Gary B. v. Gretchen Whitmer

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0124p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GARY B., JESSIE K., CRISTOPHER R., ISAIAS R., ┐

ESMERALDA V., PAUL M., and JAIME R., minors, │

Plaintiffs-Appellants, │

> Nos. 18-1855/1871

│

v. │

│

│

GRETCHEN WHITMER, et al., │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:16-cv-13292—Stephen J. Murphy, III, District Judge.

Argued: October 24, 2019

Decided and Filed: April 23, 2020

Before: CLAY, STRANCH, and MURPHY, Circuit Judges.

_________________

COUNSEL

ARGUED: Carter G. Phillips, SIDLEY AUSTIN LLP, Washington, D.C., for Appellants.

Raymond O. Howd, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,

Michigan, for Appellees. ON BRIEF: Carter G. Phillips, SIDLEY AUSTIN LLP, Washington,

D.C., Mark D. Rosenbaum, Anne Hudson-Price, Kathryn A. Eidmann, PUBLIC COUNSEL, Los

Angeles, California, Mark E. Haddad, UNIVERSITY OF SOUTHERN CALIFORNIA, Los

Angeles, California, Evan H. Caminker, UNIVERSITY OF MICHIGAN, Ann Arbor, Michigan,

Tacy F. Flint, Lawrence P. Fogel, Suzanne Brindise Notton, Jennifer M. Wheeler, SIDLEY

AUSTIN LLP, Chicago, Illinois, Joshua E. Anderson, SIDLEY AUSTIN LLP, Los Angeles,

California, Bruce A. Miller, MILLER COHEN, PLC, Detroit, Michigan, for Appellants.

Raymond O. Howd, Joshua S. Smith, Toni L. Harris, OFFICE OF THE MICHIGAN

ATTORNEY GENERAL, Lansing, Michigan, for Appellees. James E. Burke, Bryce J. Yoder,

Amanda B. Stubblefield, KEATING MUETHING & KLEKAMP PLL, Cincinnati, Ohio, David

J. Strom, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Washington, D.C., Anton

Metlitsky, O’MELVENY & MYERS LLP, New York, New York, Tara J. Plochocki, LEWIS

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 2

BAACH KAUFMANN MIDDLEMISS PLLC, Washington, D.C., Michael J. Dell, KRAMER

LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Scott Burnett Smith, Julian D.

Miller, BRADLEY ARANT BOULT CUMMINGS LLP, Huntsville, Alabama, Lena Konanova,

David S. Flugman, Jessica Underwood, Bria Delaney, Nicholas J. Klenow, SELENDY & GAY

PLLC, New York, New York, Jenice C. Mitchell, DETROIT PUBLIC SCHOOLS

COMMUNITY DISTRICT, Detroit, Michigan, Daniel S. Korobkin, Michael J. Steinberg,

AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, Jerome

D. Goldberg, Detroit, Michigan, for Amici Curiae.

CLAY, J., delivered the opinion of the court in which STRANCH, J., joined. MURPHY,

J. (pp. 62–85), delivered a separate dissenting opinion.

_________________

OPINION

_________________

CLAY, Circuit Judge. Plaintiffs in this appeal are students at several of Detroit’s worst-

performing public schools. They credit this substandard performance to poor conditions within

their classrooms, including missing or unqualified teachers, physically dangerous facilities, and

inadequate books and materials. Taken together, Plaintiffs say these conditions deprive them of

a basic minimum education, meaning one that provides a chance at foundational literacy.

In 2016, Plaintiffs sued several Michigan state officials, who they say are responsible for

these abysmal conditions in their schools. Plaintiffs allege that state actors are responsible, as

opposed to local entities, based on the state’s general supervision of all public education, and

also on the state’s specific interventions in Detroit’s public schools. The state argues that it

recently returned control to local officials, and so it is now the wrong party to sue.

Plaintiffs’ underlying claims, brought under 42 U.S.C. § 1983, are all based on the Due

Process and Equal Protection Clauses of the Fourteenth Amendment. Plaintiffs argue that while

other Michigan students receive an adequate education, the students in Plaintiffs’ schools do not,

amounting to a violation of their right to equal protection of the laws. They also argue that the

schools they are forced to attend are schools in name only, and so the state cannot justify the

restriction on their liberty imposed by compulsory attendance. And in their most significant

claim, Plaintiffs ask this Court to recognize a fundamental right to a basic minimum education,

an issue the Supreme Court has repeatedly discussed but never decided.

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 3

While the district court found that Defendants were in fact the proper parties to sue, it

dismissed Plaintiffs’ complaint on the merits. First, it found that Plaintiffs had not alleged a

proper comparator for their equal protection claim, nor had they highlighted any state policy or

action that was not supported by a rational basis. Second, it found that Plaintiffs had not

sufficiently pleaded their compulsory attendance theory, and so the court only viewed their due

process claim as seeking an affirmative fundamental right. Third, the court held that a basic

minimum education is not a fundamental right, and so Plaintiffs’ due process claim was

dismissed. Plaintiffs then appealed.

Though Plaintiffs failed to adequately plead their equal protection and compulsory

attendance claims, the same cannot be said for their central theory: that they have been denied a

basic minimum education, and thus have been deprived of access to literacy. A review of the

Supreme Court’s education cases, and an application of their principles to our substantive due

process framework, demonstrates that we should recognize a basic minimum education to be a

fundamental right. Furthermore, under this circuit’s precedents, Defendants are proper parties to

sue in this case. Accordingly, we affirm in part and reverse in part the district court’s order, and

remand this case for further proceedings.

I. BACKGROUND

A. History of Detroit’s Schools and State Control

Plaintiffs are students at several Detroit public schools that “serve almost exclusively

low-income children of color.” (Compl., R. 1 at PageID #4.) They filed suit in this case against

several Michigan state officers, who they say are proper defendants based both on the state’s

constitutional and statutory authority to oversee the statewide education program and on the

state’s specific interventions into the governance of Detroit’s schools.

Michigan’s constitution provides that the state’s legislature “shall maintain and support a

system of free public elementary and secondary schools.” Mich. Const. art. VIII, § 2. The

constitution also vests “[l]eadership and general supervision over all public education” in the

state board of education, which serves “as the general planning and coordinating body for all

public education.” Id. art. VIII, § 3. The board also appoints the superintendent of public

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instruction, who is responsible for executing the board’s policies and serves as head of the state

department of education. Id.

According to Plaintiffs, education is a state-level concern and school districts are simply

“creations and agents of the State.” (Compl., R. 1 at PageID #48–50.) The Michigan Supreme

Court has “repeatedly held that education in this state is not a matter of local concern, but

belongs to the state at large.” Bd. of Educ. v. Bacon, 162 N.W. 416, 416 (Mich. 1917) (quoting

Collins v. City of Detroit, 161 N.W. 905, 907 (Mich. 1917)). Under Michigan law, the state

board of education has oversight authority over school districts and public schools within the

state. See, e.g., Mich. Comp. Laws §§ 380.1281, 388.1007, 388.1009; see also Council of Orgs.

& Others for Educ. About Parochiaid, Inc. v. Engler, 566 N.W.2d 208, 216 (Mich. 1997) (noting

that state funding and oversight provisions place public schools “under the ultimate and

immediate control of the state and its agents”). But beneath this oversight and supervisory

authority, the day-to-day administration of Michigan schools is usually entrusted to the boards of

local school districts and their appointees. See, e.g., Mich. Comp. Laws § 380.1282.

But usually is not always. Beyond the state’s general authority with respect to public

education, Plaintiffs also allege that the state has repeatedly intervened in the day-to-day

management of Detroit’s schools, and that it directly oversaw public education in Detroit from

1999 through the time the complaint was filed in this case. See Gary B. v. Snyder, 329 F. Supp.

3d 344, 350–54 (E.D. Mich. 2018) (discussing state interventions in Detroit’s schools). As stated

in the complaint, “the State has directly controlled [the Detroit school system] for most of the

past fifteen years through variations of an emergency manager system.” (Compl., R. 1 at PageID

#16–17.) And while this intervention may have been intended to help address shortcomings in

the city’s schools, Plaintiffs say that by “placing the Detroit schools largely in the hands of

administrators with no backgrounds in education,” the state only made the problem worse. (Id.)

These interventions began in the 1990s, partially in response to “fiscal deficit and failing

student achievement outcomes” in Detroit Public Schools (“DPS”), the former Detroit school

district. (Id. at #50.) In 1999, the state adopted Public Act 10, which “replac[ed] Detroit’s

elected school board and superintendent with a seven member ‘reform board.’” (Id.) The reform

board consisted of seven members: six appointed by the mayor, and (at least for five years after

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passage) either the state superintendent of public instruction or her designee. 1999 Mich. Pub.

Acts 10, § 372(2).1 The board required unanimous consent to appoint the school district’s chief

executive, id. § 374(1), which Plaintiffs say gave the state an effective “veto power over the

selection of the CEO as well as every other decision” (Compl., R. 1 at PageID #50–51).

While in 2006, control of DPS was returned “to a locally elected school board . . . as a

result of a Detroit voter referendum,” this change was short-lived. (Id. at #51.) In December

2008, the governor declared a fiscal emergency and appointed an “Emergency Fiscal Manager

for DPS.” (Id.) This emergency manager shared power with the locally elected school board,

but in doing so, the manager “exercised authority not only over financial decision-making, but

some educational decision-making as well.” (Id.)

In 2011, this power-sharing arrangement ended, as the state significantly expanded the

authority of the state’s emergency manager. The manager was effectively given total control

over DPS, and was empowered to “[e]xercise solely, for and on behalf of the school district,

all . . . authority and responsibilities affecting the school district that are prescribed by law to the

school board and superintendent.” Mich. Comp. Laws § 141.1554(f); see also Gary B., 329 F.

Supp. 3d at 350–51 (discussing the history and various versions of Michigan’s emergency-

manager laws).

While a state-appointed transition manager controlled Detroit’s schools at the time the

complaint was filed, the state also created a new school district, the Detroit Public Schools

Community District (“DPSCD”), to run Detroit’s schools, while keeping DPS in charge of

paying down debt. See Ann Zaniewski, New Detroit School Board Takes Reins of District, Det.

Free Press, Jan. 11, 2017. The first elections for DPSCD’s board were held in January 2017, and

Defendants claim that “the locally elected DPSCD Board of Education and its superintendent

now have direct control over the operation of the schools in the district; there is no longer an

emergency manager.” (Defs.’ Br. at 27.) That said, the complaint notes that “the State’s

Financial Review Commission will remain involved in the oversight of the Detroit schools, and

1

Plaintiffs instead allege that this seventh member was “appointed by the Governor” (Compl., R. 1 at

PageID #50), but this makes no difference to their case, since both the governor and the state superintendent are

defendants here.

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has not yet revealed the scope of authority or direction that will be granted to the elected board.”

(Compl., R. 1 at PageID #51.)2

Beyond the emergency managers and other interventions into DPS or DPSCD, “the State

also has assumed a special responsibility over what it calls Priority Schools, or the most poorly

performing five percent of schools in the State.” (Id. at #52.) At the time the complaint was

filed, this included all of Plaintiffs’ schools that remained open. These Priority Schools were

managed by a state entity called the State School Reform/Redesign Office (“SRO”). See

2009 Mich. Pub. Acts 204, § 1280c (repealed 2019). According to Defendants, the SRO and

Priority Schools were eliminated as of June 30, 2019.

Plaintiffs also allege that the state intervened in Detroit schools through an entity called

the Education Achievement Authority (“EAA”). The EAA was a statewide school district

administered by the state in conjunction with Eastern Michigan University, and included fifteen

of the state’s lowest-performing schools. But according to Plaintiffs, “[t]he EAA schools have

not improved on the State’s watch. In fact, the most recent Michigan state achievement

test results reflect that fewer than 5% of EAA students are proficient in core subject areas.”

(Compl., R. 1 at PageID #55.) As a result, the state closed the district and transferred Detroit’s

EAA schools back into DPSCD. See Gary B., 329 F. Supp. 3d at 351–52. However, none of

Plaintiffs’ individual schools were part of the EAA. Id. at 351 n.3.3

Finally, Plaintiffs point to state-level policy interventions that affect Detroit schools. For

example, Plaintiffs claim that in June 2016, the state adopted legislation allowing

“noncertificated, nonendorsed teacher[s]” to work in the new Detroit school district. (Compl.,

R. 1 at PageID #59.) According to Plaintiffs, “[n]owhere else in Michigan may children in

2

This commission includes the state treasurer, the director of the Department of Technology, Management

and Budget (who is one of the defendants here) or her designee, and several appointees of the governor, along with

certain officers from DPSCD and the City of Detroit. See Mich. Comp. Laws § 141.1635(1)–(2). State officers and

appointees constitute a majority of the commission. Id.

3

Plaintiffs also discuss inadequate teachers, decrepit conditions, and a shortage of materials at Marion Law

Academy, one of the schools managed by the EAA. While the conditions described at the school seem horrendous

(see, e.g., Compl., R. 1 at PageID #58 (“In one fourth-grade classroom, a leaking hole in the ceiling created what

students called ‘the lake,’ and the teacher surrounded the area with yellow caution tape after multiple requests for

repairs were ignored.”)), none of the named plaintiffs attended Marion Law Academy.

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public school be taught by teachers who lack appropriate state-mandated credentials and

qualifications.” (Id.) Plaintiffs also allege that the state has threatened to close and then

flip-flopped on closing “all of Plaintiffs’ schools that are currently operating and 47 schools in

Detroit.” (Id. at #60–62.) They say that these threatened closures exacerbated their problems by

sending “students and teachers scrambling, leaving them worried and confused when they should

have instead been preparing to start the new school year. Moreover, the State has offered no

plan to ensure that any contemplated school closing will not disrupt students’ educations, further

entrenching denials of access to literacy.” (Id. at #61.)

B. Conditions Alleged in Plaintiffs’ Schools

Plaintiffs’ schools are “five of the lowest performing schools in Detroit.” (Id. at #5.)

Three of them are traditional public high schools: Osborn Academy of Mathematics (“Osborn

MST”), the Osborn Evergreen Academy of Design and Alternative Energy (“Osborn

Evergreen”), and the Medicine and Community Health Academy at Cody (“Cody Health”).

The other two are charter schools: Hamilton Academy (“Hamilton”), which was an elementary

school, and Experiencia Preparatory Academy (“Experiencia”), which taught students at the

elementary through high-school levels.4

The core of Plaintiffs’ complaint is that the conditions in their schools are so bad—due to

the absence of qualified teachers, crumbling facilities, and insufficient materials—that those

schools fail to provide access to literacy. “Plaintiffs 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 #4.) Because of this, Plaintiffs attend “schools in name only, characterized

by slum-like conditions and lacking the most basic educational opportunities that children

elsewhere in Michigan and throughout the nation take for granted.” (Id.) “[T]hey wholly lack

the capacity to deliver basic access to literacy, functionally delivering no education at all.” (Id.

at #19; see also id. at # 10–11 (“The schools Plaintiffs attend, and attended, are not truly schools

by any traditional definition or understanding of the role public schools play in affording access

to literacy.”).)

