Federal appeals panel hears arguments over Detroit literacy: 'This is not an easy case'

Cincinnati — A panel of U.S. Court of Appeals judges sought answers Thursday in a historic case over whether Detroit school children can access literacy amid deplorable conditions in their schools and whether the state of Michigan denied their rights when it ran the district.

A three-judge panel heard oral arguments Thursday in the 2016 case in which seven Detroit students allege a lack of books, classrooms without teachers, poor building conditions and extreme temperatures deprived them access to literacy in their public schools.

A lawyer for the state of Michigan, however, argued decreased student enrollment triggered a loss of financial resources to Detroit schools and that the state is not responsible for what happened in the district during its two decades of oversight.

Judges Eric L. Clay, Jane Branstetter Stranch and Eric E. Murphy spent more than an hour hearing from attorneys from both sides and asking questions about the case.

The class-action lawsuit, which is seen as an unprecedented attempt to establish that literacy is a U.S. constitutional right under the 14th Amendment, is being closely watched by education, legal and civil rights experts with some saying it could make its way to the U.S. Supreme Court.

Inside the courtroom on Thursday were 65 observers, including Detroit Public School Community District superintendent Nikolai Vitti, two state board members, community members and former student Jamarria Hall, who is one of the seven plaintiffs.

►Read more: Court weighs Detroit literacy battle: 'Is this really education?'

All three judges had tough questions for attorney Ray Howd, who represents Gov. Gretchen Whitmer and other defendants in the case. Stranch and Clay both told Howd the ultimate legal authority over Detroit schools in 2016 was the state of Michigan, which installed emergency managers at DPS from 2009 through Dec. 31, 2016.

"I am contesting that," Howd told Clay, who was appointed by President Bill Clinton.

Stranch told Howd there is 20 years of evidence of the state of Michigan coming in and taking over local control in school districts and municipalities.

"And it is capable of reoccurring," said Stranch, an Obama appointee, of state control.

Murphy, who is a Trump appointee, asked attorney Carter Phillips, who represents the schoolchildren, whether current case law by the U.S. Supreme Court proves or disproves the case before the appeals court.

The U.S. Constitution does not explicitly guarantee the right to education, and the nation’s highest court so far has not weighed in. But there are several cases that look at the issue of education.

"Even the state Constitution says it is extremely important," Phillips said. "Then it has to be fundamentally important. No one can doubt that not having literacy will impact every other right. ...You can't read the Constitution if you can't read."

All three judges asked Phillips what a remedy might look like and who or what would pay for it.

"You want a decent school system set up and decently staffed," Clay said. "You don't make clear how you want the court to help via an injunctive order. ... If you want money, where does that come from?"

Clay then said to Phillips, "This is not an easy case."

Phillips replied, "I would not be here if it was an easy case."

Phillips went on to the tell the panel: "I can't tell you what the remedy would be. ... Rather than deny these kids access to literacy ... grant them that right."

Howd told the panel that any rules the state had in place to directly operate school districts, such as the Education Achievement Authority — a turnaround district for some of the worst-performing Detroit schools — priority schools and the school reform office have all been removed from state powers and that local control is back.

"So the question arises: What kind of injunctive relief could a court issue to tell the state to stop doing what?" Howd said. "There is no longer a remedy. … If there is a continuing constitutional violation then the plaintiff would have to bring in the Detroit school district."

Stranch and Clay asked Howd how that would remove the state from being the responsible party in the case.

Howd responded "there is no longer a continuing constitutional violation."

"Based on what? What is the basis for that statement?" Clay said. "The conditions in the schools have not changed or improved."

Howd said the Michigan Legislature gave the district a $617 million bailout in 2016 to help pay off $467 million in operating debt and provide $150 million in start-up funding for DPSCD the new, debt-free district.

Oral arguments were concluded by 10 a.m. Thursday. Howd declined further comment in court, referring questions to state officials who also declined comment on the pending litigation.

Mark Rosenbaum, the lead attorney for the students, said after court that he and other counsel were "extremely satisfied" with the judges' questions and the time they had to respond.

"Literacy is the keystone to be able to exercise any Constitutional right and better yourself," Rosenbaum said. "The state had no explanation or justification for the manner by which it ran the schools."

The appeals court is expected to issue a written opinion on the matter in the next few months. It could uphold the lower court's decision to dismiss the case, reverse that ruling and send the case back to federal court in Detroit for trial or do a combination of the two.

Joe Urban, an education attorney with Clark Hill in Detroit, said Supreme Court precedent in the matter is clear, but he believes change is still possible.

"Eventually, the Supreme Court may come to the conclusion that literacy is a fundamental right as these cases come forward," Urban said. "... These things evolve as the court is presented with compelling facts that show these desires or things impact real people on the ground."

The students have tremendous support from the more than 45 amicus briefs filed in the case that urge the federal appeals court to declare the education being provided to children in Detroit is separate and unequal compared to its well-resourced neighbors, and that a lack of literacy dooms the children to a future with low earnings and no voice in a democratic society.

At the time of the lawsuit's filing, the plaintiffs were students at five low-performing schools in Detroit: three schools in the Detroit Public Schools district, which is now known as DPSCD and two charter schools.

The class-action lawsuit is seen as an unprecedented attempt to establish that literacy is a U.S. constitutional right under the 14th Amendment. Legal experts are split on the case's ability to ultimately set a new precedent that could change the way states are required to deliver education in America.

The state operated Detroit Public Schools for two decades, starting in 1999 when the Michigan Legislature removed the locally elected board of education amid allegations of mismanagement and replaced it with a seven-member reform board. The state released the district from emergency management on Dec. 31, 2016.

After court, Vitti, who came to the district in May 2017, said hearing attorneys talk about the state of the district in 2016 was a painful reminder.

"It reminds me how the school district just deteriorated and how many children were lost in that process from an educational point of view, from a literacy point of view, civil rights point of view," Vitti said. "We have to get this right moving forward."

Vitti added it was "disturbing" to hear the attorney for the state "not take ownership on behalf of the state of what happened in the past."

"This was an opportunity lost, not to do more to address ills of the past," Vitti said. "That has been disappointing to this point."

Vitti said the district still remains under a form of state oversight by a financial review commission.

"To this day, we have not received something in writing that we would be released," Vitti said.

Asked what remedy he would ask the courts for first, Vitti said the district cannot bond and desperately needs to address facilities issues.

The Detroit News in April detailed the building conditions in the city's public schools, repairs with a price tag anticipated near $543 million and a district unable to collect taxes to address it.

Vitti also said the district needs more resources to hire and attract teachers. Its shortage has been reduced to around 60. Most schools today have the up-to-date books and supplies they need, Vitti said.

Hall, who graduated from Osborn in 2017 at the top of his class, but said it was typical in his high school for teachers not to show up for days or weeks, for students to be sent to the gym to watch movies and for school buildings to literally be deteriorating around him.

Hall, 19, said Thursday's court hearing was “eye-opening.”

“I think went pretty great. … The state has their mind made up it's not their fault," he said.

Hall, who has since struggled with remedial courses at a community college, said he thinks the appeal will be successful.

"We will be able to live on and fight another day," Hall said.

jchambers@detroitnews.com