After taking the case under advisement for almost a full year, a federal district judge last week dismissed plaintiffs’ attempt to establish a “right to literacy” under the U.S. Constitution in Gary B. v. Snyder.  Plaintiffs, who are children living in poverty and attending public schools in Detroit, alleged that their schools pervasively fail to provide them a reasonable opportunity to learn basic literacy skills. Their legal theory is that there is a constitutional right to literacy under the 14th Amendment to the U.S. Constitution.

In his decision, Judge Stephen J. Murphy explored in depth prior U.S. Supreme Court cases regarding the right to education and acknowledged that, although the Supreme Court held in Rodriguez v. San Antonio Ind’t Sch. Dist, 411 U.S. 1 that there is no right to equitable funding under the 14th Amendment, the Court has not yet decided whether the 14th Amendment does guarantee “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.” Accordingly, the Court determined that, in the absence of explicit guidance on this question from the Supreme Court, the district court must “take up this task” on its own.

After rejecting the defendants’ challenges to the plaintiffs’ standing and other procedural objections, the Court examined plaintiffs’ due-process and equal-protection claims. Noting that, despite the Supreme Court’s willingness recently to declare that a right to same-sex marriage is a fundamental interest in Obergefell v. Hodges, 135 S. Ct. 2584, (2015), Judge Murphy emphasized that “The Supreme Court is historically reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended.” Accepting that cautionary perspective, he then held that there is no fundamental right to education under the due process clause, stating in this regard that there was not even a public school system at the time the Constitution went into effect and that there has not been a substantial evolution toward seeing education as a fundamental right among the states since “State courts that have found a right to a minimum level of education have not done so based upon the intrinsic necessities of a free society, but rather, on the precise wording of the relevant state constitutions.”

Judge Murphy then denied plaintiffs’ equal protection claim by rejecting that plaintiffs’ argument that the Detroit schools attended largely by African-American students were severely under-resourced, chaotic, and unsafe compared with schools elsewhere in Michigan attended primarily by White students. He held that “Michigan schools as a whole are not the proper comparator. Plaintiffs have not challenged a statewide funding scheme, a specific statute, or any particular decisions by Defendants applicable to all Michigan schools.” He also held that plaintiffs had failed to demonstrate that the defendants’ actions in Detroit did not constitute rational public policy because plaintiffs failed to “identify the specific decisions Defendants made concerning Plaintiffs’ schools that could have been made differently.”  

Michael A. Rebell, executive director of the Center for Educational Equity at Teachers College, Columbia University has been preparing a federal litigation to be filed this fall that will ask a federal district court in a state other than Michigan to hold that there is a fundamental right to access to an education that adequately prepares students to be capable citizens. In response to the Gary B. decision, Rebell said,

The judge in Gary B. properly acknowledged that the U.S. Supreme Court has not taken a definitive position on whether there is a fundamental right under the U.S. Constitution to an opportunity to acquire the basic skills necessary for the enjoyment of the rights of speech and of full participation in the political process. However, his decision avoided answering this critical legal question. Hopefully, a federal judge in another state, where state statutes and educational practices regarding education for capable civic participation apply to all students in the state,  will be willing to confront this question and set the stage for an eventual U.S. Supreme Court ruling on this important issue.