4

These charter schools are treated as public schools under Michigan law and are subject to the authority of

the state board of education. E.g., Mich. Comp. Laws § 380.501(1); Parochiaid, 566 N.W.2d at 215–21.

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As noted above, the inadequacies that Plaintiffs point to can be grouped into three main

categories: teaching, facilities, and materials. We discuss examples of each of these problems

below.

1. Teaching

With respect to teaching, Plaintiffs claim that their schools “lack the qualified teaching

staff required to bring students to literacy—that is, teachers who are certificated, properly

trained, and assigned to a class within the area of their qualifications and expertise.” (Id. at #15.)

This shortfall can be seen in the schools’ substantial reliance on Teach for America instructors

and through other sources of high teacher turnover, which in many cases lead to midyear

vacancies.

“In the 2016–2017 school year, there were up to 200 vacancies [in Detroit’s public

schools] just before the start of the school year.” (Id. at #102.) There are also substantial short-

term absences, with some teachers “absent as many as 50 days in one year.” (Id. at #105.)

Because of these shortages, Plaintiffs’ “classes are covered by non-certificated paraprofessionals,

substitutes, or misassigned teachers who lack any expertise or knowledge in the subject-matter of

the course.” (Id. at #15–16.) Other times, classes are combined on short notice, with up to sixty

students in a single classroom. In perhaps the most notable case, “an eighth grade student was

put in charge of teaching seventh and eighth grade math classes for a month because no math

teacher was available.” (Id. at #16.)

When there are teachers, they also often lack meaningful experience. For example,

at Hamilton, a majority of teachers were starting their first year when the complaint was filed.

At Experiencia, about half of the teachers who started in 2012 quit by the end of their second

semester.

In June 2016, the state adopted legislation “permitting non-certificated instructors to

teach in DPSCD schools. This legislation does not apply to any school elsewhere in the State.”

(Id. at #16.) At Hamilton, a paraprofessional who was teaching middle school science said “she

does not understand the material and cannot lead classroom experiments.” (Id. at #102–03.)

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In several other cases, long-term substitutes are used, or teachers are changed frequently through

the year.

Beyond the teachers themselves, Plaintiffs also complain of their schools’ failure to use

adequate curricula that could plausibly impart literacy. According to Plaintiffs, “[t]here is no

consistent literacy instruction program in Plaintiffs’ elementary schools, and the schools lack the

staffing and capacity required to effectively implement such a program.” (Id. at #76.)

At Experiencia, “teachers dedicated significant class time to reading aloud from books with

reading levels multiple grades below the chronological age of the class, yet students struggled to

sound out simple words.” (Id. at #77–78.) Plaintiffs’ high schools fare little better, as teachers

receive no support or training in literacy education and “lack access to curricular materials such

as lesson plans, pacing guides, and teacher editions of textbooks.” (Id. at #77.) One of

Plaintiffs’ high schools attempted to address literacy issues with school reading groups; despite

being a high school, “[t]he most advanced of the reading groups read books at a fourth- and fifth-

grade reading level.” (Id.) The problem is also exacerbated as the students advance in grade,

since higher-grade teachers “lack appropriate training to support students who are performing far

below grade level.” (Id. at #79–80.)5

2. Facilities

Turning to the schools themselves, Plaintiffs allege that their classrooms feature decrepit

or even unsafe physical conditions, meaning they “have been unable to satisfy minimal state

health and safety standards.” (Id. at #12.) “The City of Detroit admitted that during the 2015–16

academic year, none of the school district’s buildings were in compliance with city health and

safety codes,” and that some of Plaintiffs’ schools were still not in compliance at the time the

complaint was filed. (Id. at #87.) Taken together, Plaintiffs claim that these conditions “make

learning nearly impossible.” (Id. at #12.)

“Classroom temperatures in Plaintiffs’ schools regularly exceed 90 degrees during both

the summer and winter due to malfunctioning furnaces and, at other times during winter, are

5

Plaintiffs also allege that their schools fail to employ adequate instructors for students whose first

language is not English. In one case, this failure was despite the school claiming to be “a dual language immersion

school.” (Compl., R. 1 at PageID #99.)

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frequently so cold that students and their teachers can see their breath and must wear layers of

winter clothing indoors.” (Id.) These temperatures sometimes require school closings or early

dismissals. For example, “there is no air conditioning at Hamilton, and one west-facing

classroom has reached 110 degrees during the school year. . . . On the first day of the 2016–17

school year, the temperatures in the school grew so extreme that multiple students fainted, both

students and teachers got so sick they threw up, and multiple teachers developed heat rashes.”

(Id. at #90.) During the winter months, Plaintiffs face extreme cold instead: “students and

teachers had to wear winter coats, hats, and scarves” inside their classrooms. (Id.) In some

cases, temperatures remained below freezing, “and students were periodically sent home when

the classrooms were too cold.” (Id. at #91.)

“Mice, cockroaches, and other vermin regularly inhabit Plaintiffs’ classrooms, and the

first thing some teachers do each morning is attempt to clean up rodent feces before their

students arrive. Hallways and classrooms smell of dead vermin and black mold . . . .” (Id. at

#13.) “Students and teachers have frequently encountered mice, mice droppings, rats, bedbugs,

and/or cockroaches.” (Id. at #88; see also id. at #88–89 (including additional allegations and

pictures).)

“The drinking water in some of Plaintiffs’ schools is hot, contaminated and undrinkable.

Bathrooms are filthy and unkempt; sinks do not work; toilet stalls lack doors and toilet paper.

In some classrooms, ceiling tiles and plaster regularly fall during class time.” (Id. at #13.)

At several of Plaintiffs’ schools, pipes or roofs leaked as well, and broken windows are covered

with cardboard. (See id. at #95, #97 (pictures of damaged facilities).)

Plaintiffs also complain of overcrowding within their classrooms, with as many as fifty

students in a single classroom and insufficient desks and chairs, requiring students to stand or sit

on the floor. Even when students have chairs, “classes are often so full that the desks are

crammed wall-to-wall, with no room for aisles.” (Id. at #97.)

3. Materials

Plaintiffs allege that their schools lack the books and materials needed to plausibly

provide literacy. “Many classes in Plaintiffs’ schools do not have appropriate textbooks.

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Where they are provided, they are often long out of date, torn and beyond repair, or marked up to

be unreadable in places.” (Id. at #11; see also id. at #84–85 (pictures of Plaintiffs’ textbooks).)

Plaintiffs also allege there were so few copies that they had to share a single book among four or

more students during class, and could not take them home after school, meaning their teachers

could not assign meaningful homework. In several cases, the schools’ libraries were inaccessible

or had no books available either, even outside of textbooks.

In addition to their allegations of outdated, insufficient, or damaged books, Plaintiffs also

claim that their schoolbooks were not appropriate to their grade level. For example, “the only

books in the third-grade classroom at Hamilton were picture books, until the teacher purchased

others with her own money more than halfway through the year.” (Id. at #8.) “There are no

textbooks for the Earth Science, Physics, or Research and Development science classes at

Osborn MST, so the teachers in each of those classes rely on a section of the Biology textbook

most closely related to the subject they are teaching.” (Id. at #83.)

Beyond books, Plaintiffs also claim that their classrooms lack other basic school supplies,

such as pens, pencils, and paper. Teachers attempt to make up for this shortfall by spending

substantial amounts out of pocket or by requesting donations online.

C. Educational Outcomes from Plaintiffs’ Schools

According to Plaintiffs, the school conditions discussed above led to abysmal educational

outcomes, which further supports the claim that their schools cannot provide access to literacy.

Turning to outcome data, Plaintiffs contend that while outcomes are not dispositive of access,

they remain relevant because aggregate results shed light on the degree of opportunity afforded

to students. “Achievement data reveal that in Plaintiffs’ schools, illiteracy is the norm.

The proficiency rates in Plaintiffs’ schools hover near zero in nearly all subject areas.” (Id. at #7

(emphasis omitted); see also id. at #62 (“[L]iteracy instruction provided in Plaintiffs’ schools is

so wholly insufficient that ninety percent or more of the students are unable to meet state

proficiency standards.”).) And looking beyond Michigan, Detroit’s schools “ranked last in

reading and math proficiency among all big-city school districts.” (Id. at #47.)

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The numbers from Plaintiffs’ individual schools demonstrate significant

underperformance compared to state educational standards. Looking first to elementary school

students, at Hamilton, just 4.2% of third-graders scored “proficient or above” in the state’s

English assessment, compared to 46.0% of third-graders statewide. (Id. at #8.) Similarly, at

Experiencia, only 9.5% of third-graders scored as proficient. Other grade levels have even worse

numbers, including zero or near-zero proficiency rates.

Turning to Plaintiffs’ high schools, at Cody MCH, 12.5% of eleventh-graders scored as

proficient in English, compared to 49.2% statewide. And at Osborn MST, only 1.8% of

eleventh-graders were proficient. In other subject areas, proficiency numbers were even lower.

Additionally, results from the ACT college-admissions test reveal that students in Plaintiffs’

schools dramatically underperform the rest of the state, with between 12.5% and 0% achieving

“college ready” scores. (Id. at #71–72.)

Plaintiffs argue that these data translate into significantly reduced literacy skills in their

schools, in which students “struggle to write proper paragraphs or even complete sentences.”

(Id. at #7.) For example, in their elementary schools, Plaintiffs allege that many third-grade

students have a vocabulary of only “a couple hundred words,” are still learning handwriting, and

that some “cannot even sound out letters.” (Id. at #8; accord id. at #77–79.)

These issues persisted at Plaintiffs’ high schools as well:

At Cody MCH, the ninth-grade English-Language Arts teacher spent a good part

of the year reading, paragraph by paragraph, a novel with a third-grade reading

level, because no more lexically advanced novel would have been readable by his

students. When the class was asked to read the book aloud in class, a number of

students experienced enormous difficulty reading monosyllabic words. Similarly,

at Experiencia, the ninth and tenth grade class was assigned a book with a fourth-

grade reading level, because the students lacked the literacy skills to access more

complex texts and because they were the only books available. At Osborn

MST, . . . [a] number of the students struggled to sound out basic words when

they read aloud in class, and one student asked her classmate how to spell the

word “the.”

(Id. at #9–10; accord id. at #79.)

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Looking to national-level data, Detroit schools average “2.3 grade levels below their

actual grade level in basic reading proficiency. Because Plaintiffs’ schools are among the

poorest performing schools in Detroit, this means that students in Plaintiffs’ schools are

performing far lower.” (Id. at #72 (emphasis omitted).) Plaintiffs allege that these issues also

cause “high drop-out and low college attainment rates” within their schools. (Id. at # 27; accord

id. at #73–76.)

While literacy is the crux of Plaintiffs’ complaint, they also note that the failure of their

schools is uniform across “nearly all subject areas.” (Id. at #7.) “[B]ecause the rest of the

curriculum assumes a level of literacy that the students do not attain, they are also unable to learn

State-mandated content in all other subject areas.” (Id. at #7–8.) Of Plaintiffs’ high schools that

remain open, each of their eleventh-grade classes scored “0% proficiency in at least one of Math,

Science, or Social Studies.” (Id. at #10 (emphasis omitted).)

D. The District Court’s Opinion and Order

On September 13, 2016, Plaintiffs filed their complaint in the Eastern District of

Michigan. They alleged three causes of action at issue in this appeal: (1) denial of their

“fundamental right of access to literacy,” violating both the substantive due process and equal

protection requirements of the Fourteenth Amendment; (2) violation of the Equal Protection

Clause due to race-based discrimination; and (3) a claim for declaratory relief based on these

other causes of action. (Compl., R. 1 at PageID #126–30.)6

Defendants moved to dismiss. First, while not expressly phrased in terms of mootness,

Defendants argued that they no longer control Plaintiffs’ schools, and so cannot be sued for those

schools’ conditions. Defendants also claimed that the Eleventh Amendment barred Plaintiffs’

requested relief on sovereign-immunity grounds.

Turning to the merits, 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.” (Mot. to Dismiss, R. 60 at PageID #519–27.) And since there is no such

6

Plaintiffs voluntarily abandoned their other two causes of action.

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right, any equal protection claim not based on a protected class must be reviewed under the

rational-basis standard, a review that Defendants argued would show that the claim fails under

the Supreme Court’s prior education cases. Finally, Defendants said that Plaintiffs failed to

plead a race-based equal protection claim because the conditions they complain of “equally

affect all students within the same schools regardless of race.” (Id. at #532–35.)

While the district court ultimately granted Defendants’ motion, Gary B., 329 F. Supp. 3d

at 369, how it came to that conclusion is important on appeal. Before reaching the merits of

Plaintiffs’ complaint, the district court first addressed Defendants’ argument that they did not

operate Plaintiffs’ schools and so were the wrong parties to sue. Id. at 349. The court rejected

this view, finding that Plaintiffs had “adequately pled that state actors effectively control the

schools, at least in part, and are therefore proper parties.” Id. at 354. The court also rejected

Defendants’ Eleventh Amendment argument, finding that Plaintiffs sought prospective injunctive

relief, and therefore could sue state officers in their official capacities. Id. at 356–57.

Plaintiffs fared worse on the merits. Turning first to their due process claims, the court

noted that “a case like this one could be argued on either positive- or negative-right theories.”

Id. at 364. Negative rights, in this view, are freedoms from government intervention or

intrusion; positive rights, by contrast, entail affirmative obligations that the state must afford its

citizens. “But the relief sought [was] exclusively positive in nature,” and so the district court

only considered the due process claim in terms of whether access to literacy is a fundamental

right. Id. at 364–65. And on that point, noting federal courts’ “reticence to find positive rights

[even] to unquestionably important necessities of life,” the court held there was no such

fundamental right. Id. at 365–66.

On the equal protection claim, the court first found that while Plaintiffs attempted to

compare their education to that provided by other schools throughout the State of Michigan, this

was not the right comparison. Id. at 367. According to the court, because schools like

Plaintiffs’—those under emergency management or experiencing other state interventions—were

in a different position from other schools, only schools undergoing state interventions could

serve as comparators in assessing their equal protection claims. Id. Using that framework, the

district court rejected Plaintiffs’ race-based equal protection claim, finding that the complaint

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 15

failed to allege “any instance where Defendants intervened in a school with a different racial

makeup and treated that school disparately.” Id. at 367–68. Left with only rational basis review,

the court found that Plaintiffs had failed to allege any specific, irrational actions taken by

Defendants, holding that Plaintiffs could not use the conditions in their schools alone to dispel

the presumption of rationality. Id. at 368. Accordingly, the district court dismissed Plaintiffs’

complaint in its entirety with prejudice. Id. at 369.

E. The Parties’ Arguments on Appeal

On appeal, both sides argue that the district court erred (though Defendants of course

believe the ultimate outcome was correct). Plaintiffs say that the court was wrong in finding

there is no fundamental right to access to literacy, and thus the district court should not have

dismissed their due process claim. They also argue that the court should have considered a

negative-rights version of their due process theory, under which Defendants violated their right

to liberty by compelling them to attend “schools in name only” that fail to provide even a

minimal education. (Pls.’ Br. at 36–43.)

