*1 No. 2:16-cv-13292—Stephen J. Murphy, III, District Judge.
Argued: October 24, 2019 Decided and Filed: April 23, 2020 Before: CLAY, STRANCH, and MURPHY, Circuit Judges.
_________________
COUNSEL ARGUED: Carter G. Phillips, SIDLEY AUSTIN LLP, Washington, D.C., for Appellants. Raymond O. Howd, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees. ON BRIEF: Carter G. Phillips, SIDLEY AUSTIN LLP, Washington, D.C., Mark D. Rosenbaum, Anne Hudson-Price, Kathryn A. Eidmann, PUBLIC COUNSEL, Los Angeles, California, Mark E. Haddad, UNIVERSITY OF SOUTHERN CALIFORNIA, Los Angeles, California, Evan H. Caminker, UNIVERSITY OF MICHIGAN, Ann Arbor, Michigan, Tacy F. Flint, Lawrence P. Fogel, Suzanne Brindise Notton, Jennifer M. Wheeler, SIDLEY AUSTIN LLP, Chicago, Illinois, Joshua E. Anderson, SIDLEY AUSTIN LLP, Los Angeles, California, Bruce A. Miller, MILLER COHEN, PLC, Detroit, Michigan, for Appellants. Raymond O. Howd, Joshua S. Smith, Toni L. Harris, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees. James E. Burke, Bryce J. Yoder, Amanda B. Stubblefield, KEATING MUETHING & KLEKAMP PLL, Cincinnati, Ohio, David J. Strom, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Washington, D.C., Anton Metlitsky, O’MELVENY & MYERS LLP, New York, New York, Tara J. Plochocki, LEWIS *2 BAACH KAUFMANN MIDDLEMISS PLLC, Washington, D.C., Michael J. Dell, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Scott Burnett Smith, Julian D. Miller, BRADLEY ARANT BOULT CUMMINGS LLP, Huntsville, Alabama, Lena Konanova, David S. Flugman, Jessica Underwood, Bria Delaney, Nicholas J. Klenow, SELENDY & GAY PLLC, New York, New York, Jenice C. Mitchell, DETROIT PUBLIC SCHOOLS COMMUNITY DISTRICT, Detroit, Michigan, Daniel S. Korobkin, Michael J. Steinberg, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, Jerome D. Goldberg, Detroit, Michigan, for Amici Curiae.
CLAY, J., delivered the opinion of the court in which STRANCH, J., joined. MURPHY, J. (pp. 62–85), delivered a separate dissenting opinion.
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OPINION _________________ CLAY, Circuit Judge. Plaintiffs in this appeal are students at several of Detroit’s worst- performing public schools. They credit this substandard performance to poor conditions within their classrooms, including missing or unqualified teachers, physically dangerous facilities, and inadequate books and materials. Taken together, Plaintiffs say these conditions deprive them of a basic minimum education, meaning one that provides a chance at foundational literacy.
In 2016, Plaintiffs sued several Michigan state officials, who they say are responsible for these abysmal conditions in their schools. Plaintiffs allege that state actors are responsible, as opposed to local entities, based on the state’s general supervision of all public education, and also on the state’s specific interventions in Detroit’s public schools. The state argues that it recently returned control to local officials, and so it is now the wrong party to sue.
Plaintiffs’ underlying claims, brought under 42 U.S.C. § 1983, are all based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Plaintiffs argue that while other Michigan students receive an adequate education, the students in Plaintiffs’ schools do not, amounting to a violation of their right to equal protection of the laws. They also argue that the schools they are forced to attend are schools in name only, and so the state cannot justify the restriction on their liberty imposed by compulsory attendance. And in their most significant claim, Plaintiffs ask this Court to recognize a fundamental right to a basic minimum education, an issue the Supreme Court has repeatedly discussed but never decided.
While the district court found that Defendants were in fact the proper parties to sue, it dismissed Plaintiffs’ complaint on the merits. First, it found that Plaintiffs had not alleged a proper comparator for their equal protection claim, nor had they highlighted any state policy or action that was not supported by a rational basis. Second, it found that Plaintiffs had not sufficiently pleaded their compulsory attendance theory, and so the court only viewed their due process claim as seeking an affirmative fundamental right. Third, the court held that a basic minimum education is not a fundamental right, and so Plaintiffs’ due process claim was dismissed. Plaintiffs then appealed.
Though Plaintiffs failed to adequately plead their equal protection and compulsory attendance claims, the same cannot be said for their central theory: that they have been denied a basic minimum education, and thus have been deprived of access to literacy. A review of the Supreme Court’s education cases, and an application of their principles to our substantive due process framework, demonstrates that we should recognize a basic minimum education to be a fundamental right. Furthermore, under this circuit’s precedents, Defendants are proper parties to sue in this case. Accordingly, we affirm in part and reverse in part the district court’s order, and remand this case for further proceedings.
I. BACKGROUND
A. History of Detroit’s Schools and State Control
Plaintiffs are students at several Detroit public schools that “serve almost exclusively low-income children of color.” (Compl., R. 1 at PageID #4.) They filed suit in this case against several Michigan state officers, who they say are proper defendants based both on the state’s constitutional and statutory authority to oversee the statewide education program and on the state’s specific interventions into the governance of Detroit’s schools.
Michigan’s constitution provides that the state’s legislature “shall maintain and support a system of free public elementary and secondary schools.” Mich. Const. art. VIII, § 2. The constitution also vests “[l]eadership and general supervision over all public education” in the state board of education, which serves “as the general planning and coordinating body for all public education.” art. VIII, § 3. The board also appoints the superintendent of public *4 instruction, who is responsible for executing the board’s policies and serves as head of the state department of education. Id.
According to Plaintiffs, education is a state-level concern and school districts are simply
“creations and agents of the State.” (Compl., R. 1 at PageID #48–50.) The Michigan Supreme
Court has “repeatedly held that education in this state is not a matter of local concern, but
belongs to the state at large.”
Bd. of Educ. v. Bacon
,
But usually is not always. Beyond the state’s general authority with respect to public education, Plaintiffs also allege that the state has repeatedly intervened in the day-to-day management of Detroit’s schools, and that it directly oversaw public education in Detroit from 1999 through the time the complaint was filed in this case. See Gary B. v. Snyder , 329 F. Supp. 3d 344, 350–54 (E.D. Mich. 2018) (discussing state interventions in Detroit’s schools). As stated in the complaint, “the State has directly controlled [the Detroit school system] for most of the past fifteen years through variations of an emergency manager system.” (Compl., R. 1 at PageID #16–17.) And while this intervention may have been intended to help address shortcomings in the city’s schools, Plaintiffs say that by “placing the Detroit schools largely in the hands of administrators with no backgrounds in education,” the state only made the problem worse. ( Id. )
These interventions began in the 1990s, partially in response to “fiscal deficit and failing student achievement outcomes” in Detroit Public Schools (“DPS”), the former Detroit school district. ( Id. at #50.) In 1999, the state adopted Public Act 10, which “replac[ed] Detroit’s elected school board and superintendent with a seven member ‘reform board.’” ( ) The reform board consisted of seven members: six appointed by the mayor, and (at least for five years after *5 passage) either the state superintendent of public instruction or her designee. 1999 Mich. Pub. Acts 10, § 372(2). [1] The board required unanimous consent to appoint the school district’s chief executive, id. § 374(1), which Plaintiffs say gave the state an effective “veto power over the selection of the CEO as well as every other decision” (Compl., R. 1 at PageID #50–51).
While in 2006, control of DPS was returned “to a locally elected school board . . . as a result of a Detroit voter referendum,” this change was short-lived. ( Id. at #51.) In December 2008, the governor declared a fiscal emergency and appointed an “Emergency Fiscal Manager for DPS.” ( Id. ) This emergency manager shared power with the locally elected school board, but in doing so, the manager “exercised authority not only over financial decision-making, but some educational decision-making as well.” ( )
In 2011, this power-sharing arrangement ended, as the state significantly expanded the authority of the state’s emergency manager. The manager was effectively given total control over DPS, and was empowered to “[e]xercise solely, for and on behalf of the school district, all . . . authority and responsibilities affecting the school district that are prescribed by law to the school board and superintendent.” Mich. Comp. Laws § 141.1554(f); see also Gary B. , 329 F. Supp. 3d at 350–51 (discussing the history and various versions of Michigan’s emergency- manager laws).
While a state-appointed transition manager controlled Detroit’s schools at the time the complaint was filed, the state also created a new school district, the Detroit Public Schools Community District (“DPSCD”), to run Detroit’s schools, while keeping DPS in charge of paying down debt. See Ann Zaniewski, New Detroit School Board Takes Reins of District , Det. Free Press, Jan. 11, 2017. The first elections for DPSCD’s board were held in January 2017, and Defendants claim that “the locally elected DPSCD Board of Education and its superintendent now have direct control over the operation of the schools in the district; there is no longer an emergency manager.” (Defs.’ Br. at 27.) That said, the complaint notes that “the State’s Financial Review Commission will remain involved in the oversight of the Detroit schools, and *6 has not yet revealed the scope of authority or direction that will be granted to the elected board.” (Compl., R. 1 at PageID #51.) [2]
Beyond the emergency managers and other interventions into DPS or DPSCD, “the State also has assumed a special responsibility over what it calls Priority Schools, or the most poorly performing five percent of schools in the State.” ( Id. at #52.) At the time the complaint was filed, this included all of Plaintiffs’ schools that remained open. These Priority Schools were managed by a state entity called the State School Reform/Redesign Office (“SRO”). See 2009 Mich. Pub. Acts 204, § 1280c (repealed 2019). According to Defendants, the SRO and Priority Schools were eliminated as of June 30, 2019.
Plaintiffs also allege that the state intervened in Detroit schools through an entity called
the Education Achievement Authority (“EAA”). The EAA was a statewide school district
administered by the state in conjunction with Eastern Michigan University, and included fifteen
of the state’s lowest-performing schools. But according to Plaintiffs, “[t]he EAA schools have
not improved on the State’s watch. In fact, the most recent Michigan state achievement
test results reflect that fewer than 5% of EAA students are proficient in core subject areas.”
(Compl., R. 1 at PageID #55.) As a result, the state closed the district and transferred Detroit’s
EAA schools back into DPSCD.
See Gary B.
,
Finally, Plaintiffs point to state-level policy interventions that affect Detroit schools. For example, Plaintiffs claim that in June 2016, the state adopted legislation allowing “noncertificated, nonendorsed teacher[s]” to work in the new Detroit school district. (Compl., R. 1 at PageID #59.) According to Plaintiffs, “[n]owhere else in Michigan may children in *7 public school be taught by teachers who lack appropriate state-mandated credentials and qualifications.” ( Id. ) Plaintiffs also allege that the state has threatened to close and then flip-flopped on closing “all of Plaintiffs’ schools that are currently operating and 47 schools in Detroit.” ( Id. at #60–62.) They say that these threatened closures exacerbated their problems by sending “students and teachers scrambling, leaving them worried and confused when they should have instead been preparing to start the new school year. Moreover, the State has offered no plan to ensure that any contemplated school closing will not disrupt students’ educations, further entrenching denials of access to literacy.” ( Id. at #61.)
B. Conditions Alleged in Plaintiffs’ Schools
Plaintiffs’ schools are “five of the lowest performing schools in Detroit.” ( Id. at #5.) Three of them are traditional public high schools: Osborn Academy of Mathematics (“Osborn MST”), the Osborn Evergreen Academy of Design and Alternative Energy (“Osborn Evergreen”), and the Medicine and Community Health Academy at Cody (“Cody Health”). The other two are charter schools: Hamilton Academy (“Hamilton”), which was an elementary school, and Experiencia Preparatory Academy (“Experiencia”), which taught students at the elementary through high-school levels. [4]
The core of Plaintiffs’ complaint is that the conditions in their schools are so bad—due to the absence of qualified teachers, crumbling facilities, and insufficient materials—that those schools fail to provide access to literacy. “Plaintiffs sit in classrooms where not even the pretense of education takes place, in schools that are functionally incapable of delivering access to literacy.” ( Id. at #4.) Because of this, Plaintiffs attend “schools in name only, characterized by slum-like conditions and lacking the most basic educational opportunities that children elsewhere in Michigan and throughout the nation take for granted.” ( Id. ) “[T]hey wholly lack the capacity to deliver basic access to literacy, functionally delivering no education at all.” ( at #19; see also id. at # 10–11 (“The schools Plaintiffs attend, and attended, are not truly schools by any traditional definition or understanding of the role public schools play in affording access to literacy.”).)
As noted above, the inadequacies that Plaintiffs point to can be grouped into three main categories: teaching, facilities, and materials. We discuss examples of each of these problems below.
1. Teaching With respect to teaching, Plaintiffs claim that their schools “lack the qualified teaching staff required to bring students to literacy—that is, teachers who are certificated, properly trained, and assigned to a class within the area of their qualifications and expertise.” ( Id. at #15.) This shortfall can be seen in the schools’ substantial reliance on Teach for America instructors and through other sources of high teacher turnover, which in many cases lead to midyear vacancies.
“In the 2016–2017 school year, there were up to 200 vacancies [in Detroit’s public schools] just before the start of the school year.” ( Id. at #102.) There are also substantial short- term absences, with some teachers “absent as many as 50 days in one year.” ( Id. at #105.) Because of these shortages, Plaintiffs’ “classes are covered by non-certificated paraprofessionals, substitutes, or misassigned teachers who lack any expertise or knowledge in the subject-matter of the course.” ( Id. at #15–16.) Other times, classes are combined on short notice, with up to sixty students in a single classroom. In perhaps the most notable case, “an eighth grade student was put in charge of teaching seventh and eighth grade math classes for a month because no math teacher was available.” ( Id. at #16.)
When there are teachers, they also often lack meaningful experience. For example, at Hamilton, a majority of teachers were starting their first year when the complaint was filed. At Experiencia, about half of the teachers who started in 2012 quit by the end of their second semester.
In June 2016, the state adopted legislation “permitting non-certificated instructors to teach in DPSCD schools. This legislation does not apply to any school elsewhere in the State.” ( Id. at #16.) At Hamilton, a paraprofessional who was teaching middle school science said “she does not understand the material and cannot lead classroom experiments.” ( at #102–03.) *9 In several other cases, long-term substitutes are used, or teachers are changed frequently through the year.
