I wrote last week about a historic decision by a federal appeals court that ruled that students in the low-performing Detroit school system have a right to expect to learn to read and write in their public schools.

The Supreme Court has never decided the issue, but the U.S. Court of Appeals for the 6th Circuit said “we recognize that the Constitution provides a fundamental right to a basic minimum education.” The judges said the right to literacy was “narrow” but includes the skills essential for “basic exercise of other fundamental rights and liberties, most importantly participation in our political system.”

The lawsuit, known as Gary B., et al. v. Whitmer, et al., was filed by students on behalf of students in some of the lowest-performing schools in the Detroit Public Schools system, which has long been troubled. Their underlying case was based on the due process and equal protection clauses of the 14th Amendment.

The suit argued that students blamed “substandard performance on poor conditions within their classrooms, including missing or unqualified teachers, physically dangerous facilities, and inadequate books and materials.” Conditions in the schools, the students said, had deprived them “of a basic minimum education” that allows a chance at foundational literacy.

However, the decision of the 6th Circuit is hardly the last word on this, as explained in the following post by Derek W. Black, a professor at the University of South Carolina School of Law with expertise in education law and policy. He is also the author of the forthcoming book, "Schoolhouse Burning: Public Education and the Assault on American Democracy.

By Derek W. Black

The Sixth Circuit Court of Appeals, in Gary B. v. Whitmer, just delivered the holy grail of education advocacy: a federal fundamental right to education. The court narrowly defined the right as a “basic minimum education,” but most rights revolutions begin somewhere small. The even more formidable challenge is surviving review before the full Sixth Circuit or the U.S. Supreme Court. Yet, for now, the decision stands as something no other high federal court has ever done.

The last 50 years of negative Supreme Court precedent reveals just how momentous Gary B. really is.

In the early 1970s, three highly controversial Supreme Court decisions effectively locked in educational inequality. First, the court held that the U.S. Constitution only prohibits school segregation resulting from the intentional discriminatory acts of public officials. Private segregation is beyond the courts’ reach.

Second, courts cannot order metropolitan wide integration in the absence of something approaching segregative collusion between school districts. Intentional segregation in a core city district, for instance, is not enough.

Third, education is not a federal fundamental right. That means funding inequalities between poor and rich districts are constitutionally irrelevant. In short, if plaintiffs cannot find a smoking gun, these decisions allow segregated and unequal education.

These outcomes sparked litigation in state courts. Advocates argued that the education clauses in state constitutions obligate states to provide equal and adequate education, winning numerous important victories. But many state legislatures also fought tooth and nail to delay, minimize, and avoid meaningful remedies, which is to say nothing of about twenty states where courts rejected plaintiffs’ basic right to sue altogether.

These uneven results forced advocates and scholars to search for a way to revive a federal right to education. For decades, their theories remained pipe dreams. But starting in 2016, four new cases with independent legal teams in Michigan, Connecticut, Mississippi and Rhode Island teased the possibility of progress. Three straight district court losses and a slew of Trump appointees, however, largely dashed those hopes.

Almost out of nowhere, April 2020 brought two huge wins.

The first in Mississippi largely went unnoticed because, rather than directly claiming a fundamental right to education, plaintiffs argued that Mississippi was violating — get this — the terms of its readmission to the Union following Civil War. Congress conditioned Mississippi’s readmission on it never depriving its citizens of their education rights. The Fifth Circuit held that those conditions are enforceable.

Gary B, in contrast, went straight for the jugular, holding that the Fourteenth Amendment guaranteed some level of education as a fundamental right.

Litigated on separate facts and legal theories, a common historical denominator supports and binds these cases together. As my research demonstrates, a federal right to education does not rest on a new evolving view of the Constitution; it rests on originalism.

In the 1780s, the Continental Congress specified how every square inch of land in the new territories and states would be used, setting aside the center lot in every town for the construction of schools and lots on the outskirts for the support of schools. Later, when reconstituting the nation after the Civil War, Congress required confederate states seeking readmission to the Union, not just Mississippi, to guarantee education in their state constitutions. No new state would ever again enter the Union without guaranteeing education either.

In one respect, the Fifth and Sixth Circuit didn’t break new ground. They just replowed historical ground and followed the facts where they led. The problem in these cases, particular Gary B., is not the law or the facts. It’s the practical of today’s judiciary.

Republican presidents appointed eleven of the sixteen judges on the Sixth Circuit. They will most likely reverse Gary B. if the defendants request en banc review. The odds aren’t much better in the Supreme Court. For the last three decades, it has shown far more interest in rejecting and narrowing fundamental rights than expanding them.

That makes pressing forward in Michigan incredibly risky. The Supreme Court could do more than just reject a fundamental right to education; it might undermine good precedent. One of the key Supreme Court precedents in favor of a fundamental right to education is Plyler v. Doe. The court in Plyer struck down a Texas law that excluded undocumented students from public school, reasoning that Texas could not target students for treatment that would consign them to a permanent underclass. Conservative groups have long targeted Plyler for reversal, claiming that it is a constitutional outlier. The Supreme Court could do just that if Gary B. made it there.

The other risk is blowing a great historical claim on hostile courts. Recognizing as much, the NAACP, the oldest civil rights organization in the country, spent two decades carefully enforcing the doctrine of separate but equal before directly asking the court in the Brown v. Board of Education to overturn segregation. Even then, internal records reveal that had the court decided Brown in 1952, rather than delaying for two years, the NAACP would have lost. The historic decision was announced in 1954.

Right now, the only plausible path forward that doesn’t damage the pristine logic of Gary B. or threaten precedent like Plyler is to follow the NAACP’s strategy. That means finding a way out of further litigation in Gary B. The NAACP did not end formal segregation by rushing against the odds. It did it by taking small victories, even symbolic ones, where it could get them. And by never reaching for more than it firmly believed it could grasp, the NAACP put together a multi-decade set of small blocks that eventually changed constitutional history and public schooling forever.

Today’s building blocks rest in the narrower theory in Mississippi and accepting a symbolic victory in Michigan.