On equal protection, while not addressing their race-based claims, Plaintiffs say that

because Defendants control the entire statewide education system, other schools throughout the

state are proper comparators. When viewed against these statewide comparators, Plaintiffs say

their schools are so much worse that Defendants’ actions violate the Equal Protection Clause

under any level of scrutiny.

For Defendants’ part, they begin by reiterating that they do not control Plaintiffs’ schools,

and so are not proper defendants in this case. They now raise this argument under the guise of

mootness, contending that changes in state law and practice have removed their day-to-day

control over education in Detroit. As a result, they also argue that any remaining claims are for

retroactive rather than prospective relief, and so are barred by the Eleventh Amendment.

Following this section of their brief, which was styled “Argument for All Defendants”

(Defs.’ Br. at 26), Defendants seem to part ways. Most of the defendants say that because

Plaintiffs’ claims are moot, they will not argue against their merits on appeal. (Id. at 25.) But

two of the defendants proceed in a further section titled “Argument of Michigan Board of

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Education Members Tom McMillin and Nikki Snyder Only.” (Id. at 36; accord id. at 25.) This

section contains Defendants’ arguments on the merits of Plaintiffs’ constitutional theories, in

which they say the district court correctly dismissed Plaintiffs’ claims.7

These issues are now before the Court.

II. DISCUSSION

A. Standard of Review

We review a district court’s grant of a motion to dismiss de novo. E.g., Majestic Bldg.

Maint., Inc. v. Huntington Bancshares, Inc., 864 F.3d 455, 458 (6th Cir. 2017). A motion to

dismiss is properly granted if the plaintiff has “fail[ed] to state a claim upon which relief can be

granted.” Fed R. Civ. P. 12(b)(6).

The reviewing court must accept the factual allegations in the complaint as true and

construe the complaint in the light most favorable to the plaintiff. E.g., Hill v. Blue Cross

& Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005). But we may affirm the district

court’s dismissal of the plaintiff’s claims on any grounds present in the record, including grounds

not relied upon by the district court. E.g., Long v. Insight Commc’ns of Cent. Ohio, LLC,

804 F.3d 791, 794 (6th Cir. 2015); In re Comshare, Inc. Sec. Litig., 183 F.3d 542, 547–48 (6th

Cir. 1999).

To survive a motion to dismiss, the plaintiff must allege facts that are sufficient “to state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

7

It is unclear how McMillin and Snyder have the authority to pursue separate arguments on their own

behalf. Both are members of a collegial body—the state board of education—and were sued in their official

capacities. In such a case, it is the decision of the body itself, not its individual members, that governs the conduct

of litigation. See, e.g., Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 543–45 (1986) (holding that a school

board member sued in his official capacity was bound by the board’s litigation decisions and could not file his own

notice of appeal); Smuck v. Hobson, 408 F.2d 175, 177–78 (D.C. Cir. 1969) (en banc) (plurality opinion) (finding

that because a board of education’s “decisions are made by vote as a collective whole,” an individual member “has

no appealable interest” contrary to a majority vote taken by the board).

But since the remaining defendants have not objected to McMillin’s and Snyder’s arguments, and indeed

have included them in their brief (albeit separately labeled), we consider these arguments to be made on behalf of all

defendants and refer to them in this manner below. This seems particularly appropriate because the board as a

whole (along with the other state officers) is the master of how this litigation is defended, and thus can decide which

arguments to pursue in its briefs and whether and to what extent it should further press this appeal.

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 17

(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id.

The determination to dismiss with prejudice, as opposed to without, is reviewed under an

abuse of discretion standard. E.g., United States ex rel. Bledsoe v. Cmty. Health Sys., Inc.,

342 F.3d 634, 644 (6th Cir. 2003); Craighead v. E.F. Hutton & Co., 899 F.2d 485, 495 (6th Cir.

1990).

B. Mootness and Sovereign Immunity

At the outset, Defendants say that there is no need to reach the merits of this appeal,

because Plaintiffs sued the wrong people. This is because, in the past several years, Defendants

have shifted the administration of Plaintiffs’ schools back to local officials, and so any

complaints about the conditions in these schools must instead be addressed to the local school

board. Defendants also argue that since they no longer control the day-to-day events at

Plaintiffs’ schools, any suit against them would have to be for retroactive monetary relief, and so

would run afoul of the Eleventh Amendment’s grant of sovereign immunity. The district court

found against Defendants on each of these points. Gary B., 329 F. Supp. 3d at 354, 357.

While the Eleventh Amendment generally prohibits lawsuits against states in federal

court, under Ex parte Young, 209 U.S. 123, 155–56 (1908), a plaintiff can sue state officers to

enjoin an unconstitutional state policy. When challenging a state policy, the officer sued must

“have some connection” with the policy’s enforcement or execution. Id. at 157. Even when a

function is administered on a day-to-day level by local officials, a state officer’s supervisory

authority can still make her a proper defendant under Ex parte Young. E.g., Russell v.

Lundergan-Grimes, 784 F.3d 1037, 1048–49 (6th Cir. 2015). So long as the named defendants

are “actively involved” with the challenged conduct, they can be sued for injunctive relief

without implicating the Eleventh Amendment. Id.; accord Doe v. DeWine, 910 F.3d 842, 848–

49 (6th Cir. 2018).

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 18

By arguing that the day-to-day management of Plaintiffs’ schools has been returned to

DPSCD, Defendants misconstrue Plaintiffs’ central claim in this case, which is that the state—as

the primary authority for public schools in Michigan—has failed to provide them with a basic

minimum education. While their complaint also discusses Defendants’ prior, more extensive

interventions into Detroit’s schools, the gravamen of Plaintiffs’ argument is that the state, by

virtue of its supervisory authority over all public education in Michigan, has a responsibility to

ensure that each school it oversees at least provides access to literacy.

This Court has previously rejected an argument that is analogous to Defendants’ here:

The Secretary [of State] and Governor also maintain that they are not proper

parties to this action in that any alleged errors were the fault of local [boards of

election] rather than high-level state officials. The district court properly rejected

this argument. The Secretary of State of Ohio is the state’s chief election

officer ex officio. The Governor of Ohio is the state’s chief executive officer.

Both officials have the authority to control the [boards of election] and are proper

parties here.

League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 475 n.16 (6th Cir. 2008) (citations

omitted); see also, e.g., Doe v. DeWine, 910 F.3d at 848–49; Russell, 784 F.3d at 1048–49.

This logic applies here too. The state board of education has “[l]eadership and general

supervision over all public education.” Mich. Const. art. VIII, § 3. The superintendent executes

the board’s policies and is the chief education officer of Michigan. Id. The governor is the chief

executive officer. Id. art. V, § 1. And while the state has delegated much of the management of

individual school districts and schools to local authorities, these remain “under the ultimate and

immediate control of the state and its agents.” Parochiaid, 566 N.W.2d at 216.8

8

Although the changes highlighted by Defendants do not alter this general relationship between the state

and its subordinate school districts, they may affect whether certain individual defendants should remain in this case.

For example, the SRO appears to have been eliminated in June 2019. While the parties did not raise this issue

directly with respect to individual officers, they could do so following remand in the district court. See, e.g., Chisom

v. Jindal, 890 F. Supp. 2d 696, 728 (E.D. La. 2012) (approving the voluntary dismissal of an official-capacity

defendant after the office in question was eliminated); see also, e.g., Will v. Mich. Dep’t of State Police, 491 U.S.

58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but

rather is a suit against the official’s office.”).

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 19

Furthermore, any remedy that the district court could order would almost certainly

implicate Defendants, who have policymaking and financial responsibility for the statewide

education system. The rule advocated by Defendants could create a liability catch-22, in which

Plaintiffs are forced to instead seek injunctive relief against local officials, only to be told that

the resources they need can only come from the state. In Futernick v. Sumpter Township,

78 F.3d 1051, 1055 n.5 (6th Cir. 1996), abrogated on other grounds by Village of Willowbrook v.

Olech, 528 U.S. 562 (2000) (per curiam), we rejected a similar argument on these grounds:

The [defendants] also argue that only the officer with immediate control over the

challenged act or omission is amenable to § 1983. We find this claim ridiculous.

Such a rule would allow a state agency to avoid, or defer, liability merely by

transferring the defendant in a particular case, or by changing the scope of the

defendant official’s authority. The directors of a state agency, no matter how far

removed from the actions of agency employees, are proper parties to a suit for

an injunction under § 1983.

In fact, even if Plaintiffs’ claims were limited to the state’s direct intervention in Detroit’s

schools, Defendants’ recent transfer of day-to-day management to DPSCD would still not

require dismissal. “A defendant’s ‘voluntary cessation of a challenged practice’ does not moot a

case. Rather, voluntary conduct moots a case only in the rare instance where ‘subsequent events

made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to

recur.’” League of Women Voters, 548 F.3d at 473 (citations omitted) (first quoting Ammex, Inc.

v. Cox, 351 F.3d 697, 704 (6th Cir. 2003); and then quoting Akers v. McGinnis, 352 F.3d 1030,

1035 (6th Cir. 2003)). Given Defendants’ repeated interventions in and changes to the

governance structure of Detroit’s education system, there is no assurance that Defendants will

not again inject themselves into the administration of Plaintiffs’ schools, nor do they attempt to

make such a commitment in their brief. Despite the greater consideration afforded to

government officials’ cessation of allegedly unlawful conduct, e.g., Ammex, 351 F.3d at 705;

Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990), there is no basis to believe this change is

a permanent one.

Finally, Defendants’ argument that this lawsuit is really an attempt to seek payment for

past harms, and so is barred by the Eleventh Amendment, misstates both Plaintiffs’ requested

remedy and the law. As Defendants themselves repeatedly argue, Plaintiffs are requesting

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 20

affirmative injunctive relief to improve the conditions in their schools. Such an injunction “fits

squarely within the prospective-compliance exception” to the Eleventh Amendment, even if

funds from the state treasury are needed to carry it out. Milliken v. Bradley, 433 U.S. 267, 289

(1977); see also id. at 288–90 (affirming an order requiring Michigan state officers to fund

remedial education measures). The cases cited by Defendants all involved cash payments to

claimants for previously incurred liabilities, see Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t

of Health & Rehab. Servs., 225 F.3d 1208, 1220 (11th Cir. 2000) (“If the prospective relief

sought is ‘measured in terms of a monetary loss resulting from a past breach of a legal duty,’ it is

the functional equivalent of money damages and Ex parte Young does not apply.” (quoting

Edelman v. Jordan, 415 U.S. 651, 668 (1974))), and so are completely inapplicable to this case.

In sum, it is evident from the Michigan Constitution and statutes, as well as its prior

interventions in the school system, that the state retains significant authority over Detroit’s public

schools. Accordingly, its officers are proper defendants in this case under Ex parte Young, and

the transfer of some control back to local officials does not render this lawsuit moot.

C. Plaintiffs’ Equal Protection Claim

Faced now with the merits of Plaintiffs’ complaint, we turn first to their equal protection

claim. The crux of this claim is that Defendants discriminated against Plaintiffs by failing to

provide the same access to literacy they give to other Michigan students. Thus, even if there is

no fundamental right to a basic minimum education, Defendants—by choosing to provide a basic

education to some students but not to others—have still violated Plaintiffs’ constitutional rights.

There is some debate over what level of scrutiny applies when a discrete group is denied access

to education. Plaintiffs argue that under Plyler v. Doe, 457 U.S. 202 (1982), a form of

heightened scrutiny applies in such cases, see id. at 230 (“If the State is to deny a discrete group

of innocent children the free public education that it offers to other children residing within its

borders, that denial must be justified by a showing that it furthers some substantial state

interest.”). They also contend that even if this heightened scrutiny did not apply, there could be

no rational justification for denying Plaintiffs an adequate education while providing one to other

students throughout the state.

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 21

But a review of Plaintiffs’ complaint shows they have not adequately pleaded an equal

protection claim, regardless of the level of scrutiny. This is because their complaint, while

reflecting the awful conditions faced in Plaintiffs’ schools, has not alleged any disparity in the

state’s allocation of resources between their schools and others. Nor do Plaintiffs attack any

specific decision or policy implemented by Defendants that treats their schools differently from

others in the state. Thus, because Plaintiffs have not identified a governmental action or policy

that discriminates against them, the district court was correct to dismiss this claim.

1. Equal Protection Framework

“When a state distributes benefits unequally, the distinctions it makes are subject to

scrutiny under the Equal Protection Clause of the Fourteenth Amendment.” Zobel v. Williams,

457 U.S. 55, 60 (1982). At its core, the Clause says that “all persons similarly situated should be

treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Thus,

plaintiffs alleging an equal protection claim have to make two showings: first, that the

defendants treated them differently from other similarly situated persons, and second, that this

difference in treatment is not supported by a sufficiently strong governmental interest. E.g., id.

at 439–40; Jolivette v. Husted, 694 F.3d 760, 771 (6th Cir. 2012); Ctr. for Bio-Ethical Reform,

Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011); Scarbrough v. Morgan Cty. Bd. of Educ.,

470 F.3d 250, 260 (6th Cir. 2006).

Much of the Supreme Court’s equal protection case law concerns the second part of this

test, and specifically how strong the governmental interest must be. For example, if a

government policy discriminates based on race or another immutable, protected characteristic,

the Court applies “strict scrutiny” and will uphold the policy only if it furthers a “compelling

state interest” and is narrowly tailored in doing so. Cleburne, 473 U.S. at 440; accord, e.g.,

Grutter v. Bollinger, 539 U.S. 306, 326 (2003); see also, e.g., Zablocki v. Redhail, 434 U.S. 374,

388 (1978) (also applying strict scrutiny “[w]hen a statutory classification significantly interferes

with the exercise of a fundamental right”).9

9

Classifications based on gender are reviewed under “intermediate scrutiny,” in which the challenged

policy “must serve important governmental objectives and must be substantially related to achievement of those

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 22

On the other hand, if the policy does not concern a protected class, “rational basis”

review is used, and the policy will be sustained if it “is rationally related to a legitimate state

interest.” Cleburne, 473 U.S. at 440. This rational basis standard is extremely forgiving. The

challenged action is presumed to be constitutional, and the burden is on Plaintiffs to negate

“every conceivable basis” that might support it. Heller v. Doe ex rel. Doe, 509 U.S. 312, 320

(1993) (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). Further,

“[w]hen social or economic legislation is at issue, the Equal Protection Clause allows the States

wide latitude.” Cleburne, 473 U.S. at 440.

Plyler v. Doe throws a wrench in this. In Plyler—discussed more extensively later,

see infra Part II.E.2—the Supreme Court faced a Texas policy that required undocumented

children to pay tuition before they could attend public school, 457 U.S. at 205–06, 206 n.2.

In assessing the plaintiffs’ equal protection challenge, the court noted that “[u]ndocumented

aliens cannot be treated as a suspect class,” and that education as a general matter is not a

fundamental right. Id. at 223. And so, rational basis must apply.

