Substantive Due Process

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.


NEXT: Did Justice Alito lose the majority in Ramos? (Updated)

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  1. Judge Murphy’s record indicates he is likely to be an ardent advocate for the wrong side of history.

    1. Look up Stranch and Clay and whom appointed them, and tell me who is on the wrong side of history.

      1. Judge Murphy.

      2. I think this decision is clearly wrong, and I’m dubious that it has much staying power, even in RAK’s fantasy world where Democrats win the presidency and a supermajority in Congress and appoint the ghost of Stephen Reinhardt to a new Supreme Court seat. But I don’t follow the point you’re trying to make here at all.

    2. GIving government ever-growing power sans amendment is the right side of history, if you want eventual dictatorship. So says actual history, many times over.

      1. Actually it’s worse than that.

        “So this is how liberty dies, with thunderous applause.” George Lucas, writing in Campbellian fashion of repeated regular historical instances.

      2. Krayt, when you are ready to get an amendment to read the Militia Clause out of the 2A, or to turn money into speech, or to sanctify gerrymandering, it will be time to take you seriously. Until then, you are just another right wing advocate, gleefully reveling in minority rule, and taunting the majority because a malign combination of procedure and happenstance have empowered you to taunt.

        1. Grammar lesson of the day: there is no “militia clause.”

          1. There certainly is a militia clause. The question is – what does it do, grammatically ?

            And the answer is that it offers a reason or explanation or justification for the right to keep and bear arms. It does not provide a condition or a limitation on that right.

            It is grammatically equivalent to :

            “The cost to the state of unwanted children being excessive, the right of a woman to procure an abortion shall not be infringed.”

            The right to procure an abortion is not limited to cases where an unwanted child would fall on the state. Nor do you have to agree with the justification that excessive costs to the state are a good reason for permitting abortion. The right is unconditional, the “unwanted children clause” offers a justification for that unconditional right.

            1. Now explain why your analysis of your imaginary amendment applies to the real world.

      3. “GIving government ever-growing power sans amendment is the right side of history, if you want eventual dictatorship. So says actual history, many times over.”

        If you’re lucky, you get Cinncinatus as your dictator. I don’t think we’ll be that lucky.

  2. Government schooling should be abolished.

    1. Education-disdaining clingers and anti-government cranks are among my favorite culture war casualties who hate America.

      1. It’s because I care about education that I feel this way. Today’s government school-prisons are the worst possible means of education. They should all be shut down and a free market achieved.

        1. Which do you most prefer, M L —

          (1) backwater religious schools that suppress science to flatter superstition;

          (2) nonsense-teaching, fourth-tier, conservative-controlled college campuses; or

          (3) downscale homeschooling featuring substandard, disaffected parents and a lack of wellness checks by authorities?

          1. Rev, any desire to share sources on what causes homeschooling to be “substandard” or “downscale” and done by “disaffected parents”?

            I’m also curious about how only “conservative controlled” “fourth-tier” college campuses teach nonsense. Care to elaborate?

            1. The disaffected, anti-social aspect of homeschooling seems self-evident. People who like modern America, embrace the American mainstream, and care about socialization seem unlikely to choose homeschooling. Half of parents are below-average with respect to temperament, intellect, education, and the like.

              Conservative-controlled, fourth-tier (or worse) colleges are not the only schools in America that teach nonsense, but for those schools teaching nonsense — suppressing science and warping history to defend dogma and advance supernatural claims — is a signature element and point of emphasis.

              1. Kind of a lousy thread to be beating an anti-homeschooling, anti-“conservative controlled schools” drum in, isn’t it?

                1. Why? Seems an apt occasion to advocate legitimate education and criticize substandard education.

            2. “I’m also curious about how only ‘conservative controlled’ ‘fourth-tier’ college campuses teach nonsense. Care to elaborate?”

              I don’t see this claim amidst the Rev’s comment. Perhaps you’d care to add some verbiage explaining why not being alone in teaching nonsense makes teaching nonsense acceptable?

