Michigan Settles Recent Detroit Case, Establishes Right to Literacy as a Federal Precedent

Sunday, May 17, 2020, was the 66th anniversary of the landmark education civil rights case, Brown v. Board of Education. America’s continued failure to realize the promise of the Brown decision has been appalling.

Although Brown and follow-up lawsuits ended de jure segregation (the intentional creation, by law, of segregated schools for black and white children), most Americans have found a way legally to persist in educating their children in racially isolated school settings. Two U.S. Supreme Court decisions in the early 1970s are well known for protecting separate and unequal public education: the 1973 decision in San Antonio v. Rodriguez, which found that public education is not a federally protected right under the U.S. Constitution, and the 1974 decision in Milliken v. Bradley, which banned cross-district busing for racial integration. Across many school districts, including the schools in big cities like Detroit, Milwaukee, St. Louis, Los Angeles, and New York, children attend school in buildings that are more racially segregated than they were all those decades ago.

At the end of April, however, in a Detroit case, a three judge panel of the 6th Circuit Court of Appeals established a new precedent, extending federal protection over every student’s right to basic literacy.  The worry in recent weeks has been that the decision would be overturned. Michigan’s legislature had requested the full 6th Circuit Court of Appeals to set aside the ruling of its three-judge panel. Many also worried that the U.S. Supreme Court would overturn the decision.

But the further appeal of this case now seems far less likely. Last Thursday, the state of Michigan settled the case and agreed to a financial remedy.

For the Detroit News, Jennifer Chambers and Beth LeBlanc report: “A historic settlement reached between the state and Detroit students calls for $94.5 million in future literacy funding, a $280,000 payout among seven plaintiffs and the creation of two Detroit task forces to help ensure a quality education for students.  News of the agreement came after the Detroit students were locked in a nearly four-year legal battle with the state for better school and learning conditions. The lawsuit was brought by seven students who argued they were deprived of access to literacy because of a lack of books (and) teachers, and poor building conditions.”

The Washington Post‘s Valerie Strauss reminds readers that this federal case —Gary B., et al. v Whitmer, et al.  was “filed on behalf of students in some of the lowest-performing schools in the long-troubled Detroit Public Schools system. Their underlying case was based on the due-process and equal-protection clauses of the 14th Amendment.”

Strauss outlines the settlement to which the state agreed. Governor Gretchen Whitmer must, “provide $280,000 to be shared among the seven individual student-plaintiffs to access a high-quality literacy program or otherwise further their education, as well as $2.72 million for the district to fund literacy-related supports.”  Whitmer can meet this requirement of the settlement without legislative approval.  Whitmer must also “propose legislation during her first term that would provide Detroit public schools with at least $94.4 million for literacy-related programs and initiatives.”  She must “advise school districts around the state how to improve access to literacy and literacy proficiency, including with strategies such as reducing class, racial, and ethnic disparities; allow for the creation of a non-governmental Detroit literacy equity task force—made up of students, parents, teachers, literacy experts and others—to conduct yearly literacy evaluations in Detroit and provide state level policy recommendations to the governor; (and) create or allow an existing body to serve as a Detroit educational policy committee that will focus on the stability and quality of the overall educational ecosystem in Detroit.”

There is no guarantee, however, that the full financial settlement will promptly be provided to enrich educational opportunity for Detroit’s students. Detroit Free Press columnist Nancy Kaffer describes the very cautious optimism of Mark Rosenbaum, the plaintiffs’ attorney: “Even he concedes that the governor’s support for the plaintiffs’ cause doesn’t guarantee anything.”  While Whitmer herself has agreed to provide $280,000 to be shared among the seven individual student-plaintiffs and $2.72 million for the Detroit school district to provide literacy-related supports, Kaffer warns: “The big ask—that $94 million—will require cooperation from the same Legislature that wanted the ruling tossed out, and which has not been sympathetic to the woes of schoolchildren in Detroit… And that kind of big cash infusion is what it will take to make real change in Detroit schools.”

