April 27, 2020

A constitutional right to literacy for Detroit's kids?

[Cross-posted from the New York Times]

By Aaron Tang, Ethan Hutt and Daniel Klasik

Already ravaged by poor health outcomes and joblessness before a crushing wave of Covid-19 cases, the people of Detroit received welcome news Thursday in the form of a long-awaited ruling from a federal Court of Appeals. In Gary B. v. Whitmer, a three-judge panel on the Sixth Circuit Court of Appeals held that Detroit's students enjoy a "fundamental right" to literacy under the United States Constitution. If allowed to stand, this landmark ruling could force the State of Michigan to dramatically improve the quality of education offered to thousands of Detroit's most disadvantaged students.

Sadly, the decision is likely to be reversed. The political and economic reality is that if poor children and children of color in Detroit are ever to have the schools they deserve, state elected officials - not the courts - will need to be the ones to deliver it.

The student plaintiffs in Gary B. v. Whitmer alleged that several of Detroit's lowest-performing public schools employ teachers without appropriate training, lack basic instructional materials like textbooks or supplies and occupy decrepit buildings infested with vermin. "If proven true," the court held, these allegations "would demonstrate that [the plaintiff students] have been deprived of an education providing access to literacy."This candid recognition of the unjust educational conditions facing Detroit's poorest children is admirable. But there is almost no chance that the Sixth Circuit's ruling will ever be enforced. The entire Sixth Circuit, of which only five of the current 16 members were appointed by Democratic presidents, will almost assuredly take up the Gary B. panel opinion. And the panel's ruling is unlikely to survive this review. Even if it does, the conservative majority on the Supreme Court is exceedingly unlikely to let it stand.

This is because the panel's ruling relies on a constitutional law doctrine known as substantive due process. While progressive judges and academics have generally supported it, conservatives have been less sympathetic. There is little reason to think the conservative justices - who have long expressed disdain for this line of cases, which include controversial rulings such as Roe v. Wade - would change their minds to guarantee a federal right to literacy. And historically, conservatives have fervently championed local control in education over federal edicts from Congress (to say nothing of edicts from unelected judges).

In addition to the political challenges to the federal right to literacy, there is another obstacle: the economy. In a forthcoming paper in the Washington University Law Review, we analyzed more than 300 state-level rulings concerning state constitutional challenges to school funding. We found that one of the most powerful predictors of whether a court will ultimately impose liability on a state is the condition of the national economy: For every percentage-point reduction in national G.D.P. growth in the year of the ruling, judges are 6 percent less likely to rule against the state. Why? Our best sense is that judges grow more reluctant to issue costly liability rulings that would require states to raise taxes or cut essential services when their budgets are already deeply in the red. Given that America is about to experience a painful economic retraction this quarter with little relief in sight, our findings bode especially poorly for children.

What does this mean for Gary B. and the children of Detroit? Even if the Sixth Circuit panel's ruling survived further review, the decision only settles the legal question of the existence of a fundamental right to literacy. It sends back to the district court the critical factual question: namely whether Michigan actually deprived Detroit children of that right - a right the court itself characterized as a "basic minimum education." And because the state will almost certainly introduce competing evidence about the quality of education available to Detroit children, the district judge in this case (who already ruled against the plaintiffs in the very opinion the Sixth Circuit panel reversed) might be tempted to conclude in the face of a dire budget shortfall that Michigan did enough - even if just barely.

Given this, Detroit's citizens shouldn't rely on the federal courts to enforce educational equality. But there is hope. It rests on other side of the case caption - with the named defendant, Gov. Gretchen Whitmer of Michigan.

As a candidate, Ms. Whitmer criticized Gov. Rick Snyder for opposing the Detroit plaintiffs' claim to a right to literacy. But rather than reverse Mr. Snyder's position once she took office, Ms. Whitmer instead avoided the issue by arguing that the Sixth Circuit should dismiss the plaintiffs' suit on alternative grounds.

The Sixth Circuit's ruling that Detroit children do, in fact, enjoy a constitutional right to literacy should spur Ms. Whitmer into action. A legislative solution to invest dramatically more resources in Detroit's schools would work wonders for the state's long-term economic outlook - perhaps a compelling argument Ms. Whitmer can make to Michigan's Republican-controlled Legislature. Such a solution wouldn't rely on the courts. And most importantly, it's what the city's children deserve.

April 27, 2020

What Trump Can Teach Us About Con Law, ep. 40: 'COVID and Jacobson'

[Cross-posted from "What Trump Can Teach Us About Con Law"]

By Elizabeth Joh

In mid-April, 2020, states began to explore ways to reopen their economies amid the global coronavirus pandemic. But with states devising their own paths forward, many are wondering what powers the government has, even during a national emergency. Are the states violating our civil liberties by enforcing these lockdowns? To answer this question, many legal scholars are looking to a 115-year-old Supreme Court case, Jacobson v. Massachusetts, for answers. Listen