              1. To conservatives, teaching nonsense is not just acceptable . . . it is desirable, if not the one true way.

                The consequences are predictable.

          2. “Which do you most prefer, M L —…

            Stop teasing the Detroit parents who would love to have these options, Arthur.

        2. Today’s government school-prisons

          This is not making your case; this is ensuring you remain on the fringe.

        3. ” Today’s government school-prisons are the worst possible means of education.

          The worst possible, except for all the others.

  3. “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).”

    Yeah, that’s pretty much it. Every ConLaw class teaches, or should teach, that the “high water” mark of rights ended in 1973, when the Court found that there was no fundamental right to education.

    This is …. surprising.

    1. If there was no constitutional right to education in 1973, but there is now, where did it come from ?

      Are constitutional rights really washed ashore by an incoming tide ?
      Is this the tide of progress ?

      What if the tide were to ebb ? Might existing rights disappear ? Is the right to bear arms being carried away on an ebb tide, while a constitutional right to education sweeps in on a flood tide ? What shape is the coastline that brings such tides simultaneously ?

      I think we should hear more, from an expert, on this tidal theory of the constitution. It would certainly make a change from originalism.

      1. Read Lawrence. Or Paul v. Virginia. Or Moore v. City of East Cleveland, Or Loving v. Virginia. Or Troxel v. Granville.

      2. “What if the tide were to ebb ? Might existing rights disappear ?”

        That’s absolutely desirable to certain issue partisans.The ones who’d like to roll badk say, the right to obtain an abortion, or from the other direction, the ones who’d like to roll back the right to possess the firearm of your choice. I believe the rollback of choice at present is a push to roll back Twitter’s right to decide who uses their computer systems and for what purpose(s).

    2. There have been similar suits in both MA and NH under the state constitution.

    3. “’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.’”

      Ever since the ninth amendment was ratified, the law has been clear, the Constitution doesn’t explicitly list all the rights it protects.

  4. “even a plausible chance to attain literacy”

    What? Children can’t learn to read if school doesn’t teach them?

    1. A more plausible argument from those who do not value education would begin ‘the President of the United States is illiterate, so how important can literacy be?’

      1. It’s aspirational. Any idiot in America can grow up to become President. If he inherits a big pile of daddy’s money.

      2. This argument is so tiresome.

        1. The argument that Donald Trump is illiterate is accurate.

          His bigoted, downscale fans may find continuing reference to their hero’s illiteracy tiresome.


    2. It’s unlikely that someone will learn to read if *someone* doesn’t teach them.

      1. But there is nothing in the Constitution, logic or even the precedents before and at the time of the Founding that suggests the *someone* must be the government.

        Lots of alternative *someone*s exist. And as the plaintiffs’ experience in the Detroit schools demonstrates, many of those alternates are clearly better.

        1. The government stands to gain from an educated electorate.

      2. That is absurd given history. Self teaching of reading & writing or being taught by a family member was the norm. And literacy in most countries boomed as industrialization gave people extra free time, and made literacy useful all far before public education systems were put into place.

        1. Allutz, obviously among historical examples where illiteracy was the norm—which were many—self-teaching and teaching by family members was essentially impossible. While thinking historically, you might do better to notice that prior to the rise of nation states, literacy was much the province of religious institutions.

          Some religious institutions were either indifferent to literacy, or opposed literacy, others made promoting literacy a religious tenet. That latter tradition is the one which American history handed off to the American nation state, in the form of public education.

          It is not surprising that pre-nationalisitc societies did not institute national public education, but that near-truism is not evidence to suggest that literacy, where it was encouraged, lacked institutional support. Institutional support for opposition to literacy was also continued in this nation, in the South, with pervasive effects still observable there as late as the early 20th century.

          I doubt that even in the South the people who did become literate did so mainly by self-teaching, or by in-person family education. Biographies of America’s founders, including the southerners, recount their early learning experiences. Grade schools, sponsored variously, appear time and again. Hired tutors are also commonly mentioned.

