The day after a federal court ruled for the first time that Detroit children have “a right of access to literacy,” Michael Rebell, attorney for the plaintiffs in a similar case in Rhode Island, began drafting a letter to Chief Judge William Smith of the U.S. District Court in Providence.

In December, Smith heard oral arguments in Cook v. Raimondo, in which the plaintiffs — including current, former and future Rhode Island students — say the state is not providing an education that adequately prepares them to participate as informed citizens in civic life. 

“Certainly, I think this new precedent coming from a major U.S. circuit court of appeals is going to be helpful,” said Rebell, lead counsel for the plaintiffs and founder of the Educational Equity Campaign at Teachers College, Columbia University.

But he said he’s also concerned the 6th U.S. Circuit Court of Appeals’ decision in Gary B. v Whitmer is “very limited and very narrow.”

“Students in Rhode Island and throughout the U.S. need a stronger definition,” he said.

The three-judge panel ruled 2-1 Thursday a basic right to education — and literacy — meets the U.S Supreme Court’s “substantive due process test.” 

But the plaintiffs in the Gary B. case — primarily low-income students of color — also argue the state has denied their rights under the Equal Protection Clause of the 14th Amendment because, unlike other students in Michigan, they attended schools they described as "functionally incapable" of teaching students to read. 

The majority ruled the plaintiff’s complaint fails “to highlight any difference in treatment that suggests the state discriminated against them.”

Potential next steps

Last week’s decision in the Gary B. case doesn’t “impose any immediate obligation on the state defendants,” said Tacy Flint, lead attorney for the plaintiffs. But she added, “We obviously hope that the state will act immediately to improve our clients’ schools.”

Last year, Michigan Gov. Gretchen Whitmer asked the state be removed as the defendant because the Detroit Public Schools Community District is no longer under state control as it was when the case was filed in 2016. The suit originally named former Gov. Richard Snyder as the defendant prior to Whitmer's election.

In a response to last week’s ruling, Tiffany Brown, Whitmer’s press secretary, said officials were “reviewing the court’s decision.” She noted the governor did not challenge the lower court’s ruling on the merits of the students’ claims. But, she added, “We’ve also regularly reinforced that the governor has a strong record on education and has always believed we have a responsibility to teach every child to read.”

The appellate court’s decision sends the case back to the U.S. district court “where we will have an opportunity to prove our claim that the plaintiffs were deprived of their constitutional right of access to literacy,” Flint said.

But Rebell said there are also other options. The state could ask for the entire 6th circuit — 16 judges — to review the case in what is known as an en banc review. That’s what some legal experts argue should happen next. 

“The 14th Amendment was designed to stop rampant racial discrimination, but it did so by creating an equality right that applies once a state decides to provide for education, not a substantive right to a minimum education,” wrote Ed Whelan, president of the conservative Ethics and Public Policy Center. 

The state could choose to settle the case.

"I hope that Governor Whitmer’s administration sits down with stakeholders to work out a settlement in the best interests of the students," said Lena Konanova, an attorney who led the filing of an amicus brief in the case in 2018. "It is important to note Judge [Eric] Clay’s opinion is remarkably well-situated in history and precedent. The Court draws a line from earliest days of our nation’s history," from the Northwest Ordinance of 1787 through the Brown v. Board of Education decision.

The state could also appeal directly to the U.S. Supreme Court, which may or may not decide to hear the case. If that’s what Michigan decides to do, others predict the plaintiffs would lose. 

“The [Supreme] Court probably would confront the question it has avoided for decades and decide definitively that an implied right to education does not exist,” said Kristine Bowman, a professor of law and education policy at Michigan State University, who has also represented school districts. “This outcome would foreclose federal courts as an option for education rights litigation once and for all.”

Plaintiffs in both the Michigan and Rhode Island cases argue the U.S. Supreme Court left the right-to-education question unanswered in 1973 when it referred to “basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process” as part of the San Antonio Independent School District v. Rodriguez school funding case. 

In his dissent last week, Judge Stephen Murphy of ​the U.S. District Court for the Eastern District of Michigan wrote: “This positive right to a minimum education will jumble our separation of powers. It will immerse federal courts in a host of education disputes far outside our constitutionally assigned role to interpret legal texts.” 

But for now, the plaintiffs in the Rhode Island case are encouraged, Rebell said.

“They’re excited as can be,” he said. “This a real breakthrough.”