The Detroit Public Schools were taken over by the state in 2009 and operated by a series of emergency fiscal managers appointed by Governor Rick Snyder. Emergency managers were charged with imposing tight fiscal controls; the Flint water poisoning was the most notorious example. In 2016, after the school district was returned to local control, Superintendent Nikolai Vitti was appointed in May of 2017, to restore stability and educational quality to the school district under the control of the local elected board of education. The Detroit News quotes Superintendent Vitti commenting on last week’s settlement in the case of Gary B. v. Whitmer: “Unfortunately, this settlement does not make the students or the school district whole after the abomination of emergency management. I blame the ugly face of politics for that.” Vitti comments on the importance of Governor Whitmer’s role going forward: “Her legacy has yet to be defined as a transformative force for Detroit’s children educationally. That legacy will be defined by how hard she fights for the proposed changes to per-pupil funding and the district debt restructuring that is named in the settlement.”

There is still a remote chance that, despite Michigan’s settlement of the case last week, earlier legal requests might push the full U.S. Court of Appeals for the 6th Circuit to reconsider. An appeal would be dangerous, as the legal precedent—the federal protection of the right to literacy—could be overturned by an appeal.  However, the Detroit News quotes a dean emeritus and professor at the University of Michigan Law School, Evan Caminker, who judges that following a settlement by the state, the full 6th Circuit Court of Appeals is unlikely to reconsider the case: “The settlement should end the matter.”

Two school funding attorneys have also commented to the press this week celebrating the quick settlement of this case, on the assumption that the Gary B. v. Whitmer is now not likely to be appealed.  If the decision stands, it establishes an urgently needed legal precedent nearly fifty years after the U.S. Supreme Court in San Antonio v. Rodriguez decided that public education is not a federally protected right.

Michael Rebell, a school finance attorney at Teacher’s College, Columbia University and the plaintiffs’ attorney in an ongoing Rhode Island case now in federal court, declared, “The (Detroit) settlement impacts our case. There is now a precedent in the 6th circuit.  It is a big breakthrough.  In 45 years, there has been no federal court saying there is any type of right.”

Derek Black, a law professor at the University of South Carolina explains: “Now we have precedent. The principle in this case is so important to not only the children in Detroit, but also to the hopes of children everywhere.”

Appeals Court Decision Guarantees Basic Literacy as a Federal Fundamental Right for Detroit’s Children

In a court decision last week in a case brought by students in Detroit, Gary B. v Whitmer, a three judge U.S. Court of Appeals panel recognized that a basic level of education is a federal right under the “due process” clause of the Fourteenth Amendment of the U.S. Constitution. The appeals court overturned a lower court decision which had dismissed the case.

Derek Black, a professor at the University of South Carolina School of Law explains the significance of this decision: “The Sixth Circuit Court of Appeals, in Gary B. v Whitmer, just delivered the holy grail of education advocacy: a federal fundamental right to education. The court narrowly defined the right as a ‘basic minimum education,’ but most rights revolutions begin somewhere small.”  Black cautions, however, that the case will likely be appealed to the full Sixth Circuit Court of Appeals and to the U.S. Supreme Court as well.  Prospects for its survival in these higher courts are small.

Why does this case matter so much?  Black explains: “The last 50 years of negative Supreme Court precedent reveals just how momentous Gary B. really is. In the early 1970s, three highly controversial Supreme Court decisions effectively locked in educational inequality.  First, the court held that the U.S. Constitution only prohibits school segregation resulting from the intentional discriminatory acts of public officials. Private segregation is beyond the court’s reach. (Keyes v School District Number 1, Denver)  Second, courts cannot order metropolitan-wide integration in the absence of something approaching segregative collusion between school districts. (Millikin v. Bradley) Third, education is not a federal fundamental right. That means funding inequalities between poor and rich districts are constitutionally irrelevant. (San Antonio v. Rodriguez)…  These outcomes sparked litigation in state courts. Advocates argued that the education clauses in state constitutions obligate states to provide equal and adequate education, winning numerous important victories. But many state legislatures also fought tooth and nail to delay, minimize, and avoid meaningful remedies….”