    3. ” Children can’t learn to read if school doesn’t teach them?”

      Children won’t learn to read if nobody teaches them.

      1. Children won’t learn to read if nobody teaches them.

        Maybe the litigants should sue their parents for not teaching them, then?

        1. poor people don’t pay judgments

  5. “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.”

    Prof Adler, can you explain which meaning you intended here. My question is about where you put “only” in the above sentence. (In advance: I am really not trying to pick nits . . . the meaning really changes, and I can see 3 possible meanings in the above sentence.)

    1. “The court was the only entity that saw the claim as seeking an affirmative right.” It’s grammatically correct now, but it would be more clear if ‘only’ was moved to before “the court.”
    2. “The party made lots of Constitutional arguments about affirmative fund. rights, but only the d.p. claim was seen in that light by the court.” I’d move ‘only’ from before ‘viewed’ to after that same word.
    3. “Although the d.p. claim could possibly have implicated several different types of rights, the court analyzed the d.p. claim only as regarding an affirmative fund. right.” I’d move ‘only’ in front of “as seeking.”

    All 3 are reasonable possibilities (there are other interpretations, but they are silly and logic can exclude them), and I do not think one can determine which of the 3 you meant. Is it possible to do a tiny edit, to clarify which one you intended?

    1. It’s the third. I know that because I read the opinion, but I don’t think 2 would be grammatical, and 1 would be a stretch.

    2. That language is from the court’s opinion. I didn’t write it, but I believe it’s the third.

  6. The Washington State constitution explicitly codifies that “It is the paramount duty of the state to make ample provision for the education of all children …”, and the WA S.C. has issued various decisions on the topic.

    I don’t think it works out very well; funding priority is best determined by the legislature. There are many competing interests – education, pandemic response, health care, the justice system, and so on. Codifying funding priorities in the constitution, explicitly or by case law just doesn’t seem like the right way to make those decisions. At some point, when the courts are mandating funding levels and funding allocation, then the legislature really doesn’t have a role any more.

    1. The court’s role should be simple, either the resources provided to public education are sufficient to achieve the necessary result or they are not. They could, by fiat, set a mechanism to calculate whether or not sufficient results were obtained, To paraphrase an American statesman, “the question is: ‘Is our children learning?”
      I think the right to education (as measured by literacy) might be related to voting rights: Can every American citizen read their ballot and understand the directions for casting votes?

      1. “The court’s role should be simple, either the resources provided to public education are sufficient to achieve the necessary result or they are not.”

        The resources at issue here are financial and physical plant.

        Small problem. In terms of the desired result, such resources are per say “necessary but not sufficient”.

        There is solid evidence out there that over all, across the US despite drastic increases in spending on K-12 education over the last several decades, outcomes have not improved at all.

        1. “Small problem. In terms of the desired result, such resources are per say ‘necessary but not sufficient’. ”

          Are they, or are they per se? We’ll need more resources if we’re going to add Latin literacy to the requirements.

    2. “funding priority is best determined by the legislature.”

      What magic property of legislators makes them more able to set funding priority than are the people generally?

  7. 10-6 GOP circuit majority. [Thanks Don and Mitch]

    Getting “en banc-ed” I would expect.

    1. By the time this reaches the Supreme Court, a 6-5 split favoring modern, progressive justices might be just the tonic!

      1. Are you expecting the Democrats to retake the senate in the coming election? If so, which seats do you see them flipping? If not, how do you see the legislation creating the new Supreme Court sears being enacted?

        1. Election betting odds project that Democrats have 40% chance of retaking the Senate. However, court packing seems unlikely.

        2. Neither party should rely on Senate control next time around, according to internal polls (most, but not all, Democratic) I have seen.

          Just one link permitted at this site; others are similar.

          The more Trump blunders and blusters, the worse I perceive this to get for Republicans.

