Sixth Circuit Recognizes a Fundamental Right to Basic Literacy for the First Time
The Supreme Court has long recognized that U.S. citizens do not have a constitutional right to a “general education." However, it has been vague about whether a “minimally adequate education" – for example, schools that teach the ability to read – is guaranteed by the Fourteenth Amendment. In the cases that have addressed this issue, the Supreme Court has always deferred. The Sixth Circuit was tired of waiting.
A Sixth Circuit panel recently found that failing to provide for access to basic literacy violates students' substantive due process rights. It is the first federal appeals court to recognize a fundamental right to literacy.
Detroit Schools Fail to Graduate Literate Students
Students at some of the worst-performing public schools in Detroit sued the state of Michigan, alleging that the state, which took control of the public school system in Detroit, violated the students' right to Equal Protection and Due Process.
The plaintiffs allege that their schools, which included three traditional public schools and two charter schools, were so lacking in qualified teachers, materials and a safe learning environment that students were denied access to even the most basic education. In its decision, the Sixth Circuit cataloged a parade of horrors students allegedly faced, including one instance where a student in eighth grade taught a math class to sixth and seventh graders for a month. In 2016, none of the school district's buildings were up to code. On hot days the school could reach 110 degrees, and in winter students were sent home because it was too cold.
This, unsurprisingly, led to poor student outcomes, with 90 percent of students failing to meet state requirements.
A Constitutional Violation?
The Sixth Circuit panel held that the plaintiffs failed to highlight any state actions that resulted in disparate treatment. While the plaintiffs described conditions at their own schools, they failed to describe how other schools operated differently or how the state treated Detroit schools differently. While the plaintiffs can amend their complaint, as it is the Sixth Circuit had no basis to side with them on their Equal Protection claim.
As for the second argument, however, the panel did find a constitutional right to literacy based on substantive due process. The Sixth Circuit panel wrote that “every meaningful interaction between a citizen and the state is predicated on a minimum level of literacy, meaning that access to literacy is necessary to access our political process." Further, the panel reasoned that public education has been a part of the U.S. since the Fourteenth Amendment was enacted in 1868, so the “historical prevalence of education supports the view that it is deeply rooted in our history and tradition, even under an originalist view." For example, 37 of 38 states in 1868 (when the Fourteenth Amendment was ratified) had provisions in their state constitutions mandating access to public education. As such, even though access to a “general education" is not a fundamental right, literacy is.
Will the Decision Stand?
The panel's reasoning may find critics should Michigan appeal. Many current members of both the Sixth Circuit and the Supreme Court take a negative view of substantive due process. Justice Thomas, for example, has written that he does “not regard the Fourteenth Amendment's Due Process Clause as a secret repository of substantive guarantees against "unfairness."
For now, the case heads back to the lower court to determine if Michigan met the minimal literacy requirement under the Sixth Circuit's new standard. Further developments in the case are likely, but for now, the mere fact that a federal appeals court recognized a right to literacy is noteworthy.
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