But the Court went on:

[M]ore is involved in these cases than the abstract question whether [the

challenged policy] discriminates against a suspect class, or whether education is a

fundamental right. [The policy] imposes a lifetime hardship on a discrete class of

children not accountable for their disabling status. The stigma of illiteracy will

mark them for the rest of their lives. By denying these children a basic education,

we deny them the ability to live within the structure of our civic institutions, and

foreclose any realistic possibility that they will contribute in even the smallest

way to the progress of our Nation. In determining the rationality of [the policy],

we may appropriately take into account its costs to the Nation and to the

innocent children who are its victims. In light of these countervailing costs, the

discrimination contained in [Texas’s policy] can hardly be considered rational

unless it furthers some substantial goal of the State.

objectives.” Craig v. Boren, 429 U.S. 190, 197 (1976); see also, e.g., Plyler, 457 U.S. at 217–18, 218 n.16

(discussing the application of intermediate scrutiny to classifications that, “while not facially invidious, nonetheless

give rise to recurring constitutional difficulties”).

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 23

Id. at 223–24 (emphasis added). Thus, while still couched in rational basis review, the Plyler

court held that when a discrete group of children is denied a basic public education, such a policy

can survive only if “if furthers some substantial state interest.” Id. at 223–24, 230.10

2. Application to Plaintiffs’ Claims

As noted above, to state an equal protection claim, a plaintiff must allege both a

difference in treatment from others and that this difference cannot be supported by a sufficiently

important governmental interest. E.g., Ctr. For Bio-Ethical Reform, 648 F.3d at 379. But the

current version of Plaintiffs’ complaint fails to demonstrate disparate treatment, because it

focuses on school conditions and inadequately alleges state policies or actions that caused those

conditions within Plaintiffs’ schools and not in others. Plaintiffs’ allegations thus fail to

highlight any difference in treatment that suggests the state discriminated against them, and so

they have failed to adequately allege that “the government treated [Plaintiffs] disparately as

compared to similarly situated persons.” Jolivette, 694 F.3d at 771 (quoting Ctr. For Bio-Ethical

Reform, 648 F.3d at 379); see also, e.g., Scarbrough, 470 F.3d at 260 (“The threshold element of

an equal protection claim is disparate treatment . . . .”).

The primary comparison Plaintiffs allege between their own schools and others in the

state is that Plaintiffs’ schools face significantly worse “performance data,” which is based on

state proficiency tests in several subject matter areas. (Compl., R. 1 at PageID #65–76.) For

example, Plaintiffs allege that in their schools, low-single-digit percentages of students are rated

as “proficient or above” in English, compared to a state average in the mid-to-high forties. (Id. at

#8–10, #65–69.) The same is true for several other subject matter areas, with some schools

scoring as low as 0% proficient in certain areas.

10

In a later case, the Supreme Court may have attempted to limit this holding. See Kadrmas v. Dickinson

Pub. Sch., 487 U.S. 450, 459 (1988) (“We have not extended [Plyler’s] holding beyond the ‘unique circumstances’

that provoked its ‘unique confluence of theories and rationales.’” (citation omitted) (first quoting Plyler, 457 U.S. at

239 (Powell, J., concurring); and then quoting Plyler, 457 U.S. at 243 (Burger, C.J., dissenting))); see also Justin

Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind 360–61

(2018). But it is unclear why the “unique circumstances” of Plyler would be limited to the immigration context, as

opposed to any case in which a discrete group of children—though not a protected class—is denied a basic

education.

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 24

But the Constitution cannot guarantee educational outcomes, and while performance

outcome data provides some insight into access to education, the differences in these numbers

are not supported by additional allegations suggesting, for example, that Defendants provided

different levels of financial resources to other schools across the state. Plaintiffs’ articulation of

the state action being challenged is necessary to assess that action’s rationality, see, e.g.,

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 44–55 (1973), and to determine whether

attendees of Plaintiffs’ schools are in fact a “discrete group” being denied a basic education

when compared to the rest of the state, see Plyler, 457 U.S. at 223–34, 230.

Plaintiffs also suggest that the conditions faced in their schools are different from those in

other schools throughout Michigan, particularly those in “schools serving predominantly white,

affluent student populations.” (Compl., R. 1 at PageID #4–5.) But while Plaintiffs extensively

describe the conditions found in their own schools, they include almost no allegations regarding

these comparator schools or what Defendants did differently with respect to them. Similarly,

while Plaintiffs’ brief claims that Defendants “operate a system in which most schools

do provide access to literacy, and some do not” (Pls.’ Br. at 52), their complaint does not

adequately allege how the successful schools are operated or how Defendants treated them

differently.

Nor do Plaintiffs sufficiently point to policies implemented or enforced by Defendants,

other than school assignments, that separate students into discrete groups and deprive one or

more of them of a basic minimum education. One policy discussed in the complaint might,

standing alone, implicate equal protection—it concerns the provision allowing the hiring of

“noncertificated, nonendorsed teacher[s]” only in the Detroit school district. (Compl., R. 1 at

PageID #59–60, #106.) But without tying any disparity to a specific policy or action taken by

Defendants that caused differences in school resources or conditions, we cannot assess whether

that action or policy furthers a sufficient governmental objective.

Plaintiffs largely fault the district court’s decision for using the wrong comparator in

assessing their claim of disparate treatment. In its opinion, the district court correctly noted that

“Plaintiffs have not challenged a statewide funding scheme, a specific statute, or any particular

decisions by Defendants applicable to all Michigan schools.” Gary B., 329 F. Supp. 3d at 367.

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 25

Thus, the district court reasoned that Plaintiffs’ complaint had to be based on Defendants’

specific interventions in Detroit schools, and so the appropriate comparators were “other

Michigan schools that have come under the control of emergency managers” or were otherwise

taken over by the state. Id. But Plaintiffs argue that this misconstrues their claim, which is

based on Defendants’ management of the state education system as a whole: “While the State

has ensured adequate resources and properly certificated teachers in other schools sufficient to

provide students with access to literacy, it has made no such provision for Plaintiffs’ schools—

instead allowing those schools to deteriorate to the point of providing no meaningful education at

all.” (Pls.’ Br. at 49.)

This point is well taken. If Plaintiffs’ argument is that the state has supervisory authority

over the Michigan public school system, and that every other school (or almost every other

school) in this system is given the resources needed to provide access to literacy, but theirs is

not, it is hard to see why only schools that experienced more direct state interventions are the

correct comparators.11 But as discussed above, Plaintiffs have not identified which state policy

or action they are challenging as discriminatory, regardless of what comparator is used. Without

this threshold allegation, their equal protection claim cannot survive.

While Plaintiffs’ complaint also lists a cause of action for race-based discrimination, in

their brief on appeal, the only discussion of race in the equal protection context is the statement

that Plaintiffs are “a group of almost entirely low-income children of color.” (Pls.’ Br. at 45.)

Nor do Plaintiffs argue in this Court that strict scrutiny should apply due to any race-based

classification. Thus, they have abandoned this theory on appeal. E.g., In re Darvocet, Darvon,

and Propoxyphene Prods. Liab. Litig., 756 F.3d 917, 936 n.6 (6th Cir. 2014); Risch v. Royal Oak

Police Dep’t, 581 F.3d 383, 390 (6th Cir. 2009).

Nor have Plaintiffs adequately pleaded disparate treatment based on race. In their

complaint, Plaintiffs claim to be “a discrete class—nearly all children of color and low-income—

who have been excluded from the access to literacy that public education provides to other

11

This statewide approach may open itself to statewide justifications by Defendants, though. See, e.g.,

Rodriguez, 411 U.S. at 44–55 (upholding Texas’s school-funding regime as justified by local autonomy concerns,

despite uneven results). That said, there is no need to address the viability of such a claim in the first instance here.

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 26

students in the State of Michigan.” (Compl., R. 1 at PageID #18.) Plaintiffs further note that the

students at their schools are all over 95% people of color (over 97% African American in four

cases, and 64.2% Latino and 31.1% African American in the fifth), and that the vast majority are

entitled to free or reduced-price lunch (a proxy for their socioeconomic status). But they fail to

make any specific allegations showing Defendants’ different treatment of predominantly white

schools; conclusory statements that merely allude to race-based discrimination are not sufficient.

(See, e.g., id. at #53 (“The State’s period of control has been marked by decisions affecting the

education of minority children that would never be permitted in predominantly white school

districts.”).)

This is not to say it is impossible for Plaintiffs to allege an equal protection claim in this

case. After all, Plyler said that, “[i]f the State is to deny a discrete group of innocent children the

free public education that it offers to other children residing within its borders, that denial must

be justified by a showing that it furthers some substantial state interest.” 457 U.S. at 230. It also

implied that a “basic education” is the standard at issue, id. at 223, and so a state action that

results in the provision of a not-even-basic education could be subject to the same increased

scrutiny. 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.

3. Leave to Amend

Finally, Plaintiffs argue that even if this Court does not revive their equal protection

claim, the district court still erred by dismissing their complaint with prejudice and not giving

them leave to amend. This is because, if given the chance, Plaintiffs “could have identified

further ‘concrete examples’” needed to support their claims, and so an amendment would not

have been futile. (Pls.’ Br. at 57.)

But in this circuit, at least for represented parties, “a district court does not abuse its

discretion in failing to grant a party leave to amend where such leave is not sought.” Sinay v.

Lamson & Sessions Co., 948 F.2d 1037, 1041–42 (6th Cir. 1991). While Plaintiffs asked for

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 27

leave to amend to their complaint if the district court found that “local school officials are

necessary defendants in this lawsuit” (Opp’n, R. 64 at PageID #1454 n.22), the district court

dismissed Plaintiffs’ complaint on other grounds. Nor did Plaintiffs ask to reopen the judgment

or otherwise seek leave to amend after the district court’s decision. See, e.g., Benzon v. Morgan

Stanley Distribs., Inc., 420 F.3d 598, 613 (6th Cir. 2005).

After this case is remanded, however, the district court itself could grant leave to amend

following a proper request by Plaintiffs. Under the governing rule, leave to amend should be

“freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also, e.g., Benzon,

420 F.3d at 613 (discussing the factors considered in deciding motions to amend); Morse v.

McWhorter, 290 F.3d 795, 799–800 (6th Cir. 2002) (same). And of course, the question of

whether any such amendment is proper must be guided by this Court’s opinion. See, e.g., Rose

v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (“A proposed amendment

is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.”).

D. Plaintiffs’ Compulsory Attendance Claim

Plaintiffs next argue that the district court erred by considering their due process claim

only through the lens of a fundamental right, since their complaint also raises a “negative rights”

argument. (Pls.’ Br. at 36–43.) Under this theory, Plaintiffs argue that a central element of their

due process rights—the right to freedom of movement and freedom from state custody—is

restricted by the state’s compulsory education law, which forces them to attend their schools.

While this restraint would be allowed if the state, in return, provided them with an adequate

education, Plaintiffs argue that by detaining them at “schools in name only,” the state has failed

to meet this burden, rendering the detention arbitrary and violating their substantive due process

rights. (Id.) The district court declined to address this theory, saying that Plaintiffs’ complaint

“points exclusively to a positive-right argument.” Gary B., 329 F. Supp. 3d at 364.

The legal theory behind this claim appears to have strong support in the law. It seems

beyond debate that confining students to a “school” that provides no education at all would be an

arbitrary detention, prohibited by the common law’s understanding of due process tracing back

to the Magna Carta. See, e.g., Jennings v. Rodriguez, 138 S. Ct. 830, 861 (2018) (Breyer, J.,

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 28

dissenting). But as things presently stand, the district court was correct to dismiss this claim:

Plaintiffs’ complaint does not provide notice that they were pursuing a claim based on

Michigan’s compulsory attendance requirement and fails to allege sufficient facts for the Court

to address its plausibility. We address both the governing law and Plaintiffs’ complaint below.

1. Substantive Due Process and Compulsory Attendance

The main case Plaintiffs rely on to support their compulsory attendance theory is

Youngberg v. Romeo, 457 U.S. 307 (1982). In Youngberg, a thirty-three-year-old man with

severe intellectual disability was deemed unable to care for himself and involuntarily committed

to a state facility. Id. at 309–10. After a series of injuries and physical restraints imposed during

his commitment, Romeo sued under the Fourteenth Amendment, arguing that that the state failed

to protect his liberty interests in “safety, freedom of movement, and training within the

institution.” Id. at 310–11, 314–15.

First discussing his safety claim, the Court “noted that the right to personal security

constitutes a ‘historic liberty interest’ protected substantively by the Due Process Clause.” Id. at

315 (quoting Ingraham v. Wright, 430 U.S. 651, 673 (1977)). Similarly, the Court found that

“[l]iberty from bodily restraint always has been recognized as the core of the liberty protected by

the Due Process Clause from arbitrary governmental action.” Id. at 316 (alteration in original)

(quoting Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 18 (1979) (Powell, J., concurring in part

and dissenting in part)).

Romeo’s last claim proved to be more complicated. He conceded that, because of the

severity of his disability, no amount of training would make it possible for him to be released.

Id. at 317. That said, Romeo still argued he was entitled to training that would reduce his

aggression, thereby increasing his safety and decreasing the need for restraint within the facility.

Id. at 317–18.

In addressing his claims, the Court noted that while Romeo retained “liberty interests in

safety and freedom from bodily restraint,” these interests were not absolute. Id. at 319–20. For

example, the facility would be entitled to restrain the movement of residents to protect their

safety and the safety of others. Id. at 320. “The question then is not simply whether a liberty

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interest has been infringed but whether the extent or nature of the restraint . . . is such as to

violate due process.” Id. In answering this question, the Court balances “the individual’s

interest in liberty against the State’s asserted reasons for restraining individual liberty.” Id.

Applying this principle to Romeo’s claim, the Court held that he was entitled to improved safety,

lesser restraint, and appropriate training, but that in shaping this remedy on remand, the trial

court should afford significant deference to the professionals responsible for Romeo’s care. Id.

at 321–25.

Other cases indicate that this balancing principle is the crux of any due process analysis

where the state restrains core liberty interests like freedom of movement. For example, in

Cruzan—a case about the right to refuse life-saving medical care—the Supreme Court reiterated

that “whether [a plaintiff’s] constitutional rights have been violated must be determined by

balancing his liberty interests against the relevant state interests.” Cruzan ex rel. Cruzan v. Dir.,

Mo. Dep’t of Health, 497 U.S. 261, 279 (1990) (quoting Youngberg, 457 U.S. at 321). United

States v. Salerno, 481 U.S. 739, 750–51 (1987), similarly observed this balancing principle,

finding that while individuals have a “strong interest in liberty[,] . . . this right may, in

circumstances where the government’s interest is sufficiently weighty, be subordinated to the

greater needs of society.” And in Foucha v. Louisiana, 504 U.S. 71 (1992), the Court held that

“[d]ue process requires that the nature of [a] commitment bear some reasonable relation to the

purpose for which the individual is committed,” id. at 79; see also Jackson v. Indiana, 406 U.S.

715, 738 (1972) (“At the least, due process requires that the nature and duration of commitment

bear some reasonable relation to the purpose for which the individual is committed.”). While the

degree of deprivation is obviously greatest in a case like involuntary commitment, there is no

reason why this balancing principle should not apply to less-extensive restraints as well.

