Taking a Broad View to Recognize a Narrow Right: How a Holistic Analysis of Literacy’s Role in American Society Demonstrates That it is a Fundamental Right

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.¹

“[T]he history of public education in this country, as with many things, is inextricably tied to race.”

—Circuit Judge Eric L. Clay²

Introduction

In 1740, the South Carolina General Assembly passed the Negro Act, declaring, “the having of Slaves taught to write or suffering them to be employed in writing may be attended with great Inconveniences.”³ This legislation codified the denial of literacy to a discrete subset of colonial America inhabitants and marked the start of a legacy in the United States of preventing access to literacy, and subsequently freedom and political power, to enslaved peoples and their descendants.⁴

The pervasive denial of literacy, though no longer explicitly codified, still significantly impacts Black Americans.⁵ A history of racist housing policies has led to segregated neighborhoods and, subsequently, “racially isolated” schools, with vastly different racial compositions in schools on either side of district lines.⁶ Currently, half of the country’s schoolchildren live in districts that are either at least 75% white or at least 75% non-white, resulting in schools that are essentially segregated.⁷ The Supreme Court’s decision in Milliken v. Bradley⁸ contributed significantly to this de facto segregation. By holding that desegregation did not have to cross school district lines,⁹ the ruling created fractured communities and similarly fractured school funding.¹⁰

Detroit is home to one such segregated school district: 97% of the city’s public school students are people of color.¹¹ It is no surprise, then, that Detroit was the setting for Gary B. v. Whitmer,¹² in which the plaintiffs, all low-income minority schoolchildren in underperforming Detroit schools, made the novel argument that a fundamental right to literacy should exist because it is impossible to function in society without this basic minimum education.¹³ The Sixth Circuit agreed and issued a decision recognizing a fundamental right to literacy under the Constitution,¹⁴ despite the fact that the Supreme Court has repeatedly denied that a fundamental right to education exists.¹⁵ While denying a fundamental right to education in San Antonio Independent School District v. Rodriguez,¹⁶ the Supreme Court acknowledged that a right might exist to “some identifiable quantum of education,” leaving the opportunity for such claims in the future.¹⁷ The Sixth Circuit subsequently granted an en banc hearing of the case, voiding any precedential value of the panel decision.¹⁸ Nonetheless, the court’s opinion provides a roadmap for future cases to make the same assertion—that all students should be guaranteed a basic minimum education, specifically defined as access to literacy, in order to participate in society.¹⁹ Recognition of this fundamental right is necessary to begin addressing this country’s history of slavery, enforced illiteracy, and segregation, which has led to incredible disparities in public education and created a cycle of disadvantage for many Black and minority communities.²⁰

This Comment argues that a basic minimum education, specifically access to literacy, is a fundamental right under the Due Process Clause of the Fourteenth Amendment because it satisfies the Supreme Court’s two-prong fundamental right test. Part I lays out existing Supreme Court jurisprudence regarding fundamental rights under substantive due process before going on to discuss significant Supreme Court cases about education and the historical importance of both providing and preventing education in the United States. Part I then delves into the Sixth Circuit case Gary B. v. Whitmer, in which the court applied a holistic historical analysis to the plaintiffs’ novel argument that access to literacy is a fundamental right. Part II demonstrates how access to literacy meets the Supreme Court’s established criteria for recognizing a fundamental right. Expanding on the Sixth Circuit opinion in Gary B., Part II explores the history of public education in the United States, particularly examining the history of depriving literacy to Black Americans. Part II also discusses the lasting impact of enforced illiteracy and the role of literacy in civic engagement and proposes a careful description of the right in question. This Comment concludes that the Court has a duty to recognize access to literacy as a fundamental right after centuries of depriving that right to Black people.

I. Background: Substantive Due Process, Education, and Gary B.

The Fourteenth Amendment guarantees rights in two separate clauses: the Due Process Clause and the Equal Protection Clause.²¹ The Due Process Clause protects liberty on “a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”²² Claims made under the Equal Protection Clause, on the other hand, specifically concern disparate treatment of different groups.²³ The Court evaluates equal protection arguments under one of three levels of review ranging from strict scrutiny, the most stringent standard,²⁴ to rational basis, the standard most deferential to state interests.²⁵ The Court has also applied an intermediate level of “heightened” scrutiny almost exclusively to cases that involve discrimination based on sex or illegitimacy.²⁶ If the Supreme Court were to recognize access to literacy as a fundamental right, as this Comment argues its own standards obligate it to do, then the Court would apply strict scrutiny when considering subsequent education cases.²⁷ As a result, even if plaintiffs cannot bring a claim under the Equal Protection Clause because they do not comprise a specific racial or ethnic group, courts could still apply strict scrutiny to their claim under the Due Process Clause.²⁸ This would provide students in under-resourced schools with an additional avenue to relief by affording courts more power to hold legislatures accountable to their duty to educate, regardless of whether the plaintiffs are a protected class.²⁹

Initially, due process was considered a safeguard of the procedural rights that the Constitution specifically guarantees to the people.³⁰ Over time, however, jurists developed an understanding of substantive due process that recognized some rights as simply inherent or “fundamental.”³¹ Education lawsuits reflect this evolution in understanding, with plaintiffs bringing different types of claims as they saw new opportunities for relief. While plaintiffs in early education cases brought federal lawsuits claiming disparate treatment under the Equal Protection Clause, more recent plaintiffs have focused on educational adequacy rather than equality in lawsuits at the state level.³² New federal lawsuits, including Gary B., have followed the adequacy route, with plaintiffs invoking the Due Process Clause to assert a fundamental right to a basic minimum education.³³

