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 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 stateprovided 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, 431 U.S. at 503), supporting its recognition as a fundamental right under the Due Process Clause.
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 history. 406 U.S. at 221. Meyer v. Nebraska similarly noted that “[t]he American people have always regarded education and acquisition of knowledge as matters of supreme importance,” pointing to the Northwest Ordinance’s prescription, in 1787, that “schools and the means of education shall forever be encouraged.” 262 U.S. at 400. Similarly, Papasan extensively discussed the history of public-school land grants, which “stretche[d] back over 200 years” and predated the Constitution itself. 478 U.S. at 268–69. And outside the education context, when discussing the right to privacy in marriage, the Court compared marriage to other bulwark institutions of American society and democracy, calling it “older than the Bill of Rights—older than our political parties, older than our school system.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (emphasis added).
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, 561 U.S. 742, 777 (2010) (same for the right to keep and bear arms). “An astonishing thirty-six out of thirty-seven states in 1868—an Article V, three-quarters consensus [i.e., well over the number of states needed to amend the Constitution]—imposed a duty in their constitutions on state government to provide a public-school education.” Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 Tex. L. Rev. 7, 108 (2008). These states accounted for 92% of the population. Id. at 109. And near the time of the Fourteenth Amendment’s adoption, Senator Charles Sumner argued that “[t]he New England system of common schools is part of the republican form of government as understood by the framers of the Constitution.” (Amicus Br. of ACLU of Mich. at 22 (quoting David Herbert Donald, Charles Sumner 426 (1996)).)
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 (2013). And while state-supported education may have a different cultural significance than marriage, see Obergefell, 135 S. Ct. at 2593–94 (majority opinion) (framing the marriage right as the product of “untold references . . . in religious and philosophical texts spanning time, cultures, and faiths”), it is certainly both so longstanding and uniform as to be taken for granted in twentyfirst-century America.
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, 383 U.S. 301, 311 n.10 (1966). These laws were widespread among Southern states, driven by a desire to prevent escapes or rebellion. (See, e.g., Amicus Br. of ACLU of Mich. at 18–19); see also, e.g., United States v. Rhodes, 27 F. Cas. 785, 793 (C.C.D. Ky. 1866) (“[A law in Louisiana] not only forbids any person teaching slaves to read or write, but it declares that any person using language in any public discourse from the bar, bench, stage, or pulpit, or any other place, or in any private conversation, or making use of any sign or actions having a tendency to produce discontent among the free colored population or insubordination among the slaves, or who shall be knowingly instrumental in bringing into the state any paper, book, or pamphlet having a like tendency, shall, on conviction, be punishable with imprisonment or death, at the discretion of the court.”); cf. Frederick Douglass Bicentennial Commission Act, Pub. L. No. 115-77, § 2(3), 131 Stat. 1251, 1251 (2017) (“Douglass continued to teach himself to read and write and taught other slaves to read despite risks including death.”).
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.’” (Id. 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, 175 U.S. 528, 544 (1899), the Court declined to intervene when a local school board closed a preexisting black high school and “used the funds in its hands to assist in maintaining a high school for white children without providing a similar school for colored children.” Similarly, the Court upheld the ability of states to force private schools to segregate themselves based on race. Berea Coll. v. Kentucky, 211 U.S. 45, 51–54, 58 (1908), abrogated by Brown, 347 U.S. 483. And in Lum v. Rice, 275 U.S. 78, 85–87 (1927), abrogated by Brown, 347 U.S. 483, the Court upheld the state’s decision to bar a Chinese American student from attending a white public high school.
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), 349 U.S. 294, 301 (1955), school segregation cases continued to reach the Court for decades, see, e.g., Milliken v. Bradley, 418 U.S. 717 (1974).
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, 431 U.S. at 503).
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, 521 U.S. at 721 (quoting Palko, 302 U.S. at 325). Put differently, this Court must “exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” Obergefell, 135 S. Ct. at 2598.
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, 411 U.S. at 35–36, the right asserted by Plaintiffs in this case is far more fundamental. The degree of education they seek through this lawsuit—namely, access to basic literacy—is necessary for essentially any 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, 135 S. Ct. at 2601; see also Steven G. Calabresi & Michael W. Perl, Originalism and Brown v. Board of Education, 2014 Mich. St. L. Rev. 429, 552 (“At a minimum, children must be taught to read so they can read the laws for themselves—a task that many of the Framers would have thought was fundamental.”).
Access to literacy also “draws meaning from related rights,” further indicating that it must be protected. Obergefell, 135 S. Ct. at 2590. “[T]he right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.” Bd. of Educ. v. Pico, 457 U.S. 853, 867 (1982) (plurality opinion) (emphasis omitted); see also Rodriguez, 411 U.S. at 35 (“The ‘marketplace of ideas’ is an empty forum for those lacking basic communicative tools.”). In this sense, access to literacy is itself fundamental because it is essential to the enjoyment of these other fundamental rights, such as participation in the political process. See, e.g., Harper v. Va. State Bd. of Elections, 383 U.S. 663, 667 (1966) (citing Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886); Reynolds v. Sims, 377 U.S. 533, 561–62 (1964)). And “the political franchise” is perhaps the most fundamental of all such rights, because it is the central element of our democracy. Id. (quoting Yick Wo, 118 U.S. at 370).
