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.