Beyond the teachers themselves, Plaintiffs also complain of their schools’ failure to use adequate curricula that could plausibly impart literacy. According to Plaintiffs, “[t]here is no consistent literacy instruction program in Plaintiffs’ elementary schools, and the schools lack the staffing and capacity required to effectively implement such a program.” ( Id. at #76.) At Experiencia, “teachers dedicated significant class time to reading aloud from books with reading levels multiple grades below the chronological age of the class, yet students struggled to sound out simple words.” ( Id. at #77–78.) Plaintiffs’ high schools fare little better, as teachers receive no support or training in literacy education and “lack access to curricular materials such as lesson plans, pacing guides, and teacher editions of textbooks.” ( Id. at #77.) One of Plaintiffs’ high schools attempted to address literacy issues with school reading groups; despite being a high school, “[t]he most advanced of the reading groups read books at a fourth- and fifth- grade reading level.” ( Id. ) The problem is also exacerbated as the students advance in grade, since higher-grade teachers “lack appropriate training to support students who are performing far below grade level.” ( Id. at #79–80.) [5]
2. Facilities Turning to the schools themselves, Plaintiffs allege that their classrooms feature decrepit or even unsafe physical conditions, meaning they “have been unable to satisfy minimal state health and safety standards.” ( Id. at #12.) “The City of Detroit admitted that during the 2015–16 academic year, none of the school district’s buildings were in compliance with city health and safety codes,” and that some of Plaintiffs’ schools were still not in compliance at the time the complaint was filed. ( Id. at #87.) Taken together, Plaintiffs claim that these conditions “make learning nearly impossible.” ( at #12.)
“Classroom temperatures in Plaintiffs’ schools regularly exceed 90 degrees during both the summer and winter due to malfunctioning furnaces and, at other times during winter, are *10 frequently so cold that students and their teachers can see their breath and must wear layers of winter clothing indoors.” ( Id. ) These temperatures sometimes require school closings or early dismissals. For example, “there is no air conditioning at Hamilton, and one west-facing classroom has reached 110 degrees during the school year. . . . On the first day of the 2016–17 school year, the temperatures in the school grew so extreme that multiple students fainted, both students and teachers got so sick they threw up, and multiple teachers developed heat rashes.” ( Id. at #90.) During the winter months, Plaintiffs face extreme cold instead: “students and teachers had to wear winter coats, hats, and scarves” inside their classrooms. ( Id. ) In some cases, temperatures remained below freezing, “and students were periodically sent home when the classrooms were too cold.” ( Id. at #91.)
“Mice, cockroaches, and other vermin regularly inhabit Plaintiffs’ classrooms, and the first thing some teachers do each morning is attempt to clean up rodent feces before their students arrive. Hallways and classrooms smell of dead vermin and black mold . . . .” ( Id. at #13.) “Students and teachers have frequently encountered mice, mice droppings, rats, bedbugs, and/or cockroaches.” ( Id. at #88; see also id. at #88–89 (including additional allegations and pictures).)
“The drinking water in some of Plaintiffs’ schools is hot, contaminated and undrinkable. Bathrooms are filthy and unkempt; sinks do not work; toilet stalls lack doors and toilet paper. In some classrooms, ceiling tiles and plaster regularly fall during class time.” ( Id. at #13.) At several of Plaintiffs’ schools, pipes or roofs leaked as well, and broken windows are covered with cardboard. ( See id. at #95, #97 (pictures of damaged facilities).)
Plaintiffs also complain of overcrowding within their classrooms, with as many as fifty students in a single classroom and insufficient desks and chairs, requiring students to stand or sit on the floor. Even when students have chairs, “classes are often so full that the desks are crammed wall-to-wall, with no room for aisles.” ( at #97.)
3. Materials Plaintiffs allege that their schools lack the books and materials needed to plausibly provide literacy. “Many classes in Plaintiffs’ schools do not have appropriate textbooks. *11 Where they are provided, they are often long out of date, torn and beyond repair, or marked up to be unreadable in places.” ( Id. at #11; see also id. at #84–85 (pictures of Plaintiffs’ textbooks).) Plaintiffs also allege there were so few copies that they had to share a single book among four or more students during class, and could not take them home after school, meaning their teachers could not assign meaningful homework. In several cases, the schools’ libraries were inaccessible or had no books available either, even outside of textbooks.
In addition to their allegations of outdated, insufficient, or damaged books, Plaintiffs also claim that their schoolbooks were not appropriate to their grade level. For example, “the only books in the third-grade classroom at Hamilton were picture books, until the teacher purchased others with her own money more than halfway through the year.” ( Id. at #8.) “There are no textbooks for the Earth Science, Physics, or Research and Development science classes at Osborn MST, so the teachers in each of those classes rely on a section of the Biology textbook most closely related to the subject they are teaching.” ( Id. at #83.)
Beyond books, Plaintiffs also claim that their classrooms lack other basic school supplies, such as pens, pencils, and paper. Teachers attempt to make up for this shortfall by spending substantial amounts out of pocket or by requesting donations online.
C. Educational Outcomes from Plaintiffs’ Schools
According to Plaintiffs, the school conditions discussed above led to abysmal educational outcomes, which further supports the claim that their schools cannot provide access to literacy. Turning to outcome data, Plaintiffs contend that while outcomes are not dispositive of access, they remain relevant because aggregate results shed light on the degree of opportunity afforded to students. “Achievement data reveal that in Plaintiffs’ schools, illiteracy is the norm. The proficiency rates in Plaintiffs’ schools hover near zero in nearly all subject areas.” ( Id. at #7 (emphasis omitted); see also id. at #62 (“[L]iteracy instruction provided in Plaintiffs’ schools is so wholly insufficient that ninety percent or more of the students are unable to meet state proficiency standards.”).) And looking beyond Michigan, Detroit’s schools “ranked last in reading and math proficiency among all big-city school districts.” ( at #47.)
The numbers from Plaintiffs’ individual schools demonstrate significant underperformance compared to state educational standards. Looking first to elementary school students, at Hamilton, just 4.2% of third-graders scored “proficient or above” in the state’s English assessment, compared to 46.0% of third-graders statewide. ( Id. at #8.) Similarly, at Experiencia, only 9.5% of third-graders scored as proficient. Other grade levels have even worse numbers, including zero or near-zero proficiency rates.
Turning to Plaintiffs’ high schools, at Cody MCH, 12.5% of eleventh-graders scored as proficient in English, compared to 49.2% statewide. And at Osborn MST, only 1.8% of eleventh-graders were proficient. In other subject areas, proficiency numbers were even lower. Additionally, results from the ACT college-admissions test reveal that students in Plaintiffs’ schools dramatically underperform the rest of the state, with between 12.5% and 0% achieving “college ready” scores. ( Id. at #71–72.)
Plaintiffs argue that these data translate into significantly reduced literacy skills in their schools, in which students “struggle to write proper paragraphs or even complete sentences.” ( Id. at #7.) For example, in their elementary schools, Plaintiffs allege that many third-grade students have a vocabulary of only “a couple hundred words,” are still learning handwriting, and that some “cannot even sound out letters.” ( Id. at #8; accord id. at #77–79.)
These issues persisted at Plaintiffs’ high schools as well:
At Cody MCH, the ninth-grade English-Language Arts teacher spent a good part of the year reading, paragraph by paragraph, a novel with a third-grade reading level, because no more lexically advanced novel would have been readable by his students. When the class was asked to read the book aloud in class, a number of students experienced enormous difficulty reading monosyllabic words. Similarly, at Experiencia, the ninth and tenth grade class was assigned a book with a fourth- grade reading level, because the students lacked the literacy skills to access more complex texts and because they were the only books available. At Osborn MST, . . . [a] number of the students struggled to sound out basic words when they read aloud in class, and one student asked her classmate how to spell the word “the.”
( at #9–10; accord id. at #79.)
Looking to national-level data, Detroit schools average “2.3 grade levels below their actual grade level in basic reading proficiency. Because Plaintiffs’ schools are among the poorest performing schools in Detroit, this means that students in Plaintiffs’ schools are performing far lower.” ( Id. at #72 (emphasis omitted).) Plaintiffs allege that these issues also cause “high drop-out and low college attainment rates” within their schools. ( Id. at # 27; accord id. at #73–76.)
While literacy is the crux of Plaintiffs’ complaint, they also note that the failure of their schools is uniform across “nearly all subject areas.” ( Id. at #7.) “[B]ecause the rest of the curriculum assumes a level of literacy that the students do not attain, they are also unable to learn State-mandated content in all other subject areas.” ( Id. at #7–8.) Of Plaintiffs’ high schools that remain open, each of their eleventh-grade classes scored “0% proficiency in at least one of Math, Science, or Social Studies.” ( at #10 (emphasis omitted).)
D. The District Court’s Opinion and Order
On September 13, 2016, Plaintiffs filed their complaint in the Eastern District of Michigan. They alleged three causes of action at issue in this appeal: (1) denial of their “fundamental right of access to literacy,” violating both the substantive due process and equal protection requirements of the Fourteenth Amendment; (2) violation of the Equal Protection Clause due to race-based discrimination; and (3) a claim for declaratory relief based on these other causes of action. (Compl., R. 1 at PageID #126–30.) [6]
Defendants moved to dismiss. First, while not expressly phrased in terms of mootness, Defendants argued that they no longer control Plaintiffs’ schools, and so cannot be sued for those schools’ conditions. Defendants also claimed that the Eleventh Amendment barred Plaintiffs’ requested relief on sovereign-immunity grounds.
Turning to the merits, Defendants argued that there is no fundamental right to access to literacy, calling it “a mere proxy for a right to education, which has long been rejected as a fundamental right.” (Mot. to Dismiss, R. 60 at PageID #519–27.) And since there is no such *14 right, any equal protection claim not based on a protected class must be reviewed under the rational-basis standard, a review that Defendants argued would show that the claim fails under the Supreme Court’s prior education cases. Finally, Defendants said that Plaintiffs failed to plead a race-based equal protection claim because the conditions they complain of “equally affect all students within the same schools regardless of race.” ( Id. at #532–35.)
While the district court ultimately granted Defendants’ motion, Gary B. , 329 F. Supp. 3d at 369, how it came to that conclusion is important on appeal. Before reaching the merits of Plaintiffs’ complaint, the district court first addressed Defendants’ argument that they did not operate Plaintiffs’ schools and so were the wrong parties to sue. Id. at 349. The court rejected this view, finding that Plaintiffs had “adequately pled that state actors effectively control the schools, at least in part, and are therefore proper parties.” Id. at 354. The court also rejected Defendants’ Eleventh Amendment argument, finding that Plaintiffs sought prospective injunctive relief, and therefore could sue state officers in their official capacities. Id. at 356–57.
Plaintiffs fared worse on the merits. Turning first to their due process claims, the court noted that “a case like this one could be argued on either positive- or negative-right theories.” Id. at 364. Negative rights, in this view, are freedoms from government intervention or intrusion; positive rights, by contrast, entail affirmative obligations that the state must afford its citizens. “But the relief sought [was] exclusively positive in nature,” and so the district court only considered the due process claim in terms of whether access to literacy is a fundamental right. Id. at 364–65. And on that point, noting federal courts’ “reticence to find positive rights [even] to unquestionably important necessities of life,” the court held there was no such fundamental right. Id. at 365–66.
On the equal protection claim, the court first found that while Plaintiffs attempted to compare their education to that provided by other schools throughout the State of Michigan, this was not the right comparison. Id. at 367. According to the court, because schools like Plaintiffs’—those under emergency management or experiencing other state interventions—were in a different position from other schools, only schools undergoing state interventions could serve as comparators in assessing their equal protection claims. Using that framework, the district court rejected Plaintiffs’ race-based equal protection claim, finding that the complaint *15 failed to allege “any instance where Defendants intervened in a school with a different racial makeup and treated that school disparately.” Id. at 367–68. Left with only rational basis review, the court found that Plaintiffs had failed to allege any specific, irrational actions taken by Defendants, holding that Plaintiffs could not use the conditions in their schools alone to dispel the presumption of rationality. Id. at 368. Accordingly, the district court dismissed Plaintiffs’ complaint in its entirety with prejudice. Id. at 369.
E. The Parties’ Arguments on Appeal
On appeal, both sides argue that the district court erred (though Defendants of course believe the ultimate outcome was correct). Plaintiffs say that the court was wrong in finding there is no fundamental right to access to literacy, and thus the district court should not have dismissed their due process claim. They also argue that the court should have considered a negative-rights version of their due process theory, under which Defendants violated their right to liberty by compelling them to attend “schools in name only” that fail to provide even a minimal education. (Pls.’ Br. at 36–43.)
On equal protection, while not addressing their race-based claims, Plaintiffs say that because Defendants control the entire statewide education system, other schools throughout the state are proper comparators. When viewed against these statewide comparators, Plaintiffs say their schools are so much worse that Defendants’ actions violate the Equal Protection Clause under any level of scrutiny.
For Defendants’ part, they begin by reiterating that they do not control Plaintiffs’ schools, and so are not proper defendants in this case. They now raise this argument under the guise of mootness, contending that changes in state law and practice have removed their day-to-day control over education in Detroit. As a result, they also argue that any remaining claims are for retroactive rather than prospective relief, and so are barred by the Eleventh Amendment.
Following this section of their brief, which was styled “Argument for All Defendants” (Defs.’ Br. at 26), Defendants seem to part ways. Most of the defendants say that because Plaintiffs’ claims are moot, they will not argue against their merits on appeal. ( at 25.) But two of the defendants proceed in a further section titled “Argument of Michigan Board of *16 Education Members Tom McMillin and Nikki Snyder Only.” ( at 36; accord id. at 25.) This section contains Defendants’ arguments on the merits of Plaintiffs’ constitutional theories, in which they say the district court correctly dismissed Plaintiffs’ claims. [7]
These issues are now before the Court.
II. DISCUSSION
A. Standard of Review
We review a district court’s grant of a motion to dismiss de novo. E.g. , Majestic Bldg. Maint., Inc. v. Huntington Bancshares, Inc. , 864 F.3d 455, 458 (6th Cir. 2017). A motion to dismiss is properly granted if the plaintiff has “fail[ed] to state a claim upon which relief can be granted.” Fed R. Civ. P. 12(b)(6).
The reviewing court must accept the factual allegations in the complaint as true and
construe the complaint in the light most favorable to the plaintiff.
E.g.
,
Hill v. Blue Cross
& Blue Shield of Mich.
, 409 F.3d 710, 716 (6th Cir. 2005). But we may affirm the district
court’s dismissal of the plaintiff’s claims on any grounds present in the record, including grounds
not relied upon by the district court.
E.g.
