As promised, here is my analysis of the Detroit “right to an education” case, in more detail.  This is probably more than the average layperson wants to read, but some of you may find it interesting.
The Fundamental (?) Right to Education
 Gary B., et al. v. Whitmer, ___ F.3d ___, 2020 WL 1951894 (6^th Cir. 2020)

“Access to a foundational level of literacy—provided through public education—has an extensive historical legacy and is so central to our political and social system as to be ‘implicit in the concept of ordered liberty.’  In short, without the literacy provided by a basic minimum education, it is impossible to participate in our democracy.”  Id. at *21 (internal citations omitted).

Gary B. arose out of a challenge to conditions at some of Detroit, Michigan’s worst-performing public schools.  The Detroit Public Schools (“DPS”) has been under some form of state control or management since the 1990’s.[1]  Plaintiffs alleged that conditions in their schools were so bad, due to the absence of qualified teachers,[2] crumbling facilities,[3] and insufficient teaching materials, that they were deprived of a fundamental “access to literacy” under the Fourteenth Amendment.  Defendants argued that there is no fundamental right to access to literacy, calling it “a mere proxy for a right to education, which has long been rejected as a fundamental right.”  Id. at *8.  Plaintiffs also asserted claims under the equal protection clause[4] and based on the compulsory attendance laws.[5]
Gary B. is both a case of politics at their most base, and constitutional theory at its most esoteric.  Clinton nominee Eric L. Clay, supported by Obama nominee Jane Branstetter Stranch, concluded that because “the state provision of a basic minimum education has a longstanding presence in our history and tradition, and is essential to our concept of ordered constitutional liberty”, “[u]nder the Supreme Court’s substantive due process cases, this suggests it should be recognized as a fundamental right.”  Id. at *26.  Trump nominee Eric E. Murphy penned a serious dissent rejecting education as a constitutional right, which will be discussed at greater length below.
Substantive Due Process and Fundamental Rights
So how could the Sixth Circuit, an appellate court based in Cincinnati, Ohio that also includes Detroit, Michigan in its jurisdiction, conclude that any kind of federal constitutional “right to education” exists, when the words “education,” “school,” or anything similar do not appear in the United States Constitution or the Bill of Rights?  Unlike many of the other great education rights cases, such as Brown v. Board of Education, the Plaintiffs’ “right to education” claim was not based on the Equal Protection Clause, but rather on the Due Process Clause – specially, the Substantive Due Process Clause, which recognizes that certain interests are so substantial that no process is enough to allow the government to restrict them, at least absent a compelling state interest. Although generally the substantive due process clause only protects those rights that are explicitly set out in the Constitution or the Bill of Rights, it also extends “to other rights and liberties recognized by the courts to be ‘fundamental.’”  Id. at *21 (citing Washington v. Glucksberg, 521 U.S. 702, 719-21 (1997)).
In determining whether an asserted right is “fundamental,” the Supreme Court has developed a two-prong analysis:  “First, the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’ … [T]he second prong of the inquiry looks to whether the asserted right is ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’”  Id. at *17 (quoting Glucksberg, 521 U.S. at 720-21).
When determining whether some level of “education” should be considered a “fundamental right,” the Sixth Circuit was not writing on a blank page; rather, it needed to consider, contend with, and ultimately distinguish a number of Education Cases[6] from the Supreme Court, most of which have rejected the notion that education is a constitutionally-protected fundamental right.  From these cases, the Sixth Circuit distilled four basic principles:

•  First, the Supreme Court has found that there is no broad, general right to education (San Antonio Independent School District v. Rodriguez)
•  Second, while no general right to education exists, the Supreme Court has specifically distinguished and left open “whether a minimally adequate education is a fundamental right.” (Papasan v. Allain)
• Third, education is, at minimum, highly important to “maintaining our basic institutions,” and so the denial of public education to a discrete group of students “must be justified by a showing that it furthers some substantial state interest.” (Plyler v. Doe)
• Fourth, the Court has addressed the critical link between education and race discrimination in America. (Brown v. Board of Education)

