Note: Dean Evan Caminker serves as co-counsel for the plaintiffs in this case.
As we experience the coronavirus pandemic’s tragic consequences and hope for the day when “things return to normal,” it might be more difficult than usual to recognize that for some, “normal” conditions are egregious. That’s certainly true for poor and minority schoolchildren who attend abysmally-equipped and poor-performing public schools in small pockets around the country.
Last week the U.S. Court of Appeals for the Sixth Circuit in Gary B. v. Whitmer took a small remedial step, but significant doctrinal jump, to address this normalized crisis. In a 2-1 decision, the court held that the Fourteenth Amendment’s Due Process Clause secures schoolchildren a fundamental right to a “basic minimum education” that “can plausibly impart literacy.” These days, any substantive due process reasoning will invite scrutiny.
But the decision is most remarkable—at least on the surface—because it embraces a self-described positive right, requiring a state affirmatively to provide a public service to its constituents. Indeed, while the dissent contests the majority’s substantive due process reasoning, the dissent primarily protests that our Constitution protects only negative rights, proscribing only state action and never inaction.
In my view, the supposed dichotomy between positive and negative rights is not always as stark as canonically claimed. Indeed, the court’s reasoning actually sows the seeds for a more nuanced understanding, whereby the right to a basic minimum education partakes of features of both sorts of rights, and thus fits more comfortably within our constitutional tradition than at first might appear.
The plaintiffs, students at several of Detroit’s worst-equipped and worst-performing public schools, highlighted the schools’ many outrageous shortcomings, including:
- a significant shortfall of qualified teachers—students are frequently taught by non-certificated paraprofessionals or substitutes or even each other (an eight-grader taught math for a month); many teachers cover classes outside of their fields of expertise; classes are regularly canceled with students sent to the gym.
- decrepit physical conditions “mak[ing] learning nearly impossible”—classrooms with rats, falling ceiling tiles, and broken windows; broken or contaminated drinking fountains and toilets; broken furnaces causing schools to close in the heat and leading students to see their breath in the cold.
- a dearth of educational materials—textbooks too few to go around, and so old that Bill Clinton is still President, meaning “teachers could not assign meaningful homework”; so few pencils and little paper that teachers scrounge for supplies at personal expense.
The complaint reads like a bleak Dickens novel: in sum, “Plaintiffs sit in classrooms where not even the pretense of education takes place, in schools that are functionally incapable of delivering access to literacy.”
In 2016, the students sued the Michigan governor and various officials who supervised the state’s public education system, including by appointing managers to essentially take over schools in Detroit for much of this century. The section 1983 suit asserted several due process and equal protection claims, including the one discussed here. A federal district court granted the state’s motion to dismiss on the pleadings.
The Sixth Circuit’s Decision
Writing for the court, Judge Eric Clay (joined by Judge Jane Stranch) affirmed the district court’s rulings on several legal issues, and turned to the claimed right of access to literacy. Here I can only sketch the opinion’s contours. While the holding is novel, the reasoning process is familiar.
The court first canvassed precedent to determine the claim was not foreclosed. Though some fifty years ago the Supreme Court in Rodriguez v. San Antonio Independent School District found no “broad, general right to education,” the Court explicitly held open (there and subsequently) “whether a minimally adequate education is a fundamental right
The majority then applied the Supreme Court’s substantive due process jurisprudence, which “protects those fundamental rights and liberties” which are both “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” First, the court found the first part of the test satisfied because “state-provided education is ubiquitous throughout all but the earlier days of the United States.” Indeed, when the Fourteenth Amendment was ratified, 36 of 37 states covering 92% of the population embraced a state constitutional duty to provide a public-school education, with a Fourteenth Amendment framer viewing state schools as “part of the republican form of government.”