,
Long v. Insight Commc’ns of Cent. Ohio, LLC
To survive a motion to dismiss, the plaintiff must allege facts that are sufficient “to state
a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly
, 550 U.S. 544, 570
*17
(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal
,
The determination to dismiss with prejudice, as opposed to without, is reviewed under an
abuse of discretion standard.
E.g.
,
United States ex rel. Bledsoe v. Cmty. Health Sys., Inc.
B. Mootness and Sovereign Immunity
At the outset, Defendants say that there is no need to reach the merits of this appeal,
because Plaintiffs sued the wrong people. This is because, in the past several years, Defendants
have shifted the administration of Plaintiffs’ schools back to local officials, and so any
complaints about the conditions in these schools must instead be addressed to the local school
board. Defendants also argue that since they no longer control the day-to-day events at
Plaintiffs’ schools, any suit against them would have to be for retroactive monetary relief, and so
would run afoul of the Eleventh Amendment’s grant of sovereign immunity. The district court
found against Defendants on each of these points.
Gary B.
,
While the Eleventh Amendment generally prohibits lawsuits against states in federal
court, under
Ex parte Young
,
By arguing that the day-to-day management of Plaintiffs’ schools has been returned to DPSCD, Defendants misconstrue Plaintiffs’ central claim in this case, which is that the state—as the primary authority for public schools in Michigan—has failed to provide them with a basic minimum education. While their complaint also discusses Defendants’ prior, more extensive interventions into Detroit’s schools, the gravamen of Plaintiffs’ argument is that the state, by virtue of its supervisory authority over all public education in Michigan, has a responsibility to ensure that each school it oversees at least provides access to literacy.
This Court has previously rejected an argument that is analogous to Defendants’ here: The Secretary [of State] and Governor also maintain that they are not proper parties to this action in that any alleged errors were the fault of local [boards of election] rather than high-level state officials. The district court properly rejected this argument. The Secretary of State of Ohio is the state’s chief election officer ex officio. The Governor of Ohio is the state’s chief executive officer. Both officials have the authority to control the [boards of election] and are proper parties here.
League of Women Voters of Ohio v. Brunner
,
This logic applies here too. The state board of education has “[l]eadership and general
supervision over all public education.” Mich. Const. art. VIII, § 3. The superintendent executes
the board’s policies and is the chief education officer of Michigan.
Id.
The governor is the chief
executive officer. art. V, § 1. And while the state has delegated much of the management of
individual school districts and schools to local authorities, these remain “under the ultimate and
immediate control of the state and its agents.”
Parochiaid
,
Furthermore, any remedy that the district court could order would almost certainly
implicate Defendants, who have policymaking and financial responsibility for the statewide
education system. The rule advocated by Defendants could create a liability catch-22, in which
Plaintiffs are forced to instead seek injunctive relief against local officials, only to be told that
the resources they need can only come from the state. In
Futernick v. Sumpter Township
The [defendants] also argue that only the officer with immediate control over the challenged act or omission is amenable to § 1983. We find this claim ridiculous. Such a rule would allow a state agency to avoid, or defer, liability merely by transferring the defendant in a particular case, or by changing the scope of the defendant official’s authority. The directors of a state agency, no matter how far removed from the actions of agency employees, are proper parties to a suit for an injunction under § 1983.
In fact, even if Plaintiffs’ claims were limited to the state’s direct intervention in Detroit’s
schools, Defendants’ recent transfer of day-to-day management to DPSCD would still not
require dismissal. “A defendant’s ‘voluntary cessation of a challenged practice’ does not moot a
case. Rather, voluntary conduct moots a case only in the rare instance where ‘subsequent events
made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to
recur.’”
League of Women Voters
,
Finally, Defendants’ argument that this lawsuit is really an attempt to seek payment for
past harms, and so is barred by the Eleventh Amendment, misstates both Plaintiffs’ requested
remedy and the law. As Defendants themselves repeatedly argue, Plaintiffs are requesting
*20
affirmative injunctive relief to improve the conditions in their schools. Such an injunction “fits
squarely within the prospective-compliance exception” to the Eleventh Amendment, even if
funds from the state treasury are needed to carry it out.
Milliken v. Bradley
,
In sum, it is evident from the Michigan Constitution and statutes, as well as its prior interventions in the school system, that the state retains significant authority over Detroit’s public schools. Accordingly, its officers are proper defendants in this case under Ex parte Young , and the transfer of some control back to local officials does not render this lawsuit moot.
C. Plaintiffs’ Equal Protection Claim
Faced now with the merits of Plaintiffs’ complaint, we turn first to their equal protection claim. The crux of this claim is that Defendants discriminated against Plaintiffs by failing to provide the same access to literacy they give to other Michigan students. Thus, even if there is no fundamental right to a basic minimum education, Defendants—by choosing to provide a basic education to some students but not to others—have still violated Plaintiffs’ constitutional rights. There is some debate over what level of scrutiny applies when a discrete group is denied access to education. Plaintiffs argue that under Plyler v. Doe , 457 U.S. 202 (1982), a form of heightened scrutiny applies in such cases, see id. at 230 (“If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest.”). They also contend that even if this heightened scrutiny did not apply, there could be no rational justification for denying Plaintiffs an adequate education while providing one to other students throughout the state.
But a review of Plaintiffs’ complaint shows they have not adequately pleaded an equal protection claim, regardless of the level of scrutiny. This is because their complaint, while reflecting the awful conditions faced in Plaintiffs’ schools, has not alleged any disparity in the state’s allocation of resources between their schools and others. Nor do Plaintiffs attack any specific decision or policy implemented by Defendants that treats their schools differently from others in the state. Thus, because Plaintiffs have not identified a governmental action or policy that discriminates against them, the district court was correct to dismiss this claim.
1. Equal Protection Framework
“When a state distributes benefits unequally, the distinctions it makes are subject to
scrutiny under the Equal Protection Clause of the Fourteenth Amendment.”
Zobel v. Williams
,
Much of the Supreme Court’s equal protection case law concerns the second part of this
test, and specifically how strong the governmental interest must be. For example, if a
government policy discriminates based on race or another immutable, protected characteristic,
the Court applies “strict scrutiny” and will uphold the policy only if it furthers a “compelling
state interest” and is narrowly tailored in doing so.
Cleburne
, 473 U.S. at 440;
accord, e.g. Grutter v. Bollinger
,
On the other hand, if the policy does not concern a protected class, “rational basis”
review is used, and the policy will be sustained if it “is rationally related to a legitimate state
interest.”
Cleburne
,
Plyler v. Doe throws a wrench in this. In Plyler —discussed more extensively later, see infra Part II.E.2—the Supreme Court faced a Texas policy that required undocumented children to pay tuition before they could attend public school, 457 U.S. at 205–06, 206 n.2. In assessing the plaintiffs’ equal protection challenge, the court noted that “[u]ndocumented aliens cannot be treated as a suspect class,” and that education as a general matter is not a fundamental right. at 223. And so, rational basis must apply.
But the Court went on:
[M]ore is involved in these cases than the abstract question whether [the challenged policy] discriminates against a suspect class, or whether education is a fundamental right. [The policy] imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining the rationality of [the policy], we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in [Texas’s policy] can hardly be considered rational unless it furthers some substantial goal of the State .
objectives.” Craig v. Boren , 429 U.S. 190, 197 (1976); see also, e.g. , Plyler , 457 U.S. at 217–18, 218 n.16 (discussing the application of intermediate scrutiny to classifications that, “while not facially invidious, nonetheless give rise to recurring constitutional difficulties”).
Id. at 223–24 (emphasis added). Thus, while still couched in rational basis review, the Plyler court held that when a discrete group of children is denied a basic public education, such a policy can survive only if “if furthers some substantial state interest.” Id. at 223–24, 230. [10]
2. Application to Plaintiffs’ Claims
As noted above, to state an equal protection claim, a plaintiff must allege both a
difference in treatment from others and that this difference cannot be supported by a sufficiently
important governmental interest.
E.g.
,
Ctr. For Bio-Ethical Reform
,
The primary comparison Plaintiffs allege between their own schools and others in the state is that Plaintiffs’ schools face significantly worse “performance data,” which is based on state proficiency tests in several subject matter areas. (Compl., R. 1 at PageID #65–76.) For example, Plaintiffs allege that in their schools, low-single-digit percentages of students are rated as “proficient or above” in English, compared to a state average in the mid-to-high forties. ( at #8–10, #65–69.) The same is true for several other subject matter areas, with some schools scoring as low as 0% proficient in certain areas.
But the Constitution cannot guarantee educational outcomes, and while performance
outcome data provides some insight into access to education, the differences in these numbers
are not supported by additional allegations suggesting, for example, that Defendants provided
different levels of financial resources to other schools across the state. Plaintiffs’ articulation of
the state action being challenged is necessary to assess that action’s rationality,
see, e.g. San Antonio Indep. Sch. Dist. v. Rodriguez
,
Plaintiffs also suggest that the conditions faced in their schools are different from those in other schools throughout Michigan, particularly those in “schools serving predominantly white, affluent student populations.” (Compl., R. 1 at PageID #4–5.) But while Plaintiffs extensively describe the conditions found in their own schools, they include almost no allegations regarding these comparator schools or what Defendants did differently with respect to them. Similarly, while Plaintiffs’ brief claims that Defendants “operate a system in which most schools do provide access to literacy, and some do not” (Pls.’ Br. at 52), their complaint does not adequately allege how the successful schools are operated or how Defendants treated them differently.
Nor do Plaintiffs sufficiently point to policies implemented or enforced by Defendants, other than school assignments, that separate students into discrete groups and deprive one or more of them of a basic minimum education. One policy discussed in the complaint might, standing alone, implicate equal protection—it concerns the provision allowing the hiring of “noncertificated, nonendorsed teacher[s]” only in the Detroit school district. (Compl., R. 1 at PageID #59–60, #106.) But without tying any disparity to a specific policy or action taken by Defendants that caused differences in school resources or conditions, we cannot assess whether that action or policy furthers a sufficient governmental objective.
Plaintiffs largely fault the district court’s decision for using the wrong comparator in
assessing their claim of disparate treatment. In its opinion, the district court correctly noted that
“Plaintiffs have not challenged a statewide funding scheme, a specific statute, or any particular
decisions by Defendants applicable to all Michigan schools.”
Gary B.
,
This point is well taken. If Plaintiffs’ argument is that the state has supervisory authority over the Michigan public school system, and that every other school (or almost every other school) in this system is given the resources needed to provide access to literacy, but theirs is not, it is hard to see why only schools that experienced more direct state interventions are the correct comparators. [11] But as discussed above, Plaintiffs have not identified which state policy or action they are challenging as discriminatory, regardless of what comparator is used. Without this threshold allegation, their equal protection claim cannot survive.
While Plaintiffs’ complaint also lists a cause of action for race-based discrimination, in
their brief on appeal, the only discussion of race in the equal protection context is the statement
that Plaintiffs are “a group of almost entirely low-income children of color.” (Pls.’ Br. at 45.)
Nor do Plaintiffs argue in this Court that strict scrutiny should apply due to any race-based
classification. Thus, they have abandoned this theory on appeal.
E.g.
,
In re Darvocet, Darvon,
and Propoxyphene Prods. Liab. Litig.
,
Nor have Plaintiffs adequately pleaded disparate treatment based on race. In their complaint, Plaintiffs claim to be “a discrete class—nearly all children of color and low-income— who have been excluded from the access to literacy that public education provides to other *26 students in the State of Michigan.” (Compl., R. 1 at PageID #18.) Plaintiffs further note that the students at their schools are all over 95% people of color (over 97% African American in four cases, and 64.2% Latino and 31.1% African American in the fifth), and that the vast majority are entitled to free or reduced-price lunch (a proxy for their socioeconomic status). But they fail to make any specific allegations showing Defendants’ different treatment of predominantly white schools; conclusory statements that merely allude to race-based discrimination are not sufficient. ( See, e.g. , id. at #53 (“The State’s period of control has been marked by decisions affecting the education of minority children that would never be permitted in predominantly white school districts.”).)
This is not to say it is impossible for Plaintiffs to allege an equal protection claim in this
case. After all,
Plyler
said that, “[i]f the State is to deny a discrete group of innocent children the
free public education that it offers to other children residing within its borders, that denial must
be justified by a showing that it furthers some substantial state interest.”
3. Leave to Amend Finally, Plaintiffs argue that even if this Court does not revive their equal protection claim, the district court still erred by dismissing their complaint with prejudice and not giving them leave to amend. This is because, if given the chance, Plaintiffs “could have identified further ‘concrete examples’” needed to support their claims, and so an amendment would not have been futile. (Pls.’ Br. at 57.)
But in this circuit, at least for represented parties, “a district court does not abuse its
discretion in failing to grant a party leave to amend where such leave is not sought.”
Sinay v.
Lamson & Sessions Co.
, 948 F.2d 1037, 1041–42 (6th Cir. 1991). While Plaintiffs asked for
*27
leave to amend to their complaint if the district court found that “local school officials are
necessary defendants in this lawsuit” (Opp’n, R. 64 at PageID #1454 n.22), the district court
dismissed Plaintiffs’ complaint on other grounds. Nor did Plaintiffs ask to reopen the judgment
or otherwise seek leave to amend after the district court’s decision.
See, e.g.
,
Benzon v. Morgan
Stanley Distribs., Inc.
,
After this case is remanded, however, the district court itself could grant leave to amend
following a proper request by Plaintiffs. Under the governing rule, leave to amend should be
“freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2);
see also, e.g.
,
Benzon
420 F.3d at 613 (discussing the factors considered in deciding motions to amend);
Morse v.
McWhorter
, 290 F.3d 795, 799–800 (6th Cir. 2002) (same). And of course, the question of
whether any such amendment is proper must be guided by this Court’s opinion.
See, e.g.
,
Rose
v. Hartford Underwriters Ins. Co.
,
D. Plaintiffs’ Compulsory Attendance Claim
Plaintiffs next argue that the district court erred by considering their due process claim
only through the lens of a fundamental right, since their complaint also raises a “negative rights”
argument. (Pls.’ Br. at 36–43.) Under this theory, Plaintiffs argue that a central element of their
due process rights—the right to freedom of movement and freedom from state custody—is
restricted by the state’s compulsory education law, which forces them to attend their schools.
While this restraint would be allowed if the state, in return, provided them with an adequate
education, Plaintiffs argue that by detaining them at “schools in name only,” the state has failed
to meet this burden, rendering the detention arbitrary and violating their substantive due process
rights. ( ) The district court declined to address this theory, saying that Plaintiffs’ complaint
“points exclusively to a positive-right argument.”
