Gary B. v. Whitmer, 042320 FED6, 18-1855

Docket Nº:18-1855, 18-1856, 18-1857, 18-1858, 18-1859, 18-1860, 18-1861, 18-1862, 18-1863, 18-1864, 18-1865, 18-1866, 18-1867, 18-1868, 18-1870, 1871
Opinion Judge:CLAY, CIRCUIT JUDGE
Party Name:GARY B., JESSIE K., CRISTOPHER R., ISAIAS R., ESMERALDA V., PAUL M., and JAIME R., minors, Plaintiffs-Appellants, v. GRETCHEN WHITMER, et al., Defendants-Appellees.
Attorney:Carter G. Phillips, SIDLEY AUSTIN LLP, Washington, D.C., for Appellants. Raymond O. Howd, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees. Carter G. Phillips, SIDLEY AUSTIN LLP, Washington, D.C., Mark D. Rosenbaum, Anne Hudson-Price, Kathryn A. Eidmann, PUBLIC COUNSEL, L...
Judge Panel:Before: CLAY, STRANCH, and MURPHY, Circuit Judges. CLAY, J., delivered the opinion of the court in which STRANCH, J., joined. MURPHY, J. (pp. 62-85), delivered a separate dissenting opinion. MURPHY, J., dissenting.
Case Date:April 23, 2020
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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GARY B., JESSIE K., CRISTOPHER R., ISAIAS R., ESMERALDA V., PAUL M., and JAIME R., minors, Plaintiffs-Appellants,

v.

GRETCHEN WHITMER, et al., Defendants-Appellees.

Nos. 18-1855, 18-1856, 18-1857, 18-1858, 18-1859, 18-1860, 18-1861, 18-1862, 18-1863, 18-1864, 18-1865, 18-1866, 18-1867, 18-1868, 18-1870, 1871

United States Court of Appeals, Sixth Circuit

April 23, 2020

Argued: October 24, 2019

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:16-cv-13292-Stephen J. Murphy, III, District Judge.

ARGUED:

Carter G. Phillips, SIDLEY AUSTIN LLP, Washington, D.C., for Appellants.

Raymond O. Howd, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

ON BRIEF:

Carter G. Phillips, SIDLEY AUSTIN LLP, Washington, D.C., Mark D. Rosenbaum, Anne Hudson-Price, Kathryn A. Eidmann, PUBLIC COUNSEL, Los Angeles, California, Mark E. Haddad, UNIVERSITY OF SOUTHERN CALIFORNIA, Los Angeles, California, Evan H. Caminker, UNIVERSITY OF MICHIGAN, Ann Arbor, Michigan, Tacy F. Flint, Lawrence P. Fogel, Suzanne Brindise Notton, Jennifer M. Wheeler, SIDLEY AUSTIN LLP, Chicago, Illinois, Joshua E. Anderson, SIDLEY AUSTIN LLP, Los Angeles, California, Bruce A. Miller, MILLER COHEN, PLC, Detroit, Michigan, for Appellants.

Raymond O. Howd, Joshua S. Smith, Toni L. Harris, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

James E. Burke, Bryce J. Yoder, Amanda B. Stubblefield, KEATING MUETHING & KLEKAMP PLL, Cincinnati, Ohio, David J. Strom, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Washington, D.C., Anton Metlitsky, O'MELVENY & MYERS LLP, New York, New York, Tara J. Plochocki, LEWIS BAACH KAUFMANN MIDDLEMISS PLLC, Washington, D.C., Michael J. Dell, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Scott Burnett Smith, Julian D. Miller, BRADLEY ARANT BOULT CUMMINGS LLP, Huntsville, Alabama, Lena Konanova, David S. Flugman, Jessica Underwood, Bria Delaney, Nicholas J. Klenow, SELENDY & GAY PLLC, New York, New York, Jenice C. Mitchell, DETROIT PUBLIC SCHOOLS COMMUNITY DISTRICT, Detroit, Michigan, Daniel S. Korobkin, Michael J. Steinberg, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, Jerome D. Goldberg, Detroit, Michigan, for Amici Curiae.

Before: CLAY, STRANCH, and MURPHY, Circuit Judges.

CLAY, J., delivered the opinion of the court in which STRANCH, J., joined. MURPHY, J. (pp. 62-85), delivered a separate dissenting opinion.

OPINION

CLAY, CIRCUIT JUDGE

Plaintiffs in this appeal are students at several of Detroit's worst-performing public schools. They credit this substandard performance to poor conditions within their classrooms, including missing or unqualified teachers, physically dangerous facilities, and inadequate books and materials. Taken together, Plaintiffs say these conditions deprive them of a basic minimum education, meaning one that provides a chance at foundational literacy.

In 2016, Plaintiffs sued several Michigan state officials, who they say are responsible for these abysmal conditions in their schools. Plaintiffs allege that state actors are responsible, as opposed to local entities, based on the state's general supervision of all public education, and also on the state's specific interventions in Detroit's public schools. The state argues that it recently returned control to local officials, and so it is now the wrong party to sue.

