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Michigan Attorney General Dana Nessel has filed a legal brief siding with Detroit school children suing the state of Michigan, arguing the Constitution requires public schools to provide students with a minimally adequate education.

"Although the U.S. Supreme Court has not yet recognized a right to a public education, it left the door ajar with respect to the right to a minimally adequate education," Nessel wrote in her brief filed Friday with the U.S. Court of Appeals.

"The time has come to push that door wide open. In fact, it is long overdue. A minimally adequate education cannot be just a laudable goal — it must be a fundamental right. That is the only way to guarantee that students who are required to attend school will actually have a teacher, adequate educational materials, and a physical environment that does not subject them to filth, unsafe drinking water, and physical danger."

In 2016, a group of Detroit schoolchildren filed a lawsuit against the state of Michigan in U.S. District Court alleging they were denied access to literacy, a right they asserted is provided under the Constitution.

Legal observers have said the lawsuit is an unprecedented attempt to establish that literacy is a 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.

Attorney Mark Rosenbaum, who represents the children, said Friday the filing is a "development of the highest order" when the state officer charged with enforcing the Constitution and ensuring that all children receive equal educational opportunity stands up in federal court on behalf of Detroit schoolchildren to say that the state can no longer deny them an adequate education.

"It is now just the governor and certain members of the State Board of Education who are blocking the path to the future of these deserving children," Rosenbaum said. "AG Nessel is right to place this struggle in the context of the historic fight against racial discrimination and to call out its importance to the meaning of democracy."

In late May, attorneys for Gov. Gretchen Whitmer argued the case should be dismissed because students in Detroit Public Schools Community District have been returned to local control the state should not be subject to the lawsuit.

The motion filed on behalf of the governor was signed by Deputy Solicitor General Eric Restuccia. The attorney general’s office has established a conflict wall in the literacy, state officials said.

In her 45-page legal brief, Nessel admits the right to public education is not expressly mentioned in the Constitution.

"But neither are most of the rights we recognize as fundamental. The sparse constitutional text does not mention the right to marriage or the right to privacy, yet we have found our treasured document to embody these rights," she wrote.

Members of the state board of education have taken different positions on the matter. Some support dismissing the lawsuit while others are considering different positions.

Under the prior administrations of Gov. Rick 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 2018, 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.

The case remains before the Court of Appeals.

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

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. Experiencia closed in 2016, and Hamilton is being converted to a DPSCD school to open this fall.

On Friday, Vitti called Nessel's response to the lawsuit courageous.

"We need more elected officials outside of Detroit to step out of their political comfort zones to address historic and current injustices and inequities that negatively affect Detroit children," Vitti said. "Part of that historic injustice is the right to literacy. We hope her example inspires others to act on this topic and others — including facilities and teacher pay.”

jchambers@detroitnews.com

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