A. Rights Under Substantive Due Process

Since the adoption of the Fourteenth Amendment, the Supreme Court’s interpretation of the Due Process Clause has evolved from protecting only rights the Founders explicitly included in the Constitution to recognizing “fundamental” rights.³⁴ Over time, the Court developed a two-prong analysis for defining those rights.³⁵ In recognizing rights as “fundamental,” the Court has generally been more reluctant to acknowledge positive rights than negative ones,³⁶ citing separation of powers and judicial restraint as reasons for this reluctance.³⁷ In cases dealing with complicated issues such as education, the Court has been particularly keen to avoid the appearance of legislating.³⁸

The first prong of the Supreme Court’s fundamental rights analysis looks to whether the right in question is deeply tied to “this Nation’s history and tradition” and is “implicit in the concept of ordered liberty.”³⁹ Different justices have taken different approaches when considering the history and tradition of a particular right.⁴⁰ Justice Scalia, for example, favored a restrictive approach that considers whether the Court would have recognized the right at the time Congress adopted the Fourteenth Amendment.⁴¹ The majority in Obergefell v. Hodges,⁴² however, recognized that because “[t]he nature of injustice is that we may not always see it in our own times,” fundamental rights should change over time to reflect societal progress.⁴³ In this broader approach, the “liberty” aspect of the first prong takes on a more significant role, allowing the Court to recognize a fundamental right even where one has not explicitly existed historically.⁴⁴

The second prong of a fundamental rights analysis explores whether the Court can identify the right with a “careful description.”⁴⁵ By looking to the complaint, the Court can identify the specific right that a plaintiff is asserting.⁴⁶ As the Court observed in Obergefell, however, the necessary degree of specificity in the description may vary with the asserted right.⁴⁷ For example, in Moore v. City of East Cleveland,⁴⁸ the plurality of the Court held that the city could not define a family unit, utilizing the broad protection afforded by the negative right to keep the government out of “the private realm of family life” instead of narrowly-defining a positive right for a grandmother to raise her two grandchildren.⁴⁹ Similarly, in Meyer v. Nebraska,⁵⁰ the Court considered parents’ interests in controlling their children’s upbringing without government interference to be a sufficiently-defined negative right, rather than basing its holding on the specific positive right of a teacher to provide instruction in German.⁵¹ On the other hand, in Washington v. Glucksberg,⁵² the Court refused to recognize a fundamental right to physician-assisted suicide at least in part because the plaintiffs did not define that right with enough specificity in the complaint.⁵³ Generally, the defined right’s specificity reflects the Court’s preference for negative rights: where the right in question is a negative right the definition may be broad, while a positive right tends to require a more specific description.

B. Supreme Court Education Cases

Nearly all of the Supreme Court’s decisions supporting education rights have been based on principles of equal protection instead of due process.⁵⁴ While the Supreme Court has thus far refused to recognize a fundamental right to education under substantive due process, an open question remains as to “whether a minimally adequate education is a fundamental right.”⁵⁵

The Supreme Court discussed fundamental rights in the context of education in several early twentieth-century cases. In Meyer, a teacher challenged a state law that prohibited him from teaching students in any language other than English.⁵⁶ The Court held that, while the state’s interest in promoting homogeny among its people was understandable, certain rights are fundamental.⁵⁷ In this case, the “fundamental rights” of parents to control their children’s education outweighed the state’s interest in mandating restrictions on that education.⁵⁸ The Court reached a similar conclusion in Pierce v. Society of Sisters⁵⁹ when parents challenged a state law that required them to send their children to public schools rather than private ones.⁶⁰ Following the reasoning in Meyer, the Court held that the Fourteenth Amendment protects the rights of parents and guardians to determine their children’s upbringing when the state does not have a compelling interest to the contrary.⁶¹

Nearly half a century later, the Supreme Court extended the rights of parents to be free of government interference in raising their children. In Wisconsin v. Yoder,⁶² Amish parents challenged a statute that compelled students to attend school through age sixteen.⁶³ Even though the Court recognized that one of the highest duties of the state is to provide access to public schools, it determined that the state’s interest in compulsory attendance was not so compelling that it outweighed parents’ interests in taking their children out of school after eighth grade because of their religious and cultural beliefs.⁶⁴

Following Meyer and Pierce, the Supreme Court continued to emphasize the importance and scope of public education in its opinions. The Court’s landmark decision in Brown v. Board of Education⁶⁵ held that school segregation was unconstitutional.⁶⁶ With its unanimous decision, the Supreme Court unequivocally stated, “in the field of public education the doctrine of ‘separate but equal’ has no place.”⁶⁷ Although the decision was based on principles of equal protection, subsequent decisions have discussed the Brown opinion in considering both equal protection and due process arguments.⁶⁸ The Court was particularly eloquent in its discussion of the importance of education, which later opinions have often quoted.⁶⁹

Even after the Court mandated integration in Brown, schools remained stubbornly segregated.⁷⁰ In the case commonly referred to as Brown II,⁷¹ the Court ordered that the states comply with its desegregation orders from the year before “with all deliberate speed,” while acknowledging that the logistics of doing so would take time.⁷² Nearly two decades later, in Milliken v. Bradley,⁷³ the Court considered whether remedies to de facto segregation could cross school district boundaries.⁷⁴ The Court held that minority students in Detroit did not have a right to attend schools that were not de facto racially segregated unless there was intentional discrimination in the individual districts.⁷⁵ Justice White dissented, accusing the majority of crippling the Court’s ability to remedy the effects of historical segregation by placing the state’s interest in ease of administration above the interests of students to attend non-segregated schools.⁷⁶

