Access to Literacy Is Not a Fundamental Right?

Jamarria Hall, one of the plaintiffs in the case.

The recent ruling by the Wisconsin Supreme Court wasn’t the only significant case to come out of the upper Midwest in recent days. There was also a curious and distressing (to Curmie, at least) ruling in a US District Court in Michigan which concluded that “access to literacy is not a fundamental right” guaranteed by the US Constitution.

Curmie first read about the case when a Friend of Curmie (FOC) posted a link to the Detroit Metro Times article about the ruling. Curmie had two immediate responses, following closely upon each other: 1). ARE YOU FUCKING KIDDING ME?, and 2). OK, calm down… they got the headline wrong: the decision was about whether the plaintiffs had standing, or the defendants weren’t the right people to blame, or this should be in state court instead of federal court, or something like that, right?

Nope. “Access to literacy is not a fundamental right” is a direct quotation from the ruling by Judge Stephen Murphy III. Here, Gentle Reader, is where Curmie once again reiterates that he’s not a lawyer, and Judge Murphy, a G.W. Bush appointee (a fact Curmie mentions not to impugn him but merely to suggest he’s an experienced jurist), might be right on the law. One thing is certain: either Judge Murphy is an ass, or Mr. Bumble was right, and the law is.

Curmie read through the 40-page ruling trying to find a rationale for the decision. Here’s the best I’ve got. Quoted sections are all from the published decision.

Plaintiffs are minor children who attend, or attended, public schools in Detroit. They have alleged that the conditions of their schools are so poor, and so inadequate, that they have not received even a minimally adequate education. Specifically, they alleged they have been denied access to literacy on account of their races, in violation of their rights under the Due Process and Equal Protection Clauses of the 14th Amendment of the United States Constitution.

So far, so good, yes? The plaintiffs voluntarily dismissed two of the original five counts in their suit, and the fifth is really about what they sought rather than the rationale, so we’re left with two allegations both rooted in the 14th Amendment: “deprivation of a fundamental right” and “disparate treatment on the basis of race.” The defendants—Governor Richard Snyder, members of the State Board of Education, the Superintendent of Instruction, et al.—claimed, first of all, that the State of Michigan never operated Detroit schools: a transparent falsehood, and rightly dismissed as such by Judge Murphy:

Detroit residents have repeatedly pushed back against the Public Acts and state actions that supplanted local control. At each step, courts affirmed the legality of the State's interventions. Now, facing the deplorable conditions alleged in the Complaint, Detroit students seek to hold someone responsible. They have adequately pled that state actors effectively control the schools, at least in part, and are therefore proper parties.

Then there’s a discussion about whether the plaintiffs asserted a right to literacy or a right to access to literacy. No, no one actually suggested that literacy per se was guaranteed. Moving along…

Then comes the defense argument that the plaintiffs’ grievances were not “concrete, particular, actual, or imminent.” Curmie isn’t sure what that legalese means, but Judge Murphy rejected it:

Plaintiffs allege that their school buildings, unlike those of other Michigan students, are replete with conditions "that make learning nearly impossible," and identify them with specific photographic allegations. They allege that their schools, unlike other Michigan students', lack enough teachers to hold classes in which they would learn to read. They allege that, unlike other Michigan students, they lack books necessary to attain literacy. Those are concrete, particular, actual injuries that satisfy the standing requirement under both the Due Process claim and the Equal Protection claims. (citations omitted)

Later, Judge Murphy rejects another defense argument:

The Complaint also provides the necessary description of a causal chain. As pled, Defendants are the parties "responsible for the education of all Michigan public school students and for the system of Michigan public schools" as well as being “particular[ly] responsibl[e] for the schools in Detroit” due to the State's interventions. Michigan law requires students to attend school. If access to literacy is a fundamental right, Defendants would be liable for depriving Plaintiffs of it. And even if it is not a fundamental right, Defendants would be liable if they “denied Plaintiffs access to literacy equal to the access provided to students in other schools in the State on the basis of their race[.]”

Judge Murphy also rejected three other arguments from the defense, most notably that they can’t be sued because of the 11th Amendment (don’t worry, Curmie had to look it up, too). So we can move on to the substance, right? Not so fast! First, Judge Murphy takes us on a tour of education-as-legal-right cases… and essentially rejects them all as not germane to the case at hand, ultimately deciding that the “Supreme Court has neither confirmed nor denied that access to literacy if a fundamental right.” Well, then…

So what’s the standard?

