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The Curious Case of ‘Gary B’
In Gary B. v. Whitmer, a divided panel of the Sixth Circuit last week held that the state of Michigan owed a constitutional duty to ensure that students in the worst-performing public and charter schools in Detroit receive “a basic minimum education, meaning one that provides a chance at foundational literacy.” The logic behind this theory is straightforward enough. Illiterate young people have no ability to participate in democratic deliberations and no skills to support themselves or their families. And society overall is made worse off with fewer able participants to join a well-functioning economy.
In the majority opinion, Judge Eric Clay detailed the bankruptcy of Detroit’s public school system, whose dismal educational performance, he wrote, was driven by “the absence of qualified teachers, crumbling facilities, and insufficient materials.” He then correctly concluded that the state has general oversight and control over the educational system and is thus a proper constitutional target to remedy the bankrupt and derelict Detroit school system. The case was decided on the pleadings, which let the majority define its right to a minimum education without getting into the details of how best to implement the right in practice. One major problem with the decision is its inability to define the content of this positive right to government support. Full disclosure: Judge Eric Murphy, who dissented on these grounds, is my friend and former student.
Gary B. relies on Section 1983 of the Civil Rights Act, which enables federal courts to provide a remedy against any Governor or other state officials who have brought about “the deprivation of any rights, privileges, or immunities secured by the Constitution.” That Section covers violations of the Fourteenth Amendment, which provides that no person should be deprived of the protection of life, liberty, or property without due process of law, nor denied the equal protection of the laws.
Several notable silences in the record made it difficult for the majority to identify any alleged constitutional violations. The plaintiffs could not pinpoint any form of intentional racial discrimination in their school districts, which were populated almost entirely by African American and Hispanic students. Nor did their class action complaint make any reference to the per-pupil expenditure in these schools: for example, Detroit schools on average received over $15,000 per pupil against a statewide average of about $10,000 per pupil in 2016-2017. Nor did the plaintiffs isolate particular causes for the massive failure in performance, notably choosing to remain silent on the role of teachers’ unions.
Their case was based solely upon the horrible outcomes, without any effort to identify the causes of failure. The plaintiffs also knew that they could not demand that the outcomes in these schools be the same as those in schools elsewhere in the state. The success of an education depends not only on how students are treated in the schools, but also on their own behavior, their family background, and support structures outside the school environment.
The majority properly rebuffed both an equal protection attack on the current practices, as well as the plaintiff’s novel theory that compulsory attendance deprived the students of their constitutional liberty without any offsetting educational justification. Instead, the majority endorsed a “substantive due process” claim that made it a “fundamental right” to receive a requisite minimum level of education. Substantive due process typically raises a red flag in constitutional theory—it is considered to be a massive intrusion of judicial power into matters that are best left to the political branches. But even if substantive due process is largely dead on economic matters, it still has some legs in dealing with the provision of public service in areas of education.
The notion is nonetheless always problematic, for as Judge Murphy elaborated in dissent, this remedy does not fit well within the constitutional framework that typically establishes a set of negative rights against government abuse, not a set of positive rights that the state must provide its citizens. The Supreme Court held as early as 1973 in San Antonio Independent School District v. Rodriguez that education was not a fundamental right, noting that “the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic legislation.” The majority in Gary B. thus had to twist and turn to establish some running room for some more limited fundamental right to literacy. Its case was somewhat bolstered by the Court’s 1982 decision in Plyler v. Doe, which explicitly recognized the importance of education, without labeling education a fundamental right.
In response, Judge Murphy ticked off all the difficulties that are associated with the judicial creation of positive rights. The standard negative right only demands that government honor individual liberty, and it does not presuppose any level of state benefits provided to any group of individuals. Nor must a theory of negative rights specify those individuals who are entitled to benefits and those who are not.
It was for that reason that the Supreme Court held in DeShaney v. Winnebago Count Department of Social Services (1989) that a Section 1983 action could not be maintained against the County’s Social Service Department after it repeatedly failed to intervene to protect 4-year-old Joshua DeShaney from being horribly beaten by his father, even though the Department well knew of the boy’s plight. The famous case reached a painful but necessary conclusion. The obvious concern from imposing liability in a tort system is protracted litigation, and even a single adverse judgment could wipe out the entire budget of a resource-stressed department, leaving thousands of vulnerable children without any state assistance whatsoever.
The tempting inference from DeShaney is that if government liability cannot be imposed on a single governmental department, how can it be imposed upon failed schools and school districts? In my view, the correct response is that government support for minimum literacy can avoid unliquidated tort claims by only using existing budgets to remedy the incurable defects of the current government monopoly for the provision of public education. The Michigan Constitution, like that of most other states, provides that the state legislature “shall maintain and support a system of free public elementary and secondary schools.” But if the various subdivisions of the state are unable to maintain the system, why should we suppose that the state can fix the problem by continuing the same practices that have led to the current breakdown?
A fresh approach is needed. In his dissent, Murphy asked whether the majority’s ruling should require the state to raise taxes to meet the new constitutional burden of minimum literacy, or otherwise require the court to “order states to give parents vouchers so that they may choose different schools.” Higher taxes would have been a non-starter even before Michigan’s COVID-lockdown depleted state revenues.
