Photo credit: Leigh Taylor/The Detroit News

Earlier this month, the Sixth Circuit heard oral arguments for a case filed by Public Counsel, a national pro bono law firm which focuses much of its resources on children’s rights, which claims that the conditions in Detroit’s public schools are so egregiously inadequate that they are unconstitutional. Specifically, they argue that the conditions violate the students’ fundamental right to access basic literacy under the Due Process clause and the Equal Protection clause. The trial court below dismissed the case. Although sympathetic to the evidence of shocking school conditions, the Court explained that the plaintiffs had not identified a valid comparator group for their equal protection claim, as a successful claim requires showing that one group has been treated unfairly as related to a similarly-situated group. Additionally, the Court overruled the Due Process claim, finding that the clause does not protect a positive-right to access to literacy.

The issue of positive versus negative rights turned out to be fairly determinative throughout the trial court proceedings. Constitutional rights are generally framed as negative rights in the sense that they mandate that “the government shall make no law” that interferes with something, as opposed to that the government shall positively provide for that thing. On appeal, the plaintiffs reframed their argument in terms of negative rights by emphasizing Michigan’s compulsory attendance laws, which every state in the country has. Michigan cannot require that students come to a school, the argument goes, that does not provide them with access to basic literacy.

The Due Process clause argument has the potential to dramatically shake up public education across the nation, as it would require locating a fundamental right to education in the U.S. Constitution, which courts have thus far failed to do. Finally doing so would mean that the federal and state governments have an obligation to ensure access to a minimally adequate level of education, opening the door for students and schools to petition for necessary resources and support in court. Critical in these discussions is the seminal case San Antonio Independent School District v. Rodriguez, which challenged Texas’ public school funding scheme. The Rodriguez Court focused on whether poor students could constitute a “suspect class” for equal protection analysis, but did not answer the question of whether the Constitution contained the right to “some identifiable quantum of education.”

The Constitution does not explicitly mention education anywhere, meaning the courts will have to rule that it is an implied right. As Justice Marshall pointed out in his dissent in Rodriguez, the Supreme Court has identified other implied rights on numerous occasions. Indeed, it is the reason the government cannot prevent us from having roommates outside our immediate family, terminating a pregnancy, marrying, moving across state lines, sending our children to private school, using contraception, or voting in a state election. None of those things is stated in the Constitution, but courts have identified them as protected rights nonetheless. They do so by recognizing deep-rooted traditions, reading multiple sections of the constitution together, and determining that other explicit rights would be rendered essentially meaningless without the implied right in question.

In the Detroit case, the plaintiffs are pointing to historical evidence that they hope will showcase a deep commitment to and emphasis on public education in the United States. The bulk of their Due Process argument, however, is that basic literacy is a necessary foundation for participating in U.S. democratic life in a way that makes it “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.” Literacy, for example, is necessary for enlisting in the military, voting, being a member of a jury, filing taxes, engaging in political speech, and reading our laws and constitution.

This case would not be the first attempt at an implied fundamental right to an education. Michigan’s motion to dismiss cites a number of cases in which the court has declined to locate such a right. As the plaintiffs point out, however, past failures to identify the right is not the same thing as ruling that the right does not exist. Crucially, the Supreme Court clarified in Papasan v. Allain that the holding of Rodriguez did not foreclose the possibility. The constitutional right to some fundamental level of education, it seems, is still on the table.

Given the list of prior failed attempts to convince the court to recognize this right, there is a valid argument that the federal constitution is a dead-end for advocates working towards education adequacy or equity. Instead, the argument goes, why not just rely on other tools like state and local legislation, targeting school boards, or engaging in grassroots organizing for curriculum changes? Because the courts have largely declined to step in absent an explicit right, much of the positive education reforms that have occurred can indeed be attributed to such alternative efforts, with the exception of limited instances of court intervention such as Brown v. Board of Education.

But pursuing an avenue in the federal courts should not be characterized as an either/or decision against these other means. Having the option to seek a remedy or injunction in court can reasonably be viewed as just one critical tool among many. This is especially true considering state courts have increasingly declined to get involved, even when faced with a state constitution that contains a positive right to an education. While it cannot be said the federal courts would be a “better” option, it is important to have as many tools as possible at the disposal of advocates on the ground. Having a federal claim that can be heard by a federal court may offer the benefit of coming before unelected judges who are in a better position to make unpopular decisions like ordering the redistribution of tax revenues to public schools. 

Not only can securing the legal right be useful to advocacy efforts, but not having the legal right in place can work directly against these other forms of advocacy. For example, the court in Rodriguez declined to examine Texas’ school funding scheme under strict scrutiny in part because it did not implicate a fundamental right. Though there is no way to tell whether strict scrutiny would have yielded a different outcome, it is at least a higher bar for the state to meet when justifying its considerable disparities in education funding and quality. So while not a silver bullet, this higher standard may serve, at a minimum, to help advocates get their foot in the courthouse door when other efforts have failed.

Having the court declare that the Constitution protects some minimal access to education also serves an important signaling role. There is a certain dissonance one feels in realizing that the court has determined choosing your roommates is a constitutional right, but not education – something that touches every single person in our country, is a driving force in where people choose to live, and carries serious implications for future financial outcomes and even health outcomes (and, therefore, inequalities). In a country that elevates its written constitution above all else, it is unconscionable that that document cannot be used to ensure that the people it claims to protect can read it.