Since Brown, the Court has not always been as receptive to Equal Protection arguments. In San Antonio Independent School District v. Rodriguez, parents of Mexican-American students argued that basing school funding on property taxes created disparities in education that violated the Equal Protection Clause.⁷⁷ The parents claimed disparate treatment based on wealth, but the Court determined that wealth was not a characteristic that defined a suspect class and thus did not apply strict scrutiny.⁷⁸ The Court acknowledged the importance of public education but refused to find that the importance of a government-provided service correlated to recognizing that service as a fundamental right.⁷⁹ In reaching its conclusion, the Court discussed other cases in which it had upheld or identified a right to a particular service.⁸⁰ The Court carefully distinguished situations in which a service was completely unattainable from those in which the service could be obtained, albeit with some degree of hardship.⁸¹ While the appellees contended that certain protected rights, such as free speech and the ability to vote, are virtually meaningless without an education, the Court asserted that the Constitution does not guarantee “the most effective speech or the most informed electoral choice.”⁸² The Court did, however, concede that “some identifiable quantum of education” is potentially “a constitutionally protected prerequisite to the meaningful exercise of either right,” leaving the door open for future assertions of a right to a minimum education.⁸³

The Court continued to hear education cases that were not strictly based on disparate treatment of a suspect class when it conceded that a right to some minimal amount of education might be constitutionally protected. Plyler v. Doe⁸⁴ was one such case, and it provided a partial victory for those asserting a fundamental right to education.⁸⁵ Plaintiffs, a group of undocumented schoolchildren,⁸⁶ brought an Equal Protection challenge against a Texas statute that withheld funds from school districts that provided children of illegal immigrants with a free public education.⁸⁷ The Court reasoned that the rational basis test was not sufficient for all circumstances, instead applying heightened scrutiny to situations disadvantaging a “suspect class” or infringing on a “fundamental right.”⁸⁸

Writing for the majority, Justice Brennan acknowledged that strict scrutiny did not apply because undocumented immigrants are not a suspect class and education is not a fundamental right.⁸⁹ However, the Court simultaneously asserted that the policies in question had such negative impacts on the individual students, and society as a whole, that the statute would have to serve a truly substantial state interest for the Court to deem it “rational,” which the Court did not.⁹⁰ The opinion discussed those negative impacts at length, noting that illegal immigration creates a large, perpetually disadvantaged population, before distinguishing the particular plight of the children who are condemned to these circumstances through no actions of their own.⁹¹ While the Court conceded that public education is not a right explicitly guaranteed in the Constitution, it asserted that education is also more than a mere government benefit such as welfare.⁹² The Court stressed the importance of education in preparing citizens to actively engage in the political process, thereby preserving a democratic society.⁹³ The Court determined that this “unique” set of circumstances allowed it to invoke heightened scrutiny instead of employing rational basis review.⁹⁴

The Court has avoided definitively resolving whether the Constitution protects some minimum education as a fundamental right. Papasan v. Allain⁹⁵ continued the dialogue around this issue.⁹⁶ In Papasan, the plaintiffs alleged that Mississippi officials violated the Equal Protection Clause and their substantive due process rights by selling lands set aside for Chickasaw Cession public schools, leading to disparate spending that negatively impacted the schoolchildren of the Chickasaw nation.⁹⁷ The Court acknowledged that it “ha[d] not yet definitively settled the question whether a minimally adequate education is a fundamental right.”⁹⁸ However, it did not reach the question, instead dismissing the case because the court of appeals and the parties had insufficiently addressed the equal protection issue.⁹⁹ This acknowledgement, and refusal to make a determination, continues to leave the door open for future plaintiffs to make the case for a right to access some minimum level of education.

Since the dual-argument in Papasan, plaintiffs have frequently invoked both Equal Protection and Due Process arguments when asserting their right to an education. Two years after Papasan, the plaintiffs in Kadrmas v. Dickinson Public Schools¹⁰⁰ also made this blended argument. The school district charged a bus fee for transporting students; the plaintiffs transported their student privately and sought to enjoin the school district from collecting the fee.¹⁰¹ The plaintiffs argued that allowing the district to collect such a fee violated the Equal Protection Clause because it discriminated based on wealth.¹⁰² In addition, they argued that the fee denied lower-income families “minimum access to education.”¹⁰³

Neither argument persuaded the Court; it upheld the statute under rational basis review instead of invoking strict scrutiny because it determined that poverty is not a protected class and education is not a fundamental right.¹⁰⁴ The Court also considered the plaintiffs’ argument that they were being denied “minimum access to education,” but determined that there was no true denial of access because the bus fee represented only an increased difficulty in accessing education.¹⁰⁵

Finally, the Court addressed plaintiffs’ contention that it should apply an intermediate level of “heightened scrutiny” as it had in Plyler.¹⁰⁶ The Court declined to do so, drawing distinctions between the situations in each case.¹⁰⁷ While the illegal actions of their parents caused the disparate treatment of the students in Plyler,¹⁰⁸ that was not the case here.¹⁰⁹ Further, the student in Kadrmas was not denied access to education; rather, her parents simply chose to find an alternative method of transportation.¹¹⁰ Without the compounded “unique circumstances” present in Plyler,¹¹¹ the Court did not deem it necessary to extend heightened scrutiny to this case.¹¹² In spite of the Court’s refusal to apply heightened scrutiny in Kadrmas, future plaintiffs can still argue that heightened scrutiny is the appropriate level of review for education cases because “unique circumstances” had previously justified it in Plyler.