But Murphy missed an opportunity to beat the majority at its own game by finding that if the state failed in its duty to supply minimum support for failing schools, then the proper alternative response relies on a mixed system of the kind used with some success in Camden, New Jersey that adopts a portfolio of strategies—public schools, vouchers, charter schools, religious schools, and homeschooling—to promote competition both between different approaches to education and within each category.
It is critical to cure the fundamental defect with the Michigan scheme of public education, which lets the state both fund and run the educational system. As Milton Friedman wrote long ago in Capitalism and Freedom, these two functions are in principle divisible. The state can fund education but let others run it so as to upend the failed state monopoly system that has decimated the Detroit schools.
Such a scheme could redirect tax dollars used to fund failing schools to parents, who could use that money as they see fit to educate their children. This scheme would also prevent unions from blocking the entry into the market of competitive providers of educational services, like charter schools. All sorts of institutions may offer parents educational services for their children, and private intermediates can help guide parents choose the best option.
It is no accident that African American and Hispanic parents exhibit far stronger support for charter schools than do white Democrats. Charter schools and vouchers make it unnecessary for courts to engage in the kind of microscopic oversight that the protection of minimum literacy would entail. Parents and their support groups can do that themselves in a decentralized fashion.
No one can claim that this mixed system will be trouble-free. The embedded problems are too deep. But here the right question is whether it would outperform the current situation. My guess is the fundamental right created in Gary B. will not survive an attack before the current Supreme Court. Its notions of judicial restraint are too heavily ingrained. But it is intolerable for the Michigan Governor and legislature to sit idly by while entire school systems go up in flames.
© 2020 by the Board of Trustees of Leland Stanford Junior University.
Published in Education, Law
Did they specify how much of a chance is constitutionally required? A 5% chance? A 10% chance?
Vouchers !
long overdue
so long overdue
The most important sentence: As Milton Friedman wrote long ago in Capitalism and Freedom, these two functions are in principle divisible. The state can fund education but let others run it so as to upend the failed state monopoly system that has decimated the Detroit schools.
Governor Whitmer again???
The pro-choice approach.
People who are pro-choice on abortion oppose school choice.
And they don’t see a contradiction.
dismal educational performance . . . was driven by “the absence of qualified teachers, crumbling facilities, and insufficient materials.”
No doubt there aren’t enough incentives to make good teachers want to go teach in schools that resemble little hellholes. Are judges going to rule that governments have the right to force teachers to teach where they dictate? Even so, what happens when these teachers resign rather than teach in a failing school?
As for crumbling facilities and insufficient “materials” (whatever that is), Detroit schools receive 50% more funding per pupil compared to the statewide average. Assuming most other schools systems in the state have adequate buildings and sufficient materials, where is Detroit’s money going? My gut feeling is there’s graft at work here. So why hasn’t Governor Whitmer appointed a task force to look into the problem?
Or would that uncover something she doesn’t want anyone to know? Stay tuned, folks . . .
Why was it a necessary conclusion?
So if a teacher fails to bring a member of his or her class to the requisite level of literacy, he or she may be sued for depriving the child of a civil right. This could bring a whole new meaning to “class action lawsuit.”
More seriously, every right entails a duty. I agree: children have a right to an adequate education, and shelter, food, medical care and moral instruction. This is their parents’ duty–not the state’s. Parent’s may choose to exercise their franchise to establish state institutions (e.g., public schools, child services) to assist them in fulfilling their duty, but this does not take responsibility away from the parents.
Necessary insofar as the cure should not spread the disease. The reduction in resources need to compensate for one case of gross mismanagement may well lead to hundreds of mismanaged cases.
I thought it was ‘necessary’ because of the cost of litigation wiping out entire budget of resource stressed department?
“shall maintain and support a system of free public elementary and secondary schools.”
The Michigan Constitution contains an erroneous statement. Nothing is ‘free’. It should say ‘taxpayer subsidized’
State agencies do not exist in a vacuum. They are funded via appropriations from the state itself. The court should not concern itself that the legislature would either fund or fail to fund the mismanaged agency. A child service agency is not a constitutional requirement.
edited to add… Decisions like this fail to hold mismanaged or corrupt government agencies accountable.
To my mind might even represent a abrogation of the right to petition the government for redress of grievances.
If a 4 year old is beaten by his father, the state has to intervene to protect the child and prosecute the father?
Common law and common sense would say yes?
Yes. But it doesn’t imply that an organization called “child services” has to do it.
It could be that an agency called “restorative justice” has to do it and if they really suck at it, can be sued into oblivion too.
slightly off topic question: when Richard Epstein refers to Roman Law is he referring specifically to the code of Justinian?
Of course the state could also have a thing called police that intervene and investigate crimes. They could have a court system to prosecute the offender and imprison him.
If he is in jail, obviously he can’t “care” for the kid.
They could have a foster system to care for the kid, until he is placed with his mom.
(BTW, why did he not end up living with his mom, Joshua passed away in 2015 (I think) but he was cared for people not his mom).
I don’t know what the context is.
Richard Epstein teaches Roman Law at NYU
It says so in his bio. Hover over his name.
The problem is the child himself may be the one refusing to learn. I’d hate to see a teacher get sued for the failure of his students . . .