After a long discussion of both the Supreme Court’s Education Cases and the history and role of public education in the United States, the Court concluded that the right to a state-provided basic minimum education is “deeply rooted in this Nation’s history and tradition,” even under an originalist view of the Constitution.[7]  The Court noted that access to literacy was viewed as a prerequisite to the exercise of political power, with  strong correlation between those who were viewed as equal citizens and those who were provided education by the state.
The Court also found that a basic minimum education is “implicit in the concept of ordered liberty,” because it is fundamentally necessary for even the most basic participation in our nation’s democracy.  The Court distinguished Rodriguez by arguing that the Rodriguez Court rejected a general right to education on the grounds that “no one is guaranteed the most effective or intelligent political participation,” (citing Rodriguez 411 U.S. at 35–36), but that the right to literacy sought by the Detroit Plaintiffs was “necessary for essentially any political participation.”  Id. at *29.  The Court also noted that the belief that education is a means of achieving equality in our country “has persisted in this country since the days of Thomas Jefferson.”  Id. at *31.
Running through Gary B. is a debate between the Democratic majority and the Republic dissent[8] over how a number of constitutional theories would impact the substantive due process analysis, including the role of federal government vis-à-vis state governments, originalism versus pragmatism, and the positive versus negative nature of constitutional rights.  The Sixth Circuit rejected two principle arguments that the State (and the dissent) made against the recognition of a basic minimum education as a fundamental right.
First, the Court seemed unimpressed by what it called the “classic argument against extending substantive due process”, i.e. that it compromises the will of the people by substituting the policy judgments of unelected judges for those of their elected representatives. The Court took the somewhat paternalistic position that “it is unsurprising that our political process, one in which participation is effectively predicated on literacy, would fail to address lack of access to education that is endemic to a discrete population.”   Id. at *32.  The Court then stopped just short of saying what it was clearly thinking:  that if the politicians won’t fix education (for whatever nefarious reasons), the court would have to do it.
Second, the Court rejected the argument that the Constitution is a charter of negative liberties, and so (in most cases) only tells the government what it cannot do to its citizens, rather than what it must do for its citizens.  The Court noted that there are some affirmative rights in the Constitution, including the specifically enumerated right to counsel, and the (some would argue) courts-created right to marry.  So if marriage is a constitutionally-protected affirmative right, “[t]he same could be said for education.”  Id. at *33.  The Court then fell back on its argument that the Supreme Court had left open the possibility of the right to a basic minimum education, “which works to negate the argument that its recognition is impossible given its positive or affirmative nature,” id. at *33, since it would have been easy for the Court in Rodriguez or Papasan to have wholesale rejected the right to education as an impermissible positive right…which the Court did not do.
The majority also rejected the dissent’s reliance on DeShaney,[9] which the dissent claimed supported the positive-negative rights dichotomy by holding that the Fourteenth Amendment did not create a positive right to state protection from violence by private parties.  The majority’s response?  “Simply put, education is different.”  Id. at *34.  The Court then (again) stressed the historical importance of education, and the set forth the “Spiderman defense”:

And with that control must come responsibility, particularly because some minimal education—enough to provide access to literacy—is a prerequisite to a citizen’s participation in our political process.

Id. at *354.[10]
However, the majority did acknowledge that there were limits to its newly-created (?) right:

Importantly, the right defined in this opinion is narrow in scope. It does not guarantee an education at the quality that most have come to expect in today’s America (but that many are nevertheless denied). Rather, the 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. As described by Plaintiffs, this amounts to an education sufficient to provide access to a foundational level of literacy—the degree of comprehension needed for participation in our democracy