C. The History of Public Education, the Denial of Education, and the Court

Although the Constitution does not mention education, all three branches of the federal government have emphasized the importance of public education since the country’s founding. The first presidents wrote and spoke about the necessity of an educated populace to the success of the republic,¹¹³ even though public schools were not prevalent at the time.¹¹⁴ Even before states ratified the Constitution, Congress explicitly stated the importance of education in the Ordinance of 1787, which decreed, “Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”¹¹⁵ The Supreme Court has also referenced the historical importance of education in American society throughout its education cases.¹¹⁶

Just as the importance of education was evident at the country’s inception, so too was the systemic deprivation of literacy to a very specific portion of the population.¹¹⁷ Both pre- and post-Revolution, states adopted various legislation that prohibited teaching enslaved persons to read, in order to prevent them from learning, communicating, and participating in society.¹¹⁸ Some states still had these laws in place when the federal government adopted the Fourteenth Amendment; even outside of those states, educational opportunities for Black people were limited.¹¹⁹ During Reconstruction, freedmen and women fought for education in what W.E.B. Du Bois referred to as “the first great movement for public education at the expense of the state.”¹²⁰ The movement met violent opposition, with groups such as the Ku Klux Klan responding by murdering teachers, intimidating parents, and burning down schools to prevent the education of Black students.¹²¹ Although Congress enacted legislation to support and protect the teachers,¹²² Supreme Court holdings at the time undermined the movement’s strides toward education, equality, and political empowerment.¹²³

In the mid-twentieth century, the Supreme Court’s chief impact on education was establishing a right to equal education based on the Equal Protection Clause.¹²⁴ The process, however, was an uneven one. After striking down intentional racial segregation in public schools in Brown, the Court held in Milliken that de facto segregation in schools did not violate the Constitution.¹²⁵ Similarly, despite ordering in Brown II (a year after Brown) that desegregation should proceed “with all deliberate speed,”¹²⁶ it was nearly a decade later in Griffin v. City School Board¹²⁷ that the Court observed “the time for mere ‘deliberate speed’ has run out.”¹²⁸ From the mid-sixties through the late eighties, the Court’s actions led to drastic changes in the racial makeup of schools and a measurable narrowing of the achievement gap.¹²⁹ However, once districts were released from the Court’s desegregation decrees, schools began to re-segregate based on wealth as well as race.¹³⁰ As a result, the most significant achievement gaps developed between socioeconomic groups.¹³¹ Although the Court has refused to define a protected class based on poverty to invoke strict scrutiny under equal protection principles, by recognizing a fundamental right to literacy, it can still extend protection to this vulnerable and disadvantaged population.¹³²

D. Gary B. and the Case for a Fundamental Right to Literacy

In 2016, a group of public school students in poorly performing Detroit schools brought a lawsuit in the Eastern District of Michigan alleging that the state of Michigan was denying them a basic minimum education.¹³³ The plaintiffs’ argument was based on the premise that a combination of factors—dismal facilities, unqualified teachers, and insufficient materials—prevented students from obtaining access to literacy.¹³⁴ In perhaps the most appalling example of unqualified instruction, an eighth-grade student taught all the seventh and eighth grade math classes at Hamilton Academy, a charter school, for a month after the teacher left and the initial replacements (a paraprofessional and a special education teacher) were incapable of covering the material.¹³⁵ The learning outcomes for the plaintiffs’ schools reflected the impact of the alleged inadequacies, with more than 90% of students unable to meet state standards.¹³⁶

The Eastern District of Michigan rejected the plaintiffs’ Due Process claims, noting the Supreme Court’s reluctance to recognize positive rights and asserting that states do not need to “affirmatively provide each child with a defined, minimum level of education by which the child can attain literacy” because “the Supreme Court has neither confirmed nor denied that access to literacy is a fundamental right.”¹³⁷ On appeal, the Sixth Circuit’s three judge panel reversed the district court’s decision, holding that the plaintiffs did in fact have a fundamental right to literacy.¹³⁸ The circuit court opinion observed that the Supreme Court had often discussed the possible existence of a fundamental right to a minimum education but had yet to decide whether it existed.¹³⁹

1. Negative rights argument

The Eastern District of Michigan dismissed the public school students’ race-based equal protection claim on the merits under rational basis review,¹⁴⁰ and declined to consider the compulsory attendance claim altogether.¹⁴¹ It reasoned that because the plaintiffs were trying to obtain a positive intervention instead of seeking to avoid government interference, it would focus on their positive rights argument rather than the compulsory attendance argument based on negative rights.¹⁴² However, the appeals court considered the compulsory attendance claim, classifying it as a “negative” rights claim and distinguishing between substantive due process claims based on “negative” rights and those asserting “fundamental” rights.¹⁴³

The plaintiffs’ compulsory attendance argument was based on the principles of freedom of movement and freedom from state custody, both premised on the idea that individuals have a right to be free from government interference.¹⁴⁴ They asserted that the decrepit nature of the district’s buildings rendered them “schools in name only,”¹⁴⁵ and that by compelling their attendance in these buildings the state was violating their rights.¹⁴⁶ While the Sixth Circuit ultimately dismissed the argument as inadequately pleaded, it nonetheless explored the legal theory behind the claim.¹⁴⁷ The court noted that a negative rights argument generally involves balancing the interests of the state against those of the individual.¹⁴⁸ In this case, the rights of the students to freedom of movement would be balanced against the State’s interest in providing education.¹⁴⁹

While not explicitly ruling on this point, the court nonetheless reasoned that the state would be violating the plaintiffs’ due process if it were requiring their attendance in schools where no education was taking place.¹⁵⁰ Once again, a court considered a right under substantive Due Process as a matter of degrees: some education might justify some restraint, while no education would not.¹⁵¹

2. The central issue: access to literacy

The Sixth Circuit identified the central issue in Gary B. as whether a fundamental right exists to a basic minimum education, or more specifically, access to literacy.¹⁵² After exploring Supreme Court jurisprudence regarding fundamental rights under substantive due process and evaluating the Court’s history with the issue of education, the Sixth Circuit determined that a right to a basic minimum education did exist.¹⁵³ The court reversed the district court’s decision, providing a significant victory for the plaintiffs.¹⁵⁴

