Sunday, April 26, 2020
In a landmark ruling issued last week, the Sixth Circuit Court of Appeals held, in a 2-1 decision, that the federal constitution mandates that public schools provide a basic minimum level of education as a matter of substantive due process. The case, Gary B. v. Whitmer, arose from a student-led challenge to grossly inadequate education in the Detroit public schools. The federal district court dismissed the complaint on a motion to dismiss, concluding that there was no fundamental right to education. On appeal, the Sixth Circuit court opined:
"Plaintiffs contend that access to literary, as opposed to other educational achievements, is a gateway milestone, one that unlocks the basic exercise of
other fundamental rights, including the possibility of political participation. While the Supreme Court has repeatedly discussed this issue, it has never decided it, and the question of whether such a right exists remains open today. After employing the reasoning of these Supreme Court cases and applying the Court’s substantive due process framework, we recognize that the Constitution provides a fundamental right to a basic minimum education. Access to a foundational level of literacy—provided through public education—has an extensive historical legacy and is so central to our political and social system as to be “implicit in the concept of ordered liberty.” In short, without the literacy provided by a basic minimum education, it is impossible to participate in our democracy." (citations omitted).
In reaching this conclusion, the Court of Appeals brought U.S. practice closer to the values espoused in the International Covenant on Economic, Social, and Cultural Rights (signed bit not ratified by the U.S.), which provides in Article 13 that:
"The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms."
There may be further consideration of the case before the Sixth Circuit, should the court decide to review the decision en banc. Ultimately, the case may end up in the Supreme Court. The attorney arguing the case for the students, Carter Phillips, is a veteran of the Supreme Court bar, suggesting that the litigants expect the case to end up in the high court.