In last week’s majority Detroit decision, Appellate Judge Eric Clay declares that, “Every meaningful interaction between a citizen and the state is predicated on a minimum level of literacy, meaning that access to literacy is necessary to access our political process.”  Clay traces the development of public schools across the United States prior to the adoption of the Fourteenth Amendment in 1868: “There are two main takeaways from this history of racial discrimination in education… First, access to literacy was viewed as a prerequisite to the exercise of political power, with strong correlation between those who were viewed as equal citizens entitled to self-governance and those who were provided access to education by the state.  Second, when faced with exclusion from public education, would-be students have repeatedly been forced to rely on the courts for relief. The denials of education seen in these cases and beyond are now universally accepted as serious injustices, ones that conflict with our core values as a nation.  Furthermore, the substantial litigation devoted to addressing these exclusions reveals the unparalleled value assigned to literacy, which is viewed by our society as essential for students to obtain even a chance at political and economic opportunity.” (You’ll find the complete decision in Gary B. v Whitmer at the end of Valerie Strauss’s column here.)

A simple review of what’s been happening in Detroit over the past decade reminds us of the ways Detroit’s public schools have suffered from outrageous and punitive policies imposed by the state of Michigan. The city’s economic collapse has closed schools as neighborhoods have emptied out and as charter schools, eighty percent of them operated by for-profit management companies, have had the latitude to open wherever they please without any control by the public school district. The state has instituted cross-district open enrollment, by which many Detroit students take all of their state and local dollars to the schools in neighboring communities, but the Detroit schools cannot cut districtwide expenses quickly enough to avoid fiscal catastrophe. A statewide Michigan Education Achievement Authority was created to seize a number of Detroit’s public schools for turnaround. The agency was never expanded beyond Detroit, and the agency itself was shut down due to its utter failure to improve the schools it had seized. Michigan law permitted previous governor, Rick Snyder to respond to the financial crisis in Michigan’s school districts by appointing emergency fiscal managers, whose defined mission was to save money that state leaders alleged school districts were wasting. But the problem was never school district mismanagement.  A team of researchers led by David Arnson of Michigan State University explains:  “(T)he grounds for this emergency intervention under state law are strictly financial.  State policy presumes that local district fiscal distress is caused by local officials’ poor decision-making and management…. Our findings, however, indicate that state school finance and choice policies significantly contribute to the financial problems of Michigan’s most hard-pressed districts.  Most of the explained variation in district fund balances is due to changes in districts’ state funding, enrollment changes including those associated with school choice policies, and special education students whose required services are inadequately reimbursed by the state.”  Detroit’s children have suffered from tragic injustices.

When the Gary B. case was originally filed, Governor Rick Snyder was the named defendant. Gretchen Whitmer, now the governor of Michigan, was substituted as the defendant when she took office.  At the time the lawsuit was filed, Detroit’s schools had been taken over by the state and were being operated by a state emergency fiscal manager. As the current case was being tried, the state argued that it is no longer operating the schools and should not be held accountable. However, the Detroit News reports: “The state of Michigan’s argument that the lawsuit should be dismissed because it seeks remedies for past harms also was rejected by the appeals panel… The judges also dismissed the state’s argument that it should not be implicated in the lawsuit because the schools were now under local control, noting that the funding, policy and oversight of schools lies at least in part with the state. ‘In sum, it is evident from the Michigan Constitution and statutes, as well as its prior interventions in the school system, that the state retains significant authority over Detroit’s public schools,’ the decision said.”

While the declaration of public education as a fundamental right under the U.S. Constitution is urgently needed, legal experts warn that the Gary B. decision will likely be overturned.  And the experts do not agree about what is likely to be the winning legal strategy.  For the New York Times, Aaron Tang at the University of California at Davis School of Law and two education scholars warn that the case will not survive what are likely to be appeals: “This candid recognition of the unjust educational conditions facing Detroit’s poorest children is admirable. But there is almost no chance that the Sixth Circuit’s ruling will ever be enforced. The entire Sixth Circuit, of which only five of the current 16 members were appointed by Democratic presidents, will almost assuredly take up the Gary B. panel opinion.  And the panel’s ruling is unlikely to survive the review. Even if it does, the conservative majority on the Supreme Court is exceedingly unlikely to let it stand.”

Derek Black points out that after years of lawsuits that tried and failed to establish public education as a federally guaranteed constitutional right, Gary B. is, surprisingly, one of two court victories in 2020. The first was in Mississippi: “The first in Mississippi largely went unnoticed because rather than directly claiming a fundamental right to education, plaintiffs argued that Mississippi was violating—get this—the terms of its readmission to the Union following the Civil War.  Congress conditioned Mississippi’s readmission on it never depriving its citizens of their educational rights. The Fifth Circuit held that those conditions are enforceable.”

