In a Case with Blockbuster Potential, Detroit School Children Assert a Federal Constitutional Right to Literacy
Why this case is important, says the author:
" The Complaint also lays out an ambitious legal theory, effectively asking the federal court to apply “heightened scrutiny” to what is going on in Detroit, and urging it not to apply the deference ordinarily given to state and local school officials concerning their administration of public education. The Complaint identifies two related but distinct grounds for judicial skepticism. One is a familiar equal protection concern for disempowered groups—the Complaint describes the plaintiffs as a “discrete class,” almost all of whom are “low income children of color.”
Columns on
this website that examine judicial rulings tend to focus on the very last stage
of litigation—a U.S. Supreme Court decision. In the space below, however, I
want to discuss a potentially significant case that is in its earliest stages.
Last week, a class action lawsuit entitled Gary B. v.
Snyder was filed
in federal district court in Detroit on behalf of children who attend some of
the most dilapidated and lowest-performing Detroit public schools. The
defendants are the Governor and various other state officials, who plaintiffs
allege are violating the constitutional rights of Detroit children by depriving
students of their “fundamental right” to literacy under the Fourteenth
Amendment’s due process and equal protection clauses.
The Snyder Complaint—crafted
by a high-powered team of litigators that includes Mark Rosenbaum from Public
Counsel, famed Supreme Court specialist Carter Phillips from the Sidley Austin
law firm, as well as two prominent law school deans (one sitting and one former)—recites
in heart-wrenching detail (its allegations span 129 pages) the physical,
curricular, and human resource shortcomings of the schools attended by the
plaintiffs. The Complaint also carefully documents the woeful underperformance
of the students at these schools, as compared to other schools in the state and
also to the state’s competency baselines established for various grade levels.
It is hard to believe the conditions laid out in the Complaint exist in 21st Century
America; at times the allegations seem more like the setting of a Dickens
novel.
But the case is noteworthy not just for the factual light
it might shed on Detroit school conditions and performance. The Complaint also
lays out an ambitious legal theory, effectively asking the federal court to
apply “heightened scrutiny” to what is going on in Detroit, and urging it not
to apply the deference ordinarily given to state and local school officials
concerning their administration of public education. The Complaint
identifies two related but distinct grounds for judicial skepticism. One is a
familiar equal protection concern for disempowered groups—the Complaint
describes the plaintiffs as a “discrete class,” almost all of whom are “low
income children of color.”
Putting aside the racial and socioeconomic makeup of the
victims, the Complaint also asserts that heightened judicial oversight is
warranted because in the Fourteenth Amendment’s due process clause there is a
“fundamental right of access to literacy,” which presupposes better facilities,
better instructional materials, and better teacher training than exist in
Detroit. In asserting a federal “fundamental right” to literacy under the
so-called “substantive due process doctrine” of the Fourteenth Amendment, the
lawsuit is path-breaking, and perhaps ultimately destined for the Supreme
Court.
How likely is the lawsuit to succeed? That is hard to say.
Certainly relevant is that the Supreme Court in 1973 (in the San Antonio
Independent School District v. Rodriguez case) explicitly declined to find
education to be a “fundamental” right or interest that would justify heightened
scrutiny in the context of a challenge to Texas laws that resulted in
differential financing and administration of public education within the state.
But perhaps equally important is how the Court in Rodriguez did highlight the importance of
education to the exercise of the constitutional rights of expression and
political participation, and what the Court said in holding open the
possibility that if a state deprived a student the opportunity for a “basic”
minimal education essential for someone to operate in American democracy,
heightened scrutiny might be appropriate. The Court explained, in language that
has since been repeated by the Justices, that:
[w]hatever merit appellees’ argument might have if a
State’s . . . system occasioned an absolute denial of educational opportunities
to any of its children, that argument provides no basis for finding an
interference with fundamental rights where . . . no charge fairly could be made
that the system fails to provide each child with an opportunity to acquire the
basic minimal skills necessary for the enjoyment of the rights of speech and of
full participation in the political process.
In asserting that many Detroit public school children lack
any realistic chance at literacy (defined in the Complaint in various ways but
focused on the ability “to use language to engage with the world—to understand,
analyze, synthesize, reflect and critique”), the Complaint seeks to locate the
conditions in Detroit precisely within the contours of the question the Court
held open inRodriguez. Indeed, the
Complaint at various points links its concept of literacy directly to expressive
and political rights (including military service), saying that literacy is
essential not only to success in the workplace and higher education, but also
(importantly) to “be[ing] an informed citizen capable of participating in
democracy.”
This emphasis on political rights is relevant not just to
the “fundamental rights” argument plaintiffs make; it also informs their claims
of racial inequality under the equal protection clause. The Supreme Court
ordinarily employs some form of strict scrutiny under equal protection for
racial discrimination only when government explicitly classifies people on
racial lines, or subjectively favors some races over others. A law that is
neither overtly based on race nor motivated by a racially unequal mindset, but which
has a “disparate impact” (or differential effect) along racial lines, is
subject only to “rationality review,” under which courts defer a great deal to
whatever a legislature has decided to do.