Id. at *35.  The Court actually agreed with the State that the Court could not and should not prescribe a specific educational outcome, such as specific proficiency rates, because although such rates might be useful evidence as to whether a basic minimum education is being provided, “a court order cannot guarantee that educational opportunity is translated into student performance.”  Id.
Rather, the State must provide “a rudimentary educational infrastructure,” including a certain minimum level of facilities, teaching, and educational materials, such that “it is plausible to attain literacy within the system.”  Id.  The Court cautioned that this did not mean that any of these things individually “has a constitutionally required minimum level,” but instead must be analyzed as a whole in determining whether the education offered a student “can plausibly give her the ability to learn how to read.”  Id. at *36.  The Court also rejected the suggestion that this right would require a “one-size-fits-all, national program of education,” noting that states remained free to experiment in how they provide education, subject to the requirement that they “must give all students at least a fair shot at access to literacy—the minimum level of education required to participate in our nation’s democracy.”  Id.[11]
The Dissent
While Trump nominee Eric E. Murphy stressed that he agreed with the plaintiffs (and the majority)  that the condition of schools in Detroit was extremely troubling, in his opinion “the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them,” id. at *51 (citing Rodriguez, 411 U.S. at 58) and not from the Constitution and the federal judiciary.  Much of Judge Murphy’s dissent focused on the difference between positive and negative rights.  As Judge Murphy noted, the due process clause “has not been viewed as a positive command for the states to protect liberty or provide property…A state’s decision not to subsidize the exercise of a fundamental right has never been thought to infringe the right, even in areas where the states have long provided that assistance.” Id. at *38 (internal citations omitted).
There is a “basic constitutional difference between a state’s use of its coercive power to regulate its residents and the state’s refusal to use its spending power to give them things.”  Id. at *40.  Judge Murphy compared education to (of all things) abortions, noting that while the Supreme Court has held that substantive due process forbids states from banning all abortions, it does not also require them to pay for abortions.  Id at *42.   Unlike the plaintiffs who had won older education cases, Murphy noted that the plaintiffs here were not claiming that the state had barred them from attending a private school (Pierce), or from learning a particular subject.  (Meyer)
As Judge Murphy worried, “[t]his positive right to a minimum education will jumble our separation of powers. It will immerse federal courts in a host of education disputes far outside our constitutionally assigned role to interpret legal texts.” Id. at *38.  Judge Murphy pointed out that the Framers’ federalist design of the Constitution gave “few and defined” powers to the federal government, leaving “numerous and indefinite” powers to the states.  Id. at *42.  Education, warned Murphy, was a function long reserved to the states, and many states have granted positive education rights to their citizens through their state constitutions.  Id. at *43.  Leaving education policy to the states was particularly important, suggested Murphy, since federal judges have no “specialized knowledge or experience” in the area of best education policies, and debates over how to help children in failing schools “involve the most persistent and difficult questions of educational policy.”  Id. at *44-45.
Judge Murphy also pointed to the Supreme Court’s Education Cases, noting that “[t]he Supreme Court has refused to treat education as a fundamental right every time a party has asked it to do so.”  Id. at *39.  He stressed that Rodriguez recognized that while education is undoubtedly important, “the importance of a service performed by the State does not determine whether it must be regarded as fundamental.”  Id. (citing Rodriguez, 411 U.S. at 30.)  In Judge Murphy’s opinion, “other than the fact that they label their claim a right to ‘access literacy,’ I see little daylight between that claim and the one Rodriguez rejected.”  Id. at *46.[12]  Judge Murphy also pointed to Plyler, in which immigrant students were legally excluded from Texas’ education system because they could not pay the tuition fee, noting that “[i]f the legal exclusion from a free education did not implicate a fundamental right, I cannot see how the functional exclusion from a free education [claimed here] could either.”  Id. at *49.
Judge Murphy also noted that whatever cases such as Papasan meant by a “minimum basic education,” they were equal protection cases, and not substantive due process cases, and so their focuses were fundamentally different:

I agree that the Fourteenth Amendment was designed to stop the rampant discrimination that the majority describes. But I respectfully disagree that the amendment’s Framers did so by creating a substantive right to a minimum education. They instead created an equality right that applies once the state decides to provide for education.

Id. at *49.  The Fourteenth Amendment “thus bars racial discrimination in the provision of many public services that a state, as an initial matter, has no constitutional duty to provide.”  Id. Judge Murphy pointed to language from Brown itself, which recognized that education, “where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”  Id. at *49 (quoting Brown, 347 U.S. at 493 (emphasis in Gary B, not in Brown)).
So Where Do We Go From Here?
Although the majority cheerfully proclaimed that “[t]his narrow definition of the right also helps dispel the concern that recognizing such a claim could ‘open the floodgates of litigation’ and ‘overwhelm the federal courts’,” id. at *35 n.20, I think most school lawyers would agree that constitutionalizing education at the federal level will lead to a significant increase in litigation.  At a minimum, the fifty-odd ongoing lawsuits over school financing (virtually every state has one) could move from the state courts to the federal courts.  At worst, the new right will spawn a slew of “education malpractice” lawsuits brought by individual students, even though the right recognized in Gary B. appears to be more of a systemic issue, than an individual one.
One thing pretty much everyone could agree on, on both sides of the aisle, was that there was going to be an appeal…except now even that is not clear.  Since the decision came out, the two sides of the political spectrum have been maneuvering to keep an appeal alive, or bury it:

• Shortly after the decision came out, the two Republican members of the State Board of Education moved for rehearing.
• Ten states, led by Tennessee (and including Texas), immediately filed a brief supporting the request that the decision be reviewed.
• The Michigan State Board of Education then passed a resolution approving of the holding of the Court, that students have a fundamental right to a basic minimum education (despite the fact that they had been opposing that right for years).
• The majority of the State Board (all Democrats) then moved to strike the request for the en banc rehearing, arguing that the two Republican members had no authority to act individually.
• The two members responded, claiming that whether to hold an en banc review is really more a matter for the court to decide, than the parties to request.
• The Sixth Circuit then granted en banc review, but its order reads “a member of the en banc court sua sponte requested a poll in this case…”, which technically means the court acted on its own, and not on reliance on the Republican members’ request for review.

