In this commentary, Jeffrey Shulman from Georgetown Law looks at a recent federal court decision about a constitutional right to education and why the Thirteenth Amendment could hold the key to considering education as a fundamental right.
Does the United States Constitution guarantee a right to a minimally adequate education? Does it guarantee a right to access to literacy?
This is not just a theoretical, law-school question. Recently, in Gary B. v. Snyder (2018 WL 3207900; June 29, 2018), the United States District Court for the Eastern District of Michigan decided, on the facts before it, that no such guarantee could be found in either the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs, minor children who attend or attended public schools in Detroit, argued that school conditions were “so poor, and so inadequate, that they have not received even a minimally adequate education.” Unconvinced, the court dismissed the case for failure to state a claim cognizable under the Constitution.
With regard to the Due Process Clause, the court followed Supreme Court precedent to affirm that education is not a fundamental right. Such was the Court’s conclusion in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), and Plyler v. Doe, 457 U.S. 202 (1983). The Court did leave open the question of whether due process would be violated if a child received no public education—that is, if there were an “absolute deprivation” of an educational benefit provided by the state. This was the door through which the Gary B. plaintiffs entered the arena of constitutional lawmaking. But, so far, to no avail. The district court held that there is no right to “a defined, minimum level of education by which [a] child can attain literacy.” With regard to the Equal Protection Clause, the court held that, though the plaintiffs attended schools that “predominately served children of color,” there was insufficient evidence of discriminatory treatment.
Legal scholars have long sought to locate a fundamental right to education somewhere in the Constitution. The due process and equal protection pathways appear to be dead ends. But we might consider another route.
There is a longstanding and intimate connection between slavery and enforced illiteracy. The story of enforced literacy takes us from the absolute deprivation of literacy skills mandated by the slave codes of the eighteenth and nineteenth centuries to the failure of modern schools to provide basic educational necessities. The slave codes prohibited education for enslaved persons because “having slaves taught to write, or suffering them to be employed in writing, may be attended with great inconveniences.” (South Carolina Act of 1740). These inconveniences would include sooner or later a demand for emancipation. It was in books, after all, that Frederick Douglass first heard “the silver trump of freedom’; it was reading that showed him—and how many others?—“the pathway from slavery to freedom.”
Slave masters knew this only too well. Douglass’s master is condemned by his own words: Learning, he understood, would “spoil” Douglass, “would forever unfit him to be a slave. He would at once become unmanageable, and of no value to his master. As to himself, it could do him no good, but a great deal of harm. It would make him discontented and unhappy.”
Of course, reading did make Douglass discontented and unhappy. So much so that he wondered whether learning to read was more a curse than a blessing? But reading also “stirred up sentiments within that lay slumbering, and called into existence an entirely new train of thought”:
It was a new and special revelation, explaining dark and mysterious things, with which my youthful understanding had struggled, but struggled in vain. I now understood what had been to me a most perplexing difficulty—to wit, the white man’s power to enslave the black man. It was a grand achievement, and I prized it highly.
What slave masters knew firsthand—that, in Douglass’s phrase, “knowledge makes a [person] unfit to be a slave”—was no secret to their nineteenth- and twentieth-century successors: They fought the efforts of the Freedmen’s Bureau to establish public schools during Reconstruction; they closed their own public schools after Brown v. Board of Education, 347 U.S. 483 (1954), prohibited de jure public school segregation. Having denied access to literacy on racial grounds, they then made literacy a prerequisite to full participation in the political life of our nation.
And they were not unaided by the Supreme Court. In The Civil Rights Cases, 109 U.S. 3 (1883), the Court defined narrowly the badges and incidents of slavery, concluding that “[t]he long existence of African slavery in this country gave us very distinct notions of what it was and what were [slavery’s] necessary incidents.” For the Court, “[c]ompulsory service of the slave for the benefit of the master, restraint of his movements except by the master’s will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities were the inseparable incidents of the institution.” To use the Thirteenth Amendment as a sword to attack what the Court called “[m]ere discriminations on account of race or color”—well, that would be “running the slavery argument into the ground.” Little has changed since 1883.
And they are not unaided by the rest of us. How many of us have benefitted, and continue to benefit, from the central holding of San Antonio—that states may fund their public schools based on local property taxes? How cavalierly—to be kind—did the Court disregard the plea that educational quality should not be a function of affluence and geography!
Now, with de facto public school segregation getting the Supreme Court’s constitutional imprimatur (see Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)), with public schools more segregated than they were in the 1960s, with cities unable to obtain the resources to make public schools a safe place to learn, let alone a place where actual teaching is done—with all this, many minority students are sentenced to a lifetime of educational deprivation, guilty of no more than a lack of access to basic literacy skills. This educational deprivation undermines not only their futures but the fundamental principles of freedom and equality for which the Constitution stands. To say nothing of basic human rights. (See Article 28 of the United Nations Convention on the Rights of the Child, “recogniz[ing] the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity.”)
This is not to suggest that the plaintiffs in Gary B. would have succeeded on a Thirteenth Amendment claim. But courts should be asked to take seriously the Supreme Court’s acknowledgement—again in The Civil Rights Cases—that by passing the Thirteenth Amendment Congress “undertook . . . to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom.”
Fundamental rights that are the essence of civil freedom: It’s hard to exercise them if you can’t read and write.
Jeffrey Shulman is Professor of Legal Practice; Director of the Evening Program at Georgetown Law. His most recent book is The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child by Yale University Press.
 But see Runyon v. McCrary, 427 U.S. 160 (1976); Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).