Another case, Cook v Raimondo, has been brought in Rhode Island.  Michael Rebell, a school finance attorney and the executive director of the Center for Educational Equity at Columbia University’s Teachers College, is the lead attorney in this case.  Rebell litigated the successful New York state school funding adequacy case, decided by the state’s highest court in 2001. Commenting on last week’s decision in Gary B., Rebell criticizes the framing of the case for setting the bar too low.  Rebell believes that while basic literacy is a start, students ought to be guaranteed far more:  “We applaud the outcome of the Gary B. case, which may bring important relief to students in Detroit.  Nevertheless, we are concerned about the narrow scope of the right to education as defined by the Sixth Circuit opinion. We are hopeful that Judge Smith in Rhode Island will declare that under the equal protection clause, or other constitutional provisions, students have a fundamental right to a more robust and meaningful education—one that provides the knowledge, skills, experiences, values, and civic integration necessary to prepare them to function effectively as civic participants in a democratic society.”

Black, on the other hand, believes a broader definition of education as a federally guaranteed fundamental right will have to come slowly through several narrower but ever expanding definitions of what constitutes the right to a basic education. Black worries that the appeal of the Michigan case could possibly endanger the rights guaranteed in an earlier, 1982 U.S. Supreme Court Decision in Plyler v. Doe: “The Supreme Court could do more than just reject a fundamental right to education; it might undermine good precedent. One of the key Supreme Court precedents in favor of a fundamental right to education is Plyler v Doe. The court in Plyler struck down a Texas law that excluded undocumented students for treatment that would consign them to a permanent underclass.”

Black warns, “The other risk is blowing a great historical claim on hostile courts. Recognizing as much, the NAACP, the oldest civil rights organization in the country, spent two decades carefully enforcing the doctrine of separate but equal before directly asking the court in Brown v. Board of Education to overturn segregation… Right now, the only plausible path forward that doesn’t damage the pristine logic of Gary B. or threaten precedent like Plyler is to follow the NAACP’s strategy. That means finding a way out of further litigation in Gary B.”

In states with cities like Detroit—and Milwaukee and Cleveland and Oakland—legislatures have been unwilling to provide adequate funding, equitably distributed through their state education funding formulas. Wealthy suburbs continue to allocate massive local subsidies for small classes and all the necessary support services along with wonderful music and arts enrichments for students at the same time schools in poor, majority African American and Latino school districts languish.  Across the United States, more public money—state and local dollars combined—continues to be invested in the public schools that serve the wealthiest students and far less in the schools that educate the poorest students.  Even in states where the courts have intervened, state legislatures persist in finding ways not to fund the remedies required by the court orders.

Although the Gary B. decision, if enacted into policy, will help Detroit’s children by establishing the right to basic literacy, even the experts don’t agree on the best path toward establishing a federal fundamental right for all children in the United States to an excellent public education. We live in an era of unfriendly courts, opposition to taxes, and the persistence of systemic racism.

New Federal Case Launched in Rhode Island to Establish Educational Equity as a Federally Protected Right

If you think about it, you’ll remember that for more than forty years, school equity cases have been filed under the education clauses of the 50 state constitutions. That’s because, in a 1973 decision, San Antonio v. Rodriguez, the Warren Burger, U.S. Supreme Court decided that, because education is not mentioned in the U.S. Constitution, education is not protected as a fundamental right under the Fourteenth Amendment.  But late last month a new federal lawsuit was filed, a case intended by the plaintiffs and their attorneys to establish that education is indeed a fundamental right, protected for all students by the U.S. Constitution.

The Associated Press’s Jennifer McDermott reports: “The Center for Educational Equity at Columbia University’s Teachers College and the Rhode Island Center for Justice filed the lawsuit.  Michael Rebell, lead counsel and a professor at Teachers College said citizenship has always been the prime purpose of education in the United states and schools have increasingly failed to carry out this responsibility nationwide.  Rhode Island, in particular, stands out because there is no requirement for students to take a civics course and no indication that teachers receive specialized training to teach the topic, among other issues, Rebell added.  He said the case is timely because, ‘we’re living in troubled times, Our democratic institutions are being challenged like never before.'”

