New legal theory leads to court ruling that Detroit students have a right to literacy. Now, Michigan’s Governor has until Thursday to act
Beth Hawkins | May 7, 2020
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In recent days, dozens of Detroit parents — quarantined in COVID hotspots with one of the nation’s widest digital divides — have taken to their phones to demand Michigan Gov. Gretchen Whitmer settle a lawsuit that found the state violated their children’s right to learn to read.
Using the hashtags #RightToLiteracy and #settlethiscase, some are tweeting at her. Others text “READ313” — 313 being the city’s area code — to a number that routes their messages to the governor. And they’ve invited neighbors to live Facebook town halls, where they have explained how a settlement would, essentially, freeze the legal proceedings at a moment when the U.S. Constitution for the first time has been interpreted to guarantee their children a decent education.
"The fight is not done yet. We were fighting just to get into the ring. Now we're in the ring. Now the fight really starts." –@JamarriaHall
— Public Counsel (@PublicCounsel) April 27, 2020
The parents, many of them members of the grassroots advocacy network 482Forward, want Whitmer to settle so they can negotiate desperately needed improvements for their schools, by most measures the lowest-performing in the country. But they also want the governor to act so the case can’t move forward, effectively enshrining in law its unprecedented recognition that children have a fundamental right to read.
She has until May 7.
Historically, federal courts have rejected arguments that the U.S. Constitution guarantees the right to an education — something that is embedded in state constitutions in different ways. But in recent years, public interest lawyers have pushed a new legal theory: that reading is so fundamental to participation in society, there is a constitutional right to literacy.
In April, two members of a three-judge panel of the Court of Appeals for the 6th Circuit agreed with the young Detroiters whose names are on the complaint — Gary B., Jesse K., Christopher R. Esmeralda V., Paul M. and Jaime R. They issued a sweeping and unprecedented opinion that there is a right to reading — and that children of color have systematically been deprived of it.
“The history of education in the United States … demonstrates a substantial relationship between access to education and access to economic and political power, one in which race-based restrictions on education have been used to subjugate African Americans,” wrote United States Circuit Judge Eric Clay.
Laws outlawing teaching black children to read are no longer on the books, he continued, but the basic formula — that a person who is illiterate is unable to participate in society — persists.
“Slaveholders and segregationists used the deprivation of education as a weapon, preventing African Americans from obtaining the political power needed to achieve liberty and equality,” Clay wrote. “While most starkly displayed during the time of slavery, this history is one of evolution rather than paradigm shift, and so what began in the slave codes of the antebellum South transformed into separate-and-unequal education policies that persisted well after Brown v. Board of Education.”
And finally: “The exclusion of a child from a meaningful education by no fault of her own should be viewed as especially suspect.”
The suit was filed in 2016 in federal district court in Detroit on behalf of the five students, who attended both district and charter schools. The state, they argued, had violated their rights by creating policies and conditions that deprived the city’s schools of adequate facilities, certified teachers and basic materials, including textbooks.
The court dismissed the case in 2018, ruling that education, while “of incalculable importance,” was not a constitutional right. Most observers expected the appellate court, which heard arguments last fall, to agree.
Now, if Whitmer does not announce a settlement by May 7, one of three things happens: The case is sent back to the trial court to proceed; the defendants — including Whitmer — ask the U.S. Supreme Court to hear it; or the 16 judges who sit on the 6th Circuit appeals court can take the highly unusual step of choosing to revisit the decision, hearing it en banc.
A spokesman for the governor’s office says Whitmer is reviewing the decision, noting that she has never challenged the merits of the case. Because of this, an appeal to the high court is unlikely. The case was originally filed against a Republican administration, and on the campaign trail, Whitmer — a Democrat elected in 2018 — expressed support for a right to literacy. In any case, it’s unlikely either side wants the Supreme Court to weigh in; if it overturned the Detroit decision, that could create a precedent foreclosing future suits based on the same legal theory.
If the full Circuit Court does not decide to rehear the issue, the opinion will stand. If it does, it would likely be because the full appellate court felt its three-judge panel had made a clear error, say legal scholars. In that situation, a rehearing could very well overturn the decision.
In lieu, then, of a trial — at which the governor and state attorney general would have to defend the status quo — the parents want a plan.
“What we are asking for in the settlement is to make sure our students get what they deserve,” says Wytrice Harris, 482Forward director and the mother of two Detroit Public Schools alums. “As a black mom, this case is about racial and economic justice for Detroit students, and the settlement needs to keep that in mind. That means things like decent facilities, well-paid teachers, small class sizes and resourced classrooms.”
