EDUCATION

Detroit school lawsuit: Does U.S. Constitution guarantee literacy?

John Wisely

Detroit Free Press

Lawsuit is part of growing trend of litigation aimed at failing schools.
Because it's a federal case, it could reach the U.S. Supreme Court and have nationwide impact.

Everyone knows that literacy is important, but is it a right guaranteed by the U.S. Constitution?

That's the question being raised in a lawsuit filed against the State of Michigan on behalf of Detroit schoolchildren who struggle in some of the state's worst-performing schools. Advocates insist that it is, saying that people who can't read can't exercise other constitutional rights such as voting, accessing the courts and serving in the military.

To argue the case, they have assembled a nationwide legal team that includes Carter Phillips, a Washington lawyer who has argued more than 80 cases before the U.S. Supreme Court, and Erwin Chemerinsky, one of the nation's most frequently cited experts on the Constitution.

The suit comes amid a growing trend of school reform litigation. Michael Rabell, a law professor at Teachers College of Columbia University who runs the Campaign for Educational Equity, said 45 of the 50 states have had some type of litigation over the adequacy of the education they provide and the plaintiffs — people suing on behalf of students — have won about 60% of those cases.

Among the cases are:

Connecticut: A judge last month ruled the state's education funding system violates the state constitution and gave the state six months to revamp the way it funds schools, grades and pays teachers and sets graduation standards.
Pennsylvania: The state Supreme Court heard arguments last month in a case claiming the state failed to fulfill its constitutional duty to provide a "thorough and efficient" education to students in poor districts.
Texas: In May, the state Supreme Court ruled that Texas's "byzantine" way of funding schools was constitutional but urged reforms.
Kansas: In 2015, the state Supreme Court ruled that the Kansas Legislature had failed to provide adequate funding for schools as required by the state constitution. The case continues over how much money is adequate.
California: In 2014, the Los Angeles Unified School District settled a lawsuit filed by teachers unions agreeing to spend an additional $60 million on pay, professional development and service improvements in high-need schools.

"It's done out of desperation, because the elected branches of government have steadfastly refused to come to terms with this problem," said David Sciarra, executive director of the Education Law Center in Newark, N.J., which advocates for the rights of schoolchildren.

The Detroit case is unique, however, because the lawsuit is rooted in the U.S. Constitution, not the state constitution.

Highland Park case

Michigan had its own school funding case in 2014, when the American Civil Liberties Union sued on behalf of Highland Park students. That case argued the state had denied a right under the state constitution, which says "the means of education shall forever be encouraged," and "the Legislature shall maintain and support a system of free elementary and secondary schools," and each school district shall provide education "without discrimination as to religion, creed, race, color or national origin."

But the Michigan Court of Appeals dismissed the case, ruling that while the state constitution encourages education, it doesn't mandate it.

"The language in our state constitution doesn't set any quality standards," said Craig Thiel, a senior research associate at the Citizens Research Council, a nonprofit public policy group. "We don't have terms in our state constitution like sufficient and adequate. It says that public education should be encouraged and throws it to the Legislature to figure out how."

Thiel said he agrees with the notion that education is a fundamental right, but doubts the current case will be a success because of the federal government's limited role in setting education policy, which is mostly done by states and local school districts. He also worries it could harm public schools.

"It would put a serious strain on their ability to decide what's best for them and this whole idea of local control," Thiel said.

Federal case

Because the Detroit case is filed in federal court, it could potentially reach the U.S. Supreme Court, which would force nationwide changes to education.

"Use whatever word you want; landmark, path-breaking," said William Koski, an Upper Peninsula native who now runs the Youth and Education Law Project at Stanford Law School. "They are pushing the boundaries."

The lawsuit filed Sept. 13 on behalf of seven Detroit schoolchildren claims the State of Michigan has failed to provide them with basic literacy, a foundation of all education and a precursor to active citizenship. It asks the federal courts to order remedies, including "evidence-based literacy reforms," a systemic approach to instruction and intervention as well as fixes to crumbling Detroit schools.

Even though the demands likely would require additional money, the suit doesn't ask specifically for any. That could be an important distinction, said Michael Addonizio, a professor of education policy at Wayne State.

"The counsel for the plaintiffs clearly want this interpreted as a right to literacy over a case about resources," Addonizio said, noting that federal courts are less inclined to get involved in funding disputes.

The district has a reputation of mismanagement and recent corruption, which includes a dozen principals charged with taking kickbacks from a school vendor. Addonizio said he doubts the courts would weigh that record in this decision, but said members of the public might.

"When the public looks at these things, those who are not sympathetic to DPS will make that argument," Addonizio said.

Education advocates around the country are eyeing the case to see whether the federal courts are willing to step into an issue that has long turned on local control.

The case asks the federal court to revisit a 1973 case from Texas known as San Antonio Independent School District v. Rodriguez, in which it ruled there is no fundamental right to education. However, language in that case and in another federal case, did acknowledge that if children are excluded from education, it could violate the constitutional guarantee of equal protection.

"It's novel in the sense that it does take advantage of that language that has not been fully litigated," Koski said. "Factually, if they can prove what they've alleged, they certainly have a case."

Koski declined to predict a likelihood of success but said it will depend on the court's willingness to revisit cases decided more than 40 years ago.

"We just don't know," he said.

Robert Sedler, a constitutional law professor at Wayne State University, doubts the case will succeed.

"They have a theoretical problem establishing this right," Sedler said.

For the plaintiffs to win, the court would have to interpret the 14th Amendment, which guarantees due process and equal protection of the laws, to include a right to literacy, Sedler said.

"It's a bit of a stretch. No matter how good the lawyers are, the lawyers can only do so much with the doctrine and settled law," Sedler said. "Maybe the real goal is to force some type of settlement where the state does more focusing on literacy."

Sedler said he expects the state to ask to have the case dismissed on the grounds that the plaintiffs have failed to state a claim on which the court could grant relief.

Rabell wouldn't predict the outcome but said the complaint shouldn't be discounted. It runs 136 pages and includes copious data on the importance of literacy and the abysmal conditions in the schools in question.

"It's a very serious effort," Rabell said. "This one obviously was carefully considered. It's evident that they've gone through the literature."

A subclass

Lawsuits in federal court have been far less common, in part, experts say, because of the reluctance to take on the finding in the Rodriguez case.

One federal case that the U.S. Supreme Court did take also came from Texas and examined whether the state could exclude the children of undocumented immigrants from its schools. The court ruled it could not exclude them because to do so would exclude the children from any meaningful role in society.

"The justification was, 'look at the consequences. We're going to have a subclass of illiterates wandering our streets.' That's going to be a huge problem," Rabell said. "It's not an acceptable state of affairs."

That notion could help the Detroit case, Rabell said.

"If we're not going to allow a subclass of illiterates among undocumented children, how can we allow it among citizens?" he said.

Sciarra said the Detroit case offers the court a chance to reconsider the importance of education.

"This case tries to come at that in a different way, by narrowing the education interest to core literacy," Sciarra said. "It's a viable argument to make. Whether the court will take that step, we'll see."

If the plaintiffs make it to the Supreme Court and prevail, they could alter public education not only in Detroit, but across the nation.

"This would be a right that would be available to every child in the United States," said Kimberly Jenkins Robinson, a law professor at the University of Richmond who specializes in education equity. "The biggest challenge will be establishing what the scope of the right should be. If you say there's a right to literacy, is it right to 12th-grade literacy? It's important to set a robust right. If they set the floor low, it will be a very limited right."

Contact John Wisely: 313-222-6825 or jwisely@freepress.com. On Twitter @jwisely.