Gary B. v. Gretchen Whitmer
20a0124p.06 (Sixth Circuit slip opinion) (2020)
Rule of Law:
The Fourteenth Amendment's Due Process Clause establishes a fundamental right to a basic minimum education, meaning one that provides access to foundational literacy, as this right is deeply rooted in the nation's history and tradition and implicit in the concept of ordered liberty.
Facts:
- Plaintiffs are students attending several of Detroit’s lowest-performing public schools, which predominantly serve low-income children of color.
- These schools suffer from poor conditions, including significant teacher shortages, a reliance on unqualified instructors, physically dangerous facilities, and inadequate or outdated books and materials.
- Michigan’s constitution requires the state legislature to maintain a system of free public elementary and secondary schools, with leadership and general supervision vested in the state board of education.
- The State of Michigan directly oversaw public education in Detroit from 1999 through the time the complaint was filed, repeatedly intervening in the management of Detroit’s schools, often through emergency manager systems.
- The alleged conditions in Plaintiffs’ schools are so severe that students are not provided access to literacy, with proficiency rates hovering near zero in nearly all subject areas.
- In June 2016, the state adopted legislation uniquely permitting the hiring of non-certificated, non-endorsed teachers only in the new Detroit school district, a practice not allowed elsewhere in Michigan.
Procedural Posture:
- Plaintiffs (Gary B. et al.) sued several Michigan state officials, including the Governor, in the U.S. District Court for the Eastern District of Michigan.
- Plaintiffs alleged three causes of action: denial of a fundamental right of access to literacy (under substantive due process and equal protection), violation of the Equal Protection Clause due to race-based discrimination, and a claim for declaratory relief.
- Defendants moved to dismiss the complaint, arguing they were not proper parties, that Eleventh Amendment sovereign immunity barred the claims, and that there was no fundamental right to access literacy.
- The District Court rejected Defendants' arguments regarding proper parties and Eleventh Amendment immunity, finding state actors effectively controlled the schools.
- The District Court granted Defendants' motion to dismiss on the merits, holding there was no fundamental right to a basic minimum education, Plaintiffs failed to allege a proper comparator for their equal protection claim, and their compulsory attendance theory was not sufficiently pleaded.
- Plaintiffs appealed the dismissal of their claims to the U.S. Court of Appeals for the Sixth Circuit.
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Issue:
Does the Fourteenth Amendment's Due Process Clause establish a fundamental right to a basic minimum education that provides access to foundational literacy?
Opinions:
Majority - Clay
Yes, the Fourteenth Amendment's Due Process Clause establishes a fundamental right to a basic minimum education that provides access to foundational literacy. The Court applied the two-prong test for fundamental rights under substantive due process, requiring the right to be (1) "deeply rooted in this Nation’s history and tradition" and (2) "implicit in the concept of ordered liberty." On the first prong, the Court found a longstanding historical prevalence and importance of state-provided public education in the United States, which was ubiquitous at the time of the Fourteenth Amendment's adoption. This history, particularly in the context of racial discrimination and efforts to deny literacy as a means of subjugation, reveals the unparalleled value assigned to education. For the second prong, the Court determined that basic literacy is essential for minimal participation in our country’s democracy, as effectively every interaction between a citizen and the state (e.g., voting, taxes, legal system, jury duty, understanding laws) is predicated on literacy. The Court distinguished this narrow right to access literacy from a broad right to education or specific educational outcomes, noting that previous Supreme Court cases like San Antonio Independent School District v. Rodriguez and Papasan v. Allain left open the question of a "minimally adequate education." The Court also addressed arguments about positive versus negative rights, acknowledging that while the Due Process Clause generally constrains government action rather than commanding it, the state has effectively "occupied the field" in public education, creating a responsibility. The state must provide a rudimentary educational infrastructure in facilities, teaching, and materials sufficient for students to plausibly attain literacy, without dictating specific outcomes like proficiency rates. The plaintiffs' allegations plausibly demonstrated a deprivation of such an education, allowing their claim to proceed.
Dissenting - Murphy
No, the Fourteenth Amendment's Due Process Clause does not establish a fundamental right to a basic minimum education providing access to foundational literacy. Justice Murphy argued that the Supreme Court has repeatedly stated that education is not a fundamental right, citing San Antonio Independent School District v. Rodriguez, Plyler v. Doe, Papasan v. Allain, and Kadrmas v. Dickinson Public Schools. He emphasized that the Due Process Clause, by its text, serves as a "negative limit" on the state's power to "deprive" liberties, not a "positive command" to provide public services. Citing DeShaney v. Winnebago County Department of Social Services, the dissent asserted that substantive due process generally confers no affirmative right to governmental aid, even for necessities like food, housing, or medical care, and that the Court's Glucksberg framework applies to regulatory prohibitions, not failures to provide. The dissent warned that recognizing such a positive right would create an "unprecedented subsidy for an unprecedented right," leading federal courts to improperly micromanage state education policy, funding, and curriculum—areas traditionally reserved for states and local communities, undermining federalism and the separation of powers. He distinguished the right to counsel and marriage rights as either processes due when the state actively deprives liberty or privacy rights against state interference, not mandates for state provision. He clarified that Papasan's open question about a "minimally adequate education" related to equal protection scrutiny, not a substantive due process entitlement. Finally, the dissent rejected the "negative rights" argument based on compulsory attendance, noting that courts have consistently found that compulsory attendance laws do not create a special custodial relationship that triggers a constitutional duty to provide a particular quality of education, and that Michigan offers alternatives to public schools.
Analysis:
This Sixth Circuit decision marks a significant jurisprudential development, as it is the first federal circuit court to recognize a positive fundamental right to a basic minimum education providing access to literacy under the Fourteenth Amendment's Due Process Clause. This ruling departs from a strict interpretation of Supreme Court precedent, which has consistently declined to recognize a fundamental right to education. The decision could serve as a powerful precedent for future litigation challenging inadequate educational systems in other states, potentially leading to increased federal judicial oversight of state educational infrastructure and resource allocation. It also heightens the likelihood of Supreme Court review, which may either affirm this expansion of substantive due process or reinforce existing limitations, thereby clarifying the scope of federal intervention in state education policy.