See Youngberg, 457 U.S. at 319–21.

Compulsory school attendance laws are a restraint on Plaintiffs’ freedom of movement,

and thus implicate the core protections of the Due Process Clause. See, e.g., Foucha, 504 U.S. at

80; Youngberg, 457 U.S. at 316. If the state required a group of people to sit in a building for

several hours a day without any justification, such a restraint would clearly offend their right to

liberty. See, e.g., Ly v. Hansen, 351 F.3d 263, 276–77 (6th Cir. 2003) (citing Demore v. Kim,

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538 U.S. 510, 531–33 (2003) (Kennedy, J., concurring)) (noting that the Due Process Clause

prohibits arbitrary deprivations of liberty), abrogated on other grounds by Jennings, 138 S. Ct.

830; see also, e.g., Jennings, 138 S. Ct. at 861 (Breyer, J., dissenting) (“The Due Process

Clause—itself reflecting the language of the Magna Carta—prevents arbitrary detention.”); Reno

v. Flores, 507 U.S. 292, 315 (1993) (O’Connor, J., concurring) (same); cf. Meyer v. Nebraska,

262 U.S. 390, 402 (1923) (“In order to submerge the individual and develop ideal citizens,

Sparta assembled the males at seven into barracks and intrusted their subsequent education and

training to official guardians. . . . [But] it hardly will be affirmed that any Legislature [in our

country today] could impose such restrictions upon the people of a state without doing violence

to both letter and spirit of the Constitution.”). And so, if compulsory school attendance is

constitutional, it must be because the relevant state interest outweighs any deprivation of liberty.

On the other hand, while never directly addressing this issue, the Supreme Court has

recognized that, given the important governmental interest in educating its citizens, the state

generally has the power to compel attendance at school. E.g., Wisconsin v. Yoder, 406 U.S. 205,

213 (1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Pierce v. Soc’y of the Sisters of

the Holy Names of Jesus & Mary, 268 U.S. 510, 534 (1925); Meyer, 262 U.S. at 402. Given this

repeated dictum, it seems clear that in most cases, a state-provided education will justify the

deprivation of liberty caused by compulsory attendance.

Taken together, it is clear from these cases that, at least for compulsory education in a

general sense (which is the only type of schooling that the complaint concerns), there is some

level of education that justifies whatever deprivation of liberty is caused by a mandatory

attendance or schooling requirement. See, e.g., Pierce, 268 U.S. at 534; Meyer, 262 U.S. at 402.

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.12

12

The dissent suggests that Youngberg categorically does not apply to claims based on compulsory

attendance laws. But the cases it relies on all concern the state’s failure to protect a student within the school

environment from private harms like third-party violence or medical conditions, not whether the state’s mandatory

attendance requirement was itself permissible in the first place. See Stiles ex rel. D.S. v. Grainger County, 819 F.3d

834, 840 (6th Cir. 2016); Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 910 (6th Cir. 1995). There is a difference

between the custody exception to DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189,

198–200 (1989), which concerns whether the state has a duty to protect an individual in its custody against private

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Such a deprivation would bear no reasonable relationship to the state’s asserted purpose,

see, e.g., Foucha, 504 U.S. at 79, and thus would be outweighed by the individual’s interest in

liberty, see, e.g., Cruzan, 497 U.S. at 279; Salerno, 481 U.S. at 750–51; Youngberg, 457 U.S. at

320. For cases in the middle, the question is whether the state’s interest—here, the education it

provides—is enough to justify the restraint.

2. Application to Plaintiffs’ Complaint

While Plaintiffs’ negative-rights claim seems to have support in the law and was argued

in their brief on appeal, it is noticeably absent from their complaint. The complaint certainly

includes the statement that Michigan has compulsory school attendance (see, e.g., Compl., R. 1

at PageID #27 (“Michigan . . . compels children to attend school full time . . . .”); id. at #43

(same)), but there is no indication that Plaintiffs are alleging that this deprivation of liberty is

unconstitutional. The closest Plaintiffs come to highlighting this claim is by saying that, since

education “is required of every child,” there is “a special relationship between the state and

children between the ages of 6 and 18.” (Id. at #42.) But Plaintiffs never expand this beyond

noting the “special relationship,” and their only cause of action regarding due process puts it

solely in terms of “the fundamental right of access to literacy,” and not any right to freedom from

restraint. (Id. at #126–27.)13 Other than these two statements, Plaintiffs do not mention

compulsory attendance anywhere else in their complaint or otherwise indicate that the

requirement could play any role in a violation of their constitutional rights.

To satisfy the federal rules, while a “short and plain statement of the claim” is enough,

the complaint must still “give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (alteration in original) (first

quoting Fed. R. Civ. P. 8(a)(2); and then quoting Twombly, 550 U.S. at 555). In this case,

violence, and the question of whether the state’s restriction of a person’s liberty—custodial or otherwise—is itself

allowed under the Due Process Clause.

13

In fact, the complaint’s discussion of compulsory education suggests it was included to show that

education is seen as an essential state function, in support of Plaintiffs’ fundamental right theory. (See Compl., R. 1

at PageID #43 (“These compulsory attendance laws reflect a national judgment that education is so essential to the

maintenance of democracy and the ability to participate in public and private life that compelling it is justified.”).)

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Plaintiffs’ complaint gave no notice of their claim that Defendants violated their right to freedom

of movement, or any other right through the compulsory attendance requirement.

Additionally, Plaintiffs’ factual allegations are insufficient for us to assess the viability of

this claim, because they fail to provide information about the extent or nature of the restraint on

their liberty. Other than the broader allegations concerning the conditions of their schools, the

only allegation relevant to this theory is that “Michigan’s compulsory attendance laws

require Plaintiffs to attend [their] schools.” (Compl., R. 1 at PageID #4; accord, e.g., id. at #27,

#42–43.)

By Youngberg’s own terms, analyzing this claim requires balancing the extent of the

deprivation against the education being provided by the state. See 457 U.S. at 320 (“In

determining whether a substantive right protected by the Due Process Clause has been violated,

it is necessary to balance ‘the liberty of the individual’ and ‘the demands of an organized

society.’” (quoting Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting))). For such

a claim to be viable outside a fundamental right to a basic minimum education, Plaintiffs would

have to show that the degree of restraint imposed on them cannot be justified by whatever

education, however negligible, they are receiving. While Plaintiffs have alleged sufficient facts

to infer the extent of the education they are being provided (or at least the extent it does not

exceed), they provide inadequate information about the duration or nature of the restraint faced

in their schools, such as the hours per day of compulsory attendance, the number of days per

year, or the restrictions on Plaintiffs’ liberty throughout the typical school day. Without these

allegations, it is impossible for us to conduct Youngberg balancing and “draw the reasonable

inference that [Defendants are] liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

As with their equal protection claim, after this case is remanded, Plaintiffs could seek

leave to amend from the district court and attempt to correct these deficiencies. But as their

complaint stands now, their allegations fail to provide sufficient notice of their claim, and are

insufficient for the Court to assess its viability. Accordingly, Plaintiffs’ negative-rights claim

was correctly dismissed.

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E. The Fundamental Right to a Basic Minimum Education

Having addressed Plaintiffs’ two alternative claims for relief, we are left with the central

issue in this appeal: whether Plaintiffs have a fundamental right to a basic minimum education,

meaning one that provides access to literacy. Plaintiffs contend that access to literary, as opposed

to other educational achievements, is a gateway milestone, one that unlocks the basic exercise of

other fundamental rights, including the possibility of political participation. While the Supreme

Court has repeatedly discussed this issue, it has never decided it, and the question of whether

such a right exists remains open today. After employing the reasoning of these Supreme Court

cases and applying the Court’s substantive due process framework, we recognize that the

Constitution provides a fundamental right to a basic minimum education.

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.” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)

(quoting Palko v. Connecticut, 302 U.S. 319, 325–26 (1937), overruled by Benton v. Maryland,

395 U.S. 784 (1969)). In short, without the literacy provided by a basic minimum education, it is

impossible to participate in our democracy.

Applying this right to Plaintiffs’ allegations, their complaint plausibly alleges that

Defendants denied them a basic minimum education. Accordingly, the district court’s dismissal

of this claim must be reversed.

1. Recognition of Fundamental Rights Under Substantive Due Process

The Due Process Clause of the Fourteenth Amendment says that no state shall “deprive

any person of life, liberty, or property, without due process of law.” The Clause is most

commonly seen as guaranteeing procedural protections whenever the state attempts to deprive

someone of their life, liberty, or property interests—so-called procedural due process. Collins v.

City of Harker Heights, 503 U.S. 115, 125 (1992). But the Clause has also been read to

recognize 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. E.g., Glucksberg,

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521 U.S. at 719–21; Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846–47 (1992);

Collins, 503 U.S. at 125. This substantive due process is the basis for Plaintiffs’ claim.

“The most familiar of the substantive liberties protected by the Fourteenth Amendment

are those recognized by the Bill of Rights,” which are deemed to be “incorporated” into the Due

Process Clause. Casey, 505 U.S. at 847. But this is not the end of the Clause’s protections,

which also extend to other rights and liberties recognized by the courts to be “fundamental.”

E.g., Glucksberg, 521 U.S. at 720–21; Flores, 507 U.S. at 301–02. For example, in Meyer, the

Court stated:

While [the Supreme Court] has not attempted to define with exactness the liberty

thus guaranteed [by the Due Process Clause], the term has received much

consideration and some of the included things have been definitely stated.

Without doubt, it denotes not merely freedom from bodily restraint but also the

right of the individual to contract, to engage in any of the common occupations of

life, to acquire useful knowledge, to marry, establish a home and bring up

children, to worship God according to the dictates of his own conscience, and

generally to enjoy those privileges long recognized at common law as essential to

the orderly pursuit of happiness by free men.

262 U.S. at 399.

Despite the breadth of the Court’s statement in Meyer, later cases prescribe

circumspection when deciding whether an asserted right is fundamental. “As a general matter,

the Court has always been reluctant to expand the concept of substantive due process because

guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.”

Collins, 503 U.S. at 125. But this reluctance is not the end of the matter:

The inescapable fact is that adjudication of substantive due process claims may

call upon the Court in interpreting the Constitution to exercise that same

capacity which by tradition courts always have exercised: reasoned judgment.

Its boundaries are not susceptible of expression as a simple rule. That does not

mean we are free to invalidate state policy choices with which we disagree;

yet neither does it permit us to shrink from the duties of our office.

Casey, 505 U.S. at 849.

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Faced with this tension, the Supreme Court has developed a two-prong analysis it applies

when determining whether an asserted right is fundamental. First, “the Due Process Clause

specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in

this Nation’s history and tradition.’” Glucksberg, 521 U.S. at 720–21 (quoting Moore v. City of

East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)). The Supreme Court has applied a

holistic approach to this historical analysis, tracing the evolution of an asserted right through or

even beyond the history of our country, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2593–97

(2015); Glucksberg, 521 U.S. at 710–19. A few Justices have instead embraced a narrower

version, however, looking to whether the right in question would have been recognized as a

protected interest at the time the Fourteenth Amendment was adopted. E.g., Obergefell, 135 S.

Ct. at 2628 (Scalia, J., dissenting).

Even if a specific iteration of a right lacks substantial historical roots, this alone is not

enough to foreclose recognition under the Due Process Clause. As the Court noted in Casey,

“[i]t is tempting, as a means of curbing the discretion of federal judges, . . . to suppose that the

Due Process Clause protects only those practices, defined at the most specific level, that were

protected against government interference by other rules of law when the Fourteenth

Amendment was ratified. But such a view would be inconsistent with our law.” 505 U.S. at 847

(citation omitted); see also Obergefell, 135 S. Ct. at 2598 (majority opinion) (“History and

tradition guide and discipline this inquiry but do not set its outer boundaries. That method

respects our history and learns from it without allowing the past alone to rule the present.”

(citation omitted)).

Thus, the 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.’” Glucksberg, 521 U.S. at 721 (quoting Palko, 302 U.S. at 325–26). While these

prongs are sometimes tied together, see, e.g., Kerry v. Din, 135 S. Ct. 2128, 2134 (2015)

(plurality opinion), Obergefell made clear that this historical inquiry may illuminate even newly

recognized injustices that reveal a fundamental right:

The nature of injustice is that we may not always see it in our own times.

The generations that wrote and ratified the Bill of Rights and the Fourteenth

Amendment did not presume to know the extent of freedom in all of its

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dimensions, and so they entrusted to future generations a charter protecting the

right of all persons to enjoy liberty as we learn its meaning. When new insight

reveals discord between the Constitution’s central protections and a received legal

stricture, a claim to liberty must be addressed.

135 S. Ct. at 2598.

2. The Supreme Court’s Education Cases

Beyond the general framework for assessing whether an asserted right is fundamental, the

Supreme Court has also, in a series of cases, addressed the extent of constitutional rights with

respect to state-provided education. Its education jurisprudence teaches several lessons. First,

the Court has found that there is no broad, general right to education. Rodriguez, 411 U.S. at 33–

39; see also, e.g., Seal v. Morgan, 229 F.3d 567, 575 (6th Cir. 2000) (citing Rodriguez, 411 U.S.

at 33–37). 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, 478 U.S. 265, 285 (1986); see also Rodriguez, 411 U.S. at 36–37. The Sixth

Circuit also appears to have been silent on this issue. 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, 457 U.S. at 221–24, 230. And fourth, the Court has addressed the critical link

between education and race discrimination in America. We discuss the Court’s relevant

education cases in turn, beginning chronologically.

First, the history of public education in this country, as with many things, is inextricably

tied to race. See infra Part II.E.3.a. And so, while it did not directly concern substantive due

process, Brown v. Board of Education, 347 U.S. 483 (1954), is important in assessing whether

any aspect of education amounts to a fundamental right. Brown of course examined whether

racially segregated schools inherently violated the Equal Protection Clause of the Fourteenth

Amendment. Id. at 487–88. The Court found they did, holding that “in the field of public

education the doctrine of ‘separate but equal’ has no place.” Id. at 495.

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During this equal protection discussion, the Court noted the critical importance of

education:

Today, education is perhaps the most important function of state and local

governments. Compulsory school attendance laws and the great expenditures for

education both demonstrate our recognition of the importance of education to our

democratic society. It is required in the performance of our most basic public

responsibilities, even service in the armed forces. It is the very foundation of

good citizenship. Today it is a principal instrument in awakening the child to

cultural values, in preparing him for later professional training, and in helping him

to adjust normally to his environment. In these days, it is doubtful that any child

may reasonably be expected to succeed in life if he is denied the opportunity of an

education. Such an opportunity, where the state has undertaken to provide it, is a

right which must be made available to all on equal terms.

Id. at 493.

As argued by the parties, this passage can be read two ways. On the one hand, if

“education is perhaps the most important function of state and local governments” and is

“required in the performance of our most basic public responsibilities,” id., how could it not be

“implicit in the concept of ordered liberty” or otherwise fundamental to our social order?

Glucksberg, 521 U.S. at 721 (quoting Palko, 302 U.S. at 325). On the other, how could the state

be compelled to provide an education if education needs to be equal only “where the state has

undertaken to provide it”? Brown, 347 U.S. at 493.

