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A few thoughts about the 6th Circuit opinion in Gary B. v. Whitmer recognizing a fundamental right to a “basic minimum education” imparting literacy.
https://www.nbcnews.com/news/education/detroit-students-have-right-education-federal-appeals-court-rules-n1191046 via @nbcnews
https://www.nbcnews.com/news/education/detroit-students-have-right-education-federal-appeals-court-rules-n1191046 via @nbcnews
This is not the first “right to read” case. Before Gary B., there was L.M. which met an inglorious end…
ACLU sues Mich. over literacy https://www.washingtonpost.com/local/education/aclu-alleges-michigan-school-district-violated-students-right-to-learn-to-read/2012/07/11/gJQArf1jeW_story.html?tid=ss_tw
ACLU sues Mich. over literacy https://www.washingtonpost.com/local/education/aclu-alleges-michigan-school-district-violated-students-right-to-learn-to-read/2012/07/11/gJQArf1jeW_story.html?tid=ss_tw
A Michigan court of appeals abdicated its duty to decide the merits of L.M., deeming it ill-suited for judicial intervention. The Michigan Supreme Court also declined to consider the case.
See @Prof_KBowman “The Failure of Education Federalism” https://bit.ly/2yNfqTb
See @Prof_KBowman “The Failure of Education Federalism” https://bit.ly/2yNfqTb
So, Gary B. – seeking federal court recognition of a right to education under the U.S. Constitution – was necessary because Michigan state courts had repeatedly failed to give any meaningful effect to the right to education under the Michigan Constitution.
That point should not be lost in all the buzz about Gary B. because, had Michigan courts recognized the state right to education guarantees an “adequate and equitable” education as other state courts have held, it would have demanded more than a “basic minimum education."
The case is indicative of a new chapter in American education in which advocates are resorting to unconventional means to solve grave inequities in schools, @aliaemily reports https://www.theatlantic.com/education/archive/2018/07/no-right-become-literate/564545/?utm_source=twitter&utm_medium=social&utm_campaign=share
All of this is not to diminish the significance of Gary B v. Whitmer, a courageous opinion…
The court rules that plaintiffs’ equal protection (EP) claim fails because the complaint lacks allegations that Michigan discriminated against them. Allegations that Michigan is treating plaintiffs differently, the court says, are presently inadequate, though possibly curable.
But the real problem here is with federal EP doctrine, not plaintiffs’ allegations.
Federal EP doctrine doesn’t permit plaintiffs to allege what they should—that disadvantaged students should be treated differently because they have greater educational needs which means it cost more to educate them properly.
The reality is that plaintiffs attending these high-poverty schools need more, not equal, resources under better, not simply the same, conditions as low-poverty schools.
Such needs-based equity principles have been recognized by state courts interpreting state rights to education where federal EP doctrine presents no barrier.
So even if Gary B. plaintiffs were able allege discrimination, it will be a small victory so long as federal EP doctrine embraces only nondiscrimination rather than substantive equality of opportunity.
Although the court rules that plaintiffs’ substantive due process claim is adequately alleged and thus can be pursued, possibly to trial, the chances of the case actually making it to trial are slim, as @ehutt1 @AaronTangLaw & @DanielKlasik explain: https://nyti.ms/3cLe2zg
Even still the court’s thorough and persuasive reasoning on the substantive due process claim is worth consideration…
The court’s conclusion that a federal right to education is deeply rooted in American history & tradition “even under an originalist view,” is amply supported by @DerekWBlack research in “The Fundamental Right to Education” @NotreDameLRev https://scholarship.law.nd.edu/ndlr/vol94/iss3/2/
The court’s conclusion that a basic minimum education imparting literacy is essential to democratic participation in our political system and thus “implicit in the ordered liberty of our nation” also seems beyond credible dispute.
Things get really interesting for me in a footnote (of course) where the court implies that, post-Obergefell, a federal right to education could be supported by the convergence of equal protection and substantive due process.
That was the conclusion I reached first in this @AlaLawReview article “Reconstituting the Right to Education” https://ssrn.com/abstract=2711910, and later refined in “Protecting a Federal Right to Educational Equality and Adequacy” https://ssrn.com/abstract=3171006
The convergence of equality and liberty is essential to the right to education, as I further explained in this @WMLawReview article: https://ssrn.com/abstract=2995655
I could go on and on about the Gary B. opinion. There is so much more to say, but this thread is already insufferably long. If you’ve made it this far, you should seriously consider….
…this recent book, A Federal Right to Education: Fundamental Questions for Our Democracy featuring @ProfKJRobinson @DerekWBlack @Prof_KBowman @epasachoff @LDH_ed @JasonPNance and others not on Twitter.
https://www.amazon.com/dp/1479893285/ref=cm_sw_r_tw_dp_U_x_7mUPEbRZQZ0X6 via @amazon
https://www.amazon.com/dp/1479893285/ref=cm_sw_r_tw_dp_U_x_7mUPEbRZQZ0X6 via @amazon
