In a court decision last week in a case brought by students in Detroit, Gary B. v Whitmer, a three judge U.S. Court of Appeals panel recognized that a basic level of education is a federal right under the “due process” clause of the Fourteenth Amendment of the U.S. Constitution. The appeals court overturned a lower court decision which had dismissed the case.
Derek Black, a professor at the University of South Carolina School of Law explains the significance of this decision: “The Sixth Circuit Court of Appeals, in Gary B. v Whitmer, just delivered the holy grail of education advocacy: a federal fundamental right to education. The court narrowly defined the right as a ‘basic minimum education,’ but most rights revolutions begin somewhere small.” Black cautions, however, that the case will likely be appealed to the full Sixth Circuit Court of Appeals and to the U.S. Supreme Court as well. Prospects for its survival in these higher courts are small.
Why does this case matter so much? Black explains: “The last 50 years of negative Supreme Court precedent reveals just how momentous Gary B. really is. In the early 1970s, three highly controversial Supreme Court decisions effectively locked in educational inequality. First, the court held that the U.S. Constitution only prohibits school segregation resulting from the intentional discriminatory acts of public officials. Private segregation is beyond the court’s reach. (Keyes v School District Number 1, Denver) Second, courts cannot order metropolitan-wide integration in the absence of something approaching segregative collusion between school districts. (Millikin v. Bradley) Third, education is not a federal fundamental right. That means funding inequalities between poor and rich districts are constitutionally irrelevant. (San Antonio v. Rodriguez)… These outcomes sparked litigation in state courts. Advocates argued that the education clauses in state constitutions obligate states to provide equal and adequate education, winning numerous important victories. But many state legislatures also fought tooth and nail to delay, minimize, and avoid meaningful remedies….”
In last week’s majority Detroit decision, Appellate Judge Eric Clay declares that, “Every meaningful interaction between a citizen and the state is predicated on a minimum level of literacy, meaning that access to literacy is necessary to access our political process.” Clay traces the development of public schools across the United States prior to the adoption of the Fourteenth Amendment in 1868: “There are two main takeaways from this history of racial discrimination in education… First, access to literacy was viewed as a prerequisite to the exercise of political power, with strong correlation between those who were viewed as equal citizens entitled to self-governance and those who were provided access to education by the state. Second, when faced with exclusion from public education, would-be students have repeatedly been forced to rely on the courts for relief. The denials of education seen in these cases and beyond are now universally accepted as serious injustices, ones that conflict with our core values as a nation. Furthermore, the substantial litigation devoted to addressing these exclusions reveals the unparalleled value assigned to literacy, which is viewed by our society as essential for students to obtain even a chance at political and economic opportunity.” (You’ll find the complete decision in Gary B. v Whitmer at the end of Valerie Strauss’s column here.)
A simple review of what’s been happening in Detroit over the past decade reminds us of the ways Detroit’s public schools have suffered from outrageous and punitive policies imposed by the state of Michigan. The city’s economic collapse has closed schools as neighborhoods have emptied out and as charter schools, eighty percent of them operated by for-profit management companies, have had the latitude to open wherever they please without any control by the public school district. The state has instituted cross-district open enrollment, by which many Detroit students take all of their state and local dollars to the schools in neighboring communities, but the Detroit schools cannot cut districtwide expenses quickly enough to avoid fiscal catastrophe. A statewide Michigan Education Achievement Authority was created to seize a number of Detroit’s public schools for turnaround. The agency was never expanded beyond Detroit, and the agency itself was shut down due to its utter failure to improve the schools it had seized. Michigan law permitted previous governor, Rick Snyder to respond to the financial crisis in Michigan’s school districts by appointing emergency fiscal managers, whose defined mission was to save money that state leaders alleged school districts were wasting. But the problem was never school district mismanagement. A team of researchers led by David Arnson of Michigan State University explains: “(T)he grounds for this emergency intervention under state law are strictly financial. State policy presumes that local district fiscal distress is caused by local officials’ poor decision-making and management…. Our findings, however, indicate that state school finance and choice policies significantly contribute to the financial problems of Michigan’s most hard-pressed districts. Most of the explained variation in district fund balances is due to changes in districts’ state funding, enrollment changes including those associated with school choice policies, and special education students whose required services are inadequately reimbursed by the state.” Detroit’s children have suffered from tragic injustices.
