A Sixth Circuit panel held last week, in Gary B. v. Whitmer, that the Fourteenth Amendment’s Due Process Clause guarantees a “right to access to literacy.” As a result, students in some of Detroit’s worst-performing public schools may pursue their claim for improved educational offerings—at least absent further appellate review.

The district court dismissed the students’ due process claim because “a basic minimum education is not a fundamental right.” The Sixth Circuit panel majority (Clay (op.), Stranch, JJ.) disagreed. Its 61-page opinion relied on the ubiquity of public education at the time of Fourteenth Amendment’s ratification, the historical overlap between racial discrimination and education policy, and the necessity of literacy to political participation.

The dissent (Murphy, J.) objected to the court’s encroachment on state policymaking prerogative. The 23-page response emphasized the Supreme Court’s rejection of similar right-to-education claims in the equal protection and due process caselaw, as well as the inherent tension between the negative restrictions of the due process clause and the positive claims of the plaintifs’ complaint.

Unquestionably, both opinions are—to use Judge Murphy’s description of the majority—”eloquent.” But they are at loggerheads on questions fundamental to the notion of due process.

  • Is the right to literacy “implicit in the concept of ordered liberty,” or “a mere proxy for a right to education, which has long been rejected as a fundamental right”?
  • Is a “compulsory attendance” policy applied to a failing school a type of “arbitrary detention” prohibited going “back to Magna Carta,” or a duty students can choose to satisfy in a number of venues (charter, private, “cyber,” and home schools, for example).
  • Is a “fundamental right” under the substantive aspect of the Due Process Clause one whose “evolution” courts “trac[e] … through or even beyond the history of our country” (citing Obergefell), or one measured at the time of the clause’s ratification or incorporation?
  • Did Supreme Court precedents denying prior constitutional assertions of educational rights (San Antonio v. Rodriguez, Plyler v. Doe, Papasan v. Allain) reserve or foreclose the question of a right to access to literacy?
  • How if at all did the Michigan Supreme Court’s rejection of a similar claim under its state constitution’s specific free-public-education clause affect the application of the U.S. Constitution’s generic due-process provision?
  • And can the Due Process Clause’s negative restriction of state “depriv[ation]” of “life, liberty, or property” support a positive right to a “subsidy” to “compel a minimum level of public services” (in the dissent’s view)?

The decision represents a huge victory for friend-of-the-blog Carter Phillips and, more importantly, the Detroit student plaintiffs. Yet this will not be the courts’ last word on the matter. The decision suggests little about the showing plaintiffs must make (or relief they could justify) on remand. And before plaintiffs may focus on those questions, they may have to fend off en banc or cert petitions that at least some judges or justices could find compelling.