70 Am. U. L. Rev. F. 157 (2021).
* Junior Staff Member, American University Law Review, Volume 70; J.D. Candidate, December 2022, American University Washington College of Law; M.P.P. Candidate, May 2023, American University School of Public Affairs. A big thank you to everyone who helped make this Comment happen: to my editor, Scout Henninger, and my faculty advisor, Professor Stephen Wermiel, for their insight and support throughout this process, and to the entire American University Law Review staff for their thoughtful feedback and attention to detail. I would also like to thank my parents for their constant support and Adam for caring enough to argue with me over every single word. Finally, to Teddy, thank you for letting me edit while you napped.
Supreme Court jurisprudence holds that there is no fundamental right to education, but it leaves open the question of whether a right exists to some basic minimum education. In Gary B. v. Whitmer, a Sixth Circuit panel held that such a right does exist and defined it as access to literacy. Although the Sixth Circuit subsequently granted en banc hearing of the case, voiding any precedential value of the panel decision, the court’s analysis provides compelling support for recognizing access to literacy as a fundamental right.
Using the Supreme Court’s established two prong method of analysis, this Comment expands on the Sixth Circuit’s opinion in arguing that access to literacy is a fundamental right. Before the Court will recognize a right as fundamental, it must first establish that the right has deep ties in the nation’s history. Unlike previous Supreme Court cases considering a right to education, the Sixth Circuit opinion did not limit its analysis to the history of public education. By also examining the nation’s history of refusing education, and specifically literacy, to Black people and other minorities, the Sixth Circuit established a more complete history of access to literacy. This Comment argues that this holistic analysis is the proper way to consider this right and concludes that recognizing access to literacy as a fundamental right is a judicial imperative.
“By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.”
—Justice William J. Brennan Jr.1Plyler v. Doe, 457 U.S. 202, 223 (1982).
“[T]he history of public education in this country, as with many things, is inextricably tied to race.”
—Circuit Judge Eric L. Clay2Gary B. v. Whitmer, 957 F.3d 616, 645 (6th Cir. 2020), reh’g en banc granted, 958 F.3d 1216 (6th Cir. 2020).