* Jessica Rotondo
In the fall of 2018, 50.7 million children in the United States will be attending public schools. Fast Facts: Back to School Statistics, Inst. Educ. Sci.: Nat’l Ctr. for Educ. Stat., https://nces.ed.gov/fastfacts/display.asp?id=372 (last visited Nov. 8, 2018). Experiences of public school students can vary widely as a result of the amount of funds and resources expended per student, depending on their geographic location. See Stephen Q. Cornman et al., U.S. Dep’t Educ.: Nat’l Ctr. For Educ. Stat., Revenues and Expenditures for Public Elementary and Secondary Education: School Year 2014-15 (Fiscal Year 2015) 2 (2018), https://nces.ed.gov/pubs2018/2018301.pdf. The average revenue spent per pupil in the United States during fiscal year 2015 was $12,903. Id. at 2. During that same year, the spending per pupil varied in each state, ranging from $7,858 in Idaho, to $27,810 in the District of Columbia. Id. at 6. Spending per pupil is also different in each school district within a state. Id. at A-2. Given this financial disparity, some public schools can provide a better education than others. See id. What level of financial support do we consider enough to prepare the next generation for their future? And is a certain level of educational funding a fundamental right?
I. GARY B. V. SNYDER
Recently, minor children who attend public schools in Detroit, Michigan, sued the state government, alleging a violation of their Due Process Clause and Equal Protection rights due to their lack of access to literacy because their schools are so poor “that they have not received even a minimally adequate education.” Gary B. v. Snyder, 329 F.Supp.3d 344, 348 (E.D. Mich. 2018). The Due Process Clause states that, “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. The Plaintiffs argue that they are entitled to a minimum level of literacy, as this is needed for voting, accessing justice, and “participating meaningfully in civic life.” Gary B., 329 F.Supp.3d at 365. While the court agrees that these functions are important, it does not find that a minimal level of education or literacy is a fundamental right. Id. . The court uses the Supreme Court of the United States’ definition of a fundamental right from Wash. v. Glucksberg, which requires that neither justice nor liberty would exist without the state providing literacy access. Id. at 365–66 (citing Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)). Since the United States had sustainable practices of liberty and justice before public education was offered in a federal or state-wide system in the 1830s, education is not considered essential to these functions. Id. at 366 (citing The Federal Right to an Adequate Education, 81 Geo. Wash. L. Rev. 92, 117 (2013)).
The Plaintiffs further argue that the Defendants violate their Equal Protection rights and deny Plaintiffs access to literacy by intentionally discriminating on the basis of race. Id. Plaintiffs also claim that Defendants have responded with deliberate indifference. Id. The court finds that the Defendants are only in control of the “Priority Schools,” or those that get appointed state actors when a district is financially distressed. Id. at 353. Therefore, in raising an Equal Protection claim, the Plaintiffs may only compare their schools to those Priority Schools, and not all Michigan schools. Id. at 367. The court finds, under this comparison, that the Plaintiffs fail to assert an Equal Protection claim under any of the recognized categories, including targeting a suspect class. Id. The complaint states that four out of five schools with the alleged deplorable conditions serve student populations consisting of at least 97% African American children. Id. However, the complaint does not state that a school under the Defendants’ control with a predominately white population has been treated differently. Id. at 367–68.
In the past, the Supreme Court has generally held that local governments choosing their own tax schemes and school funding do not violate the Equal Protection clause because there is a rational basis for employing this type of system, and wealth is not a suspect class that requires strict scrutiny. For example, in San Antonio Independent School District v. Rodriguez, a lawsuit was filed when Texas began a new approach to school funding. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). As part of this approach, the state funded half of each school district’s budget and the rest of the budget was to be financed by the taxation method chosen by the local government. Id. at 7–8. In that case, the Supreme Court determined that school system funding was subject to the rational basis test, not the strict scrutiny test. Id. at 32. The Supreme Court also held that there was a legitimate and reasonable basis for the state’s funding scheme, even if it meant that some school districts spend significantly less per pupil, and therefore, the state’s actions did not violate the Equal Protection clause. Id.
In Plyer v. Doe, the Supreme Court held that education is not a fundamental right, and that undocumented alien children are not a suspect class. Plyer v. Doe, 457 U.S. 202 (1982). The Court ultimately struck down the law that alien children be required to pay tuition to attend public schools. Id. at 221, 223, 230. Moreover, in Papasan v. Allain, the Supreme Court remanded a case where the Chickasaw Tribe received $0.63 per pupil, while the rest of the state received $75.34 per pupil, as part of a land-funding program with land given to the state from the federal government, further reiterating that education is not a fundamental right. Papasan v. Allain, 478 U.S. 265, 283–84 (1986). The Supreme Court stated that “this Court has not yet definitively settled the questions whether a minimally adequate education is a fundamental right and whether a statute alleged to discriminatorily infringe that right should be accorded heightened equal protection review.” Id. at 285. However, the Court continued, “nor does this case require resolution of these issues.” Id. at 286.
More recently in Obergefell v. Hodges, the Supreme Court stated that determining a fundamental right “requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them respect.” Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015). Additionally, “history and tradition guide and discipline this inquiry but do not set its outer boundaries.” Id.
While the Supreme Court has never recognized education as a fundamental right, the definition of a fundamental right in Obergefell raises a question of whether education should be considered a fundamental right. Id.; see Papasan, 478 U.S. at 283–84. As claimed by the Plaintiffs in Gary B., a minimal level of education and literacy is required to understand the political atmosphere and exercise the right to vote, which is deeply rooted in our country’s history. Gary B., 329 F.Supp.3d at 365. Shouldn’t the next generation be afforded the opportunity to choose their leaders in an educated manner?
* Jessica Rotondo is a second-year law student at the University of Baltimore School of Law, where she is a staff editor for Law Review. Jessica is also a member of the Royal Graham Shannonhouse III Honor Society and is the treasurer of the school’s Wine Appreciation Society. Jessica spent the summer of 2018 as a legal trainee with Project HEAL at Kennedy Krieger Institute, a project that advocates for children with disabilities in regard to their special education rights.