A Short-Lived Constitutional Right to Education
Full Sixth Circuit will rehear case of Gary B v. Whitmer
For a brief moment this spring, advocates who have long sought to establish a right to education under the U.S. Constitution seemed to have attained their goal. On April 23, a panel of the Sixth Circuit Court of Appeals ruled 2–1 in Gary B. vs. Whitmer that the constitution affords “a fundamental right” to a “basic minimum education.” This ruling ran counter to the 1973 U.S. Supreme Court ruling in San Antonio Independent School District v. Rodriguez that no such right exists in the constitution.
On May 14, Michigan Governor Gretchen Whitmer sought to preserve the Gary B. ruling by quickly settling the underlying lawsuit, which centered on poor conditions in the Detroit Public Schools. Whitmer agreed to propose state legislation that would provide $94.4 million in additional funding for literacy programs in those schools.
Five days later, however, the full U.S. Court of Appeals for the Sixth Circuit voted to rehear the Gary B. case. They were right to do so, because the panel’s ruling, if allowed to stand, would have shifted ultimate authority over public-education policy and funding away from state and local communities and toward litigants and judges in federal courts.
Gary B. v. Whitmer
The Gary B. case began in 2016 when students in five Detroit schools, including two charter schools, sued state officials over the dismal conditions and educational outcomes in their schools. The allegations were disturbing: multiple classrooms were staffed by substitute teachers or those with little or no training; facilities did not comply with city health and safety codes; instructional materials were out of date and inadequate; and student proficiency rates on state assessments languished below 10 percent. The plaintiffs contended that these conditions and outcomes constituted a violation by the State of Michigan of their fundamental right to education under the Fourteenth Amendment of the U.S. Constitution.
The trial court judge dismissed the case based on the Supreme Court’s decision in Rodriguez. In that case the Supreme Court expressly rejected the argument that there is a fundamental right to education protected by the U.S. Constitution. “Education, of course, is not among the rights afforded explicit protection under our Federal Constitution,” Justice Lewis F. Powell Jr. wrote for the majority. “Nor do we find any basis for saying it is implicitly so protected. . . . [T]he undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic legislation.”
That is, the Supreme Court, in Rodriguez, had long ago considered and rejected the Gary B. plaintiffs’ central claim that education should be deemed a fundamental right because it is necessary to the effective exercise of other constitutional rights, such as the right to free speech or the right to vote.“[W]e have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electorate,” Powell wrote.
Despite this precedent, a panel of the Sixth Circuit reinstated the Gary B. plaintiffs’ lawsuit on appeal and held that there is a fundamental right to a “basic minimum education—meaning one that plausibly provides access to literacy.” The majority reasoned that the Supreme Court had not decided the precise issue raised in the Detroit case because Rodriguez had not involved “an absolute denial of educational opportunities.” The majority then emphasized the need for “at least a rudimentary educational infrastructure”—with “facilities, teaching, and educational materials” of “sufficient” “quality and quantity”—but left it to the trial court judge to “define the exact limits of what constitutes a basic minimum education” sufficient 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.” The majority suggested that the trial court would be able to make such determinations after “hearing evidence” and “employing the assistance of expert[s]” as to the resources necessary to satisfy the newly-formulated right.
Hard Cases Make Bad Law
The Gary B. case illustrates the legal adage popularized by Justice Oliver Wendell Holmes that “hard cases make bad law.” The conditions alleged to exist in the plaintiffs’ schools were unacceptable, especially the physical conditions that could have been remedied through enforcement actions by the city of Detroit, the school board, or the State of Michigan. In the 2018–19 school year, the Detroit public schools spent approximately $14,760 per student, nearly 40 percent more than the average expenditure statewide, and considerably higher than the national average. That means, on average, that a Detroit school with 500 students would have an annual budget of more than $7.3 million. With resources of this magnitude, how could school officials fail to address rodent infestations, the lack of adequate educational materials, or the wholesale staffing of schools by substitute teachers?
As a practical matter, these conditions should have been addressed long ago. To students who have already graduated or otherwise exited these schools, a final judicial decision after years of litigation over a possible constitutional right to a “basic minimum education” will be cold comfort. And no court order—federal or state—can remedy gross mismanagement or incompetence. (Two of the plaintiffs’ schools have been closed for poor performance since the litigation began.)
In many ways, Gary B. is not about the Detroit schools. It is a test case designed to get the courts to reconsider arguments that the Supreme Court rejected in Rodriguez almost 50 years ago. But Rodriguez left little room for doubt. The court squarely held that there is no explicit or implicit right to education contained in the U.S. Constitution: “We have carefully considered each of the arguments supportive of the District Court’s finding that education is a fundamental right or liberty and have found those arguments unpersuasive,” the majority opinion reads. The court went even further in describing its reasoning, noting that members of the judiciary lack expertise in resolving matters of educational policy, including the relationship between school resources and student performance and the proper balance of responsibilities between state and local authorities: “The ultimate wisdom as to these and related problems of education is not likely to be divined for all time even by the scholars who now so earnestly debate the issues,” the court wrote. Finally, the justices noted the particular importance of deferring to state and local authorities in matters of education, saying that “it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us . . . .”
