A divided Sixth Circuit panel ruling in a case about bad conditions in Detroit public schools shows why federalizing education is a bad idea for everyone.
If affirmed, the ruling, which announced a newly discovered free-standing federal right to education, would give Harvard Law School professor Elizabeth Bartholet a shortcut to her desired presumptive ban on homeschooling. The Sixth Circuit ruling could also open a new frontier for anyone to litigate any kind of education issue, with the Supreme Court becoming the new national referee on what a constitutional education looks like.
It isn’t hard to see why the two Sixth Circuit judges sympathized with Detroit students. In a federal civil rights lawsuit, Gary B. v. Whitmer, the students called Detroit public schools underfunded, rodent infested, and “schools in name only.” If the state compels school attendance, it seems reasonable that children should have a safe and realistic opportunity to become literate and productive citizens — if not, what is the use?
The real issue here, however, isn’t the bad state of Detroit public schools; it is whether education policy decisions are for state legislators or federal judges.
A Federal Right to Education Doesn’t Exist
In discovering that the U.S. Constitution protects a “fundamental right to a basic minimum education,” Judge Eric Clay used a judicial theory called “substantive due process,” which is derived from judicial opinions about what the 14th Amendment — originally ratified in 1868 to help freed slaves — means. This theory has been incrementally strengthened and now acts as something like a “judicial veto” over state action any time a federal judge’s policy preferences are offended. Consider Roe v. Wade, wherein the court invalidated dozens of state abortion laws, or Obergefell v. Hodges, which invalidated dozens of state constitutional amendments relating to the definition of marriage.
Federal courts are no strangers to exercising “constitutional supervision” over state education. There have been thousands of cases. Until now, however, they have mostly confined themselves either to using the text of the amendment, such as in Brown v. Board of Education, which overturned Plessy v. Ferguson’s “separate but equal” doctrine, or to applying other textual provisions of the Bill of Rights. Take, for example, the First Amendment’s establishment clause, under which federal courts ruled that prayer, Bible reading, and the teaching of creationism were unconstitutional in public schools.
What could a single federal district court judge do with a free-standing, independent, federal constitutional right to education? What might a Congress do, empowered by a judicially discovered constitutional duty to provide for the federal right to education? What about a national school act, a national curriculum act, a national testing act, a national compulsory attendance act?
Do you remember Common Core? States passed it on their own to get federal money. A federal right to education would preempt even this sort of rubber-stamp state action and lead to a national, one-size-fits-none educational system. States would be powerless to object.
This Could Ban Private Ed, Including Homeschooling
How would this affect homeschoolers?
Bartholet writes in her 80-page Arizona Law Review article that up to now, “efforts to increase regulation [of homeschoolers] have been successfully fought off, with the [Home School Legal Defense Association]’s aggressive tactics playing a major role.” The solution, Bartholet writes, is the judiciary: “The courts may be essential to move things forward. Here, children are also dependent on adults — judges — to vindicate their rights. But courts can at least operate somewhat more freely than legislatures from political pressure.”
Wouldn’t homeschooled children be “entitled” to the same rights as other children? And wouldn’t the government have to make sure they were getting what they were entitled to?
This is precisely what is wrong with Clay’s decision and, frankly, much of the theory of substantive due process. Federal judges use this theory to substitute their judgment for that of state legislatures based on whatever arguments can sway a majority of the Supreme Court. This is not what America’s founders intended, and it violates a basic premise of republican self-governance.
A “new” right can be found, says the Supreme Court, “only” if the right is based on the “deeply rooted history or traditions” of the country, or if the right is “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if the right were sacrificed.” It is the latter phrase from which Clay weaves his imaginary cloth. Clay writes:
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 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.
That is wrong.
We the People Don’t Want to be Ruled by ‘Juristocrats’
The founders gave us a written charter, intended to bind the federal judiciary based on a common understanding of its text. We can look at the Constitution and know what it says. It doesn’t say anything about education.
One very good reason federal courts should not address new “claims to liberty” is that the founders gave “future generations” (us) a way to use “our new insight” to identify new rights. It’s called a constitutional amendment.
We the people know how to put “new” rights into the Constitution if we want them. We gave women the right to vote, banned and unbanned alcohol, and even gave the government power to tax our income. We don’t need hundreds of federal “juristocrats” discovering and then defining new rights for us.
If a right is based on the whim of a judge, it can be taken away or redefined at the whim of a judge. Our founding principles presume that judges are bound by the law as written — not as they wish it were written. Yes, Judge Clay, the founders did give us a written charter, but it is one that we the people can alter when we deem necessary, including creating a federal right to a basic minimum education.
Literacy is important, but education is and should be primarily a state rather than a federal matter. Creating law is a legislative process, not a judicial one. The Sixth Circuit en banc, or the Supreme Court on review, should reject Clay’s ruling. Maybe while they are at it, they can review the theory of substantive due process.
We the people did not give the federal judiciary a veto over state legislatures, and we do not wish to be ruled by “juristocrats.”