Nearly twenty years after Brown, this question returned to the Supreme Court. In San

Antonio Independent School District v. Rodriguez, the plaintiffs challenged the constitutionality

of Texas’s public-school finance system, arguing that differences in funding across school

districts denied them equal protection of the law. 411 U.S. at 4–6, 15–16. Texas employed a

“dual approach” to school finance, a system to which both local school districts and the state

contributed. Id. at 6–7. But local funding (via property taxes) rapidly outpaced what was

provided by the state, meaning that variations in property values led to substantial disparities in

available funds. Id. at 7–15. During the litigation, “Texas virtually concede[d]” that the system

could not survive strict scrutiny, and so if the uneven funding of schools interfered with a

fundamental constitutional right, it would have to be invalidated by the Court. Id. at 16–17.

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In assessing whether education was a fundamental right, the Court began by referencing

Brown, noting the country’s “historic dedication to public education” and agreeing that “‘the

grave significance of education both to the individual and to our society’ cannot be doubted.” Id.

at 29–30 (quoting Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280, 283 (W.D. Tex.

1971), rev’d, 411 U.S. 1). Despite this, the Supreme Court found that education was not a

fundamental right, saying that “the undisputed importance of education will not alone cause this

Court to depart from the usual standard for reviewing a State’s social and economic legislation.”

Id. at 35.

In denying the plaintiffs’ claim, the Court specifically responded to their argument that

“education is itself a fundamental personal right because it is essential to the effective exercise of

First Amendment freedoms and to intelligent utilization of the right to vote.” Id. The Court

found this argument lacking, as the plaintiffs’ claim to “effective” First Amendment speech and

“intelligent utilization” of the ballot was tantamount to demanding a guarantee of “the most

effective speech or the most informed electoral choice,” neither of which were protected by the

Constitution. Id. at 35–36.

The Court’s conclusion regarding this argument is especially notable:

Even if it were conceded that some identifiable quantum of education is a

constitutionally protected prerequisite to the meaningful exercise of either right,

we have no indication that the present levels of educational expenditures in Texas

provide an education that falls short. Whatever merit appellees’ argument might

have if a State’s financing system occasioned an absolute denial of educational

opportunities to any of its children, that argument provides no basis for finding an

interference with fundamental rights where only relative differences in spending

levels are involved and where—as is true in the present case—no charge fairly

could be made that the system fails to provide each child with an opportunity to

acquire the basic minimal skills necessary for the enjoyment of the rights of

speech and of full participation in the political process.

Id. at 36–37. Thus, the Court never ruled on the right to such a basic minimum education, and as

shown more explicitly in its later cases, saved the question for another day.

Next is Plyler v. Doe. In Plyler, the plaintiffs—“undocumented school-age children”

also living in Texas—sued to challenge policies that denied state-level funding and charged

tuition for students “who could not establish that they had been legally admitted into the United

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States.” 457 U.S. at 205–06, 206 n.2. The question was whether these policies violated the

Equal Protection Clause, and what level of scrutiny to use in that analysis. Id. at 216–18.

Looking to the interaction between education and the Constitution, the Court reiterated

the holding in Rodriguez, while also noting the heightened significance of education and the

special constitutional considerations that follow:

Public education is not a “right” granted to individuals by the Constitution.

But neither is it merely some governmental “benefit” indistinguishable from

other forms of social welfare legislation. Both the importance of education in

maintaining our basic institutions, and the lasting impact of its deprivation on the

life of the child, mark the distinction. . . . We have recognized “the public schools

as a most vital civic institution for the preservation of a democratic system of

government,” and as the primary vehicle for transmitting “the values on which

our society rests.” “[A]s . . . pointed out early in our history, . . . some degree of

education is necessary to prepare citizens to participate effectively and

intelligently in our open political system if we are to preserve freedom and

independence.” . . . In addition, education provides the basic tools by which

individuals might lead economically productive lives to the benefit of us all.

In sum, education has a fundamental role in maintaining the fabric of our society.

We cannot ignore the significant social costs borne by our Nation when select

groups are denied the means to absorb the values and skills upon which our social

order rests.

Id. at 221 (some alterations in original) (citations omitted) (first quoting School Dist. v. Schempp,

374 U.S. 203, 230 (1963) (Brennan, J., concurring); then quoting Ambach v. Norwick, 441 U.S.

68, 76 (1979); and then quoting Yoder, 406 U.S. at 221).

Invoking Brown, the Plyler Court also noted the distinct role of education as a social

equalizer:

In addition to the pivotal role of education in sustaining our political and cultural

heritage, denial of education to some isolated group of children poses an affront to

one of the goals of the Equal Protection Clause: the abolition of governmental

barriers presenting unreasonable obstacles to advancement on the basis of

individual merit. Paradoxically, by depriving the children of any disfavored

group of an education, we foreclose the means by which that group might raise

the level of esteem in which it is held by the majority.

Id. at 221–22.

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Based on this reasoning, the Court found that the challenged provisions violated the

Equal Protection Clause. Id. at 223–30. The Court noted that the denial of a “basic

education”—framed in the context of literacy—would have a substantial negative impact on both

the children in question and society at large, and so any assessment of rationality must also

account for these costs. Id. at 223–24. Thus, “[i]n light of these countervailing costs,” the

challenged provisions could only be upheld if they “further[ed] some substantial goal of the

State.” Id. at 224. Since the state’s proffered interests failed to meet this standard, the Court

invalidated the Texas policy. Id. at 224–30.

After Rodriguez and Plyler comes Papasan v. Allain. In Papasan, schoolchildren in

counties originally held by the Chickasaw Nation received a reduced amount of state educational

funding compared to other counties in Mississippi, and so they sued the governor and state

officials in federal court. 478 U.S. at 268–74. While this might sound like a repeat of

Rodriguez, their allegations contained a twist: while the Rodriguez plaintiffs did not claim

a failure to provide them with “an opportunity to acquire . . . basic minimal skills,” 411 U.S. at

36–37, the Papasan plaintiffs did exactly that, arguing that the state’s funding scheme deprived

them of a “minimally adequate level of education” and that their right to such an education was

fundamental, 478 U.S. at 274, 285.

In assessing this claim, the Court noted that, “[a]s Rodriguez and Plyler indicate,

[the Supreme Court] has not yet definitively settled the question[] [of] whether a minimally

adequate education is a fundamental right.” Id. at 285. But Papasan did not provide an answer.

Instead, the Court found that, assuming such a right existed, the plaintiffs had failed to allege

sufficient facts in support of their claim. Id. at 286. They did not allege that they were “not

taught to read or write,” or that they did not receive “instruction on even the educational basics.”

Id. In short, “they allege[d] no actual facts in support of their assertion that they have been

deprived of a minimally adequate education.” Id. An answer on pleadings, sure, but not on

constitutional law.14

14

A similar outcome was reached by the Fifth Circuit in School Board v. Louisiana State Board of

Elementary & Secondary Education, 830 F.2d 563, 568 (5th Cir. 1987), which employed rational-basis review

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Finally, the Court essentially repeated this non-answer in Kadrmas v. Dickinson Public

Schools, 487 U.S. 450, 452–56 (1988), a case that concerned a fee charged for use of the school

bus. While the plaintiff there argued that those who could not afford the bus fee were deprived

of “minimum access to education,” she still attended the school despite this fee, meaning her

claim could not have been for actual deprivation of a basic minimum education, but rather that

the fee made it harder for poor families to access the school than rich families. Id. at 458.

The Court then proceeded to uphold the statute under rational-basis review, since wealth is not a

protected class and there were alternative means by which students could still access the school.

Id. at 458, 460–62, 465.

In his dissent in Kadrmas, Justice Marshall noted that the Court had still not decided

“whether a State constitutionally could deny a child access to a minimally adequate education.”

Id. at 466 n.1 (Marshall, J., dissenting). This question—whether “a minimally adequate

education is a fundamental right,” Papasan, 478 U.S. at 285—remains unanswered today.

3. Is Access to Literacy a Fundamental Right?

With guidance but no answers from the education cases above, this Court must assess

whether a basic minimum education—meaning one that plausibly provides access to literacy—is

a fundamental right. Applying the substantive due process framework from Glucksberg and

Obergefell, and looking to the reasoning of Rodriguez and Plyler, we conclude that the answer is

yes.

First, the history of public education in our country reveals a longstanding practice of free

state-sponsored schools, which were ubiquitous at the time of the Fourteenth Amendment’s

adoption. Public schools are now universal in the United States, and Americans take it for

granted that state-sponsored education will be provided for their children as of right. But in the

face of this progress, the history of education in the United States also demonstrates a substantial

relationship between access to education and access to economic and political power, one in

which race-based restrictions on education have been used to subjugate African Americans and

because “the record contain[ed] no evidence whatever that any Louisiana schoolchild was deprived of a minimally

adequate education.”

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other people of color. This racial history of education in America—and the efforts subsequently

taken to confront it—reveals the importance earlier generations placed on education. Taken

together, this history establishes that education has held paramount importance in American

history and tradition, such that the denial of education has long been viewed as a particularly

serious injustice.

Second, the role of basic literacy education within our broader constitutional framework

suggests it is essential to the exercise of other fundamental rights. Most significantly, every

meaningful interaction between a citizen and the state is predicated on a minimum level of

literacy, meaning that access to literacy is necessary to access our political process. Further, the

unique role of public education as a source of opportunity separate from the means of a child’s

parents creates a heightened social burden to provide at least a minimal education. Thus, the

exclusion of a child from a meaningful education by no fault of her own should be viewed as

especially suspect.

In sum, 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. Under

the Supreme Court’s substantive due process cases, this suggests it should be recognized as a

fundamental right.

a. The Historical Prevalence and Significance of Education

“We begin, as we do in all due process cases, by examining our Nation’s history, legal

traditions, and practices.” Glucksberg, 521 U.S. at 710. This examination reveals that state-

provided education is ubiquitous throughout all but the earliest days of the United States, a

historical fact that today leads its citizens to expect a basic public education as of right. Such an

expectation demonstrates that the right to a basic minimum education is “deeply rooted in this

Nation’s history and tradition,” id. at 720–21 (quoting Moore, 431 U.S. at 503), supporting its

recognition as a fundamental right under the Due Process Clause.

The Supreme Court’s cases on education repeatedly discuss the historical prevalence and

importance of state-provided education. For example, in Wisconsin v. Yoder, the state noted that

the essential nature of education was touted by Thomas Jefferson in the earliest days of our

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history. 406 U.S. at 221. Meyer v. Nebraska similarly noted that “[t]he American people have

always regarded education and acquisition of knowledge as matters of supreme importance,”

pointing to the Northwest Ordinance’s prescription, in 1787, that “schools and the means of

education shall forever be encouraged.” 262 U.S. at 400. Similarly, Papasan extensively

discussed the history of public-school land grants, which “stretche[d] back over 200 years” and

predated the Constitution itself. 478 U.S. at 268–69. And outside the education context, when

discussing the right to privacy in marriage, the Court compared marriage to other bulwark

institutions of American society and democracy, calling it “older than the Bill of Rights—older

than our political parties, older than our school system.” Griswold v. Connecticut, 381 U.S. 479,

486 (1965) (emphasis added).

This historical prevalence of education supports the view that it is deeply rooted in our

history and tradition, even under an originalist view. See, e.g., Obergefell, 135 S. Ct. at 2628

(Scalia, J., dissenting) (analyzing the fundamental right to marriage based on state policies

“[w]hen the Fourteenth Amendment was ratified in 1868”); McDonald v. City of Chicago,

561 U.S. 742, 777 (2010) (same for the right to keep and bear arms). “An 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.” 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). These states accounted for 92% of the population. Id. at 109. And near the time of

the Fourteenth Amendment’s adoption, Senator Charles Sumner argued that “[t]he New England

system of common schools is part of the republican form of government as understood by the

framers of the Constitution.” (Amicus Br. of ACLU of Mich. at 22 (quoting David Herbert

Donald, Charles Sumner 426 (1996)).)

Furthermore, this history should not be viewed as only a static point. The continued

expansion of education through the adoption of the Fourteenth Amendment resulted in universal

compulsory education by 1918, and it has continued to develop since. See Barry Friedman

& Sara Solow, The Federal Right to an Adequate Education, 81 Geo. Wash. L. Rev. 92, 127–32

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(2013). And while state-supported education may have a different cultural significance than

marriage, see Obergefell, 135 S. Ct. at 2593–94 (majority opinion) (framing the marriage right as

the product of “untold references . . . in religious and philosophical texts spanning time, cultures,

and faiths”), it is certainly both so longstanding and uniform as to be taken for granted in twenty-

first-century America.

Though focused on the equal protection context instead of due process, the words of

Brown v. Board of Education are still instructive: “In approaching this problem, we cannot turn

the clock back to 1868 when the Amendment was adopted . . . . We must consider public

education in the light of its full development and its present place in American life throughout

the Nation.” 347 U.S. at 492–93. Such a view reveals state-sponsored (and even mandated)

education as a ubiquitous feature of our country, provided as of right to the people. Based on

this uniform presence, the people have come to expect and rely on this education—second

perhaps only to the immediate family—in order to provide the basic skills needed for our

children to participate as members of American society and democracy.

Our nation’s history of racial discrimination further reveals the historical and lasting

importance of education, and the significance of its modern ubiquity. Education, and particularly

access to literacy, has long been viewed as a key to political power. Withholding that key,

slaveholders and segregationists used the deprivation of education as a weapon, preventing

African Americans from obtaining the political power needed to achieve liberty and equality.

While most starkly displayed during the time of slavery, this history is one of evolution rather

than paradigm shift, and so what began in the slave codes of the antebellum South transformed

into separate-and-unequal education policies that persisted well after Brown v. Board of

Education.

In the beginning of our country’s history, teaching slaves to read was a crime.

E.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 387–88 (1978) (Marshall, J.,

concurring in part and dissenting in part); South Carolina v. Katzenbach, 383 U.S. 301, 311 n.10

(1966). These laws were widespread among Southern states, driven by a desire to prevent

escapes or rebellion. (See, e.g., Amicus Br. of ACLU of Mich. at 18–19); see also, e.g., United

States v. Rhodes, 27 F. Cas. 785, 793 (C.C.D. Ky. 1866) (“[A law in Louisiana] not only forbids

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any person teaching slaves to read or write, but it declares that any person using language in any

public discourse from the bar, bench, stage, or pulpit, or any other place, or in any private

conversation, or making use of any sign or actions having a tendency to produce discontent

among the free colored population or insubordination among the slaves, or who shall be

knowingly instrumental in bringing into the state any paper, book, or pamphlet having a like

tendency, shall, on conviction, be punishable with imprisonment or death, at the discretion of the

court.”); cf. Frederick Douglass Bicentennial Commission Act, Pub. L. No. 115-77, § 2(3), 131

Stat. 1251, 1251 (2017) (“Douglass continued to teach himself to read and write and taught other

slaves to read despite risks including death.”).

This trend continued through extrajudicial violence during the Reconstruction era.