To make matters even more complicated, there are reports that the Plaintiffs have “settled” the case with Michigan’s Democratic Governor.  This raises the issue of whether there is even a case left to appeal — although rumor has it that the Republic Legislature is trying to intervene, to keep the case alive.
Footnotes
[1] Although the State Defendants argued that they had returned control of DPS to local authorities in 2017 and were therefore not the appropriate parties to sue, the district court ruled that they were, and the Court of Appeals affirmed that decision.  Id. at *10-12.  I will refer to the Defendants therefore collectively as “the State.”
[2] Plaintiffs alleged that their schools lacked teachers who were certified, properly trained, and assigned to a class within their areas of qualifications and expertise, resulting in classes of up to sixty students and, in one memorable situation, an eighth grade student who was put in charge of teaching math to seventh and eighth graders for a month, because no math teachers were available. Id. at *4-5
[3] Plaintiffs alleged that their buildings were so physically decrepit and unsafe that “during the 2015-2016 academic year, none of the school district’s buildings were in compliance with city health and safety codes.”  Id. at *5-6.
[4] Plaintiffs’ equal protection claim was based on the argument that the State had failed to provide the same access to literacy to Detroit students that it provided to students in the rest of the state.  The Court of Appeals rejected this claim because, while the pleadings reflected the awful conditions faced by Plaintiffs in their schools, they did not allege that these conditions were the result of any disparity in the state’s allocation of resources between Detroit and the rest of the state, or any other intentionally discriminatory decisions by the State.  Id. at *12-13.  “To state such a claim, Plaintiffs must 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.  Since the current version of their complaint fails to do this, the dismissal of Plaintiffs’ equal protection claims must be affirmed.”  Id. at *16.
[5] While the Court rejected the Plaintiffs’ compulsory attendance claim as having been improperly pled, id. at *17, it did recognize the basic legitimacy of such a claim: “at least for compulsory education in a general sense…there is some level of education that justifies whatever deprivation of liberty is caused by a mandatory attendance or schooling requirement. But at the same time, forcing students to attend a ‘school’ in which they are simply warehoused and provided no education at all would run afoul of the Due Process Clause’s protections. Such a deprivation would bear no reasonable relationship to the state’s asserted purpose, and thus would be outweighed by the individual’s interest in liberty. For cases in the middle, the question is whether the state’s interest—here, the education it provides—is enough to justify the restraint.”  Id. at *19 (internal citations omitted).
[6] Brown v. Board of Education, 347 U.S. 483 (1954); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973); Plyler v. Doe, 457 U.S. 202 (1982); Papasan v. Allain, 478 U.S. 265 (1986); Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450 (1988).
[7] Although the State argued that public education was essentially non-existent at the time of the adoption of the Constitution, the Court noted that even Justice Scalia would have acknowledged that the existence of the right at issue would need to be analyzed based on state policies “when the Fourteenth Amendment was ratified in 1868”, id. at *27 (quoting Obergefell, 135 S.Ct. at 2628 (Scalia, J., dissenting)), and pointed to statistics that “[a]n astonishing thirty-six out of thirty-seven states in 1868—an Article V, three-quarters consensus [i.e. well over the number of states needed to amend the Constitution]—imposed a duty in their constitutions on state government to provide a public-school education.”  Id. (quoting Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 Tex. L. Rev. 7, 108 (2008)).
 [8] I actually have no idea what political parties the three judges belong to or identify with, but I do know who appointed them to the Court – and their opinions in the case are very consistent with the split between Democrats and Republicans (or, perhaps more accurately, Liberal and Conservative jurisprudence) on many of these issues.
[9] DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989).
[10] Uncle Ben would be proud.
[11] The Court concluded that the Plaintiffs had alleged sufficient facts to at least survive a motion to dismiss, given that they alleged that “they are forced to sit in classrooms where not even the pretense of education takes place, in schools that are functionally incapable of delivering access to literacy.”  Id. at *36-37.
[12] See also id. (“All told, the plaintiffs seek to enforce the right to education that Rodriguez rejected simply by relabeling it.”).