Federal court upholds Detroit literacy settlement

Jennifer Chambers
The Detroit News

A federal appeals court on Wednesday dismissed an appeal in a historic case that granted Detroit students a fundamental but limited right to literacy under the U.S. Constitution, allowing a settlement to move forward with no further legal hurdles.

Nikolai Vitti, Superintendent of Detroit Public Schools Community District, interacts with students Burns Elementary students Janylah Mitchell, left, and Marlie Jones, both 6 years old, in their math class on Count Day, Wednesday, October 2, 2019 in Detroit.

All 16 judges on the 6th Circuit U.S. Court of Appeals signed an order saying an appeal filed in the case is dismissed based on the recent settlement announced between Gov. Gretchen Whitmer and Detroit schoolchildren who sued the state over their substandard public education.

The settlement rendered the question moot, the court wrote in its order. The decision means the landmark case will not be heard by the full panel "en banc," as the court had previously announced, and ensures the May 14 settlement can be carried out between the state and Detroit students. 

The agreement 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.

Mark Rosenbaum, attorney for the students, said Wednesday the dismissal paves the way for the settlement to be fully enforced.

"We are really happy. The settlement stands," Rosenbaum said. "The children and the community and teachers of Detroit stood up against the state of Michigan and governor and they won."

Rosenbaum said the case is over and "there are no more appeals." 

Five days after the settlement was announced, the full panel of the 6th Circuit Court of Appeals announced it would rehear the Detroit literacy case and vacate the April 23 appellate panel ruling.

That opinion, written by U.S. Court of Appeals Judge Eric Clay, said that implicit in the Constitution is a fundamental right to literacy, because without it one cannot exercise other rights fundamental to the democracy. The ruling was then appealed to the full court, but the settlement was reached before it could be heard.

Because other groups sought to have the question decided, the full court initially said it would hear the appeal, but has now declined.

Rosenbaum said although the original ruling was vacated, it was not overturned, which means courts in other jurisdictions can look at the decision but are not bound to follow it.

"Those words will live forever. They are not precedent, but they will survive to influence courts and communities in Michigan and across the country," he said.

Asked to comment on the dismissal, John J. Bursch, an attorney for the Michigan Legislature, which filed a request to intervene in the case, said: “The important point is that the en banc 6th Circuit already vacated the opinion, so it has no precedential value. From a legal perspective, it’s as though Judge (Eric) Clay never even wrote it.”

The Wednesday ruling ended the GOP-controlled Legislature's effort to become a party to the case.

Tiffany Brown, a spokeswoman for Whitmer, said although the case is over, the work to ensure all students are educated properly is not done.

"The governor has always said that every student, no matter where they come from, has a birthright to a quality public education. That’s a fight we must continue," Brown said.

Courtney Covington, a spokeswoman for the Michigan Attorney General's Office, said Thursday that the settlement did not need approval from the Legislature. She also released a statement from Attorney General Dana Nessel.

“The Sixth Circuit's recent dismissal of the en banc petition in the Gary B case leaves for another day a very important decision regarding education," Nessel said. "I am hopeful that in the future the Sixth Circuit — and eventually the U.S. Supreme Court —will recognize, as the initial Sixth Circuit panel did, that there is a fundamental right to a basic minimum education."


Courtney Covington

The lawsuit, filed in U.S. District Court in Detroit in 2016 by seven Detroit schoolchildren, has been closely been watched by education, legal and civil rights experts. 

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 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.

Several parties asked the Court of Appeals to vacate the original ruling and rehear the case, including the Tennessee Attorney General’s Office, which filed an amicus brief in late May on behalf of 10 states — Tennessee, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, Ohio and Texas.

Sarah K. Campbell, associate solicitor general for the Tennessee AG's office, wrote that the panel established a fundamental right to education that it claimed was “narrow in scope.”

“But that ostensibly 'narrow' right will radically transform the public education system,” Campbell said. “It will transfer authority to decide basic policy questions away from the state and local officials best suited to address them to unelected federal judges who are ill-suited for such a role. And it will mire states in unremitting and costly litigation without improving educational outcomes.”

Bursch had also asked the appeals court to hear the case "en banc," alleging the Michigan Senate and House did not consent to the settlement and accusing the governor, a Democrat, of "staging a deal" to lock in a favorable ruling and avoid further review by the federal court. 

In court filings, Bursch had called the 2-1 ruling 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 his appeal.

Peter Henning, a constitutional law expert and former federal prosecutor from Detroit, said the dismissal means the case is over and there is nothing for anyone to appeal.

However, Henning said the three-judge panel's case's influence will remain in Detroit through the settlement, although the 2-1 ruling could be cited by other attorneys pursuing cases involving education or other constitutional matters.

The settlement with the students includes a promise by Whitmer to propose legislation that would provide Detroit Public School Community District with at least $94.5 million for literacy-related programs and initiatives. The state also agreed to provide $2.7 million to be paid to the Detroit district to fund various literacy-related support.

Bursch said the governor agreed to commit a small amount of her existing budget to the plaintiffs and likely needs no further approval for that.

“But the Legislature would have to approve the nearly $100 million that the governor merely promised to ask for from the Legislature,” Bursch said.

As part of the settlement, the Detroit Literacy Equity Task Force will be created outside of state government to conduct yearly evaluations around literacy in Detroit and will provide state-level policy recommendations to the governor, according to the governor's office.

This task force will include students, parents, literacy experts, teachers, a paraprofessional and other community members.

The other task force, the Detroit Educational Policy Committee, will focus on the stability and quality of the educational ecosystem in Detroit; the accessibility of a quality school to all children in Detroit; and school improvement, facilities, teaching and educational materials, according to the governor's office.

The settlement also calls for Whitmer to ask the Michigan Department of Education to advise school districts how they might use evidence-based strategies, initiatives and programs to improve access to literacy and literacy proficiency, with special attention to reducing class, racial and ethnic disparities.

The long-term impact of a substandard K-12 public education was among several legal arguments raised in the high-profile civil lawsuit.

Legal experts had been split on the case's ability to ultimately set a precedent that would change the way states are required to deliver education. The U.S. Constitution does not explicitly guarantee the right to education, and the nation’s highest court has not weighed in on the issue.

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