Lawyer: Whitmer tried to 'game the system' with literacy settlement

Jennifer Chambers
The Detroit News

A lawyer for the Michigan Senate and House says neither body consented to a settlement agreement between Gov. Gretchen Whitmer and Detroit students over literacy access in their schools and accused the governor of "staging a deal" to lock in a favorable ruling and avoid further review by a federal appeals court. 

John J. Bursch, attorney for the Republican-controlled Michigan Legislature, filed a motion Friday asking the Sixth Circuit U.S. Court of Appeals to move forward with its plan to hold an "en banc" hearing with all the judges and reverse a groundbreaking ruling by a three-judge panel that found Detroit students have a fundamental right to a "basic minimum" education.

Gov. Gretchen Whitmer appears on the Axios show on  HBO on Monday, May 25, 2020.

On May 14, the Democratic governor announced a settlement between the state and Detroit students that calls for $94.5 million in literacy funding, a $280,000 payout among seven plaintiffs and the creation of two Detroit task forces to help ensure a quality education for students.

Five days later, the full panel of the Sixth Circuit Court of Appeals announced it would rehear the Detroit literacy case and vacate the April 23 appellate panel ruling.

In his 15-page filing, Bursch said: "A skeptic reviewing the timing and structure of the settlement agreement might reasonably conclude that the Governor and other aligned Defendants staged a deal so they could lock in what they perceived to be a favorable ruling for Plaintiffs and avoid en banc review."

Bursch, who filed a request on May 7 to allow the Michigan Legislature to intervene in the case, said the federal appeals court "should not allow such tactics to succeed" and that two non-settling parties in the case, state board of education members Tom McMillin and Nikki Snyder, did not sign the settlement agreement and remain parties in the case.

"What’s more, the Legislature satisfies the intervention criteria, and it does not consent to the settlement agreement either. A settlement cannot moot a case if some parties have refused to join it," he said.

Bursch also argued in his motion that although the panel opinion has been vacated, it has not been reversed and it will "doubtlessly be used again by litigants and lower courts to wrest control of education regulation and appropriation from state and local governments in favor of court-supervised school-rehabilitation plans."

On May 26, attorney Mark Rosenbaum, who represents the students, filed a brief with the appeals court saying the case has been resolved, the court had nothing to adjudicate and the Michigan Legislature should not be allowed to intervene.

"This lawsuit is over. The parties reached a settlement that resolves all claims at issue, and there is no case or controversy remaining for the Court to adjudicate," Rosenbaum wrote.

On Tuesday, Rosenbaum said generations of black children in Detroit have been denied even a basic minimal education because of more than a decade of neglect and indifference by the Michigan Legislature while the state controlled the district.

"That a settlement was reached as a first step to correct this ongoing injustice, that requires nothing of the Legislature, isn’t gaming the system, it’s about going straight to seeing that the system starts now to work for these children too,” Rosenbaum said.

Bursch criticized the settlement agreement in his motion, saying the "vast majority of its monetary provisions are promises to propose and promote legislation, not guarantees that those monies will ever actually be paid."

"An outside observer could look at the nature of the agreement and its timing and reasonably conclude that the Governor, aligned Defendants, and Plaintiffs worked together to try to lock in a ruling that they considered favorable," Bursch wrote. "The Court should be concerned about what appears to be an attempt to game the system, especially considering that future courts will continue to rely on the vacated panel opinion."

Tiffany Brown, a spokeswoman for Whitmer, said Tuesday the governor's office does not comment on pending litigation, "other than to say that after the plaintiffs prevailed before the Court of Appeals, the proper parties agreed to a settlement and the plaintiffs dropped their claims against all defendants, which ended the matter." 

The settlement agreement was expected to go into effect after attorneys for the students voluntarily dismissed their lawsuit against the state, but the appeals court announced its decision to hear the case en banc, throwing the settlement's status into question.

On April 23, the appeals 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 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.