Gary B.
,
The legal theory behind this claim appears to have strong support in the law. It seems beyond debate that confining students to a “school” that provides no education at all would be an arbitrary detention, prohibited by the common law’s understanding of due process tracing back to the Magna Carta. See, e.g. , Jennings v. Rodriguez , 138 S. Ct. 830, 861 (2018) (Breyer, J., *28 dissenting). But as things presently stand, the district court was correct to dismiss this claim: Plaintiffs’ complaint does not provide notice that they were pursuing a claim based on Michigan’s compulsory attendance requirement and fails to allege sufficient facts for the Court to address its plausibility. We address both the governing law and Plaintiffs’ complaint below.
1. Substantive Due Process and Compulsory Attendance The main case Plaintiffs rely on to support their compulsory attendance theory is Youngberg v. Romeo , 457 U.S. 307 (1982). In Youngberg , a thirty-three-year-old man with severe intellectual disability was deemed unable to care for himself and involuntarily committed to a state facility. Id. at 309–10. After a series of injuries and physical restraints imposed during his commitment, Romeo sued under the Fourteenth Amendment, arguing that that the state failed to protect his liberty interests in “safety, freedom of movement, and training within the institution.” Id. at 310–11, 314–15.
First discussing his safety claim, the Court “noted that the right to personal security
constitutes a ‘historic liberty interest’ protected substantively by the Due Process Clause.”
Id.
at
315 (quoting
Ingraham v. Wright
, 430 U.S. 651, 673 (1977)). Similarly, the Court found that
“[l]iberty from bodily restraint always has been recognized as the core of the liberty protected by
the Due Process Clause from arbitrary governmental action.”
Id.
at 316 (alteration in original)
(quoting
Greenholtz v. Neb. Penal Inmates
,
Romeo’s last claim proved to be more complicated. He conceded that, because of the severity of his disability, no amount of training would make it possible for him to be released. Id. at 317. That said, Romeo still argued he was entitled to training that would reduce his aggression, thereby increasing his safety and decreasing the need for restraint within the facility. Id. at 317–18.
In addressing his claims, the Court noted that while Romeo retained “liberty interests in safety and freedom from bodily restraint,” these interests were not absolute. Id. at 319–20. For example, the facility would be entitled to restrain the movement of residents to protect their safety and the safety of others. at 320. “The question then is not simply whether a liberty *29 interest has been infringed but whether the extent or nature of the restraint . . . is such as to violate due process.” Id. In answering this question, the Court balances “the individual’s interest in liberty against the State’s asserted reasons for restraining individual liberty.” Id. Applying this principle to Romeo’s claim, the Court held that he was entitled to improved safety, lesser restraint, and appropriate training, but that in shaping this remedy on remand, the trial court should afford significant deference to the professionals responsible for Romeo’s care. at 321–25.
Other cases indicate that this balancing principle is the crux of any due process analysis
where the state restrains core liberty interests like freedom of movement. For example, in
Cruzan
—a case about the right to refuse life-saving medical care—the Supreme Court reiterated
that “whether [a plaintiff’s] constitutional rights have been violated must be determined by
balancing his liberty interests against the relevant state interests.”
Cruzan ex rel. Cruzan v. Dir.,
Mo. Dep’t of Health
,
Compulsory school attendance laws are a restraint on Plaintiffs’ freedom of movement,
and thus implicate the core protections of the Due Process Clause.
See, e.g.
,
Foucha
, 504 U.S. at
80;
Youngberg
,
On the other hand, while never directly addressing this issue, the Supreme Court has
recognized that, given the important governmental interest in educating its citizens, the state
generally has the power to compel attendance at school.
E.g.
,
Wisconsin v. Yoder
,
Taken together, it is clear from these cases that, at least for compulsory education in a
general sense (which is the only type of schooling that the complaint concerns), there is some
level of education that justifies whatever deprivation of liberty is caused by a mandatory
attendance or schooling requirement.
See, e.g.
,
Pierce
,
2. Application to Plaintiffs’ Complaint While Plaintiffs’ negative-rights claim seems to have support in the law and was argued in their brief on appeal, it is noticeably absent from their complaint. The complaint certainly includes the statement that Michigan has compulsory school attendance ( see, e.g. , Compl., R. 1 at PageID #27 (“Michigan . . . compels children to attend school full time . . . .”); id. at #43 (same)), but there is no indication that Plaintiffs are alleging that this deprivation of liberty is unconstitutional. The closest Plaintiffs come to highlighting this claim is by saying that, since education “is required of every child,” there is “a special relationship between the state and children between the ages of 6 and 18.” ( Id. at #42.) But Plaintiffs never expand this beyond noting the “special relationship,” and their only cause of action regarding due process puts it solely in terms of “the fundamental right of access to literacy,” and not any right to freedom from restraint. ( at #126–27.) [13] Other than these two statements, Plaintiffs do not mention compulsory attendance anywhere else in their complaint or otherwise indicate that the requirement could play any role in a violation of their constitutional rights.
To satisfy the federal rules, while a “short and plain statement of the claim” is enough,
the complaint must still “give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.”
Erickson v. Pardus
,
[13] In fact, the complaint’s discussion of compulsory education suggests it was included to show that education is seen as an essential state function, in support of Plaintiffs’ fundamental right theory. ( See Compl., R. 1 at PageID #43 (“These compulsory attendance laws reflect a national judgment that education is so essential to the maintenance of democracy and the ability to participate in public and private life that compelling it is justified.”).) *32 Plaintiffs’ complaint gave no notice of their claim that Defendants violated their right to freedom of movement, or any other right through the compulsory attendance requirement.
Additionally, Plaintiffs’ factual allegations are insufficient for us to assess the viability of this claim, because they fail to provide information about the extent or nature of the restraint on their liberty. Other than the broader allegations concerning the conditions of their schools, the only allegation relevant to this theory is that “Michigan’s compulsory attendance laws require Plaintiffs to attend [their] schools.” (Compl., R. 1 at PageID #4; accord, e.g. , id. at #27, #42–43.)
By
Youngberg
’s own terms, analyzing this claim requires balancing the extent of the
deprivation against the education being provided by the state.
See
457 U.S. at 320 (“In
determining whether a substantive right protected by the Due Process Clause has been violated,
it is necessary to balance ‘the liberty of the individual’ and ‘the demands of an organized
society.’” (quoting
Poe v. Ullman
,
As with their equal protection claim, after this case is remanded, Plaintiffs could seek leave to amend from the district court and attempt to correct these deficiencies. But as their complaint stands now, their allegations fail to provide sufficient notice of their claim, and are insufficient for the Court to assess its viability. Accordingly, Plaintiffs’ negative-rights claim was correctly dismissed.
E. The Fundamental Right to a Basic Minimum Education Having addressed Plaintiffs’ two alternative claims for relief, we are left with the central issue in this appeal: whether Plaintiffs have a fundamental right to a basic minimum education, meaning one that provides access to literacy. Plaintiffs contend that access to literary, as opposed to other educational achievements, is a gateway milestone, one that unlocks the basic exercise of other fundamental rights, including the possibility of political participation. While the Supreme Court has repeatedly discussed this issue, it has never decided it, and the question of whether such a right exists remains open today. After employing the reasoning of these Supreme Court cases and applying the Court’s substantive due process framework, we recognize that the Constitution provides a fundamental right to a basic minimum education.
Access to a foundational level of literacy—provided through public education—has an
extensive historical legacy and is so central to our political and social system as to be “implicit in
the concept of ordered liberty.”
Washington v. Glucksberg
, 521 U.S. 702, 720–21 (1997)
(quoting
Palko v. Connecticut
,
Applying this right to Plaintiffs’ allegations, their complaint plausibly alleges that Defendants denied them a basic minimum education. Accordingly, the district court’s dismissal of this claim must be reversed.
1. Recognition of Fundamental Rights Under Substantive Due Process
The Due Process Clause of the Fourteenth Amendment says that no state shall “deprive
any person of life, liberty, or property, without due process of law.” The Clause is most
commonly seen as guaranteeing procedural protections whenever the state attempts to deprive
someone of their life, liberty, or property interests—so-called procedural due process.
Collins v.
City of Harker Heights
, 503 U.S. 115, 125 (1992). But the Clause has also been read to
recognize that certain interests are so substantial that no process is enough to allow the
government to restrict them, at least absent a compelling state interest.
E.g.
,
Glucksberg
*34
521 U.S. at 719–21;
Planned Parenthood of Se. Pa. v. Casey
, 505 U.S. 833, 846–47 (1992);
Collins
,
“The most familiar of the substantive liberties protected by the Fourteenth Amendment
are those recognized by the Bill of Rights,” which are deemed to be “incorporated” into the Due
Process Clause.
Casey
, 505 U.S. at 847. But this is not the end of the Clause’s protections,
which also extend to other rights and liberties recognized by the courts to be “fundamental.”
E.g.
,
Glucksberg
,
While [the Supreme Court] has not attempted to define with exactness the liberty thus guaranteed [by the Due Process Clause], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
Despite the breadth of the Court’s statement in
Meyer
, later cases prescribe
circumspection when deciding whether an asserted right is fundamental. “As a general matter,
the Court has always been reluctant to expand the concept of substantive due process because
guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.”
Collins
,
The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office.
Casey
,
Faced with this tension, the Supreme Court has developed a two-prong analysis it applies
when determining whether an asserted right is fundamental. First, “the Due Process Clause
specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in
this Nation’s history and tradition.’”
Glucksberg
,
Even if a specific iteration of a right lacks substantial historical roots, this alone is not
enough to foreclose recognition under the Due Process Clause. As the Court noted in
Casey
“[i]t is tempting, as a means of curbing the discretion of federal judges, . . . to suppose that the
Due Process Clause protects only those practices, defined at the most specific level, that were
protected against government interference by other rules of law when the Fourteenth
Amendment was ratified. But such a view would be inconsistent with our law.”
Thus, the second prong of the inquiry looks to whether the asserted right is “‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’” Glucksberg , 521 U.S. at 721 (quoting Palko , 302 U.S. at 325–26). While these prongs are sometimes tied together, see, e.g. , Kerry v. Din , 135 S. Ct. 2128, 2134 (2015) (plurality opinion), Obergefell made clear that this historical inquiry may illuminate even newly recognized injustices that reveal a fundamental right:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its *36 dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
2. The Supreme Court’s Education Cases
Beyond the general framework for assessing whether an asserted right is fundamental, the
Supreme Court has also, in a series of cases, addressed the extent of constitutional rights with
respect to state-provided education. Its education jurisprudence teaches several lessons. First,
the Court has found that there is no broad, general right to education.
Rodriguez
,
First, the history of public education in this country, as with many things, is inextricably
tied to race.
See infra
Part II.E.3.a. And so, while it did not directly concern substantive due
process,
Brown v. Board of Education
,
During this equal protection discussion, the Court noted the critical importance of education:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
Id. at 493.
As argued by the parties, this passage can be read two ways. On the one hand, if
“education is perhaps the most important function of state and local governments” and is
“required in the performance of our most basic public responsibilities,”
id.
, how could it not be
“implicit in the concept of ordered liberty” or otherwise fundamental to our social order?
Glucksberg
,
Nearly twenty years after
Brown
, this question returned to the Supreme Court. In
San
Antonio Independent School District v. Rodriguez
, the plaintiffs challenged the constitutionality
of Texas’s public-school finance system, arguing that differences in funding across school
districts denied them equal protection of the law.
In assessing whether education was a fundamental right, the Court began by referencing
Brown
, noting the country’s “historic dedication to public education” and agreeing that “‘the
grave significance of education both to the individual and to our society’ cannot be doubted.”
Id.
at 29–30 (quoting
Rodriguez v. San Antonio Indep. Sch. Dist.
,
In denying the plaintiffs’ claim, the Court specifically responded to their argument that “education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote.” Id. The Court found this argument lacking, as the plaintiffs’ claim to “effective” First Amendment speech and “intelligent utilization” of the ballot was tantamount to demanding a guarantee of “the most effective speech or the most informed electoral choice,” neither of which were protected by the Constitution. Id. at 35–36.
The Court’s conclusion regarding this argument is especially notable: Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short. Whatever merit appellees’ argument might have if a State’s financing 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 only relative differences in spending levels are involved and where—as is true in the present case—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. at 36–37. Thus, the Court never ruled on the right to such a basic minimum education, and as
shown more explicitly in its later cases, saved the question for another day.
Next is Plyler v. Doe . In Plyler , the plaintiffs—“undocumented school-age children” also living in Texas—sued to challenge policies that denied state-level funding and charged tuition for students “who could not establish that they had been legally admitted into the United *39 States.” 457 U.S. at 205–06, 206 n.2. The question was whether these policies violated the Equal Protection Clause, and what level of scrutiny to use in that analysis. Id. at 216–18.
Looking to the interaction between education and the Constitution, the Court reiterated the holding in Rodriguez , while also noting the heightened significance of education and the special constitutional considerations that follow:
Public education is not a “right” granted to individuals by the Constitution. But neither is it merely some governmental “benefit” indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. . . . We have recognized “the public schools as a most vital civic institution for the preservation of a democratic system of government,” and as the primary vehicle for transmitting “the values on which our society rests.” “[A]s . . . pointed out early in our history, . . . some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.” . . . In addition, education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.
Id.
at 221 (some alterations in original) (citations omitted) (first quoting
School Dist. v. Schempp
Invoking Brown , the Plyler Court also noted the distinct role of education as a social equalizer:
In addition to the pivotal role of education in sustaining our political and cultural heritage, denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit. Paradoxically, by depriving the children of any disfavored group of an education, we foreclose the means by which that group might raise the level of esteem in which it is held by the majority. at 221–22.
Based on this reasoning, the Court found that the challenged provisions violated the Equal Protection Clause. Id. at 223–30. The Court noted that the denial of a “basic education”—framed in the context of literacy—would have a substantial negative impact on both the children in question and society at large, and so any assessment of rationality must also account for these costs. Id. at 223–24. Thus, “[i]n light of these countervailing costs,” the challenged provisions could only be upheld if they “further[ed] some substantial goal of the State.” Id. at 224. Since the state’s proffered interests failed to meet this standard, the Court invalidated the Texas policy. Id. at 224–30.