(See, e.g., Amicus Br. of ACLU of Mich. at 19–22.) During this period, “Klansmen targeted

schoolteachers for violent retribution and Black parents who sent their children to school

frequently ‘received visits from white men eager to reinforce the nuances of the

established racial order.’” (Id. at 20 (quoting George C. Rable, But There Was No Peace: The

Role of Violence in the Politics of Reconstruction 97 (2007)).) And while the federal

government responded through civil rights legislation and prosecutions, see, e.g., Rhodes, 27 F.

Cas. at 785–86, 793–94; (Amicus Br. of ACLU of Mich. at 20–21), the end of Reconstruction

heralded legislative and policy efforts designed to limit the education of African Americans,

see Katzenbach, 383 U.S. at 310–13, 311 n.10 (noting that Southern states “rapidly instituted

racial segregation in their public schools” following the Civil War, and discussing the interplay

between these efforts to restrict literacy and efforts to restrict the vote).

While Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown, 347 U.S. 483, is

perhaps the best-known case of the Supreme Court’s “separate but equal” doctrine, several other

cases upheld segregation specifically with respect to American schools. For example, in

Cumming v. Board of Education, 175 U.S. 528, 544 (1899), the Court declined to intervene when

a local school board closed a preexisting black high school and “used the funds in its hands to

assist in maintaining a high school for white children without providing a similar school for

colored children.” Similarly, the Court upheld the ability of states to force private schools to

segregate themselves based on race. Berea Coll. v. Kentucky, 211 U.S. 45, 51–54, 58 (1908),

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abrogated by Brown, 347 U.S. 483. And in Lum v. Rice, 275 U.S. 78, 85–87 (1927),

abrogated by Brown, 347 U.S. 483, the Court upheld the state’s decision to bar a Chinese

American student from attending a white public high school.

While Brown was handed down in 1954 and held that “[s]eparate educational facilities

are inherently unequal,” 347 U.S. at 495, segregation and unequal treatment in schools have

persisted long after that decision. Despite the Supreme Court’s instruction for desegregation

“with all deliberate speed,” Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 301 (1955), school

segregation cases continued to reach the Court for decades, see, e.g., Milliken v. Bradley,

418 U.S. 717 (1974).

There are two main takeaways from this history of racial discrimination in education, as

well as from past interventions by the courts. First, access to literacy was viewed as a

prerequisite to the exercise of political power, with a strong correlation between those who were

viewed as equal citizens entitled to self-governance and those who were provided access to

education by the state. Second, when faced with exclusion from public education, would-be

students have repeatedly been forced to rely on the courts for relief. The denials of education

seen in these cases and beyond are now universally accepted as serious injustices, ones that

conflict with our core values as a nation. Furthermore, the substantial litigation devoted to

addressing these exclusions reveals the unparalleled value assigned to literacy, which is viewed

by our society as essential for students to obtain even a chance at political and economic

opportunity.

For all of these reasons, we find that the right to a basic minimum education—access to

literacy—is so “deeply rooted in this Nation’s history and tradition” as to meet the historical

prong of the Supreme Court’s substantive due process test. Glucksberg, 521 U.S. at 720–21

(quoting Moore, 431 U.S. at 503).

b. Whether a Basic Minimum Education Is “Implicit in the

Concept of Ordered Liberty”

Beyond this look to our history, we must also assess whether an asserted right is “implicit

in the concept of ordered liberty.” Glucksberg, 521 U.S. at 721 (quoting Palko, 302 U.S. at 325).

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Put differently, this Court must “exercise reasoned judgment in identifying interests of the person

so fundamental that the State must accord them its respect.” Obergefell, 135 S. Ct. at 2598.

As Plaintiffs note, individuals with low or no literacy are incomparably disadvantaged in

their economic and social lives, see, e.g., Plyler, 457 U.S. at 222 (“Illiteracy is an enduring

disability. The inability to read and write will handicap the individual deprived of a basic

education each and every day of his life.”). Even Meyer indicated that the right “to acquire

useful knowledge” was protected by the Due Process Clause. 262 U.S. at 399. But neither of

these is enough to transform the right into one that is fundamental and thus guaranteed by the

Constitution. See, e.g., Maher v. Roe, 432 U.S. 464, 479 (1977) (“[T]he Constitution does not

provide judicial remedies for every social and economic ill.” (quoting Lindsey v. Normet,

405 U.S. 56, 74 (1972))). Rather, a basic minimum education—meaning one that plausibly

provides access to literacy—is fundamental because it is necessary for even the most limited

participation in our country’s democracy.

The Supreme Court has recognized that basic literacy is foundational to our political

process and society. In Yoder, the Court noted that “some degree of education is necessary to

prepare citizens to participate effectively and intelligently in our open political system if we are

to preserve freedom and independence.” 406 U.S. at 221. And while Rodriguez rejected a

general right to education on the grounds that no one is guaranteed the most effective or

intelligent political participation, 411 U.S. at 35–36, the right asserted by Plaintiffs in this case is

far more fundamental. The degree of education they seek through this lawsuit—namely, access

to basic literacy—is necessary for essentially any political participation.

Effectively every interaction between a citizen and her government depends on literacy.

Voting, taxes, the legal system, jury duty—all of these are predicated on the ability to read and

comprehend written thoughts. Without literacy, how can someone understand and complete a

voter registration form? Comply with a summons sent to them through the mail? Or afford a

defendant due process when sitting as a juror in his case, especially if documents are used as

evidence against him?

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Even things like road signs and other posted rules, backed by the force of law, are

inaccessible without a basic level of literacy. In this sense, access to literacy “is required in the

performance of our most basic public responsibilities,” Brown, 347 U.S. at 493, as our

government has placed it “at the center of so many facets of the legal and social order,”

Obergefell, 135 S. Ct. at 2601; see also Steven G. Calabresi & Michael W. Perl, Originalism and

Brown v. Board of Education, 2014 Mich. St. L. Rev. 429, 552 (“At a minimum, children must

be taught to read so they can read the laws for themselves—a task that many of the Framers

would have thought was fundamental.”).

Access to literacy also “draws meaning from related rights,” further indicating that it

must be protected. Obergefell, 135 S. Ct. at 2590. “[T]he right to receive ideas is a necessary

predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political

freedom.” Bd. of Educ. v. Pico, 457 U.S. 853, 867 (1982) (plurality opinion) (emphasis

omitted); see also Rodriguez, 411 U.S. at 35 (“The ‘marketplace of ideas’ is an empty forum for

those lacking basic communicative tools.”). In this sense, access to literacy is itself fundamental

because it is essential to the enjoyment of these other fundamental rights, such as participation in

the political process. See, e.g., Harper v. Va. State Bd. of Elections, 383 U.S. 663, 667 (1966)

(citing Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886); Reynolds v. Sims, 377 U.S. 533, 561–62

(1964)). And “the political franchise” is perhaps the most fundamental of all such rights,

because it is the central element of our democracy. Id. (quoting Yick Wo, 118 U.S. at 370).

While the Supreme Court in Rodriguez said that “the importance of a service performed

by the State does not determine whether it must be regarded as fundamental,” 411 U.S. at 30,

this principle is stretched past its breaking point when the right in question is important because

it is necessary to other, clearly fundamental rights, cf., e.g, id. at 35 n.78 (noting that there is a

“protected right, implicit in our constitutional system, to participate in state elections on an equal

basis with other qualified voters”). And this is not just a right deemed to be important, or even

very important; rather, “[p]roviding public schools ranks at the very apex of the function of a

State.” Yoder, 406 U.S. at 213. It is hard to see how this apex function could be fulfilled by a

system that does not provide a reasonable opportunity to obtain literacy, the foundation

necessary to the exercise of many other fundamental rights.

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Defendants argue that “[a]ccess to literacy is not so fundamental to ordered liberty and

justice.” (Defs.’ Br. at 49.) To support this view, they note that “at the time of the adoption of

the U.S. Constitution, public education that went beyond rudimentary local cooperation was

nonexistent.” (Id. at 51–52 (citing Gary B., 329 F. Supp. 3d at 365–66).) According to

Defendants, since the country existed at that time, how could “ordered society” require a state-

provided education? (Id.)

Suffice it to say that the practices of the 1700s cannot be the benchmark for what a

democratic society requires. “The nature of injustice is that we may not always see it in our own

times.” Obergefell, 135 S. Ct. at 2598. That states uniformly created entitlements to education

in the years leading up to and soon after the Fourteenth Amendment’s adoption reflects the

identification of such an injustice, and demonstrates the people’s view that such a right is

“implicit in the concept of ordered liberty.” Glucksberg, 521 U.S. at 721 (quoting Palko,

302 U.S. at 325); see also Obergefell, 135 S. Ct. at 2598 (cautioning against “allowing the past

alone to rule the present”).15

Beyond the fact that a basic minimum education is essential to participation in our

political system, there is another reason why access to literacy is implicit in the ordered liberty of

our nation. “[T]hat education is a means of achieving equality in our society” is a belief “that

has persisted in this country since the days of Thomas Jefferson.” Hunnicutt v. Burge, 356 F.

Supp. 1227, 1237 (M.D. Ga. 1973) (citing Godfrey Hodgson, Do Schools Make a Difference?,

Atlantic, Mar. 1973, at 35). In this sense, education has historically been viewed as a “great

equalizer”: regardless of the circumstances of a child’s birth, a minimum education provides

some chance of success according to that child’s innate abilities. See, e.g., David Rhode et al.,

The Decline of the “Great Equalizer,” Atlantic, Dec. 19, 2012 (quoting Horace Mann, politician

and education reformer, in 1848, and Arne Duncan, Secretary of Education, in 2011); Roslin

Growe & Paula S. Montgomery, Educational Equity in America: Is Education the Great

15

As discussed above, see supra Part II.E.3.a, Defendants’ argument goes well beyond even the originalist

views of Justice Alito in McDonald and Justice Scalia in his dissent to Obergefell. Defendants essentially propose

looking back to the earliest days of our country to determine the maximum scope of the Due Process Clause,

ignoring that the Fourteenth Amendment was adopted nearly a century later.

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Equalizer?, Prof. Educator, Spring 2003, at 23 (discussing Mann and the history of the “great

equalizer” concept).

As the Plyler Court noted, “education provides the basic tools by which individuals might

lead economically productive lives to the benefit of us all. . . . [The] denial of education to some

isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the

abolition of governmental barriers presenting unreasonable obstacles to advancement on the

basis of individual merit.” 457 U.S. at 221–22. And Brown further supports this view, finding

that “[i]n these days, it is doubtful that any child may reasonably be expected to succeed in life if

he is denied the opportunity of an education.” 347 U.S. at 493.

This is especially true considering our history of segregated and unequal education based

on race, a history that began for the express purpose of limiting African Americans’ political

power. See supra Part II.E.3.a. The Supreme Court’s desegregation cases make clear that state-

provided public education is important not just to provide a shot at achievement in the face of

inequalities of wealth and power, but specifically as a means of addressing past racial

discrimination that restricted educational opportunities, and of course to maintain as best we can

whatever equal opportunity has already been achieved.

It may never be that each child born in this country has the same opportunity for success

in life, without regard to the circumstances of her birth. But even so, the Constitution cannot

permit those circumstances to foreclose all opportunity and deny a child literacy without regard

to her potential. See Plyler, 457 U.S. 219–20 (“[I]mposing disabilities on the . . . child is

contrary to the basic concept of our system that legal burdens should bear some relationship to

individual responsibility or wrongdoing. Obviously, no child is responsible for his birth . . . .”

(second alteration in original) (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175

(1972))). Providing a basic minimum education is necessary to prevent such an arbitrary denial,

and so is essential to our concept of ordered liberty.

We hold, therefore, that the right to a basic minimum education—one that can plausibly

impart literacy—is “implicit in the concept of ordered liberty.” Glucksberg, 521 U.S. at 721

(quoting Palko, 302 U.S. at 325). When combined with the historical analysis discussed above,

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this means that access to such a basic minimum education is a fundamental right protected by the

Due Process Clause of the Fourteenth Amendment.

c. Some Arguments (and Responses) Against Recognizing a

Fundamental Right

Beyond Defendants’ arguments with respect to the Glucksberg/Obergefell due process

framework, it is worth addressing two additional points they make against recognizing a

fundamental right in this appeal. The first—raised in nearly every substantive due process

case—is that the recognition of a “new” fundamental right is almost always improper, as it

compromises the will of the people by exchanging the policy judgments of unelected judges for

those of their elected representatives. The second, which is more specifically applicable here, is

that the Constitution is a charter of negative liberties, and so (in most cases) only tells the

government what it cannot do rather than what it must do. While neither of these arguments

carries the day, they are repeated enough to warrant a separate discussion and response.

i. Judicial Restraint Suggests Deference to the Political

Process

The classic argument against extending substantive due process is that recognition of a

right as “fundamental” removes it from and so short-circuits the political process. See, e.g.,

Obergefell, 135 S. Ct. at 2625 (Roberts, C.J., dissenting) (“By deciding this question under the

Constitution, the Court removes it from the realm of democratic decision. There will be

consequences to shutting down the political process on an issue of such profound public

significance.”); see also, e.g., Schuette v. Coal. to Defend Affirmative Action, Integration

& Immigrant Rights & Fight for Equal. by Any Means Necessary (BAMN), 572 U.S. 291, 313

(2014) (plurality opinion) (“First Amendment dynamics would be disserved if this Court were to

say that the question here at issue is beyond the capacity of the voters to debate and then to

determine.”). Since the political branches are better equipped to address general social wrongs,

the argument goes, the courts should not intervene by recognizing calcified and inflexible

constitutional rights. See, e.g., Griswold, 381 U.S. at 482 (“We do not sit as a super-legislature

to determine the wisdom, need, and propriety of laws that touch economic problems, business

affairs, or social conditions.”).

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But it is unsurprising that our political process, one in which participation is effectively

predicated on literacy, would fail to address a lack of access to education that is endemic to a

discrete population. The affected group—students and families of students without access to

literacy—is especially vulnerable and faces a built-in disadvantage at seeking political recourse.

The lack of literacy of which they complain is exactly what prevents them from obtaining a basic

minimal education through the normal political process. This double bind provides increased

justification for heightened judicial scrutiny and the recognition of the right as fundamental.

See, e.g., Rodriguez, 411 U.S. at 28 (noting that heightened scrutiny is warranted when a class is

“saddled with . . . disabilities” or is “relegated to such a position of political powerlessness as to

command extraordinary protection from the majoritarian political process”); cf. Schuette,

572 U.S. at 334–35 (Breyer, J., concurring in the judgment) (discussing the Supreme Court’s

“political process” equal protection cases).16

ii. The Due Process Clause Provides Only Negative, Not

Positive Rights

Another often-repeated argument raised by Defendants and the dissent is that the

Fourteenth Amendment—which speaks in terms of deprivation or denial—does not provide

positive, affirmative rights. The Due Process Clause says what the government cannot do, not

what it must do, and so recognizing an obligation of the state to provide a basic minimum

education would turn the language of the Clause “on its head.” (Defs.’ Br. at 43.)

