Literacy lawsuit draws questions, call for investment

Jennifer Chambers
The Detroit News

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

But U.S. District Judge Stephen J. Murphy III in Detroit 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.

Legal and academic opinions differ over the central argument in the case of seven Detroit schoolchildren who are suing the state.

The lawsuit, filed last month, alleges decades of state disinvestment in the city’s schools have denied schoolchildren access to the most basic building block of education: literacy.

U.S. Secretary of Education John King Jr. says Michigan has not properly invested in Detroit’s schoolchildren but declined to tell The Detroit News whether he thinks literacy is a federal right.

“It is clear that the state over the years has not made any of the kind of investment and commitment to the kids of Detroit that’s needed,” said King, who was in Detroit on Friday. “And that is our responsibility across levels of government — local, state and federal. And the future of our economy and our democracy depend on that.”

King noted federal law is designed to focus federal resources on closing those gaps between urban students and others.

“We’ve got to do a much better job as adults to ensure that every child in Detroit is getting that kind of quality education that they should,” he said.

Richard Primus, a constitutional law expert and professor at University of Michigan Law School, said the federal case in Detroit has a chance to change the law and the way education is treated in poverty-stricken areas.

“I think it’s very interesting case, and it could be a landmark,” Primus said. “They are trying to force the federal judiciary to take seriously the state’s obligations under the equal protection clause as applied to the provision of public education.”

If the allegations are true — rodent-infested classrooms, no textbooks in classes, classrooms without teachers — Primus said it’s hard to understand how the schools could be providing adequate education.

“There is a very strong argument to make if the state provides free and compulsory education, it has to be adequate for the acquisition of literacy. ... It would mean schools are providing education in some parts of Michigan and (in Detroit), they are called schools but are not,” Primus said.

From a federal constitutional point of view, a state is not allowed to hide behind its municipalities, Primus said, which means the state cannot blame a district or city for the problems in classrooms and buildings.

“The complaint in this case paints a pretty constitutionally awful picture. I don’t think we can count plaintiffs out,” he said.

But Robert Sedler, a law professor at Wayne State University, said the lawsuit will be tough to win because it takes on unexplored legal territory.

“As a constitutional law professor, my opinion is this is going to be a stretch,” Sedler said.

Usually, constitutional rights are based on intentional state actions to deny a right, such as was found in the landmark case of Brown v. Board of Education, Sedler said.

“You can say you can’t discriminate or segregate,” he said. “Here, the focus is on results, and unless you achieve results, the law has been violated. There is no precedent for that kind of holding.”

The Michigan Constitution says every student in Michigan is guaranteed the right to a “free public education.” But the U.S. Constitution does not, Sedler said.

“The state isn’t doing anything deliberate here. It’s not doing a good enough job either,” Sedler said.

The team of attorneys on the Detroit case, including Mark Rosenbaum from the California public interest law firm Public Sector, are asking the court in Detroit 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.

In Plyler, the court struck down a Texas statute that excluded undocumented children from the public education system.

Rosenbaum and his team argue the court ruled the exclusion of a “discrete group of children” from the ability to attain literacy — necessary to participate in college and career — is incompatible with the guarantees of liberty and equality enshrined in the 14th Amendment of the U.S. Constitution.

In the filing with the Detroit court, Rosenbaum said Detroit’s schoolchildren are “a discrete class — nearly all children of color and low-income — who have been excluded from the access to literacy that public education provides to other students in the State of Michigan.”

In the Rodriguez case, in which the court ruled there is no fundamental right to education, Rosenbaum said the justices also stated a state system of education that denied educational opportunities to any of its children or failed to provide each child with an opportunity to acquire basic minimal skills, could run afoul of the U.S. Constitution.

“Plaintiffs’ schools are unrecognizable by any of the characteristics traditionally associated with schools,” Rosenbaum wrote in the lawsuit.

Laurence H. Tribe, a constitutional law expert at Harvard Law School, wrote in a column for the Los Angeles Times that federal judges examining the Detroit case should not look to the California Supreme Court, which last month twice decided against hearing cases that questioned the circumstances under which students may sue the state for failing to guarantee equal educational opportunity.

“Over compelling dissents, the California justices rejected claims that appeared to pit the interests of students against those of teachers and their unions. The Detroit litigation poses no such difficulties,” Tribe wrote.

Federal courts should look instead to the example set in Connecticut, Tribe said. Last month, a judge there found the state was not fulfilling its constitutional duty to provide an adequate education to all children and ordered state officials to overhaul the public school system.

Joe Urban, an education attorney with Clark Hill who represented Highland Park Academy System’s Board when Rosenbaum and the ACLU sued in 2012 over literacy, said the approach in the state case is similar to the federal case and will likely have a similar fate.

Both cases assert the U.S. Constitution provides a guarantee that every child in America has a fundamental right of access to literacy.

But a Michigan Court of Appeals judge dismissed the Highland Park case, saying the Michigan constitution only specifies the state provide the infrastructure for education — not the quality of the education itself.

“It breaks your heart to see these kids and the effects of poverty on them and their education,” Urban said.

Attorneys on the Detroit case are trying to temp the federal court to appoint itself as an emergency education manager of sorts, Urban said, just as Detroit’s elected school board returns to power for the first time since 2009, when it was sidelined by the state under its emergency manager law.

“The irony is there is going to be school board elections, do you want a federal judge taking control just as democracy is returning to Detroit?” Urban said.

State officials have requested more time to file a response in the case. Murphy is giving them until Nov. 17 to respond.

Staff Writer Leonard Fleming contributed.