After
Rodriguez
and
Plyler
comes
Papasan v. Allain
. In
Papasan
, schoolchildren in
counties originally held by the Chickasaw Nation received a reduced amount of state educational
funding compared to other counties in Mississippi, and so they sued the governor and state
officials in federal court. 478 U.S. at 268–74. While this might sound like a repeat of
Rodriguez
, their allegations contained a twist: while the
Rodriguez
plaintiffs did not claim
a failure to provide them with “an opportunity to acquire . . . basic minimal skills,” 411 U.S. at
36–37, the
Papasan
plaintiffs did exactly that, arguing that the state’s funding scheme deprived
them of a “minimally adequate level of education” and that their right to such an education was
fundamental,
In assessing this claim, the Court noted that, “[a]s Rodriguez and Plyler indicate, [the Supreme Court] has not yet definitively settled the question[] [of] whether a minimally adequate education is a fundamental right.” Id. at 285. But Papasan did not provide an answer. Instead, the Court found that, assuming such a right existed, the plaintiffs had failed to allege sufficient facts in support of their claim. Id. at 286. They did not allege that they were “not taught to read or write,” or that they did not receive “instruction on even the educational basics.” Id. In short, “they allege[d] no actual facts in support of their assertion that they have been deprived of a minimally adequate education.” An answer on pleadings, sure, but not on constitutional law. [14]
Finally, the Court essentially repeated this non-answer in
Kadrmas v. Dickinson Public
Schools
,
In his dissent in
Kadrmas
, Justice Marshall noted that the Court had still not decided
“whether a State constitutionally could deny a child access to a minimally adequate education.”
at 466 n.1 (Marshall, J., dissenting). This question—whether “a minimally adequate
education is a fundamental right,”
Papasan
,
3. Is Access to Literacy a Fundamental Right? With guidance but no answers from the education cases above, this Court must assess whether a basic minimum education—meaning one that plausibly provides access to literacy—is a fundamental right. Applying the substantive due process framework from Glucksberg and Obergefell , and looking to the reasoning of Rodriguez and Plyler , we conclude that the answer is yes.
First, the history of public education in our country reveals a longstanding practice of free state-sponsored schools, which were ubiquitous at the time of the Fourteenth Amendment’s adoption. Public schools are now universal in the United States, and Americans take it for granted that state-sponsored education will be provided for their children as of right. But in the face of this progress, the history of education in the United States also demonstrates a substantial relationship between access to education and access to economic and political power, one in which race-based restrictions on education have been used to subjugate African Americans and because “the record contain[ed] no evidence whatever that any Louisiana schoolchild was deprived of a minimally adequate education.”
other people of color. This racial history of education in America—and the efforts subsequently taken to confront it—reveals the importance earlier generations placed on education. Taken together, this history establishes that education has held paramount importance in American history and tradition, such that the denial of education has long been viewed as a particularly serious injustice.
Second, the role of basic literacy education within our broader constitutional framework suggests it is essential to the exercise of other fundamental rights. Most significantly, 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 unique role of public education as a source of opportunity separate from the means of a child’s parents creates a heightened social burden to provide at least a minimal education. Thus, the exclusion of a child from a meaningful education by no fault of her own should be viewed as especially suspect.
In sum, the state provision of a basic minimum education has a longstanding presence in our history and tradition, and is essential to our concept of ordered constitutional liberty. Under the Supreme Court’s substantive due process cases, this suggests it should be recognized as a fundamental right.
a. The Historical Prevalence and Significance of Education
“We begin, as we do in all due process cases, by examining our Nation’s history, legal
traditions, and practices.”
Glucksberg
, 521 U.S. at 710. This examination reveals that state-
provided education is ubiquitous throughout all but the earliest days of the United States, a
historical fact that today leads its citizens to expect a basic public education as of right. Such an
expectation demonstrates that the right to a basic minimum education is “deeply rooted in this
Nation’s history and tradition,”
id.
at 720–21 (quoting
Moore
,
The Supreme Court’s cases on education repeatedly discuss the historical prevalence and
importance of state-provided education. For example, in
Wisconsin v. Yoder
, the state noted that
the essential nature of education was touted by Thomas Jefferson in the earliest days of our
*43
history.
This historical prevalence of education supports the view that it is deeply rooted in our
history and tradition, even under an originalist view.
See, e.g.
,
Obergefell
, 135 S. Ct. at 2628
(Scalia, J., dissenting) (analyzing the fundamental right to marriage based on state policies
“[w]hen the Fourteenth Amendment was ratified in 1868”);
McDonald v. City of Chicago
Furthermore, this history should not be viewed as only a static point. The continued
expansion of education through the adoption of the Fourteenth Amendment resulted in universal
compulsory education by 1918, and it has continued to develop since.
See
Barry Friedman
& Sara Solow,
The Federal Right to an Adequate Education
, 81 Geo. Wash. L. Rev. 92, 127–32
*44
(2013). And while state-supported education may have a different cultural significance than
marriage,
see Obergefell
,
Though focused on the equal protection context instead of due process, the words of Brown v. Board of Education are still instructive: “In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted . . . . We must consider public education in the light of its full development and its present place in American life throughout the Nation.” 347 U.S. at 492–93. Such a view reveals state-sponsored (and even mandated) education as a ubiquitous feature of our country, provided as of right to the people. Based on this uniform presence, the people have come to expect and rely on this education—second perhaps only to the immediate family—in order to provide the basic skills needed for our children to participate as members of American society and democracy.
Our nation’s history of racial discrimination further reveals the historical and lasting importance of education, and the significance of its modern ubiquity. Education, and particularly access to literacy, has long been viewed as a key to political power. Withholding that key, slaveholders and segregationists used the deprivation of education as a weapon, preventing African Americans from obtaining the political power needed to achieve liberty and equality. While most starkly displayed during the time of slavery, this history is one of evolution rather than paradigm shift, and so what began in the slave codes of the antebellum South transformed into separate-and-unequal education policies that persisted well after Brown v. Board of Education .
In the beginning of our country’s history, teaching slaves to read was a crime.
E.g.
,
Regents of the Univ. of Cal. v. Bakke
, 438 U.S. 265, 387–88 (1978) (Marshall, J.,
concurring in part and dissenting in part);
South Carolina v. Katzenbach
,
This trend continued through extrajudicial violence during the Reconstruction era. ( See, e.g. , Amicus Br. of ACLU of Mich. at 19–22.) During this period, “Klansmen targeted schoolteachers for violent retribution and Black parents who sent their children to school frequently ‘received visits from white men eager to reinforce the nuances of the established racial order.’” ( at 20 (quoting George C. Rable, But There Was No Peace: The Role of Violence in the Politics of Reconstruction 97 (2007)).) And while the federal government responded through civil rights legislation and prosecutions, see, e.g. , Rhodes , 27 F. Cas. at 785–86, 793–94; (Amicus Br. of ACLU of Mich. at 20–21), the end of Reconstruction heralded legislative and policy efforts designed to limit the education of African Americans, see Katzenbach , 383 U.S. at 310–13, 311 n.10 (noting that Southern states “rapidly instituted racial segregation in their public schools” following the Civil War, and discussing the interplay between these efforts to restrict literacy and efforts to restrict the vote).
While
Plessy v. Ferguson
, 163 U.S. 537 (1896),
overruled by Brown
, 347 U.S. 483, is
perhaps the best-known case of the Supreme Court’s “separate but equal” doctrine, several other
cases upheld segregation specifically with respect to American schools. For example, in
Cumming v. Board of Education
,
While
Brown
was handed down in 1954 and held that “[s]eparate educational facilities
are inherently unequal,” 347 U.S. at 495, segregation and unequal treatment in schools have
persisted long after that decision. Despite the Supreme Court’s instruction for desegregation
“with all deliberate speed,”
Brown v. Bd. of Educ.
(
Brown II
),
There are two main takeaways from this history of racial discrimination in education, as well as from past interventions by the courts. First, access to literacy was viewed as a prerequisite to the exercise of political power, with a strong correlation between those who were viewed as equal citizens entitled to self-governance and those who were provided access to education by the state. Second, when faced with exclusion from public education, would-be students have repeatedly been forced to rely on the courts for relief. The denials of education seen in these cases and beyond are now universally accepted as serious injustices, ones that conflict with our core values as a nation. Furthermore, the substantial litigation devoted to addressing these exclusions reveals the unparalleled value assigned to literacy, which is viewed by our society as essential for students to obtain even a chance at political and economic opportunity.
For all of these reasons, we find that the right to a basic minimum education—access to
literacy—is so “deeply rooted in this Nation’s history and tradition” as to meet the historical
prong of the Supreme Court’s substantive due process test.
Glucksberg
, 521 U.S. at 720–21
(quoting
Moore
,
b. Whether a Basic Minimum Education Is “Implicit in the Concept of Ordered Liberty”
Beyond this look to our history, we must also assess whether an asserted right is “implicit
in the concept of ordered liberty.”
Glucksberg
,
As Plaintiffs note, individuals with low or no literacy are incomparably disadvantaged in their economic and social lives, see, e.g. , Plyler , 457 U.S. at 222 (“Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life.”). Even Meyer indicated that the right “to acquire useful knowledge” was protected by the Due Process Clause. 262 U.S. at 399. But neither of these is enough to transform the right into one that is fundamental and thus guaranteed by the Constitution. See, e.g. , Maher v. Roe , 432 U.S. 464, 479 (1977) (“[T]he Constitution does not provide judicial remedies for every social and economic ill.” (quoting Lindsey v. Normet 405 U.S. 56, 74 (1972))). Rather, a basic minimum education—meaning one that plausibly provides access to literacy—is fundamental because it is necessary for even the most limited participation in our country’s democracy.
The Supreme Court has recognized that basic literacy is foundational to our political
process and society. In
Yoder
, the Court noted that “some degree of education is necessary to
prepare citizens to participate effectively and intelligently in our open political system if we are
to preserve freedom and independence.” 406 U.S. at 221. And while
Rodriguez
rejected a
general right to education on the grounds that no one is guaranteed the
most
effective or
intelligent political participation,
Effectively every interaction between a citizen and her government depends on literacy. Voting, taxes, the legal system, jury duty—all of these are predicated on the ability to read and comprehend written thoughts. Without literacy, how can someone understand and complete a voter registration form? Comply with a summons sent to them through the mail? Or afford a defendant due process when sitting as a juror in his case, especially if documents are used as evidence against him?
Even things like road signs and other posted rules, backed by the force of law, are
inaccessible without a basic level of literacy. In this sense, access to literacy “is required in the
performance of our most basic public responsibilities,”
Brown
, 347 U.S. at 493, as our
government has placed it “at the center of so many facets of the legal and social order,”
Obergefell
,
Access to literacy also “draws meaning from related rights,” further indicating that it
must be protected.
Obergefell
,
While the Supreme Court in
Rodriguez
said that “the importance of a service performed
by the State does not determine whether it must be regarded as fundamental,” 411 U.S. at 30,
this principle is stretched past its breaking point when the right in question is important because
it is necessary to other, clearly fundamental rights,
cf., e.g
,
id.
at 35 n.78 (noting that there is a
“protected right, implicit in our constitutional system, to participate in state elections on an equal
basis with other qualified voters”). And this is not just a right deemed to be important, or even
very important; rather, “[p]roviding public schools ranks at the very apex of the function of a
State.”
Yoder
,
Defendants argue that “[a]ccess to literacy is not so fundamental to ordered liberty and justice.” (Defs.’ Br. at 49.) To support this view, they note that “at the time of the adoption of the U.S. Constitution, public education that went beyond rudimentary local cooperation was nonexistent.” ( Id. at 51–52 (citing Gary B. , 329 F. Supp. 3d at 365–66).) According to Defendants, since the country existed at that time, how could “ordered society” require a state- provided education? ( )
Suffice it to say that the practices of the 1700s cannot be the benchmark for what a
democratic society requires. “The nature of injustice is that we may not always see it in our own
times.”
Obergefell
,
Beyond the fact that a basic minimum education is essential to participation in our political system, there is another reason why access to literacy is implicit in the ordered liberty of our nation. “[T]hat education is a means of achieving equality in our society” is a belief “that has persisted in this country since the days of Thomas Jefferson.” Hunnicutt v. Burge , 356 F. Supp. 1227, 1237 (M.D. Ga. 1973) (citing Godfrey Hodgson, Do Schools Make a Difference? Atlantic, Mar. 1973, at 35). In this sense, education has historically been viewed as a “great equalizer”: regardless of the circumstances of a child’s birth, a minimum education provides some chance of success according to that child’s innate abilities. See, e.g. , David Rhode et al., The Decline of the “Great Equalizer , ” Atlantic, Dec. 19, 2012 (quoting Horace Mann, politician and education reformer, in 1848, and Arne Duncan, Secretary of Education, in 2011); Roslin Growe & Paula S. Montgomery, Educational Equity in America: Is Education the Great *50 Equalizer? , Prof. Educator, Spring 2003, at 23 (discussing Mann and the history of the “great equalizer” concept).
As the
Plyler
Court noted, “education provides the basic tools by which individuals might
lead economically productive lives to the benefit of us all. . . . [The] denial of education to some
isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the
abolition of governmental barriers presenting unreasonable obstacles to advancement on the
basis of individual merit.”
This is especially true considering our history of segregated and unequal education based on race, a history that began for the express purpose of limiting African Americans’ political power. See supra Part II.E.3.a. The Supreme Court’s desegregation cases make clear that state- provided public education is important not just to provide a shot at achievement in the face of inequalities of wealth and power, but specifically as a means of addressing past racial discrimination that restricted educational opportunities, and of course to maintain as best we can whatever equal opportunity has already been achieved.
It may never be that each child born in this country has the same opportunity for success in life, without regard to the circumstances of her birth. But even so, the Constitution cannot permit those circumstances to foreclose all opportunity and deny a child literacy without regard to her potential. See Plyler , 457 U.S. 219–20 (“[I]mposing disabilities on the . . . child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth . . . .” (second alteration in original) (quoting Weber v. Aetna Cas. & Sur. Co. , 406 U.S. 164, 175 (1972))). Providing a basic minimum education is necessary to prevent such an arbitrary denial, and so is essential to our concept of ordered liberty.
We hold, therefore, that the right to a basic minimum education—one that can plausibly
impart literacy—is “implicit in the concept of ordered liberty.”
