A Federal Appeals Court Creates New Constitutional Right to Education. What Could Go Wrong? Plenty.

Last week the 6th U.S. Circuit Court of Appeals ruled that the education being provided to Detroit’s public school students was so bad, so inadequate, that the state of Michigan violated the students’ 14th Amendment’s “fundamental right to a minimum education.”

The problem is that there is no such fundamental right. At least not one determined by the Supreme Court. A “fundamental right” is supposed to be “deeply rooted in our nation’s history and tradition, or implicit in the concept of ordered liberty, such that neither liberty nor justice would exist without it.”

Some recognized fundamental rights include marriage, privacy, contraception, procreation, custody of children, and the parental right to direct the education and upbringing of one’s child. Others include the right to vote and to travel between states. These are all court-created, and some have fared worse (e.g. marriage) than others.

The most infamous “fundamental right” the Supreme Court told us was guaranteed by the 14th Amendment’s “due process” clause was the “right” to an abortion in Roe v. Wade.

But no Supreme Court decision has ever considered education to be a fundamental right guaranteed by the U.S. Constitution. And there’s a basic reason for that.

Education has traditionally been within the purview of state law and legislatures. There are federal programs and regulations to observe as part of those programs, but the states and local school districts run education locally because they are directly accountable to the citizens who vote in elections.

What the 6th Circuit’s panel’s vote – 2-1 in favor of the new constitutional right – did was make the federal and state courts the final arbiters of a state’s education budget and everything else that goes along with whatever can be considered a “minimum education.”

To make matters even murkier, the appeals court defined “minimum education” as education that “plausibly provides access to literacy.” What in the world does that mean? Therein lies the danger.

As a practical matter, the vague phrase as applied to any underachieving school or district will mean whatever a court decides it means in any given situation. Sound dangerous?

The lone dissent on the 6th Circuit panel, Judge Eric Murphy, is a recent appointee of President Trump. Murphy pointed out that the Supreme Court has never recognized education as a “fundamental right” under the Constitution. And for fundamental rights that have been recognized by the Supreme Court, those are all “negative rights,” meaning that the government is prevented from interfering in the individual exercising that right.

But under the majority’s ruling, this new fundamental right comes along with an implied requirement to pay for it.

If you want to know what problems arise when courts start usurping the state legislature’s role in education, look no further than the state of Kansas, which has been embroiled in lawsuits for over a decade because a clause in the state’s constitution requires the state legislature to “make suitable provision” for funding the state’s public schools. That clause allowed the state’s highest court to insert itself into the funding question. That single action has only served to empower the Kansas justices into demanding the legislature pass whatever spending bills the court deems necessary for education.

That’s a complete violation of the “separation of powers” principle that allocates our state and federal governments’ functions into legislative, judicial and executive categories.

Just think, what could happen if all 50 states were suddenly subject to the federal courts’ approval of their education budget? How much litigation would that spawn?

The 6th Circuit decision is a first of its kind at the federal level, and there’s little doubt that the state of Michigan will fight it all the way to the Supreme Court. For citizens who revere our separation of powers structure of government and despise watching courts act as legislatures, this is a case to pay close attention to.

The case is called Gary B. v. Whitmer.