Nessel distances herself in literacy case; Whitmer attorneys argue state should be exempt

Attorneys for Gov. Gretchen Whitmer are arguing that because Detroit schools have essentially been returned to local control the state should not be subject to a lawsuit from Detroit schoolchildren alleging deplorable building conditions and a lack of teachers and textbooks denied their right to access literacy. 

The motion filed Friday is signed by Deputy Solicitor General Eric Restuccia instead of Attorney General Dana Nessel, who is distancing herself from the state’s argument.

The attorney general’s office has established a conflict wall in the literacy case and Nessel “may choose to take a different position,” Nessel spokeswoman Kelly Rossman-McKinney said Friday.   

Legal observers have said the lawsuit, filed in 2016, is an unprecedented attempt to establish that literacy is a U.S. constitutional right under the 14th Amendment.

The students, represented by a California public interest law firm, alleged deplorable building conditions, lack of books, classrooms without teachers, insufficient desks, buildings plagued by vermin, unsafe facilities and extreme temperatures.

"Decades of state disinvestment in and deliberate indifference to Detroit schools have denied plaintiff schoolchildren access to the most basic building block of education: literacy," the lawsuit says.

The 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.

In their filing Friday, the state's legal representatives claim "the facts and applicable laws governing plaintiffs’ complaint have fundamentally changed" and "Michigan’s Legislature has passed significant new laws designed to improve the educational opportunities for students in the Detroit Public School Community District."

The case, initially filed against Gov. Rick Snyder and others, was updated in May to reflect the new administration in Michigan, naming Whitmer, the interim state superintendent and newly elected members of the state board of education.

In a statement Friday, Whitmer's office noted that she signed on to only the first part of the lawsuit regarding the state's responsibility.

"The State of Michigan is no longer a proper party to the lawsuit due to changed circumstances and the fact that local control has been restored," Whitmer spokeswoman Tiffany Brown said in a statement. Brown noted the governor "believes that every student deserves a quality public education.

"That’s why her proposed budget will make the biggest investment in public school operations in a generation of kids, including more than $22 million for Detroit Public Schools," Brown said.

Mark Rosenbaum, the lead attorney for the plaintiffs in the case, said the filing Friday highlighted why a court case was necessary to restore something as basic as a child's right to education.

The governor campaigned on promises to support Detroit students' right to literacy but now is "nowhere to be seen when those rights are to be vindicated in federal court," Rosenbaum said. "It’s a complete abdication of responsibility to the kids in Detroit whose families and communities put them into office."

Whitmer's office responded to the criticism by pointing toward increased funding for Detroit schools in her proposed budget, as well as increases statewide in the number of literacy coaches, higher teacher pay, reduced class sizes and facility improvements. 

"The governor’s budget will also provide more funding for low-income and at-risk children and help them get on paths to good-paying jobs," Brown said.

Under the prior administration of Snyder and Attorney General Bill Schuette, attorneys for the state had asked U.S. District Judge Stephen Murphy III to dismiss the case, saying the U.S. Supreme Court and Michigan courts do recognize the importance of literacy but reject claims it is a legal right.

In 2016, attorneys for Snyder and state education officials said no fundamental right to literacy exists for Detroit schoolchildren. The lawyers sought to reject what they called an “attempt to destroy the American tradition of democratic control of schools.”

In June, Murphy dismissed the lawsuit, saying the due process clause doesn't require Michigan to provide access to minimally adequate education.

"In other words, access to literacy is not a fundamental right — at least not in the positive-right sense," Murphy wrote in his opinion. "Accordingly, the state's alleged failure to provide literacy access to plaintiffs fails to state an equal protection claim on the basis of burdening a fundamental right."

In July, attorneys appealed Murphy's ruling to the U.S. Sixth Circuit Court of Appeals and since March, attorneys in the case have been in confidential mediation.

In their filing Friday, lawyers for the state argued the appeal should be dismissed on "mootness grounds," noting the new Detroit Public School Community District "has now been under direct local control for the past two school years. There is no longer an emergency manager for the district. The Education Achievement Authority (EAA) was dissolved. ... The community district operates without any of the debt incurred under the old district."

The brief also said that "retroactive remedies against defendants are barred under the Eleventh Amendment. Accordingly, plaintiffs have no remaining viable claims against defendants."

The Detroit News reported last month that Detroit's school district has $543 million in unmet facilities needs and lacks the ability to collect a single penny of taxes to address widespread problems across 100 schools buildings.

Since coming to the Detroit school district in 2017, superintendent Nikolai Vitti has made systemic changes, including replacing an outdated curriculum, reducing chronic absenteeism and amassing a budget surplus.

Vitti has said implementing teacher-driven K-8 literacy and mathematics curriculum and new assessments with actionable data have resulted in stronger readers and growing mathematicians.

At the time of the lawsuit's filing, the plaintiffs were students at five low-performing schools in Detroit: Medicine and Community Health Academy at Cody; Osborn Collegiate Academy of Mathematics, Science and Technology; and Osborn Evergreen Academy of Design and Alternative Energy, which are all DPSCD schools. Hamilton Academy and Experiencia Preparatory Academy were charter schools.