The court next determined that a basic education “plausibly provid[ing] access to literacy” is “implicit in the concept of ordered liberty” because it “is necessary for even the most limited participation in our country’s democracy.” The court detailed how access to literacy is a prerequisite to exercising other fundamental rights and participating in our political system, as well as a “means of achieving equality in our society.” This notion, that “constitutional rights necessarily protect the prerequisites for their exercise” (I’m borrowing Justice Clarence Thomas’s phrase), echoes that recently used to support a right to access shooting ranges as necessary to bolster the core right to bear arms in self-defense.
After addressing the dissent’s objections to embracing a positive right (discussed more fully below), the court emphasized that “the right defined in this opinion is narrow in scope”: it entails neither an equal education nor anything close, nor a uniform approach across the state. Rather, the right requires the state simply to provide students some flexible combination of facilities, teaching, and books/materials that “can plausibly give [them] the ability to learn how to read.” As I’ve said elsewhere, the kids aren’t asking for a Cadillac, or even a beat-up Kia. They deserve something more than Fred Flintstone’s car.
In dissent, Judge Eric Murphy agreed both that education plays a “vital role . . . in a free society” and that the alleged school conditions “would significantly impair any child’s ability to learn.” But he otherwise challenged the majority’s substantive due process reasoning on multiple fronts. He claimed that it “faces stiff precedential headwinds,” reads too much into the history of state-sponsored education and uses an overly broad and vague definition of the liberty interest at stake, undermines federalism values, and requires policy judgments straining courts’ remedial competence.
But Judge Murphy’s primary charge was that the “Due Process Clause has historically been viewed . . . as a negative limit” on state action and not “as a positive command for the states to protect liberty.” He correctly observeed that the Clause’s textual command not to “deprive” is a “poor choice of words” for a duty to act (though of course the Supreme Court elsewhere embraces non-ordinary meanings when persuaded by countervailing principles—think Eleventh Amendment immunity). Judge Murphy also cited many Court rulings tracking a positive / negative right distinction. The Court has rejected claims that states must provide various substantive services (such as food or housing) or must subsidize the exercise of fundamental rights (such as abortions or speech). In the dissent’s view, the Supreme Court foreclosed debate when it summarized in DeShaney v. Winnebago County Department of Social Services that the “Due Process Clause generally confers ‘no affirmative rights to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.’”
Of course, what’s “generally” true is not always so. States must provide various goods and services to individuals in a broad array of situations—lawyers to some and jury trials to all criminal defendants, food and medical care to inmates and others in various forms of custody, and more. In such cases, Judge Murphy countered, states have voluntarily acted in some antecedent way so as to trigger the seemingly affirmative duty—prosecuting someone, asserting custody over someone, etc. And in most of these cases, the state-action trigger itself looks like a “deprivation” in the ordinary sense.
So the issue appears joined. And yet there is a middle ground, toward which Judge Clay cryptically pointed. In this unique context, the negative-rights-only conviction need not derail the court’s substantive due process reasoning.
A Right of Access to Literacy: Positive, Negative, or Both?
Responding to the dissent’s missive, Judge Clay first observed that the Supreme Court has repeatedly recognized at least one truly positive right—to marry. He cited a line of cases leading to Obergefell v. Hodges’ declaration that “marriage is a fundamental right and must be provided by the state without undue restriction.” Judge Murphy contested this positive-right characterization and contended the decision demands only equality, though on balance Obergefell’s language (“No longer may this liberty be denied”) and protesting dissents strongly support Judge Clay’s reading.
But Judge Clay’s second response is more intriguing. He noted that DeShaney spawned a state-created danger doctrine, under which a state must sometimes protect people from harms it helped create. And the initial state-action trigger can take a variety of forms, which need not remotely resemble a depriving act (citing, for instance, the Sixth Circuit’s decision in Kallstrom v. City of Columbus holding city officials violated the Due Process Clause by disclosing undercover police officers’ personnel files to gang-related drug conspirators’ counsel). So even under the traditional view, due process rights can turn on how capaciously one defines antecedent state action.
