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.”