The Sixth Circuit’s majority opinion in Gary B. glossed over Rodriguez, concluding that the Supreme Court “left open” the possibility that a fundamental right to education might be found in the right case. However, the Supreme Court’s reasoning in Rodriguez applies to the Gary B. case too. As explained in Sixth Circuit Judge Eric Murphy’s dissenting opinion, federal courts are bound by the Supreme Court’s decision in Rodriguez; the effort to distinguish Gary B. by relying on the seriousness of the plaintiffs’ allegations in 21st-century Detroit (as opposed to 1970s San Antonio) does not change that fact.
Endless Litigation Is Not the Answer
Even if there had been a way to reconcile Rodriguez in the Gary B. case, trying to improve schools through years of litigation decided by judges (particularly unaccountable, life-tenured federal judges) is not a model for success. Over the past 40 years in most states, litigants have launched challenges to the “adequacy” of school resources and student performance outcomes under state constitutional law. In his dissent in Gary B., Murphy summarized the problems inherent in asking the courts to resolve educational resource and policy debates that have no single “right” answer:
Consider, for example, questions about the root causes of poorly performing schools. The plaintiffs in this case allege that “high teacher turnover,” including heavy reliance on teachers from Teach for America, has partially caused the poor learning environments. A similar California suit, by contrast, alleged that the state’s tenure rules—which entrenched bad teachers in the state’s public schools—caused those poor learning environments. . . . Who’s right?
As to the further problem of how to remedy any proven deprivation of a federal right to education, Murphy observed: “Should states fix the problem of failing schools by sending more money into them? . . . Or should they fix the problem by giving children the choice to attend other schools?”
These same debates plague state constitutional litigation about educational quality, typically resulting in years of back-and-forth between the courts and state legislatures and officials. New Jersey, for example, has been entangled in one school-adequacy lawsuit since the 1980s, and that state’s supreme court has issued more than 20 opinions on various aspects of the case. In Kansas and Washington, the courts have threatened to hold, or have held, legislative bodies and executive officials in contempt for failing to abide by the court’s directives about funding levels. But even the most passionate advocates for increased school funding are unable to point to improved educational outcomes in these states as compared to similar states without a history of such contentious litigation.
A fundamental problem in these cases—which points to why we should be wary of the majority’s approach in Gary B.—is that in the adversarial process of litigation, only the specific parties to the case present the evidence and make the arguments to be resolved by the decisionmaker (that is, the judge). That system works well in resolving discrete legal disputes and in finding the truth in most cases, but not so well in school adequacy cases where there is no consensus about the answers to complicated empirical and policy questions about improving education (even with the assistance of experts). These limitations are exacerbated by the fact that in most cases, all the players who could plausibly affect school quality and student outcomes—for example, the state legislatures, local school boards, and teachers unions that influence factors such as the amount and allocation of resources; the content of what is being taught; the staffing of schools; and the accountability for poor performance—are not even parties to the lawsuit.
Effective education policymaking requires consensus among all relevant parties, not just litigants with a particular or narrow agenda. It requires trial and error and flexibility to innovate, to study, and to improve. It requires pragmatic consideration of the fact that we live in a world of limited resources, and that there are important government undertakings beyond schools (many of which also affect children and families) such as health care, welfare programs, transportation, the courts, and public safety. It requires balanced tax policy to ensure that government services are adequately funded and individuals and businesses have a fair shot at economic success. Courts are simply not designed to take all of these matters into account—they decide the discrete dispute in front of them. Justice Powell made the following observation almost 50 years ago in Rodriguez, quoting from a 1972 Supreme Court case, Jefferson v. Hackney. Powell’s words ring equally true today:
Education . . . presents a myriad of intractable economic, social, and even philosophical problems. . . . The very complexity of the problems of financing and managing a statewide public school system suggests that “there will be more than one constitutionally permissible method of solving them,” and that, within the limits of rationality, “the legislature’s efforts to tackle the problems” should be entitled to respect.
The sweeping application of a new federal right to education across all 50 states would only compound these concerns. It’s one thing for state courts to grapple with difficult questions in adequacy cases under the education clauses contained in varying state constitutions. It’s quite another for federal judges at any level to dictate the “correct” answers to those questions for everyone, everywhere, based on an “implicit” right to education under the U.S. Constitution discovered in 2020. People on all sides of the myriad debates about school quality and funding should be wary of inviting federal courts to supplant state and local decisionmaking (as well as decades of state-court jurisprudence) to such an extraordinary degree.
The Sixth Circuit’s panel’s decision in Gary B. would expand the role of the courts based on questionable legal reasoning and promote even more litigation about education policy and funding. That is not a good development in the law, and as experience over the past several decades indicates, an avalanche of lawsuits will not lead to improved student outcomes. It is now up to the full Sixth Circuit to recognize this.
Rocco Testani is a partner at Eversheds Sutherland (US) LLP and over the past 25 years has represented many states in school adequacy and funding lawsuits.