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Liberal judges invent constitutional ‘right’ to literacy

‘Only guarantees the education needed to provide access to skills that are essential for the basic exercise of other fundamental rights and liberties’

In what may end up being the final word on the matter — at least in its jurisdiction — a pair of judges declared Thursday that Americans have a constitutional right to literacy.

Almost four years ago, a group of Detroit public school students, backed by the Los Angeles-based firm Public Counsel, filed suit against the state of Michigan claiming the “right” is based on the 14th Amendment to the Constitution.

The complaint said “students who attend poorly-performing schools have been denied their basic rights, and references the landmark Supreme Court decision in Brown vs. Board of Education, which called education ‘the very foundation of good citizenship.’”

But Judge Stephen Murphy III asked in 2018 that, despite “conditions and outcomes of Plaintiffs’ schools […] does the Due Process Clause demand that a State affirmatively provide each child with a defined, minimum level of education by which the child can attain literacy?”

His response: “No.”

Two of the three judges on a U.S. 6th Circuit Court of Appeals panel overturned Murphy yesterday.

MORE: Law firm says Detroit students have ‘constitutional right to literacy’

Judges Eric Clay and Jane Branstetter Stranch, appointed by Bill Clinton and Barack Obama respectively, said their ruling is “narrow in scope” and that the (new) 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.”

Trump appointee Eric Murphy dissented. With the decision, the case goes back to (Stephen) Murphy.

More from the Detroit Free Press:

The Appeals Court did dismiss a portion of the lawsuit, which claimed the state discriminated against Detroit students by providing an education inferior to that provided to students in other districts.

The court said that the complaint as filed on behalf of the students didn’t “identify the actions taken or policies implemented by defendants that treated their schools differently from others in the state and caused the disparities at issue in this case.” …

[Eric] Murphy wrote in his dissent that the ruling will violate the separation of powers by forcing courts to answer questions on whether states should raise taxes, issue school vouchers and replace things like textbooks and heating and cooling systems.

The ruling means that Michigan, Ohio, Kentucky and Tennessee “now must meet the school-quality standards that federal judges find necessary to enforce the plaintiffs’ nebulous right to ‘access literacy,’ ” Murphy wrote, even though “the Supreme Court has repeatedly explained that public education is not a ‘right’ granted to individuals by the Constitution.”

Michigan had wanted the case dismissed, noting the governor at the time of the suit, Rick Snyder, was out of office and that local control had been returned to Detroit’s schools.

Governor Gretchen Whitmer’s office said it is reviewing the case. Based on Whitmer’s past statements, it is unlikely the state will appeal (to the US Supreme Court — which “some education advocates” want anyway in hopes of establishing the literacy “right” in all 50 states). During her 2018 campaign, Whitmer said she agreed with a constitutional right to literacy.

But Josh Blackman at Reason.com points out that one of the individual defendants could appeal the decision, the Michigan legislature could request an en banc rehearing, or that a single judge using a “Federal Rule of Appellate Procedure” could request same. The last situation is unlikely to change the outcome, however, as the Michigan Attorney General likely agrees with the opinion of Clay and Stranch. This would result in an appeal dismissal due to “lack of subject matter jurisdiction.”

“If en banc is denied,” Blackman writes, “then Judge Clay’s decision becomes law of the circuit. Suits would be immediately filed throughout the circuit.” These are likely to include many by those who will use the decision as a way to excuse their adolescent slothfulness: “I dare you to teach me,” they’ll tell their teachers … and then sue a few years later.

MORE: ‘Liberal discipline policies’ are making schools dangerous

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About the Author
Associate Editor
Dave has been writing about education, politics, and entertainment for over 20 years, including a stint at the popular media bias site Newsbusters. He is a retired educator with over 25 years of service and is a member of the National Association of Scholars. Dave holds undergraduate and graduate degrees from the University of Delaware.