Thursday, October 4, 2018
Connecticut Federal District Court Rejects a Fundamental Right to Education, But Offers Interesting Analysis for Future Claims
This summer, a federal district court decision in Michigan dealing with the fundamental right to education and literacy grabbed national news for more than a week. Onlookers were seemingly shocked at how bad educational opportunities are in places like Detroit and that a federal district court would hold that there is no right to literacy.
A somewhat related case in Connecticut has gone almost entirely unnoticed. Last week, a federal judge reached almost the same exact conclusions as the judge in Michigan. The Connecticut judge held there was no federal fundamental right to education. The Supreme Court had foreclosed such a right in San Antonio v. Rodriguez, reasoned the judge. But plaintiffs had argued that San Antonio had left open the possibility of a right to a minimally adequate education. The district court responded:
In Rodriguez, the Supreme Court did not leave the door open for federal courts to recognize a fundamental right to a minimally adequate education. To the contrary, the Court rejected the idea of a fundamental right to education, without parsing how effective or adequate the education might be, because such a right is not guaranteed in the Constitution. Moreover, in Plyler, the Court cited Rodriguez’s holding for that proposition.
On that score, I think the court is wrong and conflating the distinction between a fundamental right to education and a fundamental right to a minimally adequate education. A minimally adequate education raises a host of different questions and rationales. The district court did not address them. Scholars, however, have, and no Supreme Court cases has rejected those possibilities. To the contrary, it has left them open. My recent work, in painstaking detail, lays out the historical basis for recognizing such a right or something similar to it. But I warned that if the best argument plaintiffs had in these cases was "Rodriguez leaves open the issue," they would be in trouble. They need an affirmative explanation for courts to go out on a limb. I believe I offer that affirmative explanation. But that is another story.
The most interesting aspect of the Connecticut district court decision may be its discussion of potentially applying heightened scrutiny to educational inequalities, even though it had found education is not a fundamental right. The court understands Plyler v. Doe to have applied intermediate scrutiny. Scholars have long attempted to place the standard of review in Plyler in some box other than rational basis. The Court in Plyler indicated it was applying rational basis, but its review looked tougher than that. For that reason, scholars and lawyers have spent a good deal of time trying to construct the underlying theory of Plyler, so that it might be applied elsewhere. Justin Driver, in his new book The Schoolhouse Gate, argues that Plyer was meant to be monumentally important, but has yet to fulfill its promise.
The Connecticut district court explicitly writes that in Plyler “Given the importance of public education, the State’s complete deprivation of all educational opportunities, and the equal protection concerns raised by the State’s deliberate discrimination against an entire class of children, the Court determined that intermediate scrutiny was appropriate.” The district court, however, then proceeds to explain why that intermediate scrutiny has not been applied in other cases and does not apply in the instant case. It reasoned that Plyler rests on unique circumstances: a) “deliberately target[ing]” a group of students and b) denying them “all educational opportunities.” Since the state has done neither in Connecticut, the district court dismissed the claim.
While this is of little help to the plaintiffs in this case, the basic acknowledgement of intermediate scrutiny and the factors under which it might be applied elsewhere offers a ray of hope. To be of real use, plaintiffs would need to whittle away at the concept that intermediate scrutiny requires a complete denial of opportunity, but I think that is manageable. The court is incorrect to read such a high barrier into the standard. Yes, that fact existing in Plyler, but I don't think it was determinate. Such a high barrier also makes the application of the standard somewhat circular. Intermediate scrutiny is important in cases in which something less than complete denials occur, not when they do. The key, as I see it, is the targeting of students and a substantial denial of opportunity. Complete denials simply make it worse.
Finally, while the legal issues in this case are fascinating, the facts of the case are an incredibly poor vehicle for exploring them. The case was brought by charter school advocates and the remedy they sought was not for the state to deliver minimally adequate educational opportunities in its public schools, but for the court to lift caps on charter schools. This type of misuse or misappropriation of constitutional rights and interests in education suffers from all of the same problems in the constitutional attacks on teacher tenure. I, won’t belabor hose critiques here, but simply point you to my prior work where I explore them in detail. Hopefully, this case dissuades future attempts in which policy agendas masquerade as constitutional claims without also dissuading the recognition of legitimate constitutional theories.