October 6, 2016, Trial News | The American Association For Justice

October 6, 2016, Trial News

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Class alleges Michigan public schools denied students their right to literacy

Diane M. Zhang

photo of student desks

Seven Detroit public school students have filed a class action against Gov. Richard Snyder and state education officials, alleging that the state denied them their constitutional right to literacy. The complaint alleges that decades of state disinvestment in and deliberate indifference toward Detroit schools—which it describes as having “slum-like conditions and lacking the most basic educational opportunities”—violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as well as Title VI of the Civil Rights Act of 1964.
 

Seven Detroit public school students have filed a class action against Gov. Richard Snyder and state education officials, alleging that the state denied them their constitutional right to literacy. (B. v. Snyder, No. 16-CV-13292 (E.D. Mich. Sept. 13, 2016).) The complaint alleges that decades of state disinvestment in and deliberate indifference toward Detroit schools—which it describes as having “slum-like conditions and lacking the most basic educational opportunities”—violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as well as Title VI of the Civil Rights Act of 1964. The complaint seeks injunctive relief, requesting that the defendants ensure the plaintiffs’ opportunity to attain literacy through appropriate instruction at all grade levels, universal screening for literacy problems, and a system of statewide accountability so the state can monitor school conditions and—if necessary—intervene.

The seven plaintiffs attend five of Detroit’s lowest-performing schools, which—according to the complaint—overwhelmingly serve students of color. The complaint also notes that these schools’ current conditions “would be unthinkable in schools serving predominantly white, affluent student populations. In short, the schooling afforded to plaintiffs is both separate and unequal.” The complaint outlines several ways in which conditions at Detroit public schools “shock the conscience”—including the schools’ physical condition, lack of educational material, and shortage of qualified and certified teachers.

Detroit public schools are known to have dangerous and unsanitary conditions such as rodent and insect infestations, as well as extreme heat and cold throughout the year. Teachers report arriving early to sweep away rodent feces and cockroaches before classes begin. Some classrooms experience temperatures of nearly 100 degrees at the start of the school year, causing some students to faint or vomit; during winter, heating is so inadequate that children and teachers can see their own breath by the end of the day. Bathrooms often are filthy, with some stalls lacking doors or toilet paper. And in an elementary school playground, students frequently find used condoms, drug paraphernalia, and dead vermin around the outdated and dangerous equipment. 

Apart from the shocking physical conditions, Detroit public schools also lack educational materials. Teachers often spend their own money for classroom supplies, and some hold online fundraisers for basic items such as pencils, erasers, and paper. In classes where textbooks are available, students must share—often five to a single book—and teachers cannot assign meaningful homework because children cannot bring the textbooks home. The books themselves are often defaced and outdated; one classroom used a set of history books from 1998.

The complaint also cites a failure to meet student learning needs through effective staffing. The schools serve high numbers of low-income students, foster youth, homeless youth, and students recovering from past or current trauma. Teachers are not trained to recognize or respond to student crises, and no counseling is available. In many schools, there is a shortage of staff: In one egregious example, an eighth grader taught a seventh- and eighth-grade math class for months when the teacher was absent. Attorney Joshua Anderson of Los Angeles, who represents the plaintiffs, noted that many teachers are not even certified to teach, with many enrolled in the Teach for America program and others classified as “paraprofessionals,” which often simply means an “adult.” In June 2016, the Michigan legislature passed a series of bills giving Detroit—but no other district in Michigan—the option of hiring noncertified instructors, exacerbating the problem.

This class action is the first to allege a right to literacy under the U.S. Constitution. In 2012, the American Civil Liberties Union (ACLU) brought a similar “right-to-read” lawsuit on behalf of Detroit schoolchildren—but under state law. Attorney Kary Moss of Detroit, who represented the plaintiffs in that case, explained, “We alleged that the state constitution mandates that the state ‘shall maintain and support a system of public education’ and a 1993 law requiring literacy intervention to children not reading at grade level meant that children ‘had a right to learn to read.’ We did not allege a federal equal protection claim. The class action filed in Detroit is significant in that it is essentially advocating that Michigan has caused an absolute deprivation of education in Detroit’s children.”

Anderson agrees that the case—if successful—would establish a constitutional right to literacy, with wide-reaching effects on Detroit’s public schools and beyond. “It is different from the prior ACLU lawsuit that sought to establish a similar right under the state constitution. We’re seeking to confirm a right to literacy under the federal constitution,” Anderson said.

He added, “We think that the U.S. Supreme Court precedent fully supports such a right. The authorities that we rely on are Plyler v. Doe—in that case, the Court said that it’s unconstitutional to exclude a discrete group of children from the ability to obtain literacy in the public school system and that it’s improper to have a group of children with the stigma of illiteracy as the result of defective education. We also rely on a 1973 Supreme Court case, San Antonio v. Rodriguez, which acknowledged that absolute denial of an adequate education raises serious constitutional issues. While the Supreme Court has never specifically addressed the fundamental right to literacy, we think the argument is well grounded in the existing precedent.”

Although the Detroit public school system has struggled for decades, both Moss and Anderson stress that the emergency manager system has had a detrimental effect on the city’s schools. In 2009, Gov. Jennifer Granholm declared a fiscal emergency and appointed an emergency financial manager to handle the school district’s financial troubles. In 2011, however, the state transferred to an “emergency manager” all decision-making authority over the Detroit public school system, resulting in unilateral control rather than shared power with the locally elected school board. Detroit has seen a troubled string of scandals under the system. Darnell Early, an emergency manager appointed in early 2015, had no experience in education—and had previously served as an emergency manager in Flint, Mich., where he switched the city’s water supply to the Flint River, exposing the city’s children to lead poisoning.

“The emergency manager system has been seriously problematic,” Anderson explained. “It has been run by politicians and bureaucrats who don’t have the expertise in K-12 education required for running a school system. The result has been continuously lower proficiency scores on the state exams. If you look at the test scores between 2010 and 2013, Detroit public schools’ proficiency score for seventh grade reading, on a whole, went from 23 percent to 33 percent, whereas statewide they were 55 percent to 62 percent. The same test scores from schools attended by the plaintiffs are even lower. In one of the schools, only 2.9 percent of third graders and zero percent of sixth graders scored ‘proficient’ in English. In another school, about 2 percent of 11th graders were proficient in English.”

Moss agrees. “Academic performance has continued to deteriorate,” she said. “[Emergency managers] have crippled local control. Since the state took over control, the district’s debt increased by $500 million and spending on classroom instruction decreased.” Moss noted that this fall, the seven seats on Detroit’s school board will again have a legal role in running the city’s troubled schools. But she also pointed out that the local board’s power is very limited when compared with that of other districts in Michigan. “A financial review commission—with a majority of members appointed by the governor—will have the final say over the district’s budget,” she said. “If you don’t control finances, then you don’t have control.”

Attorney Michael Kelley of Los Angeles, another of the plaintiffs’ counsel in the federal class action, noted that the plaintiffs’ cause has received strong support, including a number of op-eds in recent weeks—and notable members of the legal community have joined the fight. “We have a couple of the country’s most prominent constitutional scholars as cocounsel—Evan Caminker of the University of Michigan Law School and Erwin Chemerinsky of the University of California, Irvine School of Law,” he said. “I think the fact that these leading constitutional scholars have stepped up and are supporting the case is a strong indicator of the strength of the legal argument that we’re advancing on those threshold constitutional questions of whether there’s a fundamental right to literacy.”