In Gary B. v. Whitmer, a divided panel of the Sixth Circuit last week held that the state of Michigan owed a constitutional duty to ensure that students in the worst performing public and charter schools in Detroit receive “a basic minimum education, meaning one that provides a chance at foundational literacy.” The logic behind this theory is straightforward enough. Illiterate young people have no ability to participate in democratic deliberations and no skills to support themselves or their families. And society overall is made worse off with fewer able participants to join a well-functioning economy.
In the majority opinion, Judge Eric Clay detailed the bankruptcy of Detroit’s public school system, whose dismal educational performance, he wrote, was driven by “the absence of qualified teachers, crumbling facilities, and insufficient materials.” He then correctly concluded that the state has general oversight and control over the educational system and is thus a proper constitutional target to remedy the bankrupt and derelict Detroit school system. The case was decided on the pleadings, which let the majority define its right to a minimum education without getting into the details of how best to implement the right in practice. One major problem with the decision is its inability to define the content of this positive right to government support. Full disclosure: Judge Eric Murphy, who dissented on these grounds, is my friend and former student.
Gary B. relies on Section 1983 of the Civil Rights Act, which enables federal courts to provide a remedy against any Governor or other state officials who have brought about “the deprivation of any rights, privileges, or immunities secured by the Constitution.” That Section covers violations of the Fourteenth Amendment, which provides that no person should be deprived of the protection of life, liberty, or property without due process of law, nor denied the equal protection of the laws.
Several notable silences in the record made it difficult for the majority to identify any alleged constitutional violations. The plaintiffs could not pinpoint any form of intentional racial discrimination in their school districts, which were populated almost entirely by African American and Hispanic students. Nor did their class action complaint make any reference to the per pupil expenditure in these schools: for example, Detroit schools on average received over $15,000 per pupil against a statewide average of about $10,000 per pupil in 2016-2017. Nor did the plaintiffs isolate particular causes for the massive failure in performance, notably choosing to remain silent on the role of teachers unions.
Their case was based solely upon the horrible outcomes, without any effort to identify the causes of failure. The plaintiffs also knew that they could not demand that the outcomes in these schools be the same as those in schools elsewhere in the state. The success of an education depends not only on how students are treated in the schools, but also on their own behavior, their family background, and support structures outside the school environment.
The majority properly rebuffed both an equal protection attack on the current practices, as well as the plaintiff’s novel theory that compulsory attendance deprived the students of their constitutional liberty without any offsetting educational justification. Instead, the majority endorsed a “substantive due process” claim that made it a “fundamental right” to receive a requisite minimum level of education. Substantive due process typically raises a red flag in constitutional theory—it is considered to be a massive intrusion of judicial power into matters that are best left to the political branches. But even if substantive due process is largely dead on economic matters, it still has some legs in dealing with the provision of public service in areas of education.
The notion is nonetheless always problematic, for as Judge Murphy elaborated in dissent, this remedy does not fit well within the constitutional framework that typically establishes a set of negative rights against government abuse, not a set of positive rights that the state must provide its citizens. The Supreme Court held as early as 1973 in San Antonio Independent School District v. Rodriguez that education was not a fundamental right, noting that “the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic legislation.” The majority in Gary B. thus had to twist and turn to establish some running room for some more limited fundamental right to literacy. Its case was somewhat bolstered by the Court’s 1982 decision in Plyler v. Doe, which explicitly recognized the importance of education, without labelling education a fundamental right.
In response, Judge Murphy ticked off all the difficulties that are associated with the judicial creation of positive rights. The standard negative right only demands that government honor individual liberty, and it does not presuppose any level of state benefits provided to any group of individuals. Nor must a theory of negative rights specify those individuals who are entitled to benefits and those who are not.
It was for that reason that the Supreme Court held in DeShaney v. Winnebago Count Department of Social Services (1989) that a Section 1983 action could not be maintained against the County’s Social Service Department after it repeatedly failed to intervene to protect 4-year-old Joshua DeShaney from being horribly beaten by his father, even though the Department well knew of the boy’s plight. The famous case reached a painful but necessary conclusion. The obvious concern from imposing liability in a tort system is protracted litigation, and even a single adverse judgment could wipe out the entire budget of a resource-stressed department, leaving thousands of vulnerable children without any state assistance whatsoever.
The tempting inference from DeShaney is that if government liability cannot be imposed on a single governmental department, how can it be imposed upon failed schools and school districts? In my view, the correct response is that government support for minimum literacy can avoid unliquidated tort claims by only using existing budgets to remedy the incurable defects of the current government monopoly for the provision of public education. The Michigan Constitution, like that of most other states, provides that the state legislature “shall maintain and support a system of free public elementary and secondary schools.” But if the various subdivisions of the state are unable to maintain the system, why should we suppose that the state can fix the problem by continuing the same practices that have led to the current breakdown?
A fresh approach is needed. In his dissent, Murphy asked whether the majority’s ruling should require the state to raise taxes to meet the new constitutional burden of minimum literacy, or otherwise require the court to “order states to give parents vouchers so that they may choose different schools.” Higher taxes would have been a nonstarter even before Michigan’s COVID-lockdown depleted state revenues.
But Murphy missed an opportunity to beat the majority at its own game by finding that if the state failed in its duty to supply minimum support for failing schools, then the proper alternative response relies on a mixed system of the kind used with some success in Camden, New Jersey that adopts a portfolio of strategies—public schools, vouchers, charter schools, religious schools, and home schooling—to promote competition both between different approaches to education and within each category.
It is critical to cure the fundamental defect with the Michigan scheme of public education, which lets the state both fund and run the educational system. As Milton Friedman wrote long ago in Capitalism and Freedom, these two functions are in principle divisible. The state can fund education but let others run it so as to upend the failed state monopoly system that has decimated the Detroit schools.
Such a scheme could redirect tax dollars used to fund failing schools to parents, who could use that money as they see fit to educate their children. This scheme would also prevent unions from blocking the entry into the market of competitive providers of educational services, like charter schools. All sorts of institutions may offer parents educational services for their children, and private intermediates can help guide parents choose the best option.
It is no accident that African American and Hispanic parents exhibit far stronger support for charter schools than do white Democrats. Charter schools and vouchers make it unnecessary for courts to engage in the kind of microscopic oversight that the protection of minimum literacy would entail. Parents and their support groups can do that themselves in a decentralized fashion.
No one can claim that this mixed system will be trouble-free. The embedded problems are too deep. But here the right question is whether it would outperform the current situation. My guess is the fundamental right created in Gary B. will not survive an attack before the current Supreme Court. Its notions of judicial restraint are too heavily engrained. But it is intolerable for the Michigan Governor and legislature to sit idly by while entire school systems go up in flames.