Our Litigators of the Week are Sidley Austin's Carter Phillips and Tacy Flint and Public Counsel director Mark Rosenbaum, who prevailed before the U.S. Court of Appeals for the Sixth Circuit in a decision that the Washington Post described as "historic" and "groundbreaking," that NPR termed "a remarkable victory" and the New York Times called "a major ruling."

The trio represent students from some of Detroit's worst-performing public schools. They asked the court to recognize that the U.S. Constitution provides a fundamental right to a basic minimum education—a question that has been often alluded to, but never decided, by the Supreme Court. 

They lost at the district court level, which dismissed the plaintiffs' due process claims. But in 2-1 decision, the Sixth Circuit in Gary B. v. Whitmer held that "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."

This is the first time that any court has recognized such a right.

Phillips, Flint and Rosenbaum discussed the case with Lit Daily.

Lit Daily: Tell us about your clients and their schools. What has public education been like for them?

Mark Rosenbaum: Our clients are children attending five public and charter schools in Detroit. The conditions in these kids' schools shock the conscience. They had no teachers in core curricular subjects, with an eighth grader teaching seventh graders math, or a room full of kids watching movies like Kung Fu Panda or Frozen instead of learning basic skills. There weren't enough books for each student to have one in class or use for homework, and the books were so old they talked about "President Bill Clinton" and were falling apart. 

Classroom temperatures were 100 degrees in summer, or so cold in winter that kids saw their breath in class. And the result of these conditions was both tragic and predictable: proficiency rates hover at or near zero. In practical terms, this meant that third-graders did not recognize letters, and high school students struggled to sound out basic words.

The students that we worked with to bring this lawsuit are all bright, eager to learn, and supported by families who want the best for their children and all children. The students are also realistic about the challenges of their schools, and they recognized that if they were white and affluent, the conditions they faced would be unimaginable. 

Many of them acknowledged that the relief from this lawsuit would likely come far too late to help their academic careers—but every one of them chose to press ahead so they could help improve things for their siblings and other children in the schools. It takes incredible courage and integrity to admit that you can't read, and that you are academically far behind where you should be, but every student we met said that this is something that needed to be done.

What was the genesis of the lawsuit? When and how did you all become involved? Is this a pro bono case for Sidley?

Carter Phillips: Mark Rosenbaum is the heart and soul of this litigation. He and his team at Public Counsel got to know the families and students affected by the terrible conditions in these schools, and they worked to investigate the facts on the ground to see if there was a basis for bringing a lawsuit.

Then Mark built an all-star team. He brought in Evan Caminker, professor and dean emeritus at University of Michigan Law School, who has been a key architect of our constitutional arguments. Mark also approached some of our partners in the Los Angeles office, Josh Anderson, Mike Kelley (now a judge in California) and Mark Haddad (now a professor at [USC Gould School of Law]), and they asked Tacy and me to get involved in working on the complaint. Sidley did take the case on a pro bono basis.

The Sixth Circuit majority wrote that "[I]n 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." Sketch out your overarching argument.

Tacy Flint: We actually had three arguments, all premised on the utter failure of the schools to educate our clients. So the theory we won on is that there is a fundamental right of access to literacy. We cited historical evidence showing that the states have recognized the importance of and guaranteed a basic public education since before the adoption of the Fourteenth Amendment. 

We also showed how, in a long series of cases, the Supreme Court has recognized the centrality of education, and particularly literacy, to participation in our constitutional democracy, and to the basic American premise of equal opportunity. Every right in the Constitution beginning with the right to vote requires literacy, and so does meaningful participation in civic and economic life. Thus, we argued that, under the Supreme Court's decisions recognizing fundamental rights, access to literacy qualified.

We also argued that the state violated our clients' liberty interest by compelling them to be in school 180 days a year without providing any meaningful education as a quid pro quo for that mandatory attendance. And we argued that the state violated the Equal Protection Clause by functionally excluding our clients from Michigan's education system. The court of appeals did not accept the latter two arguments but did say we can amend our complaint to state claims under those theories on remand.

Taking a step back, what happened at the district court level?

Rosenbaum: The district court resolved some critical threshold issues in our favor: The court held that the Michigan state officials we sued were the proper defendants and that if rights were violated they would be responsible to remedy the violation. 

But the court didn't agree that we had alleged a violation of the Constitution. The district court missed that education is critically different from other services that states provide. According to the district judge, education is like housing—it may be "unquestionably important," but he said there is no fundamental right of access to literacy.