And then Judge Clay suggested the unique circumstances of historically embedded public education involve sufficient antecedent state action to trigger an affirmative duty. Although DeShaney “generally” requires a more proximate relation between the antecedent state action and claimed injury, “education is different”:
 [U[niversal state-provided public education was nearly ubiquitous at the time the Fourteenth Amendment was adopted, and has only grown since then to be expected as a given by the public.  Through this, the state has come to effectively occupy the field in public education, and so is the only practical source of learning for the vast majority of students.  We can think of no other area of day-to-day life that is so directly controlled by the state.  And with that control must come responsibility, particularly because some minimal education—enough to provide access to literacy—is a prerequisite to a citizen’s participation in our political process.  DeShaney implied such a responsibility, resting its holding on the fact that the state had played no role in creating or worsening the threat of harm the victim faced.
This response speaks obliquely of expectations, reliance, and disadvantage. One might unpack this terse claim as follows:
 The historical commitment to public education creates a firm and legitimate expectation that the state will make good on its promise. Like their recognition of marriage, states’ longstanding and universal provision of public education is woven within the fabric of society, such that we reasonably take it “as a given.”
 This expectation begets reasonable reliance interests, in two senses. For many children, and especially those in schools that “serve almost exclusively low-income children of color,” public education is the only game in town. The dissent correctly noted that the state’s monopoly is not complete; children may instead attend private schools or be home-schooled. But either option requires substantial resources (money and free time) that these children’s parent(s) lack. Second and crucially, the children’s ability to seek an education elsewhere likely has, over time, been compromised by the state’s “effectively occupy[ing] the field.” Absent the state’s longstanding promise, families might well have organized their lives and communities differently, or perhaps private charities would have created options for educating poor children with working parent(s). Because of Michigan’s previous action, if the state terminated free education today these children might well face greater difficulty fending for themselves than had Michigan never taken on this obligation in the first place.
 That education is compulsory makes reliance all the more reasonable. When the state instructs parents “you must educate your kids; send them to private schools (at substantial cost), teach them yourselves at home (requiring significant time), or let us do it for free,” it’s no wonder that, absent special interests or circumstances, people—especially those less privileged—organize their lives around this third option. And because public school enrollees must spend the bulk of the day there, the commitment certainly makes it harder for them to self-learn on their own time.
 In assessing these reliance interests, it matters that education is not “merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation.” Because it’s “a prerequisite to a citizen’s participation in our political process,” all the more reason to credit these reliance interests.
There are two ways of concluding this line of reasoning. One is Judge Clay’s , where he tracks the state-created danger analogy by suggesting that Michigan’s commitment to educate leaves the schoolchildren worse off when the state breaks its promise.
The second accepts the state’s “history and tradition” of providing public education as establishing an expectation-based baseline, against which the current state act of functionally excluding schoolchildren is reasonably perceived and appropriately viewed as “depriving.” This second ending also nicely fits the right to marriage storyline: given states’ historic support for the institution of marriage and its centrality to “ordered liberty,” someone excluded from the institution by dint of race, prisoner status, child support arrears, or sexual orientation is properly viewed, in Obergefell’s words, as being “deprived of that right,” in a text-satisfying sense.
So, connecting the dots, one could but need not characterize the right in question as “positive” even though the court occasionally described it that way. Rather than viewing the state obligation as springing directly from the Constitution, the obligation can instead be traced—admittedly in an attenuated way, though justifiably so under the special circumstances just explained—to the state’s antecedent actions that put the plaintiff schoolchildren in their current predicament: “relegated to a school system that does not provide even a plausible chance to attain literacy.”
Responding to heartbreaking conditions, Gary B v. Whitmer is in many respects a pathbreaking decision. But it need not be considered so for “mark[ing] a drastic change in our understanding of the Constitution,” given the nature of the right it declared. If one accepts the court’s due process reasoning, one can accept the state’s remedial duty—give these students an opportunity to learn to read and write—without traversing the dissent’s proclaimed chasm between negative and positive rights.