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Two legal rulings on whether education is a fundamental right for school children are expected to come from Detroit’s federal bench in coming months and could have a profound legal impact on public education if appealed to the U.S. Supreme Court.

One case, filed by a California special interest law firm, received substantial media attention when lawyers claimed their lawsuit on behalf of Detroit school children was an unprecedented attempt to establish literacy as a U.S. constitutional right.

Yet seven months earlier, the American Federation of Teachers put a similar question before a different federal judge when it sued Detroit Public Schools over its poor building conditions.

U.S. District Court judges David Lawson and Stephen J. Murphy III each have a separate — but similar — case on what has become a controversial education issue.

Because the Detroit cases are filed in federal court, they could reach the U.S. Supreme Court, from which any ruling would force nationwide changes to education.

In the case before Lawson, the AFT alleges DPS building conditions are so dangerous they will cause harm to students and their educational opportunities. Attorneys are asking Lawson to find that children in Detroit have a “right to minimally adequate education.”

While the case focuses on the deplorable conditions found inside schools, the central question of the case — as in the literacy case — is whether education is a fundamental right.

In the case before Murphy, the students allege that broad conditions — lack of books, classrooms without teachers, insufficient desks, buildings plagued by vermin, unsafe facilities and extreme temperatures — have an adverse impact on literacy.

That suit claims the state has functionally excluded Detroit children from the state’s educational system. It seeks class-action status and several guarantees of equal access to literacy, screening, intervention, a statewide accountability system and other measures.

“Ours is further along,” said attorney Robert D. Fetter, who is lead counsel for the AFT in its case. “If they go in an ordinary manner and course, then (our) case against DPS and new district would get a decision first.”

Fetter, who is also counsel on the other case before Murphy, added: “If we get a decision that children have a right to minimally adequate education, that helps the other case.”

Is education a right?

Each case operates on different theories, but both offer the court a chance to reconsider the importance of education and how it should be defined — as a right or not.

Michael Rebell, professor of law and educational practice at Teachers College Columbia University, said he believes the AFT case is unlikely to succeed in federal court in establishing a federal right to education, while the case focused on literacy has a chance to change the outcome of education in Detroit and beyond.

“The literacy case has a shot. Their theory goes to what is a capable citizen in a democracy,” Rebell said. “The AFT case is talking about school facilities. I guess you can make that argument, but it’s much more tenuous and distant.

“It’s one thing to say if a kid can’t read, how can you read a (voting) ballot and (partake in) First Amendment free expression. It’s another thing that you had to put up with a leaky roof and you aren’t a capable citizen. For a judge to respond to these cases are quite a leap.”

Brian Schwartz, attorney for the school district, said during recent arguments before Lawson that DPS is committed to educating students and repairing its buildings. Schwartz declined to comment for this story. In court, he said the district has re-established an Ombudsman Office through the city of Detroit and has worked with the city to get certificates of occupancy for its buildings.

“That education is a fundamental right, no we don’t believe that,” Schwartz said. “They have never identified an injured victim.”

The district has great discretion in how it disperses its funds, Schwartz added. “The lawsuit is about whether the district has to fix its buildings, and no court has held so,” he said.

Fetter told Lawson that his office had performed an investigation into conditions at the schools and had statements from students and parents that rat feces and urine fell on a Blackwell Institute teacher when she pulled out materials.

“We think there are still serious problems. They’ve submitted no evidence it’s been fixed,” Fetter said.

Children are being deprived of the opportunity to learn and for teachers to teach, Fetter added.

Lawson responded: “Don’t I need to find there is a fundamental right to education?”

“Yes, we would like you to say that, but there are other ways to move forward,” Fetter said.

Fix the schools

Lawson asked Fetter if he was alleging neglect by the district. Fetter said he was not, saying the district engaged in deliberate conduct.

“They knew the schools were in bad shape and did not fix them,” Fetter said. “They have an obligation to maintain and repair all public buildings and they are not doing that.

“We’re not asking the court to tell them how to fix the schools, just to fix them.”

Fetter said the source of the fundamental right is in the U.S. Constitution. But Schwartz said public education is not a right guaranteed to individuals in the Constitution.

Joe Urban, an education attorney with Clark Hill who represented Highland Park Academy System’s Board when the district was sued by the ACLU over literacy, said the cases are asking different questions toward the same end.

“The AFT is saying the school district of Detroit, for whatever reason, from an infrastructure basis is not serving the kids and providing them a platform for education,” Urban said. “In the public sector case, they are saying they are not providing staff with trained literacy and the training to address literacy shortfalls.”

Urban says he agrees with state officials there is no fundamental right to literacy or education, but the discussion does not stop there.

“Just because there may not be a right that doesn’t mean there isn’t an obligation ... just because people may not have a right to public education does that mean we should look at policy levels of what would allow people to be educated to the point where they can access democratic rights?”

The question the AFT is asking is what infrastructure do we need to provide so kids can learn.

“Didn’t litigation accomplish its end for the AFT? The mayor toured the school, many schools were brought up to code. This is the type of ligation where the very fact of filing galvanized action”

JChambers@detroitnews.com

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