To be sure, several cases have reflected this view of the Clause. For example, in Jackson

v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983), Judge Posner said that “the Constitution is

a charter of negative rather than positive liberties.” And the Supreme Court itself has held “that

the Due Process Clauses generally confer no affirmative right to governmental aid, even where

such aid may be necessary to secure life, liberty, or property interests of which the government

16

Though this partakes of both the equal protection and due process inquiries, the Supreme Court endorsed

such an approach in Obergefell, which discussed the partial convergence of the Fourteenth Amendment’s Equal

Protection and Due Process Clauses. See 135 S. Ct. at 2602–03 (“The Due Process Clause and the Equal Protection

Clause are connected in a profound way . . . . Rights implicit in liberty and rights secured by equal protection may

rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the

meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right

in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and

definition of the right.”).

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itself may not deprive the individual.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.,

489 U.S. 189, 196 (1989).

Though not as explicitly described, this negative liberty framing is also imbedded in

several of the Supreme Court’s key substantive due process cases. For example, in Casey, the

Court portrayed its decision as defending “a realm of personal liberty which the government may

not enter.” Casey, 505 U.S. at 847. And even Obergefell framed substantive due process as

protecting “certain personal choices,” implicitly a negative-rights construction. 135 S. Ct. at

2597 (majority opinion).

But the Court has recognized affirmative fundamental rights. Aside from specifically

enumerated rights incorporated into the Fourteenth Amendment, such as the right to counsel, see,

e.g., Strickland v. Washington, 466 U.S. 668, 684–86 (1984); Gideon v. Wainwright, 372 U.S.

335, 339–43 (1963), one affirmative right repeatedly endorsed by the Court is the right to marry.

For example, in Loving v. Virginia, 388 U.S. 1 (1967), the Court found that “[m]arriage is one of

the ‘basic civil rights of man,’” id. at 12 (quoting Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535, 541 (1942)). That marriage is a fundamental right and must be provided by the

state without undue restriction was further affirmed in Zablocki v. Redhail, 434 U.S. at 385–87,

and in Turner v. Safley, 482 U.S. 78, 94–96 (1987). And in Obergefell, despite using the

negative-rights frame of “choice” discussed above, 135 S. Ct. at 2597, the Court reiterated that

the “right to marry is protected by the Constitution” and “is fundamental under the Due Process

Clause,” id. at 2598.

Since access to marriage was so uniformly provided by the states and expected by the

people as of right, it took on a fundamental character under the Due Process Clause, even though

the performance of a marriage is an affirmative act by the state. The same could be said for

education. See supra Part II.E.3.a (discussing the historical evolution and prevalence of state-

sponsored education in the United States). And while the burden involved in performing a

marriage is substantially less than the burden in providing an education, the marriage cases at

least show that the Constitution does not categorically rule out the existence of positive rights.

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Further, the Supreme Court’s cases expressly 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. If Defendants were correct, the Court could easily have

disposed of any claim to an education-related fundamental right, instead of taking pains to

distinguish and reserve decision on “whether a minimally adequate education is a fundamental

right.” Papasan, 478 U.S. at 285. While the dissent distinguishes these cases by arguing that the

Supreme Court was referring to an equal protection fundamental right, and not a substantive due

process fundamental right,17 that distinction finds no support in the Supreme Court’s case law

and is foreclosed by our own, which holds that a fundamental right is a fundamental right,

regardless of which clause the claim is brought under. See Scarbrough, 470 F.3d at 260–61

(discussing the merger of equal protection and substantive due process claims based on the

deprivation of a fundamental right).18

One additional point from the dissent is worth noting. The dissent compares the right to a

basic minimum education to a right to state-provided food, housing, or health care, and claims

that DeShaney foreclosed any affirmative right to these or other benefits. This is because, our

colleague says, DeShaney stands for the proposition that “[s]ubstantive due process does not

regulate a state’s failure to provide public services,” regardless of the context. (Dissent at 76

(citing DeShaney, 489 U.S. at 194–97).)

17

The dissent appears to conflate the equal protection inquiry in Rodriguez and its progeny, which assessed

whether the state’s unequal provision of any level of education violated the Constitution’s equality mandate, with

the question alluded to in Rodriguez but explicitly reserved in Papasan: whether access to some basic minimum

level of education is a fundamental right.

18

As we explained in Scarborough, when the state denies an individual one of her fundamental rights, that

claim sounds under the Due Process Clause because the state cannot deprive someone of a fundamental right

without a compelling governmental reason, regardless of whether that denial is discriminatory. 470 F.3d at 260–61.

The dissent mischaracterizes the majority’s position on this point, citing Shapiro v. Thompson, 394 U.S. 618

(1969), overruled in part by Edelman, 415 U.S. 651, to suggest that a basic minimum education is nothing more

than “public aid,” and so the question is simply whether or not that aid is provided equally. (Dissent at 81.)

Unlike in this case, the plaintiffs in Shapiro did not allege that they were denied a fundamental right; rather, they

claimed that the state discriminated against them by denying welfare benefits on the basis of residency. See 394

U.S. at 627–29. Because that discrimination implicated the already-recognized fundamental right to travel between

states, the statute was reviewed under strict scrutiny. Id. at 630–31, 633–34. Thus, Shapiro says nothing about

whether the right to a basic minimum education should be classified as fundamental under the Constitution, and so

has no bearing on the question faced in this appeal.

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But DeShaney—a case in which a child sued the state for failing to stop his father from

abusing and seriously injuring him—concerned the state’s failure to prevent harm caused by a

private actor. 489 U.S. at 191–95. The dissent’s alternative reading—that DeShaney forecloses

any affirmative obligation of the state under any circumstance, regardless of whether a private

harm is at issue—is divorced from the text of that case. DeShaney itself couched its holding in

this public-private distinction, saying “[a]s a general matter, then, we conclude that a State’s

failure to protect an individual against private violence simply does not constitute a violation of

the Due Process Clause.” Id. at 197; see also id. at 195 (“[N]othing in the language of the Due

Process Clause itself requires the State to protect the life, liberty, and property of its citizens

against invasion by private actors.”); Jones v. Reynolds, 438 F.3d 685, 688, 690 (6th Cir. 2006)

(“[W]hen a claimant argues that government officials failed to prevent private individuals from

causing another injury, . . . [DeShaney] and its progeny rarely permit the claim to go forward.”).

Simply put, education is different. As discussed above, see supra Part II.D.3.a, universal,

state-provided public education was nearly ubiquitous at the time the Fourteenth Amendment

was adopted, and has only grown since then to be expected as a given by the public. Through

this, the state has come to effectively occupy the field in public education, and so is the only

practical source of learning for the vast majority of students. We can think of no other area of

day-to-day life that is so directly controlled by the state. 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. DeShaney implied

such a responsibility, resting its holding on the fact that the state had played no role in creating or

worsening the threat of harm the victim faced. 489 U.S. at 201.19

19

For this reason, the dissent errs when it describes public schooling as merely a subsidy of the private

exercise of a fundamental right. The case the dissent relies on for this is Regan v. Taxation with Representation of

Washington, 461 U.S. 540, 541–43 (1983), which addressed whether Congress could exclude donations to

organizations that engage in substantial lobbying from tax-deductibility under 26 U.S.C. § 501(c)(3). The Court’s

finding that “Congress has not violated [an organization’s] First Amendment rights by declining to subsidize its First

Amendment activities” through tax-deductible status, id. at 548, is not analogous to a state’s failure to provide a

basic minimum education at certain schools when the entire educational system is dominated by the state.

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Thus, even if DeShaney’s framework were applied here (despite the lack of a private

harm), this Court has recognized substantive due process claims under the state-created danger

doctrine. Kallstrom v. City of Columbus, 136 F.3d 1055, 1065–67 (6th Cir. 1998). While the

dissent argues against the right to a basic minimum education by comparing it to a constitutional

right to food, a better analogy is a world in which the state took charge of the provision of food

to the public, to the exclusion of nearly all private competitors. If the state then left the shelves

on all the stores in one city bare, with no compelling governmental reason for this choice, such

an action would place the residents of that city in heightened danger no less than the actions of

the state in other cases where courts have allowed claims under the Due Process Clause. See,

e.g., id. at 1059–60, 1069–70; Kneipp v. Tedder, 95 F.3d 1199, 1201–03, 1213–14 (3d Cir.

1996). Thus, while the dissent’s arguments amount to sound advice for us to proceed with

special caution when considering any positive fundamental right, the case law on this issue does

not foreclose recognizing the right to a basic minimum education.

d. Contours of the Right to a Basic Minimum Education

Beyond simply recognizing the existence of a right to a basic minimum education, it is

also important to define its contours, at least for the purposes of this case. The Supreme Court

has “required in substantive-due-process cases a ‘careful description’ of the asserted fundamental

liberty interest.” Glucksberg, 521 U.S. at 721 (quoting Flores, 507 U.S. at 302). This

description does not need to circumscribe the outer-most limit of the right, but must at least

define the extent of the right needed to resolve the matter at hand. See, e.g., Obergefell, 135 S.

Ct. at 2602 (noting that rights can be described in a more “comprehensive sense,” leaving

questions on whether a particular state action or inaction is required by that right for subsequent

determination).

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

Nos. 18-1855/1871 Gary B., et al. v. Whitmer, et al. Page 57

education sufficient to provide access to a foundational level of literacy—the degree of

comprehension needed for participation in our democracy.20

At this stage of the litigation—a motion to dismiss in which no evidence has been

discovered or presented—it would be difficult to define the exact limits of what constitutes a

basic minimum education sufficient to provide such access. This task is best suited for the

district court in the first instance. But a few key principles can trace the contours of the right,

providing guideposts for the parties as they continue this litigation.

At the outset, Defendants are correct that this Court cannot prescribe a specific

educational outcome, such as literacy or proficiency rates. Though these measures may provide

some useful evidence of whether the state is in fact providing a basic minimum education,21 they

are not sufficient evidence alone, because a court order cannot guarantee that educational

opportunity is translated into student performance. Rather, the requirement to provide a basic

minimum education means the state must ensure that students are afforded at least a rudimentary

educational infrastructure, such that it is plausible to attain literacy within that system.22

While the precise contours of this infrastructure must be defined though the course of

further litigation and examination of the parties’ evidence, it would seem to include at least three

basic components: facilities, teaching, and educational materials (e.g., books). For each of these

components, the quality and quantity provided must at least be sufficient for students to plausibly

attain literacy within the educational system at issue. This question of fact is entrusted to the

trial court, which can assess the sufficiency of these measures in the first instance after hearing

20

This 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.” United States v. City of Loveland, 621 F.3d

465, 472 (6th Cir. 2010). Several of these claims have already been rejected not because no such right exists, but

because the facts alleged by the plaintiffs were insufficient to allege a deprivation. E.g., Papasan, 478 U.S. at 286;

Rodriguez, 411 U.S. at 36–37; La. State Bd., 830 F.2d at 568; cf. Kadrmas, 487 U.S. at 458.

21

Looking to other schools or school systems, these educational-outcome measures may also be helpful

evidence of what specific resources are needed to provide access to literacy.

22

Using Defendants’ example of the right to counsel, this approach would not transform the right to

counsel into the right to an acquittal. Rather, the right is akin to the promise of effective counsel, e.g., Strickland,

466 U.S. at 686 (citing McMann v. Richardson, 397 U.S 759, 771 n.14 (1970)), from which no outcome is

guaranteed, but the lawyer’s objective failure cannot be the source of the client’s loss.

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evidence and likely employing the assistance of expert witnesses as to what resources are

necessary.

Our dissenting colleague criticizes this approach, implying that our holding today will

create a free-wheeling right that allows federal judges to micromanage the work of local school

boards. We do not believe this is a fair description of the limited right embraced in our opinion,

which promises only an education sufficient to provide basic access to literacy. And while this

right could be impacted by the conditions of a school’s facilities, the age of its textbooks, or the

number of teachers in its classrooms, this does not mean that any of these things individually has

a “constitutionally required” minimum level. (Dissent at 63.) Rather, the question is whether the

education the state offers a student—when taken as a whole—can plausibly give her the ability

to learn how to read.23

Similarly, the dissent suggests that the recognition of this right—requiring that a state’s

system of public education provide at least a shot at literacy, irrespective of which school district

a student is assigned to—would somehow stymie innovation and create a one-size-fits-all,

national program of education. But how each state reaches the basic minimum level of education

discussed above can vary dramatically, and nothing in our recognition of this right—or even any

resulting remedy in this case—could alter the broad powers of the states under our federalist

system. The state is free to fashion its own school system in any number of ways, but however it

does so, it 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.

4. Application of the Right to Plaintiffs’ Allegations

Beyond the abstract question of whether there is a fundamental right to a basic minimum

education, Plaintiffs must also have plausibly alleged that they were deprived of such an

education. See Iqbal, 556 U.S. at 678 (“A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.”). Looking to their complaint as a whole, Plaintiffs’

23

Just because “the complaint makes allegations about physics and economics courses too” (Dissent at 77),

does not mean we agree that those additional areas of study are required as part of a fundamental right providing

access to basic literacy.

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allegations—if proven true—would demonstrate that they have been deprived of an education

providing access to literacy.

The core of Plaintiffs’ complaint is 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.” (Compl., R. 1 at PageID #4; see also id. at #19 (“[Plaintiffs’

schools] wholly lack the capacity to deliver basic access to literacy, functionally delivering no

education at all.”).) But we cannot simply credit Plaintiffs’ legal conclusions. Iqbal, 556 U.S. at

677–78 (citing Twombly, 550 U.S. at 555–57, 570). To avoid dismissal, Plaintiffs must have

pleaded enough factual material to plausibly support this claim. Id. at 678–79.

The most important allegations for this point concern the specific conditions in Plaintiffs’

schools. Plaintiffs allege significant teacher shortages, coupled with unqualified instructors when

they do have someone in the classroom. They allege dangerous and significantly distracting

conditions within their school buildings, including extreme temperatures, overcrowding, and a

lack of hygiene. They also allege a dearth of textbooks and other school supplies, with those they

do have being in an abysmal or near unusable condition. These allegations are supported

by specific examples, including several photographs reproduced within the complaint. At the

motion-to-dismiss stage, this permits an inference that Plaintiffs’ schools cannot provide access

to literacy.

Plaintiffs further support their claim by citing data that show a zero or near-zero

percentage of subject-matter proficiency among students at their schools. As noted above, these

figures alone are not enough to state a claim, because the right to a basic minimum education

cannot guarantee a specific educational outcome. See supra Part II.E.3.d. Further development

of the record will be necessary to determine how these measures—largely put in terms of “grade

level” or “proficiency”—are correlated with the type of foundational literacy at issue here. But

for now, these data further support the inference that Plaintiffs’ schools are woefully insufficient,

especially when combined with qualitative descriptions of their classes’ literacy shortcomings.

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In sum, Plaintiffs allege facts concerning inadequate books and materials, insufficient or

unqualified teaching staff, and decrepit and dangerous school conditions (and include

photographs within their complaint). They then allege that nearly zero percent of students at

these schools were graded as proficient in English or other subject-matter tests administered by

the state. Taking the allegations of the complaint as true,

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