In the early days of our nation, it was a crime to teach slaves to read. And through the first half of the 20th century, segregation funneled their descendants into inferior schools. Like the ugly attempts to disenfranchise African Americans through so-called literacy tests calculated to make them seem illiterate, these efforts were a perverse tribute to literacy's power, which was recognized by the many people of color who fought so hard, against the odds, to educate themselves.
Now, at least in theory, literacy is universally regarded as a human right. Every state makes K-12 education mandatory, and basic education has been recognized unanimously by the Supreme Court as "necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence," to quote what Warren Burger, appointed chief justice by Richard Nixon, wrote in 1972.
Yet as a carefully crafted lawsuit filed this month by seven Detroit schoolchildren reveals, deliberate indifference to public schools in already disadvantaged communities means that many children of color still do not receive an education — at least not an education that will prepare them to participate effectively and intelligently in our system.
The Detroit lawsuit describes a shocking and comprehensively documented denial of access to literacy. These students attend schools all but exclusively serving children of color. Barely a pretense of education takes place there, under deplorable conditions that make teaching and learning nearly impossible: classrooms without adult teachers, wildly outdated books or no books at all, sweltering or freezing temperatures, rampant vermin infestation and other grossly unsafe physical conditions.
Unsurprisingly, students in these schools perform years below their grade level, many altogether unable to read or write. In one school, not a single sixth-grader achieved even minimal proficiency in English or math. The result is whole generations of students who lack the skills to earn a lawful living and who, in consequence, are relegated to the criminal justice system.
The Detroit students, ably represented by attorneys from Public Counsel and Sidley Austin LLP, have asserted an innovative legal claim: that Michigan has violated the 14th Amendment's equal protection clause by effectively excluding them from the state's system of free public education and denying them the right to literacy.
Although novel, this claim is well grounded in decades of Supreme Court precedent, including a landmark 1982 decision, Plyler vs. Doe, in which the Supreme Court held that a state cannot bar children in the country illegally from its tuition-free public schools, recognizing that "the stigma of illiteracy" would hobble them for the rest of their lives, rendering them a permanent underclass.
Without a functioning right to literacy, moreover, the Supreme Court's affirmative action jurisprudence collapses. Some justices oppose the continued use of race-based preferences to grant students admission to college and universities; they believe that admissions, and the law, should be color blind. But that aspiration is only as good as its essential premise: that everyone has an at least minimally adequate opportunity to succeed. The Detroit lawsuit shows that some students are instead starting out with their ankles shackled, and that they have no meaningful ability to compete on equal terms — either to improve their lot in life or to contribute to the life and governance of their communities.
The Detroit case gives the federal court system a chance to consider the massive body of evidence demonstrating what schools undeserving of the name do to the children forced to attend them — and to consider the appropriate role of the judiciary in remedying this problem.
Federal judges should not look to the California Supreme Court, which last month twice decided against hearing cases that questioned the circumstances under which students may sue the state for failing to guarantee equal educational opportunity. Over compelling dissents, the California justices rejected claims that appeared to pit the interests of students against those of teachers and their unions. The Detroit litigation poses no such difficulties.
Federal courts should look instead to the example set in Connecticut. A judge there recently found that the state was not fulfilling its constitutional duty to provide an adequate education to all children. He ordered state officials to overhaul the public school system.
Like the historic litigation leading to Brown vs. Board of Education, the Detroit lawsuit has the potential not only to improve the opportunities afforded to poor children of color in one community, but also to make good nationally on some of our most fundamental and cherished constitutional obligations. Although the Brown ruling ended legally sanctioned segregation, it has not in practice eliminated separate and inferior schools for many students of color. The conditions in Detroit will sound all too familiar to those acquainted with school-system failures across the country.
The federal judiciary has a responsibility to ensure that Brown vs. Board of Education is not, to borrow a phrase from Justice Robert Jackson, an empty "promise to the ear to be broken to the hope, like a munificent bequest in a pauper's will." It has a duty to ensure that a school is more than a building, and that all children have access to literacy and the broad range of powers it confers. Our Constitution's commitments to the "Blessings of Liberty" and to the "equal protection of the laws" demand no less.
Recognizing that the 14th Amendment confers a right to basic literacy would mark a legal development that liberals and conservatives alike should welcome. To liberals, such a right is essential to social justice. To conservatives, it is essential to social stability and order.
Laurence Tribe is a university professor and a professor of constitutional law at Harvard University. His most recent book is "Uncertain Justice: The Roberts Court and the Constitution," co-authored with Joshua Matz. Follow him on Twitter @tribelaw.