The Supreme Court has… historically employed a formula of sorts: fundamental rights are only those “objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”

Curmie will buy that. Murphy continues, “Even when the Supreme Court has ventured to recognize a right as fundamental, it has typically limited them to ‘negative rights’—i.e., the right to be free from restraint or barrier.” This—the difference between “access to literacy (i.e., a minimally adequate education) is so important that the state is compelled to provide it” and “literacy is so important that the state may not hinder Plaintiffs' attempts to secure it,” seems to be the crux of the ruling. Curmie wonders if he is alone in thinking this case is too important to be decided on the basis of such a quibble.

Judge Murphy grants that:

Plainly, literacy—and the opportunity to obtain it—is of incalculable importance. As Plaintiffs point out, voting, participating meaningfully in civic life, and accessing justice require some measure of literacy. Applying for a job, securing a place to live, and applying for government benefits routinely require the completion of written forms. Simply finding one’s way through many aspects of ordinary life stands as an obstacle to one who cannot read.

Still, according to the judge, in purely legal terms, “The Supreme Court has repeatedly emphasized… that the importance of a good or service “does not determine whether it must be regarded as fundamental[.]” The example he cites is adequate housing (which also, in Curmie’s world, ought to be considered a “fundamental right,” but which apparently isn’t. I mean, let’s go back to that standard: “objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” How in the world does access to literacy in 21st century America fall short of those criteria? 

The plaintiffs argued that such denial inevitably leads to “instability in both social and economic terms,” and to “locking them out of valuable social and political institutions, from State academies of higher learning, to the marketplace of ideas, to the very texts that undergird our constitutional democracy.” Sorry… how can this be denied? Well, in Constitutional terms, the plaintiffs are relying heavily on the Obergefell v. Hodges (the case that granted marriage equality), which doesn’t jibe well with some previous decisions, and Judge Murphy is loath to go down that less-trodden-by path… to the point of clutching at legal straws, like the fact that there weren’t any public schools at the time of the writing of the Constitution, and indeed “a state could choose not to undertake the provision of education at all.” Seriously, Stevie, what happened? You were doing so well…

So we end up with this:

The conditions and outcomes of Plaintiffs’ schools, as alleged, are nothing short of devastating. When a child who could be taught to read goes untaught, the child suffers a lasting injury—and so does society. But the Court is faced with a discrete question: 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? Based on the foregoing analysis, the answer to the question is no.

Based on the foregoing analysis, Judge Murphy is a pancake short of a grand slam breakfast.

Of course, the “equal protection” argument was also dismissed:

Although the Complaint clearly establishes that Plaintiffs' schools predominantly serve children of color—four of the five schools are at least 97% African American and the fifth is 31.1% African-American and 64.2% Latino, it makes no claim about the relevant comparator schools…. The Complaint opines that the conditions in Plaintiffs’ schools “would be unthinkable in schools serving predominantly white, affluent student populations,” but it does not state any instance where Defendants intervened in a school with a different racial makeup and treated that school disparately. Without this type of comparison, the Complaint fails to state a claim that Defendants have classified or otherwise differently treated Plaintiffs on account of race.

The field has already been limited to Detroit schools per se. So, in a city that is less than 8% non-Hispanic white, the plaintiffs have to find a majority-white school that was subjected to state intervention. In other words, because there is a history of racial disparity in education, the plaintiffs can’t claim that there’s a racial disparity because there aren’t any comparably bad schools with majority white enrollments to use for comparison.

(Be it noted: Curmie is fully aware of the corruption and incompetence of both the politicians and the education hierarchy in Detroit. And he believes that the plaintiffs in this case have been subjected to the “devastating” conditions described in the complaint more because they’re poor than because they’re POC. That doesn’t help the students, and it doesn’t make Judge Murphy’s thought process coherent.)

It’s not for a District Court judge (especially in the singular) to make new law, so Curmie has some sympathy for Judge Murphy, who seems frustrated by his perceived inability to do what everyone (except, perhaps, the defendants in this case) desires: provide at least a basic education to all the youth in all school districts across the country. Murphy doesn’t seem to be a bad man (Curmie can’t say the same for Rick Snyder and his minions, or for the political class in Detroit, but those are rants for another day), but he lacks imagination and lateral thinking. More importantly, this decision is more craven than inept. It’s about time someone, someone in a position of authority cared more about the future of the country than about making sure not to disturb the comfort of the economic and political elite.