A federal judge has concluded that the Constitution doesn’t require schools to promote students’ literacy.

Students walk outside Detroit’s Pershing High, which isn’t one of the institutions named in the suit but was identified as one of the city’s lowest-performing schools (CARLOS OSORIO / AP)

What to do when a school is infested with vermin, when textbooks are outdated, when students can’t even read? Perhaps the answer is sue the government.

That’s what seven students in Detroit have done. Their class-action suit filed against the state of Michigan asserts that education is a basic right, and that they have been denied it.

Usually, such education-equity cases wend their way through state courts, as all 50 state constitutions mandate public-education systems, while the country’s guiding document doesn’t even include the word education. But this case, Gary B. v. Snyder, was filed in federal court, and thus seeks to invoke the Constitution. And as of this week (July 6, 2018) , it’s headed to the federal appeals court in Cincinnati.

The lawyers filing the suit – from the pro bono Los Angeles firm Public Counsel – contend that the students (who attend five of Detroit’s lowest-performing schools) are receiving an education so inferior and underfunded that it’s as if they’re not attending school at all. The 100-page-plus complaint alleges that the state of Michigan (which has overseen Detroit’s public schools for nearly two decades) is depriving these children – 97 percent of whom are students of color – of their constitutional rights to liberty and nondiscrimination by denying them access to basic literacy. Almost all the students at these schools perform well below grade level in reading and writing, and, