Sufficiently Fundamental: Searching for a Constitutional Right to Literacy Education

Abstract

The Fourteenth Amendment’s Due Process Clause protects rights that, though not in the Constitution, are deemed sufficiently fundamental that they may not be infringed. Although the Supreme Court has explicitly disclaimed a fundamental right to education, it has left open the possibility that some basic level of education might be a fundamental right, as a way of safeguarding constitutional rights to free speech and political participation. In 2020, the Sixth Circuit Court of Appeals in Gary B. v. Whitmer held that the Due Process Clause protects a fundamental right to access literacy. Although the Sixth Circuit’s decision was short-lived and has no precedential value, this Note argues that it presents a formulation of a right to education that respects Supreme Court precedent, acknowledges the importance of literacy and public education in American life, and provides a powerful tool for potential plaintiffs seeking to address educational inequity.