Legislature asks full appeals court to hear Detroit literacy case

Jennifer Chambers
The Detroit News

The Michigan Legislature wants a groundbreaking ruling by a three-judge panel that found Detroit students have a fundamental right to a "basic minimum" education set aside and for the full appeals court to hear the case.

A lawyer for the Michigan Senate and House, both controlled by Republicans, filed a request on May 7 that the full Sixth Circuit Court of Appeals hear the case brought against the state of Michigan by seven Detroit schoolchildren who allege their right to access literacy was denied due to deplorable conditions in their schools.

On April 23, the panel issued a 2-1 ruling that the students' right to education includes access to skills deemed “essential for the basic exercise of other fundamental rights and liberties, most importantly participation in our political system.”

The full appeals court has the authority to rehear the case under "en banc" court rules, which require that the case involve one or more questions of "exceptional importance." Few such rehearings are granted, legal experts say.

The lawsuit, filed in U.S. District Court in Detroit in 2016 by seven Detroit school children, has been closely been watched by education, legal and civil rights experts, some of whom have said it would end up before the U.S. Supreme Court. 

In the case, students alleged that a lack of books, classrooms without teachers, poor building conditions and extreme temperatures deprived them access to literacy in their public schools.

The state of Michigan countered that decreased student enrollment triggered a loss of money to Detroit schools and that the state is not responsible for what happened in the district during two decades of on-again, off-again oversight.

In his appeal for state lawmakers, attorney John J. Bursch said the ruling is a "breathtaking attack on federalism that 'will immerse federal courts in a host of education disputes far outside [their] constitutionally assigned role.'"

"The financial implications of the panel’s decision to the State of Michigan — and the

extraordinary breadth of the panel’s holding — warrant en banc review," Bursch said in the appeal.

Bursch said no one would say that Detroit's public schools are performing at the level they should.

"But the answers for solving that problem cannot come from federal-court supervision based on the creation of fundamental rights that no one would have recognized in the text of the Due Process Clause at the time of its adoption," Bursch said. "The answers must come from state and local officials."

"Michigan and the Detroit Public Schools have consulted with countless experts and spent billions of dollars," Bursch said. "It is not reasonable to expect a single federal district court judge to do better."

It was not known whether Democratic Gov. Gretchen Whitmer, who is the defendant in the case, would join the request for a rehearing. Whitmer's staff was not immediately available to comment.

On Tuesday, Whitmer spokeswoman Tiffany Brown said the governor's office is not commenting on pending litigation "... other than to say what the governor has always affirmed: every child is born with a right to a quality education." 

Mark Rosenbaum, attorney for the students,responded to the filing, saying the federal court is the only hope of students becoming meaningful participants in a democracy. 

“The filing by the Michigan House and Senate reinforces the court’s conclusion that the political processes that serve majority students have not been and will not be similarly responsive to children of color from low income families even as to the provision of a basic minimum education," Rosenbaum said.

"Resort to the courts for these children to vindicate a right of access to literacy is their only realistic hope of becoming meaningful participants in our democracy and having a shot at bettering their circumstances,” he said.

State school board members Tom McMillin and Nikki Snyder also want the case reheard.

State board members Pamela Pugh and Tiffany Tilley have asked Whitmer to settle the case in support of the students.