When the Gary B. case was originally filed, Governor Rick Snyder was the named defendant. Gretchen Whitmer, now the governor of Michigan, was substituted as the defendant when she took office. At the time the lawsuit was filed, Detroit’s schools had been taken over by the state and were being operated by a state emergency fiscal manager. As the current case was being tried, the state argued that it is no longer operating the schools and should not be held accountable. However, the Detroit News reports: “The state of Michigan’s argument that the lawsuit should be dismissed because it seeks remedies for past harms also was rejected by the appeals panel… The judges also dismissed the state’s argument that it should not be implicated in the lawsuit because the schools were now under local control, noting that the funding, policy and oversight of schools lies at least in part with the state. ‘In sum, it is evident from the Michigan Constitution and statutes, as well as its prior interventions in the school system, that the state retains significant authority over Detroit’s public schools,’ the decision said.”
While the declaration of public education as a fundamental right under the U.S. Constitution is urgently needed, legal experts warn that the Gary B. decision will likely be overturned. And the experts do not agree about what is likely to be the winning legal strategy. For the New York Times, Aaron Tang at the University of California at Davis School of Law and two education scholars warn that the case will not survive what are likely to be appeals: “This candid recognition of the unjust educational conditions facing Detroit’s poorest children is admirable. But there is almost no chance that the Sixth Circuit’s ruling will ever be enforced. The entire Sixth Circuit, of which only five of the current 16 members were appointed by Democratic presidents, will almost assuredly take up the Gary B. panel opinion. And the panel’s ruling is unlikely to survive the review. Even if it does, the conservative majority on the Supreme Court is exceedingly unlikely to let it stand.”
Derek Black points out that after years of lawsuits that tried and failed to establish public education as a federally guaranteed constitutional right, Gary B. is, surprisingly, one of two court victories in 2020. The first was in Mississippi: “The first in Mississippi largely went unnoticed because rather than directly claiming a fundamental right to education, plaintiffs argued that Mississippi was violating—get this—the terms of its readmission to the Union following the Civil War. Congress conditioned Mississippi’s readmission on it never depriving its citizens of their educational rights. The Fifth Circuit held that those conditions are enforceable.”
Another case, Cook v Raimondo, has been brought in Rhode Island. Michael Rebell, a school finance attorney and the executive director of the Center for Educational Equity at Columbia University’s Teachers College, is the lead attorney in this case. Rebell litigated the successful New York state school funding adequacy case, decided by the state’s highest court in 2001. Commenting on last week’s decision in Gary B., Rebell criticizes the framing of the case for setting the bar too low. Rebell believes that while basic literacy is a start, students ought to be guaranteed far more: “We applaud the outcome of the Gary B. case, which may bring important relief to students in Detroit. Nevertheless, we are concerned about the narrow scope of the right to education as defined by the Sixth Circuit opinion. We are hopeful that Judge Smith in Rhode Island will declare that under the equal protection clause, or other constitutional provisions, students have a fundamental right to a more robust and meaningful education—one that provides the knowledge, skills, experiences, values, and civic integration necessary to prepare them to function effectively as civic participants in a democratic society.”
Black, on the other hand, believes a broader definition of education as a federally guaranteed fundamental right will have to come slowly through several narrower but ever expanding definitions of what constitutes the right to a basic education. Black worries that the appeal of the Michigan case could possibly endanger the rights guaranteed in an earlier, 1982 U.S. Supreme Court Decision in Plyler v. Doe: “The Supreme Court could do more than just reject a fundamental right to education; it might undermine good precedent. One of the key Supreme Court precedents in favor of a fundamental right to education is Plyler v Doe. The court in Plyler struck down a Texas law that excluded undocumented students for treatment that would consign them to a permanent underclass.”
Black warns, “The other risk is blowing a great historical claim on hostile courts. Recognizing as much, the NAACP, the oldest civil rights organization in the country, spent two decades carefully enforcing the doctrine of separate but equal before directly asking the court in Brown v. Board of Education to overturn segregation… Right now, the only plausible path forward that doesn’t damage the pristine logic of Gary B. or threaten precedent like Plyler is to follow the NAACP’s strategy. That means finding a way out of further litigation in Gary B.”
In states with cities like Detroit—and Milwaukee and Cleveland and Oakland—legislatures have been unwilling to provide adequate funding, equitably distributed through their state education funding formulas. Wealthy suburbs continue to allocate massive local subsidies for small classes and all the necessary support services along with wonderful music and arts enrichments for students at the same time schools in poor, majority African American and Latino school districts languish. Across the United States, more public money—state and local dollars combined—continues to be invested in the public schools that serve the wealthiest students and far less in the schools that educate the poorest students. Even in states where the courts have intervened, state legislatures persist in finding ways not to fund the remedies required by the court orders.
Although the Gary B. decision, if enacted into policy, will help Detroit’s children by establishing the right to basic literacy, even the experts don’t agree on the best path toward establishing a federal fundamental right for all children in the United States to an excellent public education. We live in an era of unfriendly courts, opposition to taxes, and the persistence of systemic racism.