Glucksberg
, 521 U.S. at 721
(quoting
Palko
,
c. Some Arguments (and Responses) Against Recognizing a Fundamental Right
Beyond Defendants’ arguments with respect to the Glucksberg / Obergefell due process framework, it is worth addressing two additional points they make against recognizing a fundamental right in this appeal. The first—raised in nearly every substantive due process case—is that the recognition of a “new” fundamental right is almost always improper, as it compromises the will of the people by exchanging the policy judgments of unelected judges for those of their elected representatives. The second, which is more specifically applicable here, is that the Constitution is a charter of negative liberties, and so (in most cases) only tells the government what it cannot do rather than what it must do. While neither of these arguments carries the day, they are repeated enough to warrant a separate discussion and response.
i. Judicial Restraint Suggests Deference to the Political Process
The classic argument against extending substantive due process is that recognition of a
right as “fundamental” removes it from and so short-circuits the political process.
See, e.g. Obergefell
,
But it is unsurprising that our political process, one in which participation is effectively
predicated on literacy, would fail to address a lack of access to education that is endemic to a
discrete population. The affected group—students and families of students without access to
literacy—is especially vulnerable and faces a built-in disadvantage at seeking political recourse.
The lack of literacy of which they complain is exactly what prevents them from obtaining a basic
minimal education through the normal political process. This double bind provides increased
justification for heightened judicial scrutiny and the recognition of the right as fundamental.
See, e.g.
,
Rodriguez
,
ii. The Due Process Clause Provides Only Negative, Not Positive Rights
Another often-repeated argument raised by Defendants and the dissent is that the Fourteenth Amendment—which speaks in terms of deprivation or denial—does not provide positive, affirmative rights. The Due Process Clause says what the government cannot do, not what it must do, and so recognizing an obligation of the state to provide a basic minimum education would turn the language of the Clause “on its head.” (Defs.’ Br. at 43.)
To be sure, several cases have reflected this view of the Clause. For example, in
Jackson
v. City of Joliet
,
Though not as explicitly described, this negative liberty framing is also imbedded in several of the Supreme Court’s key substantive due process cases. For example, in Casey , the Court portrayed its decision as defending “a realm of personal liberty which the government may not enter.” Casey , 505 U.S. at 847. And even Obergefell framed substantive due process as protecting “certain personal choices,” implicitly a negative-rights construction. 135 S. Ct. at 2597 (majority opinion).
But the Court has recognized affirmative fundamental rights. Aside from specifically
enumerated rights incorporated into the Fourteenth Amendment, such as the right to counsel,
see,
e.g.
,
Strickland v. Washington
, 466 U.S. 668, 684–86 (1984);
Gideon v. Wainwright
, 372 U.S.
335, 339–43 (1963), one affirmative right repeatedly endorsed by the Court is the right to marry.
For example, in
Loving v. Virginia
,
Since access to marriage was so uniformly provided by the states and expected by the people as of right, it took on a fundamental character under the Due Process Clause, even though the performance of a marriage is an affirmative act by the state. The same could be said for education. See supra Part II.E.3.a (discussing the historical evolution and prevalence of state- sponsored education in the United States). And while the burden involved in performing a marriage is substantially less than the burden in providing an education, the marriage cases at least show that the Constitution does not categorically rule out the existence of positive rights.
Further, the Supreme Court’s cases expressly left open the possibility of the right to a
basic minimum education, which works to negate the argument that its recognition is impossible
given its positive or affirmative nature. If Defendants were correct, the Court could easily have
disposed of any claim to an education-related fundamental right, instead of taking pains to
distinguish and reserve decision on “whether a minimally adequate education is a fundamental
right.”
Papasan
,
One additional point from the dissent is worth noting. The dissent compares the right to a
basic minimum education to a right to state-provided food, housing, or health care, and claims
that
DeShaney
foreclosed any affirmative right to these or other benefits. This is because, our
colleague says,
DeShaney
stands for the proposition that “[s]ubstantive due process does not
regulate a state’s failure to provide public services,” regardless of the context. (Dissent at 76
(citing
DeShaney
,
But
DeShaney
—a case in which a child sued the state for failing to stop his father from
abusing and seriously injuring him—concerned the state’s failure to prevent harm caused by a
private actor.
Simply put, education is different. As discussed above,
see supra
Part II.D.3.a, universal,
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.
Thus, even if
DeShaney
’s framework were applied here (despite the lack of a private
harm), this Court has recognized substantive due process claims under the state-created danger
doctrine.
Kallstrom v. City of Columbus
,
d. Contours of the Right to a Basic Minimum Education Beyond simply recognizing the existence of a right to a basic minimum education, it is also important to define its contours, at least for the purposes of this case. The Supreme Court has “required in substantive-due-process cases a ‘careful description’ of the asserted fundamental liberty interest.” Glucksberg , 521 U.S. at 721 (quoting Flores , 507 U.S. at 302). This description does not need to circumscribe the outer-most limit of the right, but must at least define the extent of the right needed to resolve the matter at hand. See, e.g. , Obergefell , 135 S. Ct. at 2602 (noting that rights can be described in a more “comprehensive sense,” leaving questions on whether a particular state action or inaction is required by that right for subsequent determination).
Importantly, the right defined in this opinion is narrow in scope. It does not guarantee an education at the quality that most have come to expect in today’s America (but that many are nevertheless denied). Rather, the right only guarantees the education needed to provide access to skills that are essential for the basic exercise of other fundamental rights and liberties, most importantly participation in our political system. As described by Plaintiffs, this amounts to an *57 education sufficient to provide access to a foundational level of literacy—the degree of comprehension needed for participation in our democracy. [20]
At this stage of the litigation—a motion to dismiss in which no evidence has been discovered or presented—it would be difficult to define the exact limits of what constitutes a basic minimum education sufficient to provide such access. This task is best suited for the district court in the first instance. But a few key principles can trace the contours of the right, providing guideposts for the parties as they continue this litigation.
At the outset, Defendants are correct that this Court cannot prescribe a specific educational outcome, such as literacy or proficiency rates. Though these measures may provide some useful evidence of whether the state is in fact providing a basic minimum education, [21] they are not sufficient evidence alone, because a court order cannot guarantee that educational opportunity is translated into student performance. Rather, the requirement to provide a basic minimum education means the state must ensure that students are afforded at least a rudimentary educational infrastructure, such that it is plausible to attain literacy within that system. [22]
While the precise contours of this infrastructure must be defined though the course of further litigation and examination of the parties’ evidence, it would seem to include at least three basic components: facilities, teaching, and educational materials (e.g., books). For each of these components, the quality and quantity provided must at least be sufficient for students to plausibly attain literacy within the educational system at issue. This question of fact is entrusted to the trial court, which can assess the sufficiency of these measures in the first instance after hearing *58 evidence and likely employing the assistance of expert witnesses as to what resources are necessary.
Our dissenting colleague criticizes this approach, implying that our holding today will create a free-wheeling right that allows federal judges to micromanage the work of local school boards. We do not believe this is a fair description of the limited right embraced in our opinion, which promises only an education sufficient to provide basic access to literacy. And while this right could be impacted by the conditions of a school’s facilities, the age of its textbooks, or the number of teachers in its classrooms, this does not mean that any of these things individually has a “constitutionally required” minimum level. (Dissent at 63.) Rather, the question is whether the education the state offers a student—when taken as a whole—can plausibly give her the ability to learn how to read. [23]
Similarly, the dissent suggests that the recognition of this right—requiring that a state’s system of public education provide at least a shot at literacy, irrespective of which school district a student is assigned to—would somehow stymie innovation and create a one-size-fits-all, national program of education. But how each state reaches the basic minimum level of education discussed above can vary dramatically, and nothing in our recognition of this right—or even any resulting remedy in this case—could alter the broad powers of the states under our federalist system. The state is free to fashion its own school system in any number of ways, but however it does so, it must give all students at least a fair shot at access to literacy—the minimum level of education required to participate in our nation’s democracy.
4. Application of the Right to Plaintiffs’ Allegations
Beyond the abstract question of whether there is a fundamental right to a basic minimum
education, Plaintiffs must also have plausibly alleged that they were deprived of such an
education.
See Iqbal
,
The core of Plaintiffs’ complaint is that they are forced to “sit in classrooms where not even the pretense of education takes place, in schools that are functionally incapable of delivering access to literacy.” (Compl., R. 1 at PageID #4; see also id. at #19 (“[Plaintiffs’ schools] wholly lack the capacity to deliver basic access to literacy, functionally delivering no education at all.”).) But we cannot simply credit Plaintiffs’ legal conclusions. Iqbal , 556 U.S. at 677–78 (citing Twombly , 550 U.S. at 555–57, 570). To avoid dismissal, Plaintiffs must have pleaded enough factual material to plausibly support this claim. at 678–79.
The most important allegations for this point concern the specific conditions in Plaintiffs’ schools. Plaintiffs allege significant teacher shortages, coupled with unqualified instructors when they do have someone in the classroom. They allege dangerous and significantly distracting conditions within their school buildings, including extreme temperatures, overcrowding, and a lack of hygiene. They also allege a dearth of textbooks and other school supplies, with those they do have being in an abysmal or near unusable condition. These allegations are supported by specific examples, including several photographs reproduced within the complaint. At the motion-to-dismiss stage, this permits an inference that Plaintiffs’ schools cannot provide access to literacy.
Plaintiffs further support their claim by citing data that show a zero or near-zero percentage of subject-matter proficiency among students at their schools. As noted above, these figures alone are not enough to state a claim, because the right to a basic minimum education cannot guarantee a specific educational outcome. See supra Part II.E.3.d. Further development of the record will be necessary to determine how these measures—largely put in terms of “grade level” or “proficiency”—are correlated with the type of foundational literacy at issue here. But for now, these data further support the inference that Plaintiffs’ schools are woefully insufficient, especially when combined with qualitative descriptions of their classes’ literacy shortcomings.
In sum, Plaintiffs allege facts concerning inadequate books and materials, insufficient or
unqualified teaching staff, and decrepit and dangerous school conditions (and include
photographs within their complaint). They then allege that nearly zero percent of students at
these schools were graded as proficient in English or other subject-matter tests administered by
the state. Taking the allegations of the complaint as true, and drawing all reasonable inferences
in Plaintiffs’ favor,
see, e.g.
,
Cahoo v. SAS Analytics, Inc.
912 F.3d 887, 897 (6th Cir. 2019),
Plaintiffs have plausibly been deprived of an education that could provide access to literacy.
Defendants have not argued otherwise—they rest on the legal argument that there is no
implicated fundamental right—and also have not argued that this deprivation is narrowly tailored
to advance a compelling state interest.
E.g.
,
Glucksberg
,
III. CONCLUSION
The recognition of a fundamental right is no small matter. This is particularly true when the right in question is something that the state must affirmatively provide. But just as this Court should not supplant the state’s policy judgments with its own, neither can we shrink from our obligation to recognize a right when it is foundational to our system of self-governance.
Access to literacy is such a right. Its ubiquitous presence and evolution through our history has led the American people universally to expect it. And education—at least in the minimum form discussed here—is essential to nearly every interaction between a citizen and her government. Education has long been viewed as a great equalizer, giving all children a chance to meet or outperform society’s expectations, even when faced with substantial disparities in wealth and with past and ongoing racial inequality.
Where, as Plaintiffs allege here, a group of children is relegated to a school system that does not provide even a plausible chance to attain literacy, we hold that the Constitution provides them with a remedy. Accordingly, while the current versions of Plaintiffs’ equal protection and compulsory attendance claims were appropriately dismissed, the district court erred in denying *61 their central claim: that Plaintiffs have a fundamental right to a basic minimum education, meaning one that can provide them with a foundational level of literacy. The district court’s order is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
_________________
DISSENT
_________________
MURPHY, J., dissenting. The complaint in this case alleges school conditions that
would significantly impair any child’s ability to learn. If I sat in the state legislature or on the
local school board, I would work diligently to investigate and remedy the serious problems that
the plaintiffs assert. But I do not serve in those roles. And I see nothing in the complaint that
gives federal judges the power to oversee Detroit’s schools in the name of the United States
Constitution. That document does not give federal courts a roving power to redress “every social
and economic ill.”
Lindsey v. Normet
,
The plaintiffs argue that the Due Process Clause imposes a one-size-fits-all duty on all
50 states to devote an unspecified level of taxpayer dollars to an unspecified level of education.
Their novel request for a positive right to education will “mark a drastic change in our
understanding of the Constitution.”
Harris v. McRae
, 448 U.S. 297, 318 (1980). The Due
Process Clause has historically been viewed, consistent with its plain text, as a negative limit on
the states’ power to “deprive” a person of “liberty” or “property.” U.S. Const. amend. XIV, § 1.
It has not been viewed as a positive command for the states to protect liberty or provide property.
A state’s decision “not to subsidize the exercise of a fundamental right” has never been thought
to “infringe the right,” even in areas where the states have long provided that assistance.
Regan
v. Taxation With Representation of Wash.
, 461 U.S. 540, 549 (1983). While, for example, a
party may have a constitutional right against state aggression, the party has no constitutional
right to state protection against private violence.
DeShaney v. Winnebago Cty. Dep’t of Soc.
*63
Servs.
,
This positive right to a minimum education will jumble our separation of powers. It will
immerse federal courts in a host of education disputes far outside our constitutionally assigned
role to interpret legal texts.
Cf. Washington v. Glucksberg
, 521 U.S. 702, 721 (1997). How
should those courts remedy the schools that they conclude are not meeting the constitutionally
required quality benchmarks? May they compel states to raise their taxes to generate the needed
funds? Or order states to give parents vouchers so that they may choose different schools? How
old may textbooks be before they become constitutionally outdated? What minimum amount of
training must teachers receive? Which HVAC systems must public schools use? Our judicial
commissions give us no special insights into these “difficult questions of educational policy.”
Rodriguez
, 411 U.S. at 42. But the states’ ability to experiment with diverse solutions to
challenging policy problems has long been a cherished aspect of our federalism.
United States v.
Lopez
,
These legal points are not meant to deny much of what the majority eloquently says. The majority correctly recognizes “the vital role of education in a free society.” Rodriguez 411 U.S. at 30. No one disputes the importance of education for children to have a chance at life, just as no one disputes the importance of their having enough food to eat or a sturdy roof over their heads. Yet my view that education is important as a policy matter says nothing about whether I may find it compelled as a constitutional one. at 32–34. That is what our Framers meant when they said that judges exercise “neither FORCE nor WILL but merely judgment.” The Federalist No. 78, at 464 (A. Hamilton) (Clinton Rossiter ed., 1961). The constitutional question in this case turns on a legal judgment about the meaning of the Constitution’s words; it *64 does not turn on a policy assessment about education’s societal value. And I see nothing in the Constitution’s language that creates a substantive entitlement to a state-funded education.