The Sixth Circuit reviewed the Supreme Court precedents relating to fundamental rights and education and applied the two-prong fundamental rights analysis.¹⁵⁵ After conducting a historical analysis of the role of public education in the United States, the court concluded that “free state-sponsored schools” were abundant at the time the Fourteenth Amendment was adopted.¹⁵⁶ Citing Supreme Court education cases, the Sixth Circuit went back further in the nation’s history, noting references to the importance of education during the eighteenth century.¹⁵⁷ The court contended that even under Justice Scalia’s restrictive view of historical analysis,¹⁵⁸ education should still satisfy the required historical importance of a fundamental right.¹⁵⁹

The Sixth Circuit then turned from the history of public education to examining the parallel history of denying access to education and literacy.¹⁶⁰ It pointed out that at the time of the country’s founding, laws in many states prohibited teaching enslaved peoples to read.¹⁶¹ Continuing its historical analysis, the court discussed the violence associated with educating Black students during Reconstruction¹⁶² and the subsequent policies and legislation that furthered segregation.¹⁶³ The court noted that before Brown, a number of Supreme Court decisions supported states’ efforts to segregate schools and restrict Black students’ access to education.¹⁶⁴ Even after Brown, the court observed, there were still decades of school segregation cases making their way to the Supreme Court.¹⁶⁵ From its analysis, the court concluded that access to literacy satisfied the first prong of the substantive Due Process test because it was clearly “deeply rooted in this Nation’s history and tradition.”¹⁶⁶

After considering the history of public education in the United States, the court went on to determine whether a basic minimum education “is implicit in the concept of ordered liberty.”¹⁶⁷ On this element, too, the court determined that a basic minimum education satisfied the requirements of a fundamental right.¹⁶⁸ Instead of basing its analysis purely on the importance of education, the Sixth Circuit considered how “fundamental” access to literacy was “for even the most limited participation in our country’s democracy.”¹⁶⁹ This basic participation, the court noted, could be as simple as the ability to read road signs and thereby comply with the law.¹⁷⁰ The court acknowledged the Supreme Court’s admonishment in Rodriguez that the importance of a state service does not determine whether it is a fundamental right; however, the court emphasized that literacy was not just important but actually necessary to the exercise of other rights.¹⁷¹

The Sixth Circuit also drew on history in this component of its analysis, considering the connection between literacy and political power over time.¹⁷² It acknowledged, but quickly dismissed, the defendants’ argument that access to literacy should not be considered fundamental because public education was not widespread at the country’s founding and therefore could not be implicit in the concept of “ordered liberty.”¹⁷³ Instead, the court argued that education has long been considered the “great equalizer” in terms of providing opportunity for advancement in society.¹⁷⁴ Quoting Brown, the court observed, “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”¹⁷⁵ Finally, the court again pointed to the country’s history of denying access to education as a way to limit the political power of the Black population.¹⁷⁶ This history, and the Supreme Court desegregation cases addressing it, confirmed for the court the crucial role that public education must play in preventing societal inequity and providing equal opportunity for all students.¹⁷⁷

The Sixth Circuit discussed the second prong of its fundamental rights analysis with much more brevity. Beyond analyzing the history and importance of the proposed right, the court acknowledged that it must also describe the right in question specifically enough to settle the case at hand.¹⁷⁸ The court took pains to specify that the right it was establishing was narrow and “only guarantees the education needed to provide access to skills that are essential for the basic exercise of other fundamental rights and liberties, most importantly participation in our political system.”¹⁷⁹ First, the court specified that a right to literacy would require the state to provide the basic infrastructure through which students could plausibly achieve literacy.¹⁸⁰ The court then acknowledged that measurements of learning outcomes, such as literacy rates, cannot alone determine whether access exists.¹⁸¹ Instead, the court echoed the complaint in its assertion that elements such as school buildings, teachers, and educational materials comprise the infrastructure necessary for achieving literacy.¹⁸² The quantity and quality of these various elements, the court determined, should be evaluated at the trial court level to determine if they adequately provided access to literacy.¹⁸³ The court stressed that there was no set requirement for any of these elements, rather it would be left to the state to determine the holistic composition of elements that could plausibly impart literacy.¹⁸⁴

3. Why “adding” a fundamental right is appropriate

The concept of “adding” a fundamental right is controversial within the judiciary, leading the Sixth Circuit to spend a considerable portion of its Gary B. opinion addressing the arguments against doing so. First, the court acknowledged the concern that having judges establish such rights, rather than doing so through legislation, is anti-democratic.¹⁸⁵ The court quickly dismissed this concern, explaining that the argument has little value when the population seeking redress is particularly vulnerable.¹⁸⁶ In this case, the court noted, heightened scrutiny was appropriate because the population in question, students without access to literacy, were particularly disadvantaged in the political process, leaving the courts as their best opportunity for relief.¹⁸⁷

Varied judicial interpretations of the Constitution led the Sixth Circuit to extensively discuss the contrast between negative liberties and positive rights. It acknowledged federal and Supreme Court jurisprudence defining the Constitution as “a charter of negative rather than positive liberties.”¹⁸⁸ The court denied, however, that this meant only negative rights existed, and went on to highlight established positive rights both enumerated (the right to counsel) and unenumerated (the right to marry).¹⁸⁹ The court emphasized the right to marry in particular, drawing parallels to education because it is an affirmative act that states perform.¹⁹⁰ The court also highlighted the Supreme Court’s failure to foreclose the possibility of a right to a “basic minimum education,” despite having the opportunity to do so in previous cases.¹⁹¹ The court briefly acknowledged the dissent’s observation that previous Supreme Court cases dealt with Equal Protection rather than Due Process, but rejected the distinction, noting “a fundamental right is a fundamental right, regardless of which clause the claim is brought under.”¹⁹²

