A constitutional right to education fulfills our democratic promise 

With many students lacking access to the internet or even computers, the pandemic is showing educational gaps in a new light. But online learning is merely widening longstanding, severe gaps in school funding and educational opportunities that entrench inequality.  

Consider a scene in a Detroit classroom, exposed by a recent lawsuit. A student sits in class with 59 other students because her class has been combined with another that lacks a teacher. Vermin scutter by in a room so cold that she can see her breath. The “teacher” is a non-certified paraprofessional who knows nothing about the science that the class is supposed to cover or the experiments that are needed. Many students in Detroit faced these and other slum-like conditions each day when they were able to attend school.  

In this dark situation, the U.S. Court of Appeals for the Sixth Circuit has shined a light that creates an important new pathway for improving educational opportunities. In Gary B. v. Whitmer, the Sixth Circuit held late last month that the schoolchildren in Detroit possess a federal, constitutional right to literacy. This right to literacy guarantees that schoolchildren must receive an education that enables them to exercise other fundamental rights and liberties, particularly their right to participate in the political system.  

The court held that this right is both “deeply rooted in this Nation’s history and tradition” and “essential to our concept of ordered liberty.” Put simply, our nation simply cannot function without ensuring that children attend schools where they attain literacy. Without literacy, our democracy does not work. Without literacy, our economy shuts down. Without literacy, our freedom is illusory.  

The Sixth Circuit’s opinion finally addresses the avenue left open by the U.S. Supreme Court almost 50 years ago in San Antonio Independent School District v. Rodriguez. Although the Supreme Court refused to recognize a federal right to education then, the court noted that the plaintiffs had not alleged that they had been deprived of the education they need to exercise other fundamental rights. The Detroit plaintiffs seized the opportunity to make this allegation in Gary B.  

It is difficult to overstate the potential impact of this decision. Equipped with a federal right to education, families and advocates in the Sixth Circuit can proceed to federal court to demand that all children receive their constitutional right to literacy. This frees advocates from litigation in states courts, where the courts have made some inroads in educational inequities and inadequacies, but too often have been unable to insist that state lawmakers reduce educational opportunity gaps in lasting and significant ways.   

More importantly, beyond the Sixth Circuit, Gary B. is a cautionary tale to states and districts around the country. Litigation challenging inadequate public schools is proceeding in federal court not just in Detroit, but also in Rhode Island and Connecticut. State lawmakers routinely disregard educational equity and openly provide greater funding to already-excellent schools for wealthier and more powerful families, while poorer and less–influential families are stuck in schools to which lawmakers would never send their children or grandchildren. 

Most states do not provide sufficient funding for children from low–income families to even achieve the modest goal of national average achievement outcomes, with some high-poverty districts falling tens of thousands of dollars below the necessary funding. Race compounds the problem, with nonwhite districts receiving a staggering $23 billion less than white districts, despite serving the same number of students.  

We the people must insist that state legislatures and school boards provide effective teachers, sound facilities, course materials and access to technology that our democracy requires for all students to engage in our democracy. Citizens also must demand that states and districts close the opportunity gaps that hinder access for poor and minority communities so that all children are equipped to participate in democracy. Our nation’s democratic, economic and societal future depends on it. 

Kimberly Jenkins Robinson is the Elizabeth D. and Richard A. Merrill Professor of Law and a Professor of Education at the University of Virginia, the editor of “A Federal Right to Education: Fundamental Questions for Our Democracy” and the co-editor with Charles J. Ogletree Jr. of “The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity.”