Of all the things public schools are supposed to teach, literacy has to be the most important. Yet a Federal District Court in Michigan ruled that it is not a fundamental right (“ ‘Access to Literacy’ Is Not a Constitutional Right, Judge in Detroit Rules,” The New York Times, Jul. 5). Public Counsel, which led the legal team representing the students in the class-action suit, intends to appeal.
It’s hard to understand the judge’s thinking. He agreed that giving students the opportunity to learn to read was “of incalculable importance.” He also said that conditions at some Detroit schools were “nothing short of devastating.” Yet despite these acknowledgments, he dismissed the suit. I’d like to know what would persuade the judge to reverse himself?
It’s important to note that the state had been managing Detroit’s schools when such an outrage took place. I stress that fact because there is widespread belief that states are better at operating failing schools than local authorities. Clearly, this is not the case in Michigan. I intend to closely follow the case as it is appealed.
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Have not read the District Court’s decision, but — legally speaking — it’s reasonable to conclude that access to literacy (indeed, access to any public schooling) is not a “fundamental right”.
My recognition from law school days of the “fundamental right” concept is that a fundamental right is something that the federal and/or state govt cannot abridge or can only abridge if the govt can prove a compelling interest in the abridgement. Conceptually, fundamental rights are usually things that govt cannot interfere with rather than things the govt must provide. Voting, marriage, religion, political speech, control over one’s own body, sexual intimacy issues. Another kind of “fundamental right” arises when the govt, acting in it’s police capacity, is trying to put someone in jail — then the courts say the criminal defendant has both affirmative rights (to an attorney, to cross-examine his accusers, to a jury trial) and negative rights (to be free from cruel/unusual punishment, to be free from compulsory self-incrimination). The right to education does not fit into these categories.
I think, though I’m not sure, that lawsuits challenging a govt’s education shortcomings usually proceed on an “equal protection” basis rather than on a “fundamental right” basis. The plaintiff argues that the govt provides X level of education (or education spending) to students in A group while providing Y level (lower than X level) of education (or education spending to students in B group + that the govt has an equal-protection obligation to provide the same level of education to both the A group and the B group. Of course, the plaintiff’s equal-protection argument is stronger if the A group is a politically favored group (whites) while the B group is a politically disfavored group (blacks).
I’m pretty sure that a state could constitutionally decide to simply not provide tax-supported schools (so long as the govt’s purpose in doing so was constitutionally OK — i.e., it could not do so as a vehicle to avoid desegregation under Brown v. Bd of Ed). Certainly, taxpayer-supported public schools were pretty much non-existent when the Constitution was written and were still pretty rare when the 14th Amendment (Equal Protection, Due Process) was written.
There is also the danger that, if the courts were to recognize a student’s constitutional right to “access to literacy”, that holding could be a springboard for all sorts of judicial interference with how school systems operate — such as the California lawsuit a year or two ago where the plaintiffs alleged that teacher seniority provisions unconstitutionally interfered with the right to education of students who lived in lower-income areas.
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Labor Lawyer: The courts have generally been reluctant to intervene in education policy, unless (as you pointed out) there is a blatant violation of the equal protection provision of the law. But literacy seems to be the single most important skill that schools teach. That’s why I find it hard to understand the latest ruling. Of course, it can be overturned on appeal.
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