Michael Donnelly warns in a Federalist column about the potential negative impact of a new ruling from the 6th U.S. Circuit Court of Appeals.
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.
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.
In North Carolina, of course, the state constitution guarantees a right to access to a sound basic education. That right has been litigated for more than a quarter century in the Leandro case.