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, 406 U.S. at 213. It is hard to see how this apex function could be fulfilled by a system that does not provide a reasonable opportunity to obtain literacy, the foundation necessary to the exercise of many other fundamental rights.
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 stateprovided education? (Id.)
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, 135 S. Ct. at 2598. That states uniformly created entitlements to education in the years leading up to and soon after the Fourteenth Amendment’s adoption reflects the identification of such an injustice, and demonstrates the people’s view that such a right is “implicit in the concept of ordered liberty.” Glucksberg, 521 U.S. at 721 (quoting Palko, 302 U.S. at 325); see also Obergefell, 135 S. Ct. at 2598 (cautioning against “allowing the past alone to rule the present”).15
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 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.” 457 U.S. at 221–22. And Brown further supports this view, finding that “[i]n 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.” 347 U.S. at 493.
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 stateprovided 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, 302 U.S. at 325). When combined with the historical analysis discussed above, this means that access to such a basic minimum education is a fundamental right protected by the Due Process Clause of the Fourteenth Amendment.
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, 135 S. Ct. at 2625 (Roberts, C.J., dissenting) (“By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance.”); see also, e.g., Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. by Any Means Necessary (BAMN), 572 U.S. 291, 313 (2014) (plurality opinion) (“First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.”). Since the political branches are better equipped to address general social wrongs, the argument goes, the courts should not intervene by recognizing calcified and inflexible constitutional rights. See, e.g., Griswold, 381 U.S. at 482 (“We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.”).
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, 411 U.S. at 28 (noting that heightened scrutiny is warranted when a class is “saddled with . . . disabilities” or is “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process”); cf. Schuette, 572 U.S. at 334–35 (Breyer, J., concurring in the judgment) (discussing the Supreme Court’s “political process” equal protection cases).
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, 715 F.2d 1200, 1203 (7th Cir. 1983), Judge Posner said that “the Constitution is a charter of negative rather than positive liberties.” And the Supreme Court itself has held “that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989).
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, 388 U.S. 1 (1967), the Court found that “[m]arriage is one of the ‘basic civil rights of man,’” id. at 12 (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)). That marriage is a fundamental right and must be provided by the state without undue restriction was further affirmed in Zablocki v. Redhail, 434 U.S. at 385–87, and in Turner v. Safley, 482 U.S. 78, 94–96 (1987). And in Obergefell, despite using the negative-rights frame of “choice” discussed above, 135 S. Ct. at 2597, the Court reiterated that the “right to marry is protected by the Constitution” and “is fundamental under the Due Process Clause,” id. at 2598.
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 statesponsored 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, 478 U.S. at 285. While the dissent distinguishes these cases by arguing that the Supreme Court was referring to an equal protection fundamental right, and not a substantive due process fundamental right, that distinction finds no support in the Supreme Court’s case law and is foreclosed by our own, which holds that a fundamental right is a fundamental right, regardless of which clause the claim is brought under. See Scarbrough, 470 F.3d at 260–61 (discussing the merger of equal protection and substantive due process claims based on the deprivation of a fundamental right).
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, 489 U.S. at 194–97).)
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. 489 U.S. at 191–95. The dissent’s alternative reading—that DeShaney forecloses any affirmative obligation of the state under any circumstance, regardless of whether a private harm is at issue—is divorced from the text of that case. DeShaney itself couched its holding in this public-private distinction, saying “[a]s a general matter, then, we conclude that a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” Id. at 197; see also id. at 195 (“[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.”); Jones v. Reynolds, 438 F.3d 685, 688, 690 (6th Cir. 2006) (“[W]hen a claimant argues that government officials failed to prevent private individuals from causing another injury, . . . [DeShaney] and its progeny rarely permit the claim to go forward.”).
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. 489 U.S. at 201.
19For 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.
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, 136 F.3d 1055, 1065–67 (6th Cir. 1998). While the dissent argues against the right to a basic minimum education by comparing it to a constitutional right to food, a better analogy is a world in which the state took charge of the provision of food to the public, to the exclusion of nearly all private competitors. If the state then left the shelves on all the stores in one city bare, with no compelling governmental reason for this choice, such an action would place the residents of that city in heightened danger no less than the actions of the state in other cases where courts have allowed claims under the Due Process Clause. See, e.g., id. at 1059–60, 1069–70; Kneipp v. Tedder, 95 F.3d 1199, 1201–03, 1213–14 (3d Cir. 1996). Thus, while the dissent’s arguments amount to sound advice for us to proceed with special caution when considering any positive fundamental right, the case law on this issue does not foreclose recognizing the right to a basic minimum education.
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 education sufficient to provide access to a foundational level of literacy—the degree of comprehension needed for participation in our democracy.
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.
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 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.
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.