MSU Law Professor Cited in Federal Court Literacy Case

Sometimes good things do come to those who wait. The good thing in question is Gary B. v. Whitmer, 2020 WL 1951894, in which the Sixth Circuit Court of Appeals held that public schoolchildren have a  fundamental positive substantive due process right to a basic minimal education, i.e., access to literacy. It is the first federal Court of Appeals to hold since that right was rejected, in a case involving different factual circumstances, by the U.S. Supreme Court in 1973.

Professor Susan Bitensky has been waiting for federal judicial movement toward recognition of the right since 1992 when she published her seminal law review article on the subject, Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Educational Crisis, 86 NORTHWESTERN UNIVERSITY LAW REVIEW 550-642. The article is the first publication in a law journal to have both advocated for such a right and provided a comprehensive examination of the several doctrinal bases for implicitly reading the right into the Constitution—prominently including substantive due process analysis.

It came to her attention that while Gary B. was pending in federal district court, at least one of the supporting briefs for plaintiffs cited her article. In any event, she is thrilled with the outcome of this litigation and proud of her behind-the-scenes contribution to it from the realm of legal scholarship.

For those who are interested, Professor Bitensky’s 1992 article provoked a rebuttal to which she then replied, both also in Northwestern University Law Review. In 2019, the review invited her back to submit on its blog an update on the right to education; it appears in NULR of Note, Bring Back the Nineties.