "not to subsidize the exercise of a fundamental right" has never been thought to "infringe the right," even in areas where the states have long provided that assistance. Regan v. Taxation With Representation of Wash., 461 U.S. 540, 549 (1983). While, for example, a party may have a constitutional right against state aggression, the party has no constitutional right to state protection against private violence. DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 195–96 (1989). This traditional understanding ends today. The states that make up this circuit now must meet the school-quality standards that federal judges find necessary to enforce the plaintiffs' nebulous right to "access literacy." That is now the law of this circuit even though the Supreme Court has repeatedly explained that "[p]ublic education is not a 'right' granted to individuals by the Constitution." Plyler v. Doe, 457 U.S. 202, 221 (1982).

This positive right to a minimum education will jumble our separation of powers. It will immerse federal courts in a host of education disputes far outside our constitutionally assigned role to interpret legal texts. Cf. Washington v. Glucksberg, 521 U.S. 702, 721 (1997). How should those courts remedy the schools that they conclude are not meeting the constitutionally required quality benchmarks? May they compel states to raise their taxes to generate the needed funds? 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? Our judicial commissions give us no special insights into these "difficult questions of educational policy." Rodriguez, 411 U.S. at 42. But the states' ability to experiment with diverse solutions to challenging policy problems has long been a cherished aspect of our federalism. United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring). I would leave the difficult problems of education policy presented by this case where they have traditionally been—with the states and their people.

These legal points are not meant to deny much of what the majority eloquently says. The majority correctly recognizes "the vital role of education in a free society." Rodriguez, 411 U.S. at 30. No one disputes the importance of education for children to have a chance at life, just as no one disputes the importance of their having enough food to eat or a sturdy roof over their heads. Yet my view that education is important as a policy matter says nothing about whether I may find it compelled as a constitutional one. Id. at 32–34. That is what our Framers meant when they said that judges exercise "neither FORCE nor WILL but merely judgment." The Federalist No. 78, at 464 (A. Hamilton) (Clinton Rossiter ed., 1961). The constitutional question in this case turns on a legal judgment about the meaning of the Constitution's words; it does not turn on a policy assessment about education's societal value. And I see nothing in the Constitution's language that creates a substantive entitlement to a state-funded education.

The majority also correctly notes that the Fourteenth Amendment does include words designed to remedy our country's sad history of racial discrimination in the public schools. Brown v. Board of Education, 347 U.S. 483 (1954), stands out as a bedrock Supreme Court precedent, righting the legal wrong that was Plessy v. Ferguson, 163 U.S. 537 (1896). The Equal Protection Clause compels courts to apply the most exacting scrutiny to a state's racially discriminatory decisions. Johnson v. California, 543 U.S. 499, 505 (1995). But the plaintiffs' due-process claim here does not implicate this equality mandate. They do not argue that the purported school conditions arose from racial discrimination violating core equal-protection guarantees. And, as the majority explains, their equal-protection claim fails because they merely allege poor school conditions. They do not identify any discrete unequal treatment by the state defendants.

For these reasons and those that follow, I would affirm the district court's judgment.

One other little tidbit, I believe this is the third opinion in which Judge Murphy has engaged efforts to get around the limits of DeShaney. Should the Supreme Court have cause to revisit this case in the near future, I suspect it will find Judge Murphy's analyses quite helpful, and that a majority of the justices will affirm his interpretation of that case and its implications for the assertion of positive rights under the Constitution.