Finally, the Sixth Circuit addressed the dissent’s assertion that education is no more a guaranteed right than other state-provided services, such as housing and healthcare.¹⁹³ It soundly rejected this assertion, noting both the history of state-provided public education and the dominance of the state in the field, observing “[w]e can think of no other area of day-to-day life that is so directly controlled by the state.”¹⁹⁴ The court went on to conclude that such control necessarily imposes a level of responsibility on the state to provide access to literacy.¹⁹⁵

4. The aftermath

Following the Sixth Circuit’s ruling, the State of Michigan reached a settlement with the plaintiffs.¹⁹⁶ Michigan governor Gretchen Whitmer agreed that “every child in the State of Michigan should have access to an educational environment in which ‘it is plausible to attain literacy.’”¹⁹⁷ Under the settlement agreement, the governor would immediately allocate $3 million to support the literacy of the named plaintiffs once the court dismissed the case with prejudice.¹⁹⁸ The governor also committed to supporting ongoing literacy initiatives in Detroit schools with an additional $94.4 million in literacy-specific funding, contingent on the legislature’s approval.¹⁹⁹

Independently, the Sixth Circuit granted en banc review of the case.²⁰⁰ A majority of the panel voted on May 19, 2020 to rehear the matter, vacating the panel decision.²⁰¹ Ultimately, however, the court dismissed the case without rehearing since the parties had already settled.²⁰² Since there was no rehearing, the panel opinion remains the official opinion of the Sixth Circuit, but it does not carry precedential value.²⁰³

Even without establishing a binding precedent, the Sixth Circuit opinion in Gary B. provides the legal foundation for current and future plaintiffs to establish a fundamental right to a minimum education.²⁰⁴ There has already been an increase in recent years in the number of state-level lawsuits over the quality of education schools provide students.²⁰⁵ The return of education cases to federal courts is due not only to the history of the federal judiciary improving school conditions but also to the recent trend of state courts failing to protect plaintiffs’ rights to education.²⁰⁶ While past litigation focused on funding, the current wave of litigation is focused on adequacy and asserting a fundamental right to education.²⁰⁷ Gary B. is a landmark case in this wave of federal education litigation based on adequacy.²⁰⁸ The Sixth Circuit’s holding that a fundamental right to literacy exists, in spite of its limited precedential value, is a victory for education advocates.²⁰⁹ It also represents progress in the discussion around endemic racism and ways to address it.²¹⁰ As the plaintiffs’ attorney in Gary B. observed following the settlement, “[t]here’s no precedent,” but, “Judge Clay’s words are going to live forever. Judges across the country will look to this opinion for its judgment and its wisdom and its understanding of how to address systemic racism.”²¹¹ Education must play a key role as the national discussion around systemic racism and inequality continues.²¹²

us/civics-rhode-island-schools.html [https://perma.cc/B3PQ-W2PJ]. A civics education, like basic literacy, is necessary for individuals to become “conscientious jurors, true witnesses, incorruptible voters.” Id. (quoting Horace Mann on the purpose of education). While most state constitutions do guarantee some form of education, only about half of the states require that education to involve civics instruction. Id. As with literacy for the students in Gary B., this lack of education results in the neediest children not getting the necessary basic skills to participate in the political process, thereby perpetuating the underclass that concerned Justice Brennan in Plyler. Id.; see Plyler v. Doe, 457 U.S. 202, 234 (1982); cf. Growe & Montgomery, supra note 174, at 23 (asserting that education is “a great equalizer of conditions of men,” and likening it to “the balance wheel of the social machinery.” (quoting Horace Mann)); Wong, supra note 154 (quoting Michael Rebell, the attorney for student-plaintiffs in Raimondo, who observed that the attorney in Gary B. brought the lawsuit in Detroit precisely because the fundamental right to minimum education has been left open by the court).

II. Analysis: Access to Literacy is a Fundamental Right

Thus far, Supreme Court jurisprudence has not determined whether a fundamental right to a basic minimum education exists.²¹³ That basic minimum education, specifically defined as access to literacy,²¹⁴ should be recognized as a fundamental right based on the two-prong analysis the Court uses to evaluate such rights.²¹⁵ The analysis must explore not only the history of the asserted right, but also the ties between the right and the “concept of ordered liberty.”²¹⁶ Finally, the Court must be able to establish a clear definition of the fundamental right in order to recognize it.²¹⁷ Access to literacy satisfies all the criteria of this analysis; therefore, the Fourteenth Amendment protects it.

A. First Prong: History and the “Concept of Ordered Liberty”

To determine whether access to literacy is a fundamental right, courts must first consider the entire history of education in this country, including the government’s role in both providing and denying it. The historical component of a two-prong analysis of a fundamental right should comprise a holistic analysis of the role the right has historically held.²¹⁸ A right that is tied to history is not just one that the government explicitly recognized two-hundred years ago.²¹⁹ Thus, in considering a right to education, a court must consider not only the history of public education in the country, but also limitations on access to education as well as the role of the judiciary in limiting or enabling that access.²²⁰

The Constitution, in setting up a system of government that relies on an active citizenry, intrinsically established a need for adequate public education.²²¹ The Supreme Court has explicitly acknowledged that need by discussing the importance of education throughout its jurisprudence.²²² While cases such as Meyer and Pierce played foundational roles in establishing a fundamental right to privacy, they were decisions about education, demonstrating that the federal judiciary would not leave this topic in the exclusive domain of state and local authorities.²²³

