Does a Constitutional right to a basic minimum education exist? The question has been repeatedly discussed by the Supreme Court of the United States but never decided. For states under the jurisdiction of the Sixth Circuit Court of Appeals, including Ohio, Michigan, Kentucky, and Tennessee, the Sixth Circuit recognized such a right for twenty-six days. A panel of the Sixth Circuit recognized the existence of such a right on April 23, 2020, and the decision remained in place until it was vacated on May 19, 2020. Prior to an en banc panel of the Court providing definitive guidance on the issue, the case settled and has been dismissed. Thus, presently, no such constitutional right is recognized. It is anticipated, nonetheless that this argument will be made in future cases with the vacated decision serving as a roadmap for making such a claim.

In Gary B. v. Whitmer, Nos. 18-1855/1871 (6th Cir. 2020), students in several of Detroit’s worst-performing public schools claimed that the conditions in their schools deprived them of a basic minimum education, meaning one that provided a chance at foundational literacy. The plaintiffs attributed the substandard performance to poor conditions within their classrooms, including missing or unqualified teachers, physically dangerous facilities, and inadequate books and materials. Plaintiffs based all of their claims on the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Plaintiffs argued that while other students receive an adequate education, they did not in violation of their Constitutional rights.

In a 2-1 split opinion authored by Judge Clay and joined by Judge Stranch, the panel agreed that the Plaintiffs had “been denied basic minimum education, and thus have been deprived of access to literacy.” The majority opinion observed:

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 have 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 their central claim: that Plaintiffs have a fundamental right to basic minimum education, meaning one that can provide them with a foundational level of literacy.

After a judge in the Sixth Circuit requested a poll of the other judges in the circuit, on May 19, 2020, a majority of the Judges in the Sixth Circuit in regular active service voted for a rehearing of the case, en banc, or in front of all the judges in the Circuit. By rule, the grant of a rehearing en banc vacated the April 23, 2020, decision by Judge Clay. Thus, the recognition of the fundamental right to a basic minimum education proved to be short-lived. 

Prior to the en banc review of the case, on June 10, 2020, the Court granted a motion to dismiss the appeal on the basis that the case had settled. As part of the settlement, Governor Whitmer of Michigan agreed to:

  • Propose legislation providing Detroit Public Schools with $94.4 million for literacy programs.
  • Send $280,000 for seven students to participate in “high-quality literacy programs.
  • Pay $2.7 million to Detroit schools for literacy programs.
  • Have the state department of education advise districts on literacy programs to improve reading proficiency and reduce economic, racial, and ethnic disparities.

While the Gary B. case is settled with the underlying decision vacated, the issue of the existence of a Constitutional right to basic minimum education is not. We expect this issue to be raised in future litigation with reliance upon the reasoning from the 2-1, albeit vacated, decision.