On April 23, 2020 the Sixth Circuit Court of Appeals rendered a divided decision in Gary B. et. al. v. Whitmer et. al., No. 18-1871 (6th Cir. 2020). The Court held that foundational literacy is a fundamental right under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. While the ruling is only precedential in Kentucky, Michigan, Ohio, and Tennessee, the case may have an impact in other jurisdictions. Further, the full Sixth Circuit Court voted to rehear the case, putting the entire holding in doubt.
In the case, students in several of Detroit’s worst-performing public schools, sued the Governor of Michigan; Michigan Department of Education; Superintendent of Public Instruction; State Board of Education (SBE); individual SBE members; and Michigan Department of Technology, Management, and Budget. The students alleged that their substandard performance was due to poor conditions, including absent or unqualified teachers, physically dangerous and unsafe buildings, and inadequate books and materials. The substandard conditions allegedly deprived the students of a basic minimum education, including foundational literacy.
The Court found that a basic minimum education is “deeply rooted in this Nation’s history and tradition”, and that this right to literacy is “implicit in the concept of ordered liberty.” Furthermore, the Court found that access to literacy is essential and “necessary for even the most limited participation in our country’s democracy.” The Court remanded the case to the District Court for further proceedings to determine the precise contours of an educational infrastructure that would include at least three basic components: facilities, teaching, and educational materials. The Court determined that for each of these components, the quality and quantity provided must be at least sufficient for students to plausibly attain literacy. The Court stated, in part, “…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.” A dissenting justice of the Court asserted that the Court’s decision will create a free-wheeling right that allows federal judges to micromanage the work of local school boards.
Before the lower court could act on the appellate court’s order, a settlement was reached with the Governor only, which also included a release of all claims against all defendants. On May 14, 2020, Governor Whitmer issued a press release stating that she agreed, among other things, to propose legislation during her first term that would provide Detroit Public School Community District (DPSCD) with at least $94.4 million of funding for literacy-related programs and initiatives. Further, on May 19, 2020, full U.S. Court of Appeals for the Sixth Circuit voted to rehear the Gary B. case. The rehearing may render the decision moot, or it may more firmly establish education as a right.