Examining the government’s role in depriving distinct portions of the populace of access to education²²⁴ is just as crucial as considering the historical importance of education and the court’s role in establishing a right to education.²²⁵ As the 1740 South Carolina Negro Act demonstrates, Americans have always viewed literacy as a key to civic engagement.²²⁶ Throughout the nation’s history, governments, groups, and individuals have used tactics ranging from legislation to violence to deprive certain groups of access to education, thereby perpetuating systems of oppression.²²⁷ In Plyler, the Court discussed the impact of this deprivation on an individual level, observing that illiteracy would harm the deprived schoolchildren throughout the rest of their lives.²²⁸ The Court also observed that the damage to individuals would negatively impact society as a whole.²²⁹ Between the extremes of the individual and the entire American populace lie the communities which bear the brunt of this history. As Peter Blackmer, a Research Fellow with the Detroit Equity Action Lab observed of Gary B., “[i]t is no accident that the denial of a right to literacy is taking place in a city like Detroit. The ongoing denial of educational rights in Detroit is deeply rooted in centuries of racial oppression and white supremacist violence in the United States.”²³⁰

Considering whether a basic education is “implicit in the concept of ordered liberty,” alongside the historical analysis, gives a more complete understanding of the role of literacy in society.²³¹ In Gary B. the court considered this a compelling component of the argument for a fundamental right to a basic minimum education because an individual’s ability to participate in the political process is almost entirely dependent on literacy.²³² This premise echoed Justice Brennan’s dissent in Rodriguez, where he asserted that certain First Amendment rights and participation in the electoral process were “inextricably linked” to education.²³³ The Supreme Court has previously found certain rights to be implicit within others. For example, the right of public access to criminal trials established in Richmond Newspapers, Inc. v. Virginia²³⁴ stems from an understanding that the right of access to information is implicit in other rights enumerated in First Amendment.²³⁵

Further, certain civic responsibilities, such as serving on a jury, require at least a minimum level of literacy. Federal jury requirements include a stipulation that the juror “be adequately proficient in English to satisfactorily complete the juror qualification form.”²³⁶ Jury service, the Supreme Court has stated, is an opportunity for all members of the community to demonstrate “responsible citizenship” and “contribute to our civic life.”²³⁷ Other civic obligations that require literacy include paying taxes,²³⁸ serving in the military,²³⁹ and responding to the census.²⁴⁰ A basic level of literacy is necessary to perform these obligations; thus access to basic literacy must be a fundamental right under Supreme Court jurisprudence because without it, members of society cannot “contribute” in these fundamental ways.²⁴¹

Arguments against acknowledging positive fundamental rights generally involve reluctance to require that the state “provide” some service.²⁴² That reluctance, however, is not absolute: the Court admitted in Kadrmas that a case for a positive right might exist where the state’s refusal to provide a particular service would completely eliminate the student’s ability to access education.²⁴³ With different elements requiring different levels of education, civic engagement encompasses a broad spectrum of rights and responsibilities. Serving on a jury, for example, requires basic literacy, while voting does not.²⁴⁴ As the Court observed in Rodriguez, the state is not obligated to create the most informed or capable electorate.²⁴⁵ Basic literacy is simply the minimum education necessary for an individual to fulfill duties that the government requires.²⁴⁶

Literacy satisfies the first prong of a fundamental rights analysis when considering the history of public education and the role of literacy in civic engagement. The ability to read is so closely tied to civic rights and responsibilities that it is necessary to the concept of ordered liberty, and public education certainly has a significant historical presence in the United States.²⁴⁷ It would be entirely appropriate for the Court, whose impact on public education has been quite significant,²⁴⁸ to intervene to achieve true equality through requiring access to a basic minimum education. When considered alongside the government’s role in denying that access to portions of the population, judicial action to acknowledge the existence of this fundamental right becomes not just appropriate but an affirmative responsibility.

B. Second Prong: A “Careful Description” of the Fundamental Right

The second prong of a fundamental rights analysis requires that the court identify the right in question with a “careful description.”²⁴⁹ Crafting a description begins with the court considering the right asserted in the complaint.²⁵⁰ In defining access to literacy, a court should consider educational infrastructure and performance evaluation methods alongside existing legislatively-established standards.²⁵¹ The right’s description should not hew so closely to the facts of the immediate case that it becomes inapplicable to other cases.²⁵² By avoiding minute specificity, the court can create a workable definition while avoiding the appearance of legislating.²⁵³

Creating a simple definition of the right to literacy would enable courts to more effectively execute their established role of instituting a framework for the legislature and providing enforcement if subsequent policies fail to follow that framework.²⁵⁴ As the Plyler court demonstrated by applying intermediate scrutiny to the case’s “unique” circumstances, there can be a degree of flexibility in the discussion.²⁵⁵ The definition of the right to access literacy does not need to be minutely detailed.²⁵⁶ Considering the importance of public education to society and the absence of a valid state interest opposing it, there should not be a rigid set of rules based on the facts of a single case; rather, future courts should determine whether access exists in each “unique” set of circumstances based on a constellation of factors.²⁵⁷

Creating a “careful description” can present a true challenge for the judiciary, particularly when considering a positive right.²⁵⁸ As the Gary B. opinion discussed, arguments against positive fundamental rights often focus on separation of powers concerns.²⁵⁹ In defining a fundamental right, then, the court must create a description that is “careful” without overstepping into the realm of legislating.²⁶⁰