      2. Nonsense. All the discussions of Court packing I’ve seen advocate going straight to at least 15 Justices, to guarantee the ‘right’ outcome even in cases where some of the existing ‘liberal’ justices defect. 11 is just asking to have to go back and do it again embarrassingly soon.

        1. I may have more opportunities to speak with influential Democrats than you do; every discussion in which I have participated focus on two additional positions.

          To which discussions do you refer?

          1. Adding ‘only’ two more justices invites retaliation. Adding six more makes it much harder for the next Republican administration to add another six: a 21-person Court may be perceived as too big, while the public might settle for a retaliatory 13-person Court.

            1. That argument seems unusually unpersuasive. Why would adding six disincline the other side to respond — if it has the opportunity — in kind?

              1. Adding six allows you to do more in the way of entrenchment legislation without losing the case due to defections. And who would be stupid enough to pack the Court without next proceeding to entrenchment legislation?

      3. Arthur:

        Do you think the modern Democratic Party has the guts to do this? To actually take action rather than be dominated? I kind of think they are spineless. I sometimes wonder whether they really oppose the GOP and their agenda all that much after all. Of course, that could just be me being annoyed that Biden was chosen as the nominee.

        The Democrats had the opportunity to get rid of the filibuster. They didn’t do it. Will they now, or will they just continue to allow the GOP to stomp on them? You really think they have what it takes to change the composition of the Supreme Court if they win the Presidency and the Senate? They couldn’t do it unless they are not only willing to increase the size of the Supreme Court, but also eliminate the filibuster.

        Court-packing has a long history. The Federalist Party packed the courts after losing the presidency to Thomas Jefferson, after all. But some people think that seeking to influence the judiciary through the democratic process is somehow illegitimate. Some of those people may be in the Democratic Party.

        1. I just picked my Supreme Court mug — gift from Justice Brennan, mid-’80s, my sturdiest mug other than an inexplicably durable one advertising Disney World — from the cupboard, which inspires me to answer your question.

          I sense an increasing resolve among Democrats to address the unrepresentative tilt of the federal bench. Several factors seem to drive this:

          1) Many Democrats believe Republicans have stretched rules and norms to slant (numbers) and diminish (inexperienced, unimpressive, predictable ideologues) the federal bench.

          2) Most Democrats with whom I am familiar, directly or indirectly, have lost respect for Republican colleagues. The Hastert rule, appeasement of extremists, disregard of science and modernity, sycophancy with respect to Trump, voter suppression, overt intolerance — there are fewer and fewer Democrats who believe there is much reason to try to work with or even maintain productive relationships with current Republicans. Fewer Democrats seem to care what even a Sen. Portman thinks these days, or to hope a Sen. Collins is reachable. The ‘just beat ’em, forget about trying to work with them’ sentiment is strong.

          3) Many Democrats perceive a demographic wave that favors them. That reduces the ‘what goes around comes around’ concern. Some people are convinced that a countervailing sentiment from the other side (resignation and desperation) is driving Republican conduct. There are credible presentations concerning trends and prospects that should terrify Republicans in several important states.

          4) The number of influential Democrats advocating enlargement of the Supreme Court has increased, as has the number open to legitimate discussion of the subject. It’s no longer a ‘you really want to go there?’ issue. People are looking at the 1860s.

          Mug’s empty.

          1. ” there are fewer and fewer Democrats who believe there is much reason to try to work with or even maintain productive relationships with current Republicans.”

            Obama tried, and look how it turned out for him.

        2. Do you think the modern Democratic Party has the guts to do this? To actually take action rather than be dominated? I kind of think they are spineless. I sometimes wonder whether they really oppose the GOP and their agenda all that much after all. Of course, that could just be me being annoyed that Biden was chosen as the nominee.

          Um, you know that Trumpkins say exactly the same thing if you flip the Dem/GOP references? (And substitute Romney or McCain or the like for Biden.)

          The Democrats had the opportunity to get rid of the filibuster. They didn’t do it. Will they now, or will they just continue to allow the GOP to stomp on them?