The NY TimesDana Goldstein describes the goals of the plaintiffs: “The lawyers for the plaintiffs hope the case will have implications far beyond Rhode Island, and potentially prompt the Supreme Court to reconsider its 45-year-old ruling that equal access to a quality education is not a constitutionally guaranteed right.  ‘Our real hope for reinvigorating our democratic institutions comes with the young people and the next generation,’ said Michael Rebell, the lead lawyer for the plaintiffs. ‘What we’re really seeking is for the courts, especially the Supreme Court, to take a strong stance on getting back to first principles on what the school system was established for in the United States.'”

Michael Rebell is a seasoned attorney when it comes to educational equity.  He was the lead council in the successful New York case of Campaign for Fiscal Equity v. New York.  When, in a 2001 decision after several appeals, New York’s highest court ordered the state to invest more and distribute the funds more equitably, the Court defined civic preparation as a central purpose of public education. In a recent article for The Kappan, Rebell quotes that section of the New York court decision: “The purpose of public education today is to provide students the skills they need to ‘function productively as civic participants capable of voting and serving on a jury.'”

Why did the Center for Educational Equity at Columbia University’s Teachers College partner with the Rhode Island Center for Justice to launch a federal lawsuit against Rhode Island? Besides that the state lacks any civics requirement in its curriculum and lacks as well any requirement that teachers receive training in this area, there is evidence that the state’s provision of education is particularly weak for its many English language learners.  Dana Goldstein explains: “Beyond civics classes, the suit also argues that the state’s neediest children, particularly Latino immigrants and students with special needs, are failing to acquire the basic academic skills they need to effectively exercise their rights to free speech and voter participation.  Among eighth grade English language learners in 39 states, those in Rhode island ranked last in math and second to last in reading on the 2017 National Assessment of Educational Progress.”

The lead plaintiff in the new case is Aleita Cook, a student at a Providence high school. For The Atlantic, Alia Wong describes the class-action lawsuit named for her: “The 14 plaintiffs in Cook v. Raimondo, all public school students or parents on behalf of their children, accuse the state of Rhode Island of providing an education so inferior that the state has failed to fulfill its duties under the U.S. Constitution. But given that there is no explicit guarantee of education in the Constitution, the lawyers are making a sort of bank-shot argument: that in denying citizens of Rhode Island a quality education, the state is, in essence, preventing people from exercising their constitutional rights…. That this denial falls unevenly across the population is a violation of the Fourteenth Amendment, which promises people equal protection under the law.”

In his recent piece in The Kappan, Michael Rebell himself makes the case for civics education in the context of over fifteen years of No Child Left Behind’s focus on basic literacy in two tested subjects— language arts and mathematics: “Civic participation—whether as voters, jurors, or people working together to make a change in the community—requires a working knowledge of many subjects, including history, politics, economics, science, and technology.  The educational priorities established in the No Child Left Behind Act and now perpetuated in the Every Student Succeeds Act stress competency in basic literacy and mathematics, but not in civics, history, world languages, social studies, economics and the arts.  Particularly in schools with constrained resources, what gets tested is what gets taught; the lower-priority status of civics, history, social studies, economics, and the arts in state accountability systems has meant that schools have substantially reduced the time students spend engaged in these areas.  In the mid-20th century, three civics-related courses were common in high school: civics, problems of democracy, and American government.  Today, civics and problems of democracy courses have largely disappeared. In many states, no civics courses at all are required; in others, the only mandate is for a one-semester course in American government.”

Writing this week on the importance of civic preparation in public schools, education law professor Derek Black also makes a strong case for increasing access to civics education: “Democracy is a double edged sword.  It places political power in the hands of the people, but to succeed, those people need to be informed well enough to make smart decisions.  An educated citizenry cannot be manipulated. Nor easily oppressed. An educated citizenry will guard its freedom jealously  And when these citizens get it wrong—and they will—they will disagree with one another.  And this slows down any major moves in the wrong direction.  So the inherent tension of democracy revolves around the need to place power in the hands of people who may or may not be well-informed.  Our founders—the people who wrote the federal and state constitutions we live under—firmly believed the only solution was to make sure we have a public education system that cultivates the skills that citizens need to participate in democracy.”