Plaintiffs' underlying claims, brought under 42 U.S.C. § 1983, are all based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Plaintiffs argue that while other Michigan students receive an adequate education, the students in Plaintiffs' schools do not, amounting to a violation of their right to equal protection of the laws. They also argue that the schools they are forced to attend are schools in name only, and so the state cannot justify the restriction on their liberty imposed by compulsory attendance. And in their most significant claim, Plaintiffs ask this Court to recognize a fundamental right to a basic minimum education, an issue the Supreme Court has repeatedly discussed but never decided.

While the district court found that Defendants were in fact the proper parties to sue, it dismissed Plaintiffs' complaint on the merits. First, it found that Plaintiffs had not alleged a proper comparator for their equal protection claim, nor had they highlighted any state policy or action that was not supported by a rational basis. Second, it found that Plaintiffs had not sufficiently pleaded their compulsory attendance theory, and so the court only viewed their due process claim as seeking an affirmative fundamental right. Third, the court held that a basic minimum education is not a fundamental right, and so Plaintiffs' due process claim was dismissed. Plaintiffs then appealed.

Though Plaintiffs failed to adequately plead their equal protection and compulsory attendance claims, the same cannot be said for their central theory: that they have been denied a basic minimum education, and thus have been deprived of access to literacy. A review of the Supreme Court's education cases, and an application of their principles to our substantive due process framework, demonstrates that we should recognize a basic minimum education to be a fundamental right. Furthermore, under this circuit's precedents, Defendants are proper parties to sue in this case. Accordingly, we affirm in part and reverse in part the district court's order, and remand this case for further proceedings.

I. BACKGROUND

A. History of Detroit's Schools and State Control

Plaintiffs are students at several Detroit public schools that "serve almost exclusively low-income children of color." (Compl., R. 1 at PageID #4.) They filed suit in this case against several Michigan state officers, who they say are proper defendants based both on the state's constitutional and statutory authority to oversee the statewide education program and on the state's specific interventions into the governance of Detroit's schools.

Michigan's constitution provides that the state's legislature "shall maintain and support a system of free public elementary and secondary schools." Mich. Const. art. VIII, § 2. The constitution also vests "[l]eadership and general supervision over all public education" in the state board of education, which serves "as the general planning and coordinating body for all public education." Id. art. VIII, § 3. The board also appoints the superintendent of public instruction, who is responsible for executing the board's policies and serves as head of the state department of education. Id.

According to Plaintiffs, education is a state-level concern and school districts are simply "creations and agents of the State." (Compl., R. 1 at PageID #48-50.) The Michigan Supreme Court has "repeatedly held that education in this state is not a matter of local concern, but belongs to the state at large." Bd. of Educ. v. Bacon, 162 N.W. 416, 416 (Mich. 1917) (quoting Collins v. City of Detroit, 161 N.W. 905, 907 (Mich. 1917)). Under Michigan law, the state board of education has oversight authority over school districts and public schools within the state. See, e.g., Mich. Comp. Laws §§ 380.1281, 388.1007, 388.1009; see also Council of Orgs. & Others for Educ. About Parochiaid, Inc. v. Engler, 566 N.W.2d 208, 216 (Mich. 1997) (noting that state funding and oversight provisions place public schools "under the ultimate and immediate control of the state and its agents"). But beneath this oversight and supervisory authority, the day-to-day administration of Michigan schools is usually entrusted to the boards of local school districts and their appointees. See, e.g., Mich. Comp. Laws § 380.1282.

But usually is not always. Beyond the state's general authority with respect to public education, Plaintiffs also allege that the state has repeatedly intervened in the day-to-day management of Detroit's schools, and that it directly oversaw public education in Detroit from 1999 through the time the complaint was filed in this case. See Gary B. v. Snyder, 329 F.Supp.3d 344, 350-54 (E.D. Mich. 2018) (discussing state interventions in Detroit's schools). As stated in the complaint, "the State has directly controlled [the Detroit school system] for most of the past fifteen years through variations of an emergency manager system." (Compl., R. 1 at PageID #16-17.) And while this intervention may have been intended to help address shortcomings in the city's schools, Plaintiffs say that by "placing the Detroit schools largely in the hands of administrators with no backgrounds in education," the state only made the problem worse. (Id.)

These interventions began in the 1990s, partially in response to "fiscal deficit and failing student achievement outcomes" in Detroit Public Schools ("DPS"), the former Detroit school district. (Id. at #50.) In 1999, the state adopted Public Act 10, which "replac[ed] Detroit's elected school board and superintendent with a seven member 'reform board.'" (Id.) The reform board consisted of seven members: six appointed by the mayor, and (at least for five years after passage) either the state superintendent of public instruction or her designee. 1999 Mich. Pub. Acts 10, § 372(2).[1] The board required unanimous consent to appoint the school district's chief executive, id. § 374(1), which Plaintiffs say gave the state an effective "veto power over the selection of the CEO as well as every other decision" (Compl., R. 1 at PageID #50-51).

While in 2006, control of DPS was returned "to a locally elected school board . . . as a result of a Detroit voter referendum," this change was short-lived. (Id. at #51.) In December 2008, the governor declared a fiscal...

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