By: Lisa Hoover
A federal district court ruling earlier this month which held that there is no clearly established constitutional right to literacy in the United States has reminded me that the various pieces of my background are sometimes in conflict with one another. My two halves – lawyer and librarian – are conflicted about this decision.
The district court judge, Stephen Murphy, “essentially stated that he needed guidance from the Supreme Court if he were to weigh in on whether the students’ abysmal proficiency levels and learning conditions amount to a violation of the Constitution.” (Wong, 2018) This leaves the issue far from conclusively decided, and the case (Gary B. v. Snyder) is on appeal to a federal appeals court as I write this, so everything in this post is subject to change.
As a librarian, I am of course deeply disappointed at the loss of a chance to improve literacy for our children. However, as a lawyer I recognize that this issue is more complicated than it seems like it should be. Shouldn’t it be simple to say that all kids have the right to learn to read?
Unfortunately, it isn’t simple. This lawsuit was brought in the federal courts under the federal constitution because Michigan courts have “generally refused to take on education-rights cases.” (Wong, 2018) Other state constitutions are more protective of the right to education, which means your right to education varies depending on where you live.
However, chances in federal court weren’t great for this case either. The US Supreme Court held in San Antonio Independent School District v. Rodriguez in 1973 that there is no fundamental right to education in the federal constitution, making it difficult (although not impossible) to argue that deficient education systems violate the constitution. The lawyers in the Gary B. case took an interesting and (as far as I know) novel approach to the issue, arguing that a failure to provide education in basic literacy leaves students unable to meaningfully enjoy their other constitutional rights, thereby violating the constitution.
This might seem like a round-about way to find a constitutional right, but it’s not unprecedented. Griswold v. Connecticut, the case that set the stage for Roe v. Wade by creating a constitutional right to privacy, found that even though “privacy” is not explicitly mentioned in the constitution, we can infer that a right to privacy exists by looking at the other more explicit rights in the constitution.
So, we know it’s possible to use explicit rights to find inferred rights. However, the current make-up of the court and the recent nomination of Judge Brett Kavanaugh to fill the seat left by Justice Kennedy seems to make this a long shot, unless the court of appeals finds a right to education and the US Supreme Court declines to hear the case, leaving the court of appeals decision standing. Even if this were to happen, which seems like a long shot, it would only help the students in the jurisdiction of the court of appeals deciding the case – other students elsewhere would potentially need to fight this fight all over again.
Furthermore, even if the US Supreme Court did find that there is an implied right to education, the legacy of erosion of Roe v. Wade and its companion cases cautions us that rights found by inference are vulnerable to attack over time.
On the other hand, even if the case isn’t decided in favor of Gary B., it might bring attention to the issue and spur legislative remedies to the problem. As a librarian, and as a lawyer interested in social justice, I must hope that this proves to be the case.
As librarians, we know that the lawyers in the Gary B. case are absolutely correct that literacy is a requirement for so many things, from finding a well-paying job to being able to fully engage in our democracy as citizens.
I don’t think there is much disagreement about this – Judge Murphy said so himself in his opinion, stating that “plainly, literacy — and the opportunity to obtain it — is of incalculable importance… as plaintiffs point out, voting, participating meaningfully in civic life, and accessing justice require some measure of literacy.” (Higgins, 2018)
The issue in court is more about whether the courts are an appropriate venue to fix the problems our country faces with illiteracy and education in general. As a librarian, I understand that this seems like a silly sticking point for such an important issue to those who care passionately about the education of the next generation. As a lawyer, I understand the importance of the separation of powers and the reasons for a limited judiciary.
I don’t know what the ultimate outcome in this case will be, but I hope it will have an impact, either through the courts or through legislation inspired by the lawsuit. A right to read and a right to access knowledge are fundamental precepts for librarians, and these rights cannot possibly be fully realized without basic literacy.
While this case has brought my two professional halves into conflict, it has also reminded me why I love constitutional law and why I love libraries. I love constitutional law because it often involves an intellectual tug-of-war between the way I wish things could be and what is required or allowed under the constitution. Unfortunately, these things are not always in harmony.
I love libraries because they are the home of intellectual freedom and literacy. And, of course, books. In fact, as I write this I am starting to wonder whether there really is a conflict in my two professional halves. Perhaps, at least in this case, libraries can help (and indeed, are already helping) address the issues the law cannot.
Either way, both of my professional halves are reminded that in many areas there are no easy answers – but that’s precisely what attracted me to both the law and libraries to begin with.
Higgins, L. (2018) Judge Says There’s No Fundamental Right to Learn to Read and Write. Detroit Free Press. Retrieved from https://www.freep.com/story/news/education/2018/07/01/detroit-literacy-education-rights/748052002/ July 13, 2018
Wong, A. (2018) Students in Detroit are Suing the State Because They Weren’t Taught to Read. The Atlantic. Retrieved from https://www.theatlantic.com/education/archive/2018/07/no-right-become-literate/564545/ July 13, 2018
Lisa Hoover is a Public Services Librarian at Clarkson University and an Adjunct Professor in criminal justice at SUNY Canton. In addition to her MLS, Lisa holds a JD and an MA in political science. She began her career as an editor and then manager for a local news organization, adjunct teaching in her “spare time.” She teaches courses in criminal procedure, criminal law and constitutional law. She is passionate about 1st Amendment issues. She recently began her career as a librarian, starting at Clarkson University in June 2017 teaching information literacy sessions and offering reference services. Lisa and her husband Lee live in Norwood, New York with their cats Hercules, Pandora, and Nyx and pug-mix Alexstrasza (Alex). Find her on Twitter @LisaHoover01.