Was the decision discouraging? How did you respond/strategically approach appellate review?

Phillips: I suppose the answer is yes and no. Obviously, it is dispiriting to have the complaint dismissed with prejudice. But the district court did help our side a great deal in rejecting all of the state's arguments for why it and its officials should not be deemed responsible for the pathetic state of Detroit schools. 

The real question was whether we should just appeal the core fundamental right theory or also add the negative due process and equal protection theories. And we decided to go with all three because they complement each other. And clearly the racial undertones in the case affected how the court evaluated the nature of education as a fundamental right and I think explained the court's heavy focus on Brown v. Board of Education.

There were a lot of lawyers involved in this case. Who were some of the key members of your team? Co-counsel? Amici? How did you all coordinate your work?

Flint: As Mark discussed above, he and his team at Public Counsel investigated the facts and laid the groundwork for our complaint, which the entire team worked on. Our co-counsel Evan Caminker, who's a constitutional law scholar, helped develop the constitutional theory behind the case.

My team in Sidley's Chicago office had the principal pen on the appellate briefing, with major contributions from our colleagues in Los Angeles and DC, as well as the broader team. Carter argued the case in the Sixth Circuit. Our co-counsel Bruce Miller of Miller Cohen in Detroit also supplied invaluable insights all along the way.

And we were fortunate to have broad amicus support. The City of Detroit filed a powerful brief, as did the Detroit school district, the teachers union, several professors, and a number of groups from the Detroit community. All of this support underscored the unique significance of education.

Who represented the state of Michigan on appeal? 

Raymond O. Howd in the Michigan Attorney General's office.

News reports described more than 100 people coming "by bus and plane to a small courtroom in Cincinnati" for oral arguments. Give us a sense of the scene—and how arguments went before the panel. 

Phillips: Hundreds of students, family members, and Detroit residents got on buses that left Detroit at 2 in the morning to arrive in Cincinnati for a 9 am argument. I thought the courtroom was electric. Seeing all of those young people and their parents with both hope and anxiety in their eyes was like nothing I had ever experienced before an oral argument. 

I have been in courtrooms with more people present, but never where everyone seemed so focused with anticipation.  And that courtroom was packed. The Sixth Circuit's Clerk did a great job getting everyone into the building and into the courtroom. 

And then Judges Clay, Stranch and Murphy took the bench and my focus went to where it had to be—on my argument. My basic pitch was to repeat as often as I could that Michigan cannot provide just a building with inadequate HVAC, no books, no teachers, no desks, no computers and with student proficiency scores in reading (and other core courses) between 0 and 2% and satisfy its fundamental constitutional duty to provide access to literacy.

Pick a sentence from the Sixth Circuit's decision that really resonates with you—and why.

Flint: There are a lot of great passages, and it's difficult to choose just one—so can I say that my favorite word in the opinion is "reversed"?

In seriousness, I'll point to one on page 50. After talking about our country's "history of segregated and unequal education based on race," Judge Clay wrote: "It may never be that each child born in this country has the same opportunity for success in life, without regard to the circumstances of her birth. But even so, the Constitution cannot permit those circumstances to foreclose all opportunity and deny a child literacy without regard to her potential."

Here, the court recognizes that education, as the "great equalizer," is necessary to ensure that we all have a chance to be full participants in this American experiment. Education is what makes American democracy possible—and that is why the Constitution mandates that it be provided to all.

What remedies might be considered? What's next?

Phillips: These kids need to have basic supplies and conditions that are sufficient for each of them to have a chance to learn.

Rosenbaum: It's time for this case to leave the courtroom and go to the classroom. We should not be focused on litigation strategy now, but instead improving our clients' schools. It's a matter of decency and respect for these children that these conditions be fixed.

Carter, you've had 88 oral arguments before the U.S. Supreme Court and more than 140 arguments in the federal courts of appeals. Put this one in context. What made it especially significant or personally important?

Phillips: It is not every day I can say that I played a role in the development of a fundamental right in our Constitution. But what moved me the most was walking out of the courthouse and seeing the crowd of students and their parents waiting there on the steps, on the sidewalk, even in the street and hearing them cheer for me. I don't get that at all at the Supreme Court. 

But what was even more unforgettable was being handed a bullhorn and told to answer the question: "What just happened in there?" And when I told the crowd that I thought it went as well as we could have wanted, to see the smiles and tears of joy and the sense of hope in their faces is a memory I will never forget. I just wish we could have been with them when the opinion was released.

Damn that coronavirus.