Columns on this website that examine judicial rulings tend to focus on the very last stage of litigation—a U.S. Supreme Court decision. In the space below, however, I want to discuss a potentially significant case that is in its earliest stages. Last week, a class action lawsuit entitled Gary B. v. Snyder was filed in federal district court in Detroit on behalf of children who attend some of the most dilapidated and lowest-performing Detroit public schools. The defendants are the Governor and various other state officials, who plaintiffs allege are violating the constitutional rights of Detroit children by depriving students of their “fundamental right” to literacy under the Fourteenth Amendment’s due process and equal protection clauses.
The Snyder Complaint—crafted by a high-powered team of litigators that includes Mark Rosenbaum from Public Counsel, famed Supreme Court specialist Carter Phillips from the Sidley Austin law firm, as well as two prominent law school deans (one sitting and one former)—recites in heart-wrenching detail (its allegations span 129 pages) the physical, curricular, and human resource shortcomings of the schools attended by the plaintiffs. The Complaint also carefully documents the woeful underperformance of the students at these schools, as compared to other schools in the state and also to the state’s competency baselines established for various grade levels. It is hard to believe the conditions laid out in the Complaint exist in 21st Century America; at times the allegations seem more like the setting of a Dickens novel.
But the case is noteworthy not just for the factual light it might shed on Detroit school conditions and performance. The Complaint also lays out an ambitious legal theory, effectively asking the federal court to apply “heightened scrutiny” to what is going on in Detroit, and urging it not to apply the deference ordinarily given to state and local school officials concerning their administration of public education. The Complaint identifies two related but distinct grounds for judicial skepticism. One is a familiar equal protection concern for disempowered groups—the Complaint describes the plaintiffs as a “discrete class,” almost all of whom are “low income children of color.”
Putting aside the racial and socioeconomic makeup of the victims, the Complaint also asserts that heightened judicial oversight is warranted because in the Fourteenth Amendment’s due process clause there is a “fundamental right of access to literacy,” which presupposes better facilities, better instructional materials, and better teacher training than exist in Detroit. In asserting a federal “fundamental right” to literacy under the so-called “substantive due process doctrine” of the Fourteenth Amendment, the lawsuit is path-breaking, and perhaps ultimately destined for the Supreme Court.
How likely is the lawsuit to succeed? That is hard to say. Certainly relevant is that the Supreme Court in 1973 (in the San Antonio Independent School District v. Rodriguez case) explicitly declined to find education to be a “fundamental” right or interest that would justify heightened scrutiny in the context of a challenge to Texas laws that resulted in differential financing and administration of public education within the state. But perhaps equally important is how the Court in Rodriguez did highlight the importance of education to the exercise of the constitutional rights of expression and political participation, and what the Court said in holding open the possibility that if a state deprived a student the opportunity for a “basic” minimal education essential for someone to operate in American democracy, heightened scrutiny might be appropriate. The Court explained, in language that has since been repeated by the Justices, that:
[w]hatever merit appellees’ argument might have if a State’s . . . system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where . . . no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.
In asserting that many Detroit public school children lack any realistic chance at literacy (defined in the Complaint in various ways but focused on the ability “to use language to engage with the world—to understand, analyze, synthesize, reflect and critique”), the Complaint seeks to locate the conditions in Detroit precisely within the contours of the question the Court held open in Rodriguez. Indeed, the Complaint at various points links its concept of literacy directly to expressive and political rights (including military service), saying that literacy is essential not only to success in the workplace and higher education, but also (importantly) to “be[ing] an informed citizen capable of participating in democracy.”
This emphasis on political rights is relevant not just to the “fundamental rights” argument plaintiffs make; it also informs their claims of racial inequality under the equal protection clause. The Supreme Court ordinarily employs some form of strict scrutiny under equal protection for racial discrimination only when government explicitly classifies people on racial lines, or subjectively favors some races over others. A law that is neither overtly based on race nor motivated by a racially unequal mindset, but which has a “disparate impact” (or differential effect) along racial lines, is subject only to “rationality review,” under which courts defer a great deal to whatever a legislature has decided to do.
It is usually very hard to prove that racial favoritism lies behind facially neutral government actions that generate racially disparate impacts, but the one area where the Court has tended to infer impermissible intent from unequal racial effect is the political rights realm. In the voting rights and jury contexts, for example, the intent requirement of the Fourteenth and Fifteenth Amendments has been watered down such that the Court has been much more willing to accept a disparate impact theory than in other areas of equal protection law. To me, this makes some sense, insofar as the deference the Court generally affords the legislature with respect to laws that create disparate racial effects is itself implicitly premised on a fair and legitimate political process that is producing the laws to which deference is owed. But if certain racial groups are excluded in fact from political participation, then deference to the outcomes of the political process seems less warranted. For that reason, in the political rights realm, the Court has tended to care about whether traditionally disempowered groups are afforded actual—and not just hypothetical—inclusion in the political processes of voting and jury service (and perhaps also military service).
