Suit over right to quality education faces big test

Jennifer Chambers
The Detroit News

The story has been updated to correct the name of Detroit Public Schools Superintendent Nikolai Vitti.

Detroit — As an unprecedented civil lawsuit over whether a quality education is a right faces its first major challenge, attorneys for Detroit students behind the litigation say conditions in the city’s schools have only gotten worse since they filed a year ago.

Roquesha O’Neal, center, and Shoniqua Kemp, who aren’t plaintiffs in the suit, discuss city school issues.

U.S. District Judge Stephen J. Murphy III will hear arguments Thursday brought by seven Detroit schoolchildren, represented by a California public interest law firm, who are suing state officials to establish that literacy is a U.S. constitutional right.

The suit, filed in September against Gov. Rick Snyder and state education officials, claims the state has functionally excluded Detroit children from Michigan’s educational system. It seeks several guarantees of equal access to literacy, screening, intervention, a statewide accountability system and other measures.

The children, represented by the Los Angeles-based firm Public Counsel, allege filthy conditions at the schools, lack of books, classrooms without teachers, insufficient desks, buildings plagued by vermin, unsafe facilities and extreme temperatures.

Nearly a year after the lawsuit was filed, conditions at the schools have only worsened, including a district-wide teacher shortage that has left 260 teacher vacancies with less than four weeks before the start of school, said Mark Rosenbaum, a lead attorney on the case.

That teacher shortage — which the district acknowledges — has previously led to students being placed into groups of 60 to 80 and “warehoused” in rooms, Rosenbaum told The News earlier this month. Some children reported to attorneys they sat and watched movies when no teacher was available for the day. Classrooms with vermin and a lack of books and functioning computers and lab equipment persisted as well, he said.


“I think unquestionably our case has gained strength factually and that is a tragedy,” Rosenbaum said.

The heart of the case, Rosenbaum said, is “who get to learn in Michigan? Is there a more important question to the fate of Detroit and that of the country?”

In May, a new superintendent, Nikolai Vitti, took control of the district, the Detroit Public School Community District. The state’s largest district had been run by a state-appointed emergency financial manager from 2009 through 2016. A newly elected Board of Education began its work on Jan. 1.

Vitti, who was not in Detroit at the time of the allegations in the lawsuit, recently told The News the lawsuit speaks for itself and he understands and supports why it was filed. Vitti said conditions have improved at the schools but not enough.

“Students have the right to a great education. Period. Literacy is obviously embedded in that process,” Vitti said. “Have conditions improved? Yes, I believe that under (then interim superintendent) Alycia (Meriweather) conditions in schools have improved.

“But we are not close to where we need to be. A decade of mismanagement under emergency management and especially under leaders who are not educators have damaged students’ right to a strong education.”

Weighing right to literacy

Historically, Detroit has scored the lowest in the state and nation when its students were measured on standardized tests. Only 9.91 percent of third-graders in Detroit in 2016 were proficient in English language arts, which measures reading and writing, on Michigan’s state assessment. Only 10.44 percent of third-graders were proficient in math.

Detroit students scored the lowest among big-city districts in reading and math in the National Assessment of Educational Progress Trial Urban District Assessment in 2015. DPS also ranked lowest in 2009, 2011 and 2013.

On Thursday, attorneys for Snyder and state education officials are asking Murphy 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.

Officials with the Michigan Attorney General’s Office declined to comment on the upcoming court hearing.

In previous court filings, Timothy J. Haynes, an assistant attorney general, has said no fundamental right to literacy exists. Haynes says claims laid out by plaintiffs go far beyond mere access to education.

“(They) ask this court to serve as a ‘super’ Legislature tasked with determining and dictating educational policy in every school district and school building throughout the United States where an illiterate child may be found,” Haynes said in court documents.

“Such a path would effectively supersede democratic control by voters and the judgment of parents, allowing state and federal courts to peer over the shoulders of teachers and administrators and substitute court judgment for the professional judgment of educators.”