The majority also correctly notes that the Fourteenth Amendment does include words
designed to remedy our country’s sad history of racial discrimination in the public schools.
Brown v. Board of Education
, 347 U.S. 483 (1954), stands out as a bedrock Supreme Court
precedent, righting the legal wrong that was
Plessy v. Ferguson
,
For these reasons and those that follow, I would affirm the district court’s judgment.
I
The plaintiffs allege that they have a fundamental “right to State-provided access to literacy protected by the Due Process Clause.” Apt. Br. 25. Both portions of this proposed right—the state-provided portion and the access-to-literacy portion—depart from settled doctrine. The Supreme Court has repeatedly held that education is not a “fundamental right.” And even if some minimum education could attain fundamental-right status, the plaintiffs’ claim still must fail. Substantive due process has never compelled states to provide their residents with the funds they need to exercise fundamental rights. It has instead barred states from interfering with the exercise of those rights. In short, the plaintiffs seek an unprecedented subsidy for an unprecedented right.
A
At the outset, the plaintiffs’ assertion that they have a fundamental right to a minimum
education faces stiff precedential headwinds. The Supreme Court has refused to treat education
as a fundamental right every time a party has asked it to do so.
Kadrmas v. Dickinson Pub. Sch.
This line of precedent begins with Rodriguez . It considered whether Texas’s reliance on local taxes to fund schools, which caused gross financial disparities across school districts, violated the Equal Protection Clause. 411 U.S. at 9–15. While conceding education’s importance to our society, the Court recognized that “the importance of a service performed by the State does not determine whether it must be regarded as fundamental.” Id. at 30. Rather, education’s status as a fundamental right turns on whether “there is a right to education explicitly or implicitly guaranteed by the Constitution.” Id. at 33. The Court could find no such right. Education “is not among the rights afforded explicit protection under our Federal Constitution.” Id. at 35. And the Court refused to find education implicitly guaranteed on the ground that it was necessary to exercise other rights, such as the right to free speech or to vote. Id. at 35–36.
In a trio of equal-protection decisions since, the Court has repeatedly reaffirmed this
conclusion. In
Plyler
, a Texas law gave school districts discretion to deny education to
immigrant children who were in this country illegally.
The plaintiffs assure us that we can disregard these many statements. That is so, they
say, because
Papasan
noted that the Court has “not yet definitively settled the question[] whether
a minimally adequate education is a fundamental right.”
B
The Supreme Court has long recognized a “basic” constitutional difference between a
state’s use of its coercive power to regulate its residents and the state’s refusal to use its spending
power to give them things.
Maher v. Roe
, 432 U.S. 464, 475 (1977). To list one of many
examples: Just because the Free Speech Clause bars a state from banning its citizens’ political
speech,
Eu v. San Francisco Cty. Democratic Cent. Comm.
,
1
Start with text. The Due Process Clause provides: “[N]or shall any state deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
This language is “phrased in the negative.”
Archie v. City of Racine
,
This ordinary meaning comports with the way in which the text would have been viewed
at the time of its enactment: as a limit on the states’ power to intrude on private rights. By 1868,
the Supreme Court had already held that the Fifth Amendment’s Due Process Clause has its roots
in Magna Carta and so imposes a “restraint on the legislative as well as on the executive and
judicial powers of the government.”
Murray’s Lessee v. Hoboken Land & Improvement Co.
,
The plaintiffs have not even attempted to reconcile their proposed positive right with this
constitutional text. They do not argue that the State of Michigan has “take[n] away” their liberty
to obtain a minimum education of their choice. Webster,
supra
, at 358. They do not, for
example, allege that the state bars them from attending a private school,
Pierce v. Soc’y of
Sisters
,
Nor would Americans at the time of the Due Process Clause’s adoption have read it to
compel states to operate schools. No one would have viewed the clause as a check on the states’
“aggressive tendency” to be stingy with their public services. Cooley,
supra
, at 351;
see
Daniels
,
2
Turn to precedent. The Supreme Court’s substantive-due-process decisions have long
been controversial “because guideposts for responsible decisionmaking in this unchartered area
are scarce and open-ended.”
Collins v. City of Harker Heights
,
These decisions have not, by contrast, touched the states’ spending power. Until now, the
Due Process Clause has left little room for debate that a state generally “is under no
constitutional duty to provide substantive services for those within its border.”
Youngberg v.
Romeo
,
Take abortion. The Court has held that substantive due process forbids the states from
banning all abortions.
Casey
, 505 U.S. at 846. But the Court has rejected the notion that
substantive due process also requires them to pay for abortions,
Rust v. Sullivan
,
The Court has kept to this rule even where the inclination to create an exception would
reach its apex. Substantive due process bars a state from arbitrarily injuring its residents (which
deprives them of their liberty or lives).
County of Sacramento v. Lewis
, 523 U.S. 833, 840
(1998);
Guertin v. State
,
The plaintiffs’ claim all but requires us to overrule this caselaw. I do not see how the
Due Process Clause can compel Michigan to provide the plaintiffs with educational services
when it did not require Winnebago County to provide Joshua DeShaney with protective services.
Their claim must fail for the same reason his did: The Due Process Clause “confer[s] no
affirmative right to governmental aid[.]” at 196. Nor can the plaintiffs sidestep this rule with
Papasan
’s dicta reserving whether a minimum education might qualify as a “fundamental right.”
478 U.S. at 285. Even when constitutional rights are at stake, the government has no duty to
spend funds to promote those rights.
Rust
,
3
Next consider the Framers’ constitutional design. The Constitution’s federalist structure
gives “few and defined” powers to the federal government and leaves “numerous and indefinite”
powers to the states. The Federalist No. 45, at 289 (J. Madison) (Clinton Rossiter ed., 1961).
This federalism enhances our liberty by allowing local communities to make local decisions free
from a less accountable and more distant central power.
Bond v. United States
,
This federalism concern has great urgency here. The plaintiffs’ proposed right to a state-
provided education asks the federal government to intervene in an area that has long been “a
traditional concern of the States.”
Lopez
,
To be sure, “it is doubtful that any State” would disagree with the plaintiffs’ goal: States
should strive to alleviate poor school conditions.
Id.
at 581 (Kennedy, J., concurring). But
“considerable disagreement exists about how best to accomplish that goal.” Should states fix
the problem of failing schools by sending more money into them?
Cf. DeRolph v. State
, 780
N.E.2d 529, 537–38 (Ohio 2002) (Moyer, C.J., dissenting). Or should they fix the problem by
giving children a choice to attend other schools?
Cf. Zelman v. Simmons-Harris
,
Public education also requires public funds. States facing tight budgets must make
delicate tradeoffs about how much money to devote to education as compared to other priorities
like healthcare, welfare, or police protection. “Higher quality [education] may come at the
expense of a higher budget for the police or [the roads], or at the expense of higher taxes
that induce people to relocate to low-service (and low-tax) jurisdictions.”
Archie
, 847 F.2d at
1223–24. The Supreme Court has traditionally given states wide discretion to make these
financial tradeoffs.
Rodriguez
, 411 U.S. at 40. Yet the plaintiffs’ claim would disrupt state
fiscal policies too by creating an “extraordinary” positive right to education.
Harris v. McRae
And while the Due Process Clause has traditionally imposed only negative limits on
states, the people of each state may impose positive duties in their state constitutions. Jeffrey S.
Sutton,
51 Imperfect Solutions
35 (2018). For centuries, states have done just that in this
educational setting.
See
Steven G. Calabresi & Michael W. Perl,
Originalism and Brown v.
Board of Education
, 2014 Mich. St. L. Rev. 429, 450–54 & nn.97–126 (2015). Yet, as
evidenced by the “linguistic diversity of the various states’ education clauses,”
Conn. Coal. for
Justice in Educ. Funding, Inc. v. Rell
,
4
Lastly consider the nature of our own authority. Article III gives federal courts the
“judicial Power.” U.S. Const. art. III, § 1. This power does not allow federal courts to declare
state action unconstitutional “merely because it is, in their judgment, contrary to the principles of
natural justice.”
Calder v. Bull
,
The proposed right to a state-provided education shows why courts must exercise this
caution. The right would entangle courts in policy controversies well outside their authority “to
say what the law is.”
Marbury
,
Debates over the best way to help children stuck in failing schools likewise “involve[] the
most persistent and difficult questions of educational policy.” at 42. Consider, for example,
questions about the root causes of poorly performing schools. The plaintiffs in this case allege
that “high teacher turnover,” including heavy reliance on teachers from Teach for America, has
partially caused the poor learning environments. Compl., R.1, PageID#101. A similar
California suit, by contrast, alleged that the state’s tenure rules—which entrenched bad teachers
in the state’s public schools—caused those poor learning environments.
See Vergara v.
California
,
Next consider questions about the best solutions for failing schools. The plaintiffs in this
case request an injunction that would require Michigan to, among other things, fix public
schools with “insufficient teacher capacity” or “deplorable school conditions.” Compl., R.1,
PageID#132. A similar Connecticut suit, by contrast, sought to enjoin “Anti-Opportunity Laws”
that reduced the ability of children to choose other schools.
See Martinez v. Malloy
350 F. Supp. 3d 74, 80–81 (D. Conn. 2018). Do federal courts get to pick between investing
more in traditional schools or investing more in alternatives? It would be ironic if the voucher
system that the Supreme Court narrowly upheld for the City of Cleveland could be
constitutionally compelled for the entire nation.
See Zelman
,
Our judicial power gives us no “specialized knowledge and experience” about the best
education policies.
Rodriguez
,
II
To reach a contrary result, the majority invokes Glucksberg ’s substantive-due-process test; makes analogies to other allegedly “positive” rights; relies on the dicta in the Supreme Court’s education decisions; and recounts our history of racially discriminatory education. None of these points permits the positive right to education that the majority finds in the Due Process Clause.
A
The majority cites Glucksberg ’s historical framework for substantive-due-process claims and notes that most state constitutions have long included some type of clause about education or schools. Majority Op. 41–51. But Glucksberg ’s framework does not extend to this distinct subsidy context, and it would not justify the plaintiffs’ proposed right even if it did.
Glucksberg
considered a law that banned physician-assisted suicide; it did not consider a
law refusing to pay for the practice. In that regulatory context, the Supreme Court asked whether
the activity that the state prohibited (suicide) was “deeply rooted in this Nation’s history and
tradition” and “implicit in the concept of ordered liberty.”
Glucksberg
,
DeShaney
proves my point. That case did not ask whether state protection from private
violence was deeply rooted in our history or implicit in the concept of ordered liberty.
See
Even if
Glucksberg
’s framework applied, the plaintiffs’ proposed right would not satisfy
it. Other than the fact that they label their claim a right to “access literacy,” I see little daylight
between that claim and the one
Rodriguez
rejected. The plaintiffs rely on state constitutional
provisions as their main support for the argument that literacy is “deeply rooted in this Nation’s
history and tradition.”
Glucksberg
,
The plaintiffs also merely cite these state education clauses; they do not discuss how the states have applied them. For most of our country’s history, “[t]he overwhelming majority of States” did not treat the clauses as creating judicially enforceable individual rights to a minimum education (in contrast to a general mandate for the legislature to set up a statewide school system). John C. Eastman, When Did Education Become a Civil Right? An Assessment of State Constitutional Provisions for Education 1776-1900 , 42 Am. J. Legal Hist. 1, 2 (1998). That is why, in 1992, a commentator could describe an “emerging” right to education, not a longstanding one. See Allen W. Hubsch, The Emerging Right to Education Under State Constitutional Law , 65 Temple L. Rev. 1325 (1992). And even under an approach using “reasoned judgment” to discover new rights, Obergefell v. Hodges , 135 S. Ct. 2584, 2598 (2015), these more recent suits have been met with decidedly mixed results. See Sutton, supra at 30. Some courts have declined to adopt a state right to a minimum education precisely because of the way in which their sister courts have “struggled in [their] self-appointed role[s] as *77 overseer[s] of education” to find workable standards. City of Pawtucket v. Sundlun , 662 A.2d 40, 59 (R.I. 1995); cf. Ex Parte James , 836 So. 2d 813, 819 (Ala. 2002) (per curiam). This practical concern has far greater force as applied to the national due-process right that the plaintiffs ask us to mandate for all 50 states.
In that respect, Glucksberg requires a plaintiff to articulate “a ‘careful description’ of the asserted fundamental liberty interest.” 521 U.S. at 721 (citation omitted). Here, however, the plaintiffs propose a vague right to the “access to literacy” without clearly identifying its contours. Their proposal would mandate far more day-to-day federal oversight of the states’ schools than any narrow claim that children “are not taught to read or write.” Papasan , 478 U.S. at 286. The complaint suggests that this right will require federal courts to evaluate such things as the minimum qualifications for teachers, Compl., R.1, PageID#120, the maximum number of students per class, id. , PageID#97–98, and the appropriate types and conditions of textbooks, id. , PageID#82–83. Their proposed right also does not appear limited to literacy, as the complaint makes allegations about physics and economics courses too. , PageID#82, 104. All told, the plaintiffs seek to enforce the right to education that Rodriguez rejected simply by relabeling it.
B
Even if DeShaney sets the default rule in this subsidy context, the majority next says, the Supreme Court has created two other “exceptions” that are like the exception that the majority creates today. Majority Op. 52–53. Neither justifies the majority’s departure from DeShaney .
As its first exception, the majority notes that the Sixth Amendment’s right to counsel (as
incorporated by the Due Process Clause) requires a state to provide a criminal defendant with a
taxpayer-funded lawyer.
Gideon v. Wainwright
, 372 U.S. 335, 344 (1963). But the state’s
prosecution triggering this right seeks to
deprive
the defendant of life, liberty, or property.
So
Gideon
“did not expand the definition of deprivation to encompass the failure to provide
services; it merely determined what constituted the process due when the state sought actively to
deprive the individual of life, liberty, or property by means of the criminal law.” Currie,
supra
As its second exception, the majority notes that the Due Process Clause protects the right
to marry even though “the performance of a marriage is an affirmative act by the State.”
Majority Op. 53. But the Supreme Court has treated the “right to marry” not as a right to state
aid, but as “part of the fundamental ‘right of privacy’” that bars a state from interfering in an
individual’s intimate decisions.
Zablocki v. Redhail
, 434 U.S. 374, 384 (1978). “[I]t would
make little sense to recognize a right of privacy with respect to other matters of family life,” the
Court has said, “and not with respect to the decision to enter the relationship that is the
foundation of the family in our society.”