          Well, that would be just really short-sighted and require complete historical amnesia. You may not realize it, but in fact they did get rid of the filibuster… for nominees. And what was the outcome? They unexpectedly lost the election and the GOP used the lack of filibuster to confirm scores of nominees that wouldn’t have passed the 60-vote threshold. Surely they couldn’t be so dumb as to not realize that abolishing the legislative filibuster could backfire on them in the same way.

      4. “By the time this reaches the Supreme Court, a 6-5 split favoring modern, progressive justices might be just the tonic!”

        Awesome! But Education can take a lot of work. Hopefully the new SCOTUS will simply declare a fundamental right to knowledge, for those unable or unwilling to study.

    2. “10-6 GOP circuit majority.”

      So your working theory is that GOP federal judges are sufficiently against literacy to tip the scale on this issue?

  8. Once you get courts involved, the litigation never ends. Case in point, Abbott v. Burke, a New Jersey case initially filed in 1980, in which various plaintiffs tried to enforce both the state-constitutional right to an education and specific statutory guarantees and goals.
    As best I can tell, there have been at least 20 decisions by the New Jersey Supreme Court in this case and about issues which arose in the 40 years this case has been going on. A thumbnail history:
    And the schools in Newark, Camden and elsewhere still suck.

    1. “Once you get courts involved, the litigation never ends.”

      I know. It’s like the criminal procedure disputes and police conduct cases never stop!

  9. This seems to be the year of the uppity circuit judge, with circuit courts purporting to overrule clear Supreme Court precedents right and left.

    I don’t see this as different from the 5th Circuit’s recent recent rulings on Abortion. Regardless of whether you think the original decisions were correct or not, an inferior federal court has no authority to overrule a precedent of the Supreme Court that is clearly on point. San Antonio Independent School District v. Rodriguez controls this case. Unless and until the Supreme Court overrules it, the 6th Circuit must abide by it and has no authority to ignore it.

    1. This seems to be the year of the uppity circuit judge, with circuit courts purporting to overrule clear Supreme Court precedents right and left.

      Are there other sorts of years ?

        1. As long as the judge was not black, I think the word choice is fine.
          (The ‘uppity nigger’ trope was vicious and pernicious, and was used to urge on deadly violence against black males for decades.)

          1. What if you don’t know if the judge is black?

          2. The dictionary definition of uppity is “putting on marked airs of superiority; arrogant; presumptiuous.”

            What does that have to do with race?

            This is a bit like claiming that someone who uses the phrase “discriminating palate,” or who has white sheets on their bed, or who refers to someone using crayons (“coloring”) in the past tense (“colored”) is a racist.

            Just because an English word happens to have been used in a particular context doesn’t mean that’s the only possible context for it. It’s an ordinary, general, neutral word of the English language. Just as white sheets on someones bed are just sheets, with no racist implications

            1. Reader,
              Don’t be obtuse. You fully understand that there are dog whistles. And they are ‘polite’ shorthand for tropes. “Uppity N____” is one of them. And shortening that to merely “Uppity” is one of them.

              Denying that fact just makes you look like a liar. Or a fool. Don’t do that. Your premise–that words exist in a context-free void–is laughable. But, hey, you do you. I have no doubt that the people you hang around with look at your post and say, “Man, great linguistics quodlibet! You really schooled her!”

            2. Santa, Sarc: just a few days ago EV was discussing using a word, and there were a lot of objections. My sense is that a lot of those objections were along the line of ‘we’re only objecting to this one particular, especially bad word’.

              But now it seems there are at least two words that are so bad they should never be used in polite company. Is there a list somewhere where you could document all of the forbidden words so a cautious commenter could check their vocabulary against your list ahead of time?

              1. Ask someone who isn’t an on-the-spectrum bigot for pointers on how decent, modern people speak with one another.

                That could be a good resource on a continuing basis for many a clinger.

