In a divided ruling yesterday in Gary B. v. Whitmer, a Sixth Circuit panel held that the Constitution “provides a fundamental right to a basic minimum education,” which it said means an education “that plausibly provides access to literacy.” Judge Eric L. Clay (a Clinton appointee) wrote the 61-page majority opinion, which Judge Jane Branstetter Stranch (an Obama appointee) joined. Judge Eric E. Murphy (a recent Trump appointee) wrote a 24-page dissent.
I think that Murphy’s excellent dissent has by far the better of the argument. In particular, I find the majority opinion to be highly adventuresome and recklessly nebulous.
I will outline here the basic arguments in the competing opinions and offer some comments of my own. There is a lot of back and forth between the opinions, and I won’t be able to capture it all, so I encourage interested readers to read the opinions themselves.
1. Background: Plaintiffs in the case are students at several of Detroit’s worst-performing public schools. Complaining of the abysmal conditions in their schools, they sued Michigan state officials on three theories: (a) that the poor education they are receiving violates their rights under the Equal Protection Clause; (b) that the restriction on their liberty imposed by compulsory-attendance laws can’t be justified by the inferior education they are receiving; and (c) that there is a substantive due-process fundamental right to a basic minimum education. The district court dismissed their complaint.
The big divide between the majority and the dissent is on this third theory of a fundamental right under substantive due process, and I will focus my attention on it. (The majority and the dissent agree, for different reasons, that the district court was correct in dismissing the claims based on the first two theories, and the majority invites the plaintiffs to recast and revive their claims on remand.)
2. Here’s a high-level summary of the majority’s argument (pp. 33-61) that “a basic minimum education—meaning one that plausibly provides access to literacy—is a fundamental right” guaranteed by substantive due process:
The Supreme Court has developed a “two-prong analysis” for determining whether an asserted right is fundamental: Is the right deeply rooted in our nation’s history and tradition? If not, is it implicit in the concept of ordered liberty, such that neither liberty nor justice would exist without it? (Pp. 33-36.)
Although the Court has found that there is no broad, general right to state-provided education, it has left open whether a “minimally adequate education” is a fundamental right. (Pp. 36-41.)
A basis minimum education, “meaning one that plausibly provides access to literacy,” is a fundamental right. First, there is a longstanding practice of free state-sponsored schools, which were ubiquitous when the 14th Amendment was adopted. Race-based restrictions on education have been used to subjugate African Americans and other people of color. Education has held paramount importance in American history and tradition. (Pp. 41-46.)
Second, basic literacy education is essential to the exercise of other fundamental rights and is thus implicit in the concept of ordered liberty. Effectively every interaction between a citizen and the government—voting, taxes, the legal system, jury duty—depends on literacy. Education has historically been viewed as a great equalizer. (Pp. 42, 47-51.)
The arguments for deferring to the political processes are weak. The lack of literacy of which plaintiffs complain is exactly what prevents them from obtaining a basic minimal education through the normal political process. (Pp. 51-52.)
It’s not the case that substantive due process provides only “negative” rights (that is, rights against government deprivation or denial). It can also provide “positive, affirmative rights,” such as the right to counsel in criminal cases and the right to marry. (Pp. 52-56.)
The Supreme Court has required in substantive due process cases a “careful description” of the asserted fundamental right. At this stage of the litigation, it would be difficult to define the exact limits of what constitutes a basic minimum education “sufficient to provide access to a foundational level of literacy—the degree of comprehension needed for participation in our democracy.” The task is best suited for the district court on remand. But we offer a few guideposts. First, literacy or proficiency rates do not provide sufficient evidence. Second, a rudimentary educational infrastructure “would seem to include at least three basic components: facilities, teaching, and educational materials,” the quantify and quality of which “must at least be sufficient for students to plausibly attain literacy within the educational system at issue.” (Pp. 56-58.)
3. Here’s a summary of Murphy’s dissent (pp. 62-85):
The plaintiffs allege that they have a fundamental “right to State-provided access to literacy protected by the Due Process Clause.” Both portions of this proposed right—the state-provided portion and the access-to-literacy portion—depart from settled doctrine.
The Supreme Court has repeatedly held that education is not a “fundamental right.” The Court’s decisions should lead to circuit court to be very cautious before adopting a novel right to a minimally adequate education. (Pp. 65-66.)
In any event, substantive due process has never compelled states to provide their residents with the funds they need to exercise fundamental rights; it has instead barred states from interfering with the exercise of those rights. (Pp. 66-73.) That’s consistent with the text of the Due Process Clause and with its original meaning. (Pp. 66-68.) It’s consistent with the Court’s precedents on substantive due process, which have not touched the states’ spending power. (Pp. 68-70.) It’s consistent with the Constitution’s federalist structure. (Pp. 70-72.) And it’s consistent with a proper understanding of Article III’s judicial power, as the proposed right would entangle the courts in policy controversies well outside their authority to say what the law is. (Pp. 73-74.)
The majority’s contrary result rests on several errors. The Court’s substantive due process framework does not extend to the subsidy context, and there is in any event little daylight between plaintiffs’ proposed right and the one the Court has rejected. The plaintiffs propose a vague right to the “access to literacy” without clearly identifying its contours. (Pp. 75-77.)
The right to counsel and the right to marry are not exceptions to the rule that fundamental rights are negative rights against state interference, and they don’t allow lower courts to discover a new font of positive rights. (Pp. 77-79.)
Even on the assumption that some cases could be read to have left open the possibility of a fundamental right to a minimum education, those cases involved Equal Protection claims, not substantive due process. Even then, those cases can’t justify the plaintiffs’ alleged right. (Pp. 79-82.)
The 14th Amendment was designed to stop rampant racial discrimination, but it did so by creating an equality right that applies once a state decides to provide for education, not a substantive right to a minimum education. (Pp. 82-84.)
4. I find Murphy’s critique compelling. What’s especially conspicuous is how dismally the majority carries out its acknowledged obligation to carefully describe the fundamental right that it is recognizing (or, if you prefer, to require that the plaintiffs do so). Phrases like “a basic minimum education,” “plausibly provides access to literacy,” and “the degree of comprehension needed for participation in our democracy” are hopelessly nebulous, and the majority proves the point by punting to the district court the task of giving them substance.
5. This ruling would seem to scream out for en banc review.