If that sounds like a wish list that could apply to many U.S. school systems, consider the conditions at Osborn High School, located on the city’s east side. Two of the suit’s five plaintiffs attended specialty high schools located in the building that have been merged back into one program since the suit was filed. At Osborn Academy of Mathematics, fewer than 4 percent of high school juniors could do grade-level math in 2014-15, the year before the suit was filed. Next door, at Osborn Evergreen Academy of Design and Alternative Energy, none passed. Fewer than 2 percent of Osborn Math and 5 percent of Osborn Evergreen students passed state reading exams. Not a single student at either school was college-ready in math, and just 5 percent and 2 percent, respectively, were proficient in reading, according to the ACT college admissions test.
Between unfilled teaching positions and high teacher absenteeism, students had subs in two classes a day. “In other circumstances, classes may be covered by administrators, security guards, paraprofessionals or no one at all,” the plaintiffs said in court papers. “When there is no adult available to staff a classroom, sometimes students are permitted to sit in classrooms or the gym unsupervised.”
“There are no textbooks for the earth science, physics, or research and development science classes at Osborn [Mathematics], so the teachers in each of those classes rely on a section of the biology textbook most closely related to the subject they are teaching,” according to the complaint.
The building needs at least $28 million in work to repair everything from broken windows to a heating system that fluctuates so erratically that some students must wear winter coats in class, while others suffer heat stroke.
Roquesha Oneal dropped out of Osborn as a special education student back when it was one program, only to go back as a parent advocate when the oldest of her three kids was there. Her son, now 24, graduated with honors but had to go to work instead of college. She pulled her other two children out, one because he couldn’t get special education.
“I know so many people who went to Osborn who now struggle to make ends meet because they have no education,” she says. “The [need for] literacy is so deep. If the parents aren’t literate, how can they know their rights?”
It’s not just Osborn — the entire district lags, with proficiency in varying subjects and grades on the National Assessment of Educational Progress routinely in the single digits. Of the 58 percent of students who graduate high school on time, just one in four enrolls in college. Half of city residents lack basic reading and writing skills.
Bipartisan, high-powered efforts to get the state to address the city’s educational slide repeatedly have been stymied by lawmakers and lobbyists. In 2016, during the last major push to overhaul Detroit’s K-12 landscape, Betsy DeVos, not yet tapped to be the U.S. education secretary but a major lobbying force in Michigan education policy, proposed simply shuttering the district.
Frustrated with lackluster political responses to widening achievement gaps in Michigan and elsewhere, education advocates have increasingly looked to the courts for solutions. Even though literacy figures prominently in legal history, they’ve had an uphill slog.
After the Civil War, Congress required former Confederate states to begin making meaningful public education available to blacks, who were also to be given the right to vote. To re-enter the Union, Southern states amended their constitutions to recognize a right to education as necessary for participation in democracy. The other states followed suit.
State lawsuits demanding an adequate education, however, have tended to focus on school funding and integration and often fail because few constitutions set a high bar. Public Counsel, which brought the Detroit suit, is one of a number of public interest law firms that have pushed cases using new theories that return to the nexus between literacy and citizenship.
Earlier this year, Public Counsel settled a state-court literacy case against California. Because, prior to the suit, the state had identified but failed to implement a number of specific practices that would dramatically ratchet up reading levels, the settlement is designed to prod districts to attempt evidence-backed strategies.
The California settlement could provide a model for Whitmer and the Detroiters, says Kristine Bowman, a professor of law and education at Michigan State University and the co-author of an amicus brief in the Detroit case. The 6th Circuit opinion, she notes, concluded that the right to literacy has three aspects: facilities, teachers and materials.
If Whitmer agrees to settle the case, the right to literacy will be the law in four states covered by the circuit court: Michigan, Tennessee, Kentucky and Ohio. But attorneys can also use the decision, which she calls “perhaps strongly persuasive,” as precedent in cases elsewhere.
“Scholars have been theorizing for decades what a right to education could look like,” she says. “There are going to be countless questions that have to be asked in the wake of this decision.”
Director of Public Counsel’s Opportunity Under Law program, Mark Rosenbaum, has spearheaded the literacy litigation. He says he hopes the Detroit decision ushers in a new era of legal advocacy for education rights. “A good question is why, in 2020, we have to be in a courtroom to establish that a child has a right to a classroom and a teacher and books,” he says. “My hope is there is never another case filed with facts anything like this.”