              2. Absaroka,
                “Uppity” is not on that list. Using it in reference to a black male will get lots of blowback, and deservedly so…see above “dogwhistle” post. (I am not sure if it’s also used the same way re black women–that is not my sense, but I might be wrong about that.)

                Is this linguistically fair? I suppose not. There might be 2 uppity men–one black and one white–standing right next to each other, and it seems unjust that you can use the perfect adjective to describe the white person and not the black person. Or, with two other men, you can use “greasy-haired” to describe the black man, but not the white Italian man . . . not without risk of being called a bigot. If you want to be elected to office, I’d suggest not publicly calling a woman in America a cunt. But, if you happen to live in England, feel free to refer to your offbeat male friend as a “silly cunt.” It’s almost as though the same word has different meanings and different levels of acceptance in different contexts. (Pro Tip, for when you are running for office: No matter how much your black husband happens to love watermelon and fried chicken, do NOT mention this fact during a debate with your opponent in the upcoming election…no matter how affectionately and lovingly you will say it.)

                1. ” not without risk of being called a bigot.”
                  EEK! Who wants to live in a world where you can’t say bigoted things without risk of being called a bigot? That’s just not fair at all!

              3. “But now it seems there are at least two words that are so bad they should never be used in polite company.”

                George Carlin started with a list that had seven, although he later revised the list to add a considerable number of new entries.
                Bottom line, you adjust your vocabulary to avoid unintentionally offending people unless you actually intend to offend somebody.

          3. I think there are plenty of words to get that notion that don’t invoke what this word invokes.

            Not gonna make it illegal, but not going to be a big fan of it’s use either.

            1. You planning to yike “dirty” and “stupid” on the grounds that some folk have chosen to attach those adjectives to the same noun you have seen attached to “uppity” ?

              Being the dog that can hear imaginary whistles is one thing – being the sarcastic commenter that runs from adjectives is probably taking it a bit far.

              1. “Being the dog that can hear imaginary whistles is one thing”

                Being the deaf dog that can’t hear anything no matter how shrill and insistent is quite another.

  10. Why does the court have to torture the US constitution to fabricate a right to public education where none overtly appears in text, when Michigan has a constitution that quite clearly lays out the state’s obligations.

    1. My guess — guess! — would be that plaintiffs viewed Michigan state courts as likely to be hostile to claims under the Michigan constitution (whose contents I do not know nearly well enough to know how they might be applied here), so they forum-shopped into federal courts. (Sensibly, from their perspective.)

      1. It’s not unreasonable to suspect that the state supreme court might see separation-of-powers problems in ordering the governor to tell the legislature to put up more cash for schools.

        1. Not if you come to New Jersey, they did that a couple of decades ago.

          1. Here’s what you want to do. Go back to my earlier comment and analyze the placement of the word “must”. Where does it appear in the sentence? Got it? OK, now do it again for the word “might”. Got it all worked out now?

      2. There are still plenty of Clinton and Obama judges on the judiciary to do a lot of damage. Fortunately, Clay is of an age and demographic very susceptible to COVID. Hopefully it gets him while Trump is still in office.

        1. You’re a peach.

        2. Yeah, knock it off. We don’t put up with this shit from Loki, and we won’t put up with it from you.

        3. You’re hoping the judge will listen to Trump and avoid social distancing, while Trump himself sees the light and takes it up. Doesn’t seem all that likely to me.

  11. In many states, including my own, that has been the law for decades. What it means practically is that every so often someone will sue about some feature or other that they don’t like about the current public educational system or its results. There will be a motion to dismiss and an appellate decision saying the case will go forward that gives absolutely no useful guidance on what the plaintiffs need to prove to prevail. There will be years of discovery to prove who knows what, summary judgment motions that will all too often allow a case to proceed to trial with no clear idea of what needs to be proved, and a trial in which the parties are like ships passing in the night. Eventually, there will be a decision, and, however it comes out, within a few years there will be another case pointing out many of the same problems and claiming a constitutional violation. And all of this is independent of whether there is or ought to be such a constitutional right.

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