Kramer Levin Amicus Brief Helps Secure Victory Recognizing Constitutional Right of Access to Literacy

On April 23, 2020, the United States Court of Appeals for the Sixth Circuit issued a landmark decision that adopts a position Kramer Levin advocated on behalf of amicus curiae PEN America. The Court held in Gary B. v. Whitmer, Case No. 18-1855, that a basic minimum education – one that plausibly provides access to literacy – is a fundamental right under the U.S. Constitution. The plaintiffs in the case are children who attend some of Detroit’s worst-performing public schools. Many of their students cannot read, write, or comprehend at anything close to their grade level. The schools lack appropriate textbooks, instructional materials and classroom resources, and have unsanitary and dangerous conditions, including extreme temperatures and vermin. 

Kramer Levin’s client, PEN America, is a non-profit association of approximately 7,000 writers, including novelists, journalists, editors, poets, essayists, playwrights, publishers, translators, agents and other professionals. Its many prominent current and former members include Jennifer Egan, Robert Caro, James Baldwin, Arthur Miller, Toni Morrison and John Steinbeck. Our brief highlighted that literacy is essential to fully participate in the political process and our society. We argued that Supreme Court precedent, including the holding in Obergefell that same-sex couples have the fundamental right to marry, compels the conclusion that access to literacy – the most basic component of education – is a fundamental constitutional right because, like marriage, it is inherent in the concept of individual autonomy, draws meaning from related constitutional rights, and is a keystone of the Nation’s social order. The Sixth Circuit agreed, concluding that access to literacy is deeply rooted in American history and tradition, and that because of its importance to the exercise of other fundamental rights and participation in the political process and society, it is essential to the concept of ordered liberty and therefore a fundamental right. The Court acknowledged that “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 the Court opined that the “Constitution cannot permit those circumstances to foreclose all opportunity and deny a child literacy without regard to her potential… providing a basic minimum education is necessary to prevent such an arbitrary denial.”

The Kramer Levin team includes Litigation partner Michael J. Dell, and associates Patrick J. Campbell, Max J. Goldman, Daniel Ketani, Erin V. Klewin and Shaked Sivan.

Read the opinion here.

Read the brief here.