Lawsuits and Literacy: The Dangers of Substantive Due Process
At a time when schools across the country have moved to remote education to flatten the Covid-19 curve, a federal appeals court ruling indicates that the public school system in Michigan is due for some long-term changes, regardless of the inevitable societal effects of the pandemic. On April 23, the U.S. Court of Appeals for the Sixth Circuit ruled that students at the worst-performing public schools in Detroit had been deprived of an education that would allow for access to literacy.
This class action lawsuit against the state of Michigan was originally filed in 2016 under Gary B. v. Snyder, citing the Due Process and Equal Protection Clauses of the Fourteenth Amendment, but the District Court dismissed the plaintiffs’ due process claim and held that basic minimum education is not a fundamental right. The plaintiffs appealed, and the federal court overturned the 2018 decision in Gary B. v. Whitmer. Writing for the opinion of the 2-1 majority, Judge Clay dismissed the plaintiffs’ equal protection and compulsory attendance claims but acknowledged their “fundamental right to a basic minimum education, meaning one that can provide them with a foundational level of literacy.”[1]
Indeed, the evidence put forth by the plaintiffs revealed the abysmal state of their education system. Complaints included a lack of ability to provide effective literacy instruction at the elementary level and unqualified instructors, not to mention outdated textbooks, pervasive rodents and vermin, and extreme classroom temperatures.[2] These classroom conditions are egregious and expose the failures of the state government in administering Michigan’s education system. Although most people would not deny that access to education and at the bare minimum — access to literacy — is essential, whether the Constitution guarantees a fundamental right to literacy is an entirely different question.
The Michigan ruling seems to challenge the 1972 Supreme Court case San Antonio Independent School District v. Rodriguez. This case dealt with the question of whether the financing system of Texas’s public education violated the Fourteenth Amendment’s Equal Protection Clause by disadvantaging students whose families resided in school districts with a low property tax base, as the state’s education system was funded by both local school districts and the state itself.[3] Although the Court cited the landmark ruling Brown v. Board of Education to emphasize the significance of equality in education, it ultimately found that education was not a fundamental right, stating that “though education is one of the most important services performed by the State, it is not within the limited category of rights recognized by this Court as guaranteed by the Constitution.”
However, Judge Clay also noted that the decision touched on the question of whether or not education is a fundamental right, since it has been claimed to be essential to the effective exercise of the First Amendment freedoms. The nuances of this ruling are evident in the Court’s conclusion, which circumvents the idea of a standard quality of education necessary for exercising other rights, asserting that “no charge fairly could be made that the system fails 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.” According to Judge Clay, the Court never actually ruled on the right to a basic minimum education, “[saving] the question for another day.”
By ruling in favor of the plaintiffs in Gary B. v. Whitmer, the Court utilized a substantive due process framework to assess the case. As opposed to an originalist focus on procedure to interpret the words “due process,” substantive due process is a theory that the Court has developed to defend rights not explicitly mentioned in the Constitution. For example, it seems only right that all children in the United States should receive access to literacy; the disgraceful conditions uncovered in the Detroit public schools stir up sympathy and outrage. However, identifying that right in the Constitution runs the danger of arbitrarily finding a vast multitude of other implicit rights within the Due Process Clause. With this as precedent, the Court could essentially make up any sort of right important to whomever is sitting at the bench at the time. Ultimately, this would diminish the value of the original rights on which this country was built, and could even damage the democratic process.
In his dissent, Judge Murphy remarks upon the role that the Court must fulfill to uphold the Constitution at all costs, which is emphatically not the same as the role of the state legislature or local school boards. The latter domains must fulfill their own roles of “[remedying] the serious problems that the plaintiffs assert.” As a member of the judicial branch, Judge Murphy does not have the responsibility of making these changes. Rather, judges must make decisions within the bounds of the Constitution, and for Judge Murphy, there seemed to be “nothing in the complaint that gives federal judges the power to oversee Detroit’s schools in the name of the United States Constitution.”
If the right to a basic minimum education is indeed found to be a constitutional right, it opens the door to a number of possibilities that could overshadow the most crucial rights that we have preserved for centuries. Is basic healthcare a right just as important as the right to the freedom of speech or the freedom of assembly? These are questions that judges must seriously consider before formally codifying new rights. In addition, declaring basic minimum education a right is easier said than done. How exactly does one measure a basic minimum education? The complexities of such a statement will provide further challenges for the courts.
Although implementing major changes in the Michigan public school system is necessary as a first step towards equal access to education, it is not in the power of the federal courts to guarantee this as a “right.” Rather, the state should focus on electing lawmakers who will create policies targeting education reform. These two distinct realms must be kept apart, as was originally intended in the model of separation of power— the key to protecting democracy in our country.
[2] https://www.detroit-accesstoliteracy.org/wp-content/uploads/2016/09/2016-09-13-Complaint.pdf
[3] "San Antonio Independent School District v. Rodriguez." Oyez. Accessed April 28, 2020. https://www.oyez.org/cases/1972/71-1332.
[4] https://www.law.cornell.edu/wex/due_process
[5] https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1638&context=faculty_scholarship
[6] "Lochner v. New York." Oyez. Accessed April 30, 2020. https://www.oyez.org/cases/1900-1940/198us45.
[7] "Roe v. Wade." Oyez. Accessed April 30, 2020. https://www.oyez.org/cases/1971/70-18.
[8] "Washington v. Glucksberg." Oyez. Accessed April 30, 2020. https://www.oyez.org/cases/1996/96-110.
[9] “Judges Discover a Constitutional Right to Literacy.” The Wall Street Journal, April 26, 2020. https://www.wsj.com/articles/judges-discover-a-constitutional-right-to-literacy-11587935378?mod=searchresults&page=1&pos=11.