The 6th Circuit Court of Appeals on Thursday announced that federal courts can do what billions of dollars, countless curricular reforms, No Child Left Behind, and state takeovers have not achieved: guarantee a decent education for children in failing urban schools.
In Gary B. v. Whitmer, a three-judge panel ruled that the Constitution guarantees a right to a “basic minimum education.” To reach this conclusion, the court had to sweep aside decades of Supreme Court precedent, most importantly the high court’s 1972 decision in San Antonio v. Rodriguez. In a truly strained and contradictory piece of reasoning, the court ruled that even though “the Constitution cannot guarantee educational outcomes,” the substandard outcomes in Detroit’s public schools were evidence of a constitutional violation. The district’s lack of competent teachers, decrepit facilities, and insufficient instructional materials deprive students of a fundamental right of “access to basic literacy.” The court located this hitherto unknown right in the Fourteenth Amendment’s Due Process Clause. Of course, the Due Process clause does not mention education, so the court relied on “substantive due process”—the idea that the clause protects unenumerated rights. It has long been criticized because it allows justices to manufacture new rights or, more bluntly, to impose their own policy preferences under the guise of constitutional interpretation.
While the constitutional basis for the court’s judgment is dubious, even more dubious is the idea that courts can solve the problem. The history of judicial forays into educational reform is dispiriting. Courts lack the capacity both to determine what reforms are likely to succeed and to monitor schools to ensure that the reforms are effectively administered. As the Supreme Court put it in Rodriguez, that courts “are not equipped to resolve intractable disagreements on fundamental questions in the social sciences.” Education is a maddeningly complex area of public policy and student performance depends on a host of factors many of which are outside a school’s control. When courts have been called on to implement reforms they have often retreated to easily measurable variables like overall spending and ignored that which is more important but difficult to measure.
Given these difficulties, it’s not surprising that the opinion provided no analysis of what reforms might correct the alleged constitutional violation. It’s far easier to pronounce platitudes than hazard concrete proposals for fixing schools.
The opinion was by Judge Eric L. Clay, who was nominated by President Clinton, and by Judge Jane Branstetter Stranch, who was nominated by President Obama. The plaintiffs are students in Detroit public schools, including “Gary B.,” who were represented by Carter Phillips of the firm Sidley Austin, and are suing the governor of Michigan, Gretchen Whitmer, a Democrat. The majority opinion documents a series of awful conditions in the schools: “Classroom temperatures in Plaintiffs’ schools regularly exceed 90 degrees during both the summer and winter due to malfunctioning furnaces…there is no air conditioning at Hamilton, and one west-facing classroom has reached 110 degrees during the school year…. On the first day of the 2016–17 school year, the temperatures in the school grew so extreme that multiple students fainted, both students and teachers got so sick they threw up, and multiple teachers developed heat rashes.” Also, “Mice, cockroaches, and other vermin regularly inhabit Plaintiffs’ classrooms, and the first thing some teachers do each morning is attempt to clean up rodent feces before their students arrive. Hallways and classrooms smell of dead vermin and black mold.”
Judge Eric Murphy, who was nominated by President Trump, dissented, writing in part, “If I sat in the state legislature or on the local school board, I would work diligently to investigate and remedy the serious problems that the plaintiffs assert. But I do not serve in those roles. And I see nothing in the complaint that gives federal judges the power to oversee Detroit’s schools in the name of the United States Constitution.”
Detroit already spends nearly $2,000 more per-pupil than the state average, $16,737 to $14,837. Since the city already spend more per-pupil, what exactly will draw better teachers to the district or lead to better facilities or guarantee that schools have sufficient textbooks? If the cause has been mismanagement, what can the courts do to create better management?
If the decision is appealed, it is highly unlikely to survive. However, shortly after the opinion was announced, Michigan’s Democratic Attorney General, Dana Nessel, announced via Twitter her support for the ruling. Since the attorney general is responsible for defending the state’s interests in court, it could be that Nessel, along with Governor Whitmer, might decline to challenge the ruling. However, the 6th Circuit could review the decision en banc of its own accord—sua sponte. The 6th Circuit has recently been challenging the 9th Circuit’s status as the most overturned by the Supreme Court, so it might well decline to do so. But one way or another, the issue will certainly be appealed. Other states under the 6th Circuit, including Tennessee and Ohio, would be obliged to follow the decision. Those states, one suspects would be less likely to prostrate themselves before the 6th Circuit’s novel constitutional reasoning and would appeal its application to them to the Supreme Court.
Should the 6th Circuit allow the matter to reach the Supreme Court, there are easily five votes—Roberts, Alito, Thomas, Gorsuch, and Kavanaugh—to overturn, and possibly two more—Breyer and Kagan. Justice Breyer, in in his separate opinion in Morse v. Frederick (2006), cautioned against increasing judicial supervision of schools, arguing that “no one wishes to substitute courts for school boards, or to turn the judge’s chambers into the principal’s office.” And Justice Kagan just displayed her preference for upholding longstanding precedents, even ones she likely disagrees with, by joining Justice Alito’s dissent in Ramos v. Louisiana, a case in which the majority held that non-unanimous jury verdicts violate the 6th Amendment. Hence, whether because of institutional incapacity or as a result of being overturned, today’s promised judicial shortcut to educational utopia is unlikely to materialize.
Joshua Dunn is professor of political science at the University of Colorado–Colorado Springs.