A definition of the right to literacy should incorporate factors that predict and assess learning outcomes as tools to evaluate adequacy without setting specific testing standards. The facts of the complaint generally provide the foundation for defining a fundamental right.²⁶¹ In Gary B., the Sixth Circuit looked to the facts the plaintiffs alleged in the complaint and distinguished those it considered useful for its definition.²⁶² The Gary B. court drew a distinction between educational infrastructure (such as buildings and teachers) and learning outcomes, allowing the former but not the latter to serve as an indicator of adequacy.²⁶³ The court’s rejection of learning outcomes as a metric, however, is an unhelpful restriction.²⁶⁴ While a specific percentage of students reading at grade level might not provide an accurate definition of access to literacy, learning outcomes can be an important factor in assessing that access.²⁶⁵

Any careful description of a right to access literacy must also necessarily include teachers as a key component of facilitating that access.²⁶⁶ One of the main elements of the Gary B. complaint was the lack of adequately-trained teachers,²⁶⁷ which is a common problem in “impoverished and racially isolated” schools.²⁶⁸ Teacher quality has proven to be the most important variable in student achievement, therefore “tools” to improve performance must include well-trained teachers.²⁶⁹ Courts and legislatures have implemented myriad remedies for the problem of insufficient and underperforming teachers over the years, from limiting class sizes to mandating certifications to increasing salaries.²⁷⁰ An increase in funding in a single area cannot solve this problem.²⁷¹ Teachers choose to work in particular schools based on the teaching environment as much as the salary; this creates an inextricable link between the seemingly disparate elements of educational infrastructure, namely teachers, facilities, and resources.²⁷²

School facilities and resources, then, are another key component of education that a court must include in a careful description of a minimally adequate education.²⁷³ In making the narrow argument that they do not have access to literacy, plaintiffs must demonstrate that the state is not providing the resources to make literacy possible.²⁷⁴ Comparing the provision of resources between “good” school systems and those that are underperforming could provide guidance for courts to determine whether the resources in a given district or school are adequate.²⁷⁵ Regardless of how the court determines adequacy of resources, it is undeniable that literacy is inaccessible if students do not have access to a safe learning environment and enough textbooks. Further, inadequacy of resources (such as that described in Gary B.²⁷⁶) arguably violates students’ fundamental right to access information.²⁷⁷

State level cases can provide additional guidance for a federal court attempting to define adequate access to literacy. A North Carolina court held that a “sound basic education” included ten different factors, from the ability to read to knowledge of politics.²⁷⁸ A Kentucky court was similarly specific, listing seven “capabilities” that an adequate education would provide, including oral and written communication skills, knowledge of government processes, and the ability to compete in the job market.²⁷⁹ Several other states (Alabama, Massachusetts, New Hampshire, Ohio, and Kansas) have all adopted the elements that the Kentucky court established in Rose v. City Council for Better Education, Inc.²⁸⁰ The Sixth Circuit’s assertion that to provide access to literacy schools should have enough books and not be crumbling seems incredibly restrained compared to such extensive lists of requirements. The holding in Gary B. was more in keeping with the declaration of the Ohio Supreme Court, which specified that the “efficient system” called for in the state constitution “could not mean one in which part or any number of the school districts of the state lacked teachers, buildings or equipment.”²⁸¹

Though usually less specific than judicial holdings, state constitutions can also provide the federal judiciary with an indication of what legislative bodies consider to be the government’s duties regarding education.²⁸² A court should consider the broad principles often reflected in state constitutions when defining a fundamental right to basic education.²⁸³ If the goal of education is ultimately to create capable and engaged members of society,²⁸⁴ then basic literacy is the bare minimum of what public schools should provide.²⁸⁵

Finally, an effective definition must include socio-economic aspects of the school environment. Unlike education cases based on equal protection claims, cases based on education adequacy cannot rely on the disparate treatment of discrete groups. Much like in Plyler, the plaintiffs’ equal protection claim failed in Gary B.: the uniform low-income nature of the plaintiffs did not invoke strict scrutiny.²⁸⁶ While re-segregation based on race is certainly prevalent,²⁸⁷ it is not the only factor creating discrepancies between schools. There is not a single achievement gap marking the disparity between districts: rather, there are multiple gaps and poverty, not race, is the most accurate predictor of student success.²⁸⁸

A definition of access to literacy should incorporate the basic infrastructure of education. Students have a fundamental right to receive a basic minimum education in schools that are safe environments with a sufficient number of properly trained teachers and quality resources. In order to ensure adequate access to literacy for all students, schools must (1) provide sufficient educational infrastructure in the form of qualified teachers, adequate materials, and safe buildings, (2) in a racially and socio-economically integrated environment,²⁸⁹ and (3) be able to demonstrate the effectiveness of the access in a quantifiable manner.²⁹⁰

Conclusion

Access to literacy is a fundamental right under the Supreme Court’s established two-prong method for recognizing substantive due process rights. The Sixth Circuit panel in Gary B. recognized this right, but its opinion has limited precedential value. Previously, federal courts have erroneously failed to apply the two-prong analysis in an expansive manner, considering only the historical role of public education in the United States, but not exploring the history of deprivation of access to adequate education, and the government’s role in perpetuating that deprivation. When considered holistically, this history, combined with the key role that literacy plays in enabling civic engagement, more than satisfies the first prong of the analysis. A description of the right that provides for the basic structure of access to literacy without overstepping into legislating satisfies the second prong of the analysis. Access to literacy requires that schools (1) provide sufficient educational infrastructure in the form of qualified teachers, appropriate materials, and safe buildings, (2) in a racially and socio-economically integrated environment, and (3) be able to demonstrate the effectiveness of the access in a quantifiable manner. When considered in this manner, a fundamental right to literacy is not just appropriate under the Supreme Court’s two-prong analysis, it is vital. Accordingly, the Court has a fundamental responsibility to affirm a right to literacy as one step toward remedying centuries of injustice.

Taking a Broad View to Recognize a Narrow Right: How a Holistic Analysis of Literacy’s Role in American Society Demonstrates That it is a Fundamental Right

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