And the Court’s jurisprudence concerning racial fairness in education—from Brown v. Board of Education in 1954 (which struck down school segregation) through Grutter v. Bollinger in 2003 (which upheld the University of Michigan Law School’s race-based affirmative action program)—consistently links education to political participation. For example, in reaching its result, the Court’s majority opinion in Grutter stressed that access to law school determines opportunities not only for good jobs, but also for political power. For the Grutter Court, it was important that law schools are places that train political leaders—congresspersons, Senators, federal judges, and military top brass—in addition to corporate executives. And the Snyder Complaint seeks to build on that relationship between education and self-governance.
So the legal theories the Snyder plaintiffs assert are not foreclosed by Supreme Court precedent, and in some ways find support in it. Yet there are still major hurdles to clear. One, in connection with the fundamental rights tack, is explaining why literacy via education should be considered a fundamental right when other things that are, in practical terms, also essential to political participation and expression—such as housing and health care—are not. The Rodriguez Court was very mindful of not wanting to extend the list of unenumerated fundamental rights (which already includes things like voting, marriage, interstate travel, and procreative and sexual autonomy) in a way that pulls the Court down a slippery slope. So convincing the federal courts that education is distinctively valuable (perhaps more so than a minimum income, shelter, and healthcare) is an important and formidable task.
A related hurdle also identified by the Court in Rodriguez is that a fundamental right to a minimally adequate education is different than other fundamental rights the Court has already recognized, insofar as assertion of a right to a minimal education is an affirmative claim that government must extend support farther than it is currently doing, rather than an argument that government must simply refrain from interfering with private conduct. I think this argument was overstated in Rodriguez. Some of the areas in which the Court has talked about fundamental rights—such as interstate travel or access to contraception—may involve situations in which the courts are telling government simply to stop regulating or interfering with consensual private conduct. But when we call voting or marriage a fundamental right that triggers strict scrutiny, we may have strayed across the negative/affirmative rights line; elections and civil marriages don’t take place without the government affirmatively facilitating them. In any event, as the Snyder Complaint repeatedly points out, the State of Michigan (like other states) has made attendance in some kind of state-approved school compulsory, so the State is already interfering with private choices in this realm, and in ways that allegedly make it nigh impossible for Detroit children to attain literacy.
But the affirmative/negative rights line does implicitly bring up probably the biggest hurdle for the plaintiffs—the practical and logistical concerns about appropriate remedies that might disincline federal courts to get deeply involved in decisions about school facilities, curricula, teacher training, and the like. Most of the other settings in which the Court has recognized a fundamental right do not involve the remedial complexity the Snyder case implicates. And as the Court cautioned in Rodriguez, at a time when the federal judiciary was in the midst of a mixed experience of federal judicial oversight over busing, pupil reassignment, and other aspects of the federal judicial effort to eliminate the vestiges of racial school segregation:
We stand on familiar ground when we continue to acknowledge that the Justices of this Court lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues. . . . In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court’s lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education, perhaps even more than welfare assistance, presents a myriad of ‘intractable economic, social, and even philosophical problems.’ The very complexity of the problems of financing and managing a . . . public school system suggests that ‘there will be more than one constitutionally permissible method of solving them,’ and that, within the limits of rationality, ‘the legislature’s efforts to tackle the problems’ should be entitled to respect.
At the end of the day, as daunting as these remedial obstacles are, the time may be ripe for the filing of a lawsuit like Snyder. As I noted in an earlier column, last year’s same-sex marriage case has breathed new life into the doctrine of substantive due process (as distinguished from equal protection) and has shown that the Court is willing to recognize new liberties that are not explicitly mentioned in the Constitution. Depending on the presidential and Senate elections, soon the Court may, for the first time since late spring of 1969 (before Neil Armstrong set foot on the moon), have a majority of Justices appointed by Democrat presidents. Moreover, the state law challenges to educational attainment that have been filed in many state courts have met with only limited success (in part because of state law barriers to justiciability). Add to all this the fact that the conditions and attainment in Detroit are so bad, and it is reasonable to conclude there is much to possibly gain and quite little to lose in taking a shot under the federal Constitution. Even as to the remedial complexity, federal courts have learned much over the last 40 years (since Rodriguez was decided) so that they may feel more confident about providing meaningful relief in ways that avoid some of the glitches they experienced during the first phase of desegregation. At a minimum, perhaps federal judges would be open to declaring a constitutional violation even if they feel unable to craft detailed remedies, in a way that will put more pressure on state legislative and executive authorities to do something big. Anything to increase political attention to these issues would be to the good.