Grounding Breaking Case Identifies a New “Fundamental Right”: The Right to a Basic Education

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On April 23, 2020, a long-awaited and potentially historic ruling by the Sixth Circuit Court of Appeals was issued, which could have profound implications for the narrow canon of inviolable rights that we consider fundamental.  Gary B., et al. v. Whitmer, et al., which was decided by a 2-to-1 vote and is expected to be appealed to the Supreme Court, held that the fourteenth amendment of the US Constitution guarantees “a fundamental right to a basic minimum education,” notably including the right to learn to read.  While this question has actively been avoided by the US Supreme Court for nearly four decades, and specifically rejected by numerous other federal courts, lawyers representing the students of Detroit from five extremely low-performing schools took on this question and, for the first time in all of American judicial history, won.   

The plaintiffs’ lawyers, unable to point directly to a right to a basic education in the Constitution, had to locate this right in a more round-about way. They did this by pointing out that the right to a basic education is essential to the realization of other enumerated rights contained within the Constitution, and that it is implicit in others. To argue these points, the lawyers relied heavily on the importance, indeed the necessity, of having basic literacy skills in order to meaningfully participate in the US political system. The two judges writing the majority opinion agreed, writing that “[a]access to a foundational level of literacy — provided through public education — has an extensive historical legacy and is so central to our political and social system as to be ‘implicit in the concept of ordered liberty.’” Without a basic level of literacy, the judges held, it would be impossible to meaningfully participate in our democracy. 

Education activists consider this case the “holy grail of education advocacy: a federal fundamental right to education.” However, opponents view it as yet another example of judicial overreach that will lead to just another expensive entitlement program demanded by the electorate. They point out that while the case’s holding is indeed a narrow one —  it protects only “a basic minimum education,” focusing specifically on literacy — this is how much broader and more significant rights revolutions typically begin. Opponents also point to federalism, focusing on the right of individual states to handle education policy, and originalism, arguing that this is not what the framers of the Constitution intended.  

It’s difficult to argue, when one considers the dismal state of the Detroit schools that form the focus of this case — schools where teachers were chronically absent, where roaches and rats were rampant, where there was no heat or air conditioning, and where books and materials were entirely missing — that America’s children aren’t entitled to more and better.  However, creating new fundamental rights within the US Constitution is a profound and extremely consequential act that should be reserved for only the most exceptional and rare of situations.  Perhaps this is one of those situations? The Supreme Court will likely answer that question in the months ahead.