Id.
at 386. It has thus found this right violated by
criminal laws that deprived people of liberty merely for marrying. at 387;
Loving v. Virginia
,
These decisions have not, however, compelled states to provide public assistance so that
parties may exercise their privacy rights. Apart from the abortion cases I have discussed,
Rust
If the majority believes that
Obergefell
jettisoned
DeShaney
and allows courts to discover
a new font of positive rights, I disagree.
Obergefell
“held invalid” state marriage laws “to the
extent they exclude[d] same-sex couples from civil marriage on the same terms and conditions as
opposite-sex couples.”
C
The majority next notes that
Rodriguez
and the Supreme Court’s other education cases
“left open the possibility of the right to a basic minimum education, which works to negate the
argument that its recognition is impossible given its positive or affirmative nature.” Majority
Op. 54. When
Rodriguez
refused to find a right to education in the right to speak or vote, it
stated: “Even if it were conceded that some identifiable quantum of education is a
constitutionally protected prerequisite to the meaningful exercise of either right, we have no
indication that the present levels of educational expenditures in Texas provide an education that
falls short.” 411 U.S. at 36–37.
Papasan
read this sentence to reserve “whether a minimally
adequate education is a fundamental right.”
These cases instead considered equal-protection claims. That makes all the difference.
Unlike the Due Process Clause, which does not generally compel a minimum level of public
services, the Equal Protection Clause does sometimes compel an equal level of public services.
*80
The rigor with which courts review the unequal provision of state aid turns on whether a state’s
distinctions “proceed[] along suspect lines” or “involv[e] fundamental rights.”
Heller v. Doe
509 U.S. 312, 319 (1993). If state action does either, the Court applies demanding
“strict scrutiny” review; if it does not, the Court applies forgiving rational-basis review.
See id.
at 319–20. As has been clear since
Brown v. Board of Education
, 347 U.S. 483 (1954), strict
scrutiny applies to suspect racial classifications in education.
Parents Involved in Cmty. Sch. v.
Seattle Sch. Dist. No. 1
, 551 U.S. 701, 720 (2007). Absent those pernicious classifications,
parties have asked the Court to apply strict scrutiny to any unequal treatment in education on the
ground that education is a “fundamental right.” The Court has repeatedly said “no.”
See Kadrmas
,
This context clarifies what
Papasan
meant when it said that the Court has left open
“whether a minimally adequate education is a fundamental right.”
Rodriguez
’s reasoning confirms this conclusion. Any hypothetical right to a minimum
education would in part flow out of the right to free speech.
Rodriguez
, 411 U.S. at 35–37.
It has, however, been black-letter law for decades that the Free Speech Clause does not require
states to “affirmatively assist” speech.
Ysursa
, 555 U.S. at 364. As Justice Douglas said, the
Supreme Court has rejected any “notion that First Amendment rights are somehow not fully
realized unless they are subsidized by the State.”
Cammarano v. United States
,
Nor is this distinction between substantive due process and equal protection meant to
deny, as the majority rightly notes, that “a fundamental right is a fundamental right.” Majority
Op. 54. But the fundamental-rights analysis differs depending on the constitutional clause at
issue. A state’s provision of
unequal
public aid to subsidize a fundamental right of some
(without extending that aid to others) can trigger heightened equal-protection scrutiny.
See Shapiro v. Thompson
,
In all events, I do not think the Court’s statements in these decisions can justify the
plaintiffs’ alleged fundamental right. Whatever
Papasan
meant by a fundamental right to a
“minimally adequate education,”
D
The majority lastly notes that our country’s history of racial injustice in education supports a right to a minimum education. Majority Op. 44–46. I agree that the Fourteenth Amendment was designed to stop the rampant discrimination that the majority describes. But I respectfully disagree that the amendment’s Framers did so by creating a substantive right to a minimum education. They instead created an equality right that applies once the state decides to provide for education. Both precedent and original meaning support this distinction.
Since at least
Strauder v. West Virginia
, 100 U.S. 303 (1880), the Supreme Court has
explained that the “central purpose of the Fourteenth Amendment was to eliminate racial
discrimination emanating from official sources in the States.”
Peña-Rodriguez v. Colorado
The Supreme Court’s decision in
Brown
extended this logic to the educational context.
Brown
recognized that “education is perhaps the most important function of state and local
governments.” 347 U.S. at 493. But nowhere did it suggest that the Constitution compels all
states to provide a minimum education. Rather, it held that the right to an education, “
where the
state has undertaken to provide it
, is a right which must be made available to all on equal terms.”
Id.
(emphasis added). And it found that segregated schools deny “children of the minority
group . . . equal educational opportunities.” No other Supreme Court decision suggests that
the Due Process Clause creates an educational entitlement. When, for example, the Court held
*83
that a state must give students process before expelling them from schools that they have a state-
law right to attend, it suggested that the states were not “constitutionally obligated to establish
and maintain a public school system.”
Goss v. Lopez
,
This same substance-versus-equality distinction permeates the congressional debates over what became the Civil Rights Act of 1875, an act passed under Congress’s power to enforce the Fourteenth Amendment. See Michael W. McConnell, Originalism and the Desegregation Decisions , 81 Va. L. Rev. 947, 1036–45 (1995); John Harrison, Reconstructing the Privileges or Immunities Clause , 101 Yale L.J. 1385, 1425–33, 1462–63 (1992). That law, as enacted, barred racial discrimination in public accommodations and jury selection. Civil Rights Act of 1875, ch. 114, §§ 1, 4, 18 Stat. 335, 336–37. (The Supreme Court would later hold that the public- accommodations provisions exceeded Congress’s power as applied against private actors. Civil Rights Cases , 109 U.S. 3, 11 (1883).) But earlier versions of the law also would have barred segregated schools. McConnell, supra , at 987–90 & 987 n.183. As Congress debated these bills, “half or more [of the legislators] voted repeatedly to abolish segregated schools under authority of the Fourteenth Amendment.” Id. at 986.
The supporters of this desegregation decree did not dispute that the substantive “decision whether to have public schools . . . was regarded as a question of policy for the states.” Harrison, supra , at 1428. Rather, they contended that, once a state opted to have schools, the state must open the schools equally to all races. Id. One senator, for example, “explained that the civil rights bill ‘does not say that schools shall be kept at all, but it contemplates this: that where there are free schools kept at public expense, . . . in such cases there shall be an equal right to participate in the benefit of those schools created by common taxation.’” McConnell, supra , at 1041 (quoting Cong. Globe, 42d Cong., 2d Sess. 3191 (1872)). And when opponents argued that southern states would close their schools if this desegregation mandate passed, the proponents responded with statements like the following: “Let justice be done though the common schools and the very heavens fall.” at 1045 (quoting 2 Cong. Rec. 4151 (1874)). These legislators recognized that the Fourteenth Amendment required states to desegregate the schools that they *84 opened, even if it did not compel them to open schools to begin with. Brown thus has roots in the Fourteenth Amendment’s original understanding in a way that today’s decision does not.
III
Aside from a positive right to a state-funded education, the plaintiffs fall back on a “negative” substantive-due-process right. They point out that Michigan’s compulsory- attendance laws force most children to attend school and so do deprive them of liberty. This restriction on children’s liberty passes constitutional muster, the plaintiffs argue, only if a state reciprocates by operating schools that meet a minimum level of quality. I agree with the majority that the plaintiffs did not raise this claim below and so have forfeited it here. Majority Op. 31–32. But I disagree with any suggestion that this theory otherwise has “strong support in the law.” at 27.
The plaintiffs rely on
Youngberg
for their claim. That decision carved out a narrow
exception to the rule that a state has no duty to provide public aid, but this exception generally
applies only for those individuals under strict state control.
See
This exception, though, has never reached students. Courts have “consistently rejected”
the argument that
Youngberg
’s custody exception covers children “based on compulsory
attendance laws.”
Stiles ex rel. D.S. v. Grainger County
, 819 F.3d 834, 854 (6th Cir. 2016);
Sargi v. Kent City Bd. of Educ.
,
This precedent comports with the nature of compulsory-attendance laws.
Youngberg
’s
exception applies only in situations in which the state has “restrain[ed] the individual’s freedom
to act on his own behalf.”
DeShaney
,
* * *
My answer to this case’s constitutional questions should not “be viewed as placing [any]
judicial imprimatur on the status quo.”
Rodriguez
,
Notes
[1] Plaintiffs instead allege that this seventh member was “appointed by the Governor” (Compl., R. 1 at PageID #50), but this makes no difference to their case, since both the governor and the state superintendent are defendants here.
[2] This commission includes the state treasurer, the director of the Department of Technology, Management and Budget (who is one of the defendants here) or her designee, and several appointees of the governor, along with certain officers from DPSCD and the City of Detroit. See Mich. Comp. Laws § 141.1635(1)–(2). State officers and appointees constitute a majority of the commission.
[3] Plaintiffs also discuss inadequate teachers, decrepit conditions, and a shortage of materials at Marion Law Academy, one of the schools managed by the EAA. While the conditions described at the school seem horrendous ( see, e.g. , Compl., R. 1 at PageID #58 (“In one fourth-grade classroom, a leaking hole in the ceiling created what students called ‘the lake,’ and the teacher surrounded the area with yellow caution tape after multiple requests for repairs were ignored.”)), none of the named plaintiffs attended Marion Law Academy.
[4]
These charter schools are treated as public schools under Michigan law and are subject to the authority of
the state board of education.
E.g.
, Mich. Comp. Laws § 380.501(1);
Parochiaid
,
[5] Plaintiffs also allege that their schools fail to employ adequate instructors for students whose first language is not English. In one case, this failure was despite the school claiming to be “a dual language immersion school.” (Compl., R. 1 at PageID #99.)
[6] Plaintiffs voluntarily abandoned their other two causes of action.
[7]
It is unclear how McMillin and Snyder have the authority to pursue separate arguments on their own
behalf. Both are members of a collegial body—the state board of education—and were sued in their official
capacities. In such a case, it is the decision of the body itself, not its individual members, that governs the conduct
of litigation.
See, e.g.
,
Bender v. Williamsport Area Sch. Dist.
,
[8] Although the changes highlighted by Defendants do not alter this general relationship between the state and its subordinate school districts, they may affect whether certain individual defendants should remain in this case. For example, the SRO appears to have been eliminated in June 2019. While the parties did not raise this issue directly with respect to individual officers, they could do so following remand in the district court. See, e.g. , Chisom v. Jindal , 890 F. Supp. 2d 696, 728 (E.D. La. 2012) (approving the voluntary dismissal of an official-capacity defendant after the office in question was eliminated); see also, e.g. , Will v. Mich. Dep’t of State Police , 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.”).
[9] Classifications based on gender are reviewed under “intermediate scrutiny,” in which the challenged policy “must serve important governmental objectives and must be substantially related to achievement of those
[10]
In a later case, the Supreme Court may have attempted to limit this holding.
See Kadrmas v. Dickinson
Pub. Sch.
,
[11]
This statewide approach may open itself to statewide justifications by Defendants, though.
See, e.g. Rodriguez
,
[12]
The dissent suggests that
Youngberg
categorically does not apply to claims based on compulsory
attendance laws. But the cases it relies on all concern the state’s failure to protect a student within the school
environment from private harms like third-party violence or medical conditions, not whether the state’s mandatory
attendance requirement was itself permissible in the first place.
See Stiles ex rel. D.S. v. Grainger County
, 819 F.3d
834, 840 (6th Cir. 2016);
Sargi v. Kent City Bd. of Educ.
,
[14] A similar outcome was reached by the Fifth Circuit in School Board v. Louisiana State Board of Elementary & Secondary Education , 830 F.2d 563, 568 (5th Cir. 1987), which employed rational-basis review
[15] As discussed above, see supra Part II.E.3.a, Defendants’ argument goes well beyond even the originalist views of Justice Alito in McDonald and Justice Scalia in his dissent to Obergefell . Defendants essentially propose looking back to the earliest days of our country to determine the maximum scope of the Due Process Clause, ignoring that the Fourteenth Amendment was adopted nearly a century later.
[16]
Though this partakes of both the equal protection and due process inquiries, the Supreme Court endorsed
such an approach in
Obergefell
, which discussed the partial convergence of the Fourteenth Amendment’s Equal
Protection and Due Process Clauses.
See
[17] The dissent appears to conflate the equal protection inquiry in Rodriguez and its progeny, which assessed whether the state’s unequal provision of any level of education violated the Constitution’s equality mandate, with the question alluded to in Rodriguez but explicitly reserved in Papasan : whether access to some basic minimum level of education is a fundamental right.
[18]
As we explained in
Scarborough
, when the state denies an individual one of her fundamental rights, that
claim sounds under the Due Process Clause because the state cannot deprive someone of a fundamental right
without a compelling governmental reason, regardless of whether that denial is discriminatory.
[19] For this reason, the dissent errs when it describes public schooling as merely a subsidy of the private exercise of a fundamental right. The case the dissent relies on for this is Regan v. Taxation with Representation of Washington , 461 U.S. 540, 541–43 (1983), which addressed whether Congress could exclude donations to organizations that engage in substantial lobbying from tax-deductibility under 26 U.S.C. § 501(c)(3). The Court’s finding that “Congress has not violated [an organization’s] First Amendment rights by declining to subsidize its First Amendment activities” through tax-deductible status, id. at 548, is not analogous to a state’s failure to provide a basic minimum education at certain schools when the entire educational system is dominated by the state.
[20]
This narrow definition of the right also helps dispel the concern that recognizing such a claim could
“open the floodgates of litigation” and “overwhelm the federal courts.”
United States v. City of Loveland
, 621 F.3d
465, 472 (6th Cir. 2010). Several of these claims have already been rejected not because no such right exists, but
because the facts alleged by the plaintiffs were insufficient to allege a deprivation.
E.g.
,
Papasan
,
[21] Looking to other schools or school systems, these educational-outcome measures may also be helpful evidence of what specific resources are needed to provide access to literacy.
[22] Using Defendants’ example of the right to counsel, this approach would not transform the right to counsel into the right to an acquittal. Rather, the right is akin to the promise of effective counsel, e.g. , Strickland 466 U.S. at 686 (citing McMann v. Richardson , 397 U.S 759, 771 n.14 (1970)), from which no outcome is guaranteed, but the lawyer’s objective failure cannot be the source of the client’s loss.
[23] Just because “the complaint makes allegations about physics and economics courses too” (Dissent at 77), does not mean we agree that those additional areas of study are required as part of a fundamental right providing access to basic literacy.