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Attorneys representing Detroit schoolchildren in a "right to access literacy" case filed an appeal last week with the U.S. Court of Appeals after a judge previously dismissed their case.

Attorneys Mark Rosenbaum and Michael Kelley filed their appeal Thursday, asking the appeals court of the 6th Circuit to review the dismissal of their civil lawsuit against the state of Michigan and state education officials by U.S. District Judge Stephen J. Murphy III.

The case was filed in 2016 on behalf of Detroit students and was believed to be the first attempting to establish literacy as a U.S. constitutional right.

In the lawsuit, students alleged the conditions of their schools are so poor and inadequate they don't receive the best education and are denied access to literacy on account of their race, violating their rights under the due process and equal protection clauses of the 14th Amendment.

The suit argued the state has functionally excluded Detroit children from the state’s educational system. It sought class-action status and several guarantees of equal access to literacy, screening, intervention, a statewide accountability system and other measures.

Attorneys for Gov. Rick Snyder and state education officials have said no fundamental right to literacy exists for Detroit schoolchildren and sought its dismissal.

In his ruling issued on June 29, Murphy said the due process clause doesn't require Michigan to provide access to minimally adequate education.

"In other words, access to literacy is not a fundamental right — at least not in the positive-right sense," the judge wrote. "Accordingly, the state's alleged failure to provide literacy access to plaintiffs fails to state an equal protection claim on the basis of burdening a fundamental right."

The U.S. Constitution does not explicitly guarantee the right to education. And citing previous rulings, Murphy wrote: "The court is left to conclude that the Supreme Court has neither confirmed nor denied that access to literacy is a fundamental right. The court must therefore cautiously take up the task.”

Attorneys representing the students have said 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. 

Rosenbaum, an attorney with Public Counsel in Los Angeles, said Monday the court erred in its decisions on several fronts.

"It compared the children in the schools of Detroit, not with their counterparts in cities like Grosse Pointe and Ann Arbor, but rather with students in other distressed school districts," Rosenbaum said.

"That’s not an appropriate comparison. What Brown v. Board says is when the state provides education, it has to be on equal terms."

Snyder spokeswoman Tanya Baker said the office does not comment on pending litigation.

Since Nikolai Vitti was named Detroit's school superintendent in 2017, he has sought significant changes citywide, including boosting teacher pay, removing outdated K-8 curriculum in reading and math, restoring art or music to all schools, as well as developing a three-year plan to prepare kids for either college or technical careers.

However, challenges such as teacher vacancies and deplorable building conditions persist. According to a report the district released in June, the cost to address widespread poor building conditions would cost $500 million.

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