The U.S. Court of Appeals for the Sixth Circuit, in an opinion signed by a pair of judges appointed by Democratic presidents, has found that the U.S. Constitution somehow confers on citizens a fundamental right to an education that “plausibly provides access to literacy.” Judge Eric Murphy, an excellent Trump appointee, dissented.
The lawsuit arises out of Detroit, Michigan. The plaintiffs are students in Detroit’s worst performing schools. They claim that conditions are so poor — bad teachers, a physically dangerous environment, inadequate books and facilities — that they do not receive a basic minimum education, i.e., one that “provides a chance at foundational literacy.”
It’s easy to sympathize with these students and their parents. The worst of Detroit’s public schools must be awful, though whether they are so bad that students can’t become literate by attending them is another question.
The plaintiffs didn’t have a chance to prove this claim because a district court dismissed their case. It found, among other problems, that a basic minimum education is not a fundamental constitutional right.
The Sixth Circuit panel majority disagreed. It found a substantive due process right to the basic minimum education plaintiffs say Detroit deprives them of.
One should always be wary when courts go hunting for heretofore unnoticed or unrecognized fundamental rights. That’s particularly true when the alleged fundamental rights impose duties on governments to provide goods, services, and/or funds to folks.
The majority gives lip service to the need for proceeding cautiously in this regard, but I found little in its opinion that demonstrates genuine caution. I agree with Ed Whelan:
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.
Here is a key passage from Judge Murphy’s compelling dissent:
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).
More from the dissent:
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).
Fortunately, the traditional understanding doesn’t end with the panel’s decision. Even in the Sixth Circuit, it’s possible that the outcome will be overturned if the full court considers the case.
Th[e] 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. . .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.
The San Antonio School District v. Rodriguez case cited often by Judge Murphy came down while I was in law school. To my disappointment, as a radical at that time, it struck a decisive blow against the movement by radical lawyers, professors, and judges to use alleged constitutional rights as a means of implementing left-wing public policy agenda items.
That movement is back. The alleged constitutional right to an education likely to provide literacy, and the judicial supervision of schools and disbursement of funds that would accompany that right, is only the beginning. If Hillary Clinton had defeated Donald Trump, the movement would be on the verge of carrying the day.