The plaintiffs are or were students at four of the lowest-performing schools at DPSCD: Hamilton Academy, a DPSCD charter school; Medicine and Community Health Academy at Cody, Osborn Academy of Mathematics, and Osborn Evergreen Academy of Design and Alternative Energy.

Hamilton and Cody remain open. The schools at Osborn have been consolidated into one. Two plaintiffs were former students at Experiencia Preparatory Academy, a privately operated charter school that closed in 2015.

Five of the students continue to attend school at DPSCD. Two graduated in June. Attorney Annie Hudson-Price, who is working on the case with Rosenbaum, said seniors told her they did not feel prepped to graduate.

“They were unable to fill out a fast food applications,” Hudson-Price said.

‘It starts with us’

The Detroit Parent Network, an advocacy group for parents of Detroit schoolchildren ages 4 to 17, is keeping an eye on the lawsuit. Mike Tenbusch, interim CEO of the organization, said the lawsuit is a “thoughtful and provocative” way for the state of Michigan and the courts to examine whether the needs of students are being met as guaranteed in the U.S. Constitution.

“We are watching with interest. Whether it’s the court or legislators, we want better conditions in our schools and all of our kids reading and doing better,” said Tenbusch, a former Detroit school board member.

Parents gathered at the offices of the Detroit Parent Network on Wednesday said a lack of teachers and unhealthy conditions at the schools have persisted, but improvements have been made in services in some areas.

Shoniqua Kemp, whose 16-year-old daughter will attend Osborn this fall as an 11th-grader, said last school year, excessive heat at the school caused her daughter to experience heat strokes, a broken boiler left students without heat in winter and a pool with old standing water might have caused mold-related health problems around the school.

These conditions caused her child and others to turn away from learning, Kemp and other parents said. They are hopeful the lawsuit will change conditions at the school.

“We are from Osborn. Our community is not the best, but it is getting there,” Kemp said. “So our children, they leave the blight outside and they come into school and are dealing with it again. This is a normal situation and that’s not fair either. As a parent, I want them not just to know better but to have better.”

The lawsuit, could change conditions, but parent Roquesha O’Neal, who has a ninth-grade son headed to an undetermined DPSCD schools this fall, said real change starts with empowering parents.

“It starts with us. It takes us to say enough is enough. This isn’t what this is supposed to be (for our kids),” O’Neal said.

Attorneys representing the students say the filing highlights shocking problems in some Detroit schools and is the first of its kind in the nation that seeks to secure students’ legal right to literacy under the 14th Amendment.

Specifically, it seeks to build on the notion of the landmark 1954 U.S. Supreme Court case, Brown vs. Board of Education, that an educated citizenry is critical to a well-functioning society.

The team of attorneys on the Detroit case are also asking Murphy to look at two U.S. Supreme Court rulings — the 1982 case of Plyler v. Doe and the 1973 case of San Antonio Independent School District v. Rodriguez — to find right to literacy in the U.S. Constitution.

The U.S. Constitution does not explicitly guarantee the right to education, and the nation’s highest court so far has not weighed in.

Experts say Murphy is being asked to open the door to the concept of a constitutional right to literacy — which could one day put the matter before the U.S. Supreme Court for the first time.

The case is being watch nationally by four of the eight groups which have filed amicus briefs in the case. They are the International Literacy Association, Kappa Delta Pi, the National Association for Multicultural Education and the American Federation of Teachers. In state groups include the city of Detroit, the Skillman Foundation, the Michigan Education Law and Policy Professors and 482Forward.

In its brief, attorneys for Kappa Delta Pi, the International Literacy Association and National Association for Multicultural argued that literacy is not merely a public good, but a “prerequisite to the meaningful exercise” of other constitutionally protected rights.

Dan Mangan, public affairs director with the International Literacy Association, said on Wednesday his organization is watching the case from its offices in Delaware.

“We are very curious to see how it all shakes out. We promote literacy around the globe literally. Our mission compels us to support children and families of Detroit in seeking the reading and writing education that will enable them to fully participate as citizens in a Democratic society,” Mangan said.