It is usually very hard to prove that racial favoritism lies
behind facially neutral government actions that generate racially disparate
impacts, but the one area where the Court has tended to infer impermissible
intent from unequal racial effect is the political rights realm. In the voting
rights and jury contexts, for example, the intent requirement of the Fourteenth
and Fifteenth Amendments has been watered down such that the Court has been
much more willing to accept a disparate impact theory than in other areas of
equal protection law. To me, this makes some sense, insofar as the deference
the Court generally affords the legislature with respect to laws that create
disparate racial effects is itself implicitly premised on a fair and legitimate
political process that is producing the laws to which deference is owed. But if
certain racial groups are excluded in fact from political participation, then
deference to the outcomes of the political process seems less warranted. For
that reason, in the political rights realm, the Court has tended to care about
whether traditionally disempowered groups are afforded actual—and not just
hypothetical—inclusion in the political processes of voting and jury service
(and perhaps also military service).
And the Court’s jurisprudence concerning racial fairness in
education—from Brown v. Board of Education in 1954 (which struck down school
segregation) through Grutter v. Bollinger in 2003 (which upheld the University
of Michigan Law School’s race-based affirmative action program)—consistently
links education to political participation. For example, in reaching its
result, the Court’s majority opinion in Grutter stressed
that access to law school determines opportunities not only for good jobs, but
also for political power. For the Grutter Court,
it was important that law schools are places that train political
leaders—congresspersons, Senators, federal judges, and military top brass—in addition to corporate executives. And
the Snyder Complaint seeks to build on that
relationship between education and self-governance.
So the legal theories the Snyder plaintiffs
assert are not foreclosed by Supreme Court precedent, and in some ways find
support in it. Yet there are still major hurdles to clear. One, in connection
with the fundamental rights tack, is explaining why literacy via education
should be considered a fundamental right when other things that are, in
practical terms, also essential to political participation and expression—such
as housing and health care—are not. The Rodriguez Court
was very mindful of not wanting to extend the list of unenumerated fundamental
rights (which already includes things like voting, marriage, interstate travel,
and procreative and sexual autonomy) in a way that pulls the Court down a
slippery slope. So convincing the federal courts that education is
distinctively valuable (perhaps more so than a minimum income, shelter, and
healthcare) is an important and formidable task.
A related hurdle also identified by the Court in Rodriguez is that a fundamental right to a
minimally adequate education is different than other fundamental rights the
Court has already recognized, insofar as assertion of a right to a minimal
education is an affirmative claim that government must extend support farther
than it is currently doing, rather than an argument that government must simply
refrain from interfering with private conduct. I think this argument was
overstated in Rodriguez. Some of the areas in which the
Court has talked about fundamental rights—such as interstate travel or access
to contraception—may involve situations in which the courts are telling
government simply to stop regulating or interfering with consensual private
conduct. But when we call voting or marriage a fundamental right that triggers
strict scrutiny, we may have strayed across the negative/affirmative rights
line; elections and civil marriages don’t take place without the government
affirmatively facilitating them. In any event, as the SnyderComplaint
repeatedly points out, the State of Michigan (like other states) has made
attendance in some kind of state-approved school compulsory, so the State is
already interfering with private choices in this realm, and in ways that
allegedly make it nigh impossible for Detroit children to attain literacy.
But the affirmative/negative rights line does implicitly
bring up probably the biggest hurdle for the plaintiffs—the
practical and logistical concerns about appropriate remedies that might
disincline federal courts to get deeply involved in decisions about school
facilities, curricula, teacher training, and the like. Most of the other
settings in which the Court has recognized a fundamental right do not involve
the remedial complexity the Snyder case
implicates. And as the Court cautioned in Rodriguez, at a time when the federal
judiciary was in the midst of a mixed experience of federal judicial oversight
over busing, pupil reassignment, and other aspects of the federal judicial
effort to eliminate the vestiges of racial school segregation:
We stand on familiar ground when we continue to acknowledge
that the Justices of this Court lack both the expertise and the familiarity
with local problems so necessary to the making of wise decisions with respect
to the raising and disposition of public revenues. . . . In addition to matters
of fiscal policy, this case also involves the most persistent and difficult
questions of educational policy, another area in which this Court’s lack of
specialized knowledge and experience counsels against premature interference
with the informed judgments made at the state and local levels. Education, perhaps
even more than welfare assistance, presents a myriad of ‘intractable economic,
social, and even philosophical problems.’ The very complexity of the problems
of financing and managing a . . . 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.
At the end of the day, as daunting as these remedial
obstacles are, the time may be ripe for the filing of a lawsuit like Snyder.
As I noted in an earlier
column, last year’s same-sex marriage case has breathed new life
into the doctrine of substantive due process (as distinguished from equal
protection) and has shown that the Court is willing to recognize new liberties
that are not explicitly mentioned in the Constitution. Depending on the
presidential and Senate elections, soon the Court may, for the first time since
late spring of 1969 (before Neil Armstrong set foot on the moon), have a
majority of Justices appointed by Democrat presidents. Moreover, the state law
challenges to educational attainment that have been filed in many state courts
have met with only limited success (in part because of state law barriers to
justiciability). Add to all this the fact that the conditions and attainment in
Detroit are so bad, and it is reasonable to conclude there is much to possibly
gain and quite little to lose in taking a shot under the federal Constitution.
Even as to the remedial complexity, federal courts have learned much over the
last 40 years (since Rodriguez was
decided) so that they may feel more confident about providing meaningful relief
in ways that avoid some of the glitches they experienced during the first phase
of desegregation. At a minimum, perhaps federal judges would be open to
declaring a constitutional violation even if they feel unable to craft detailed
remedies, in a way that will put more pressure on state legislative and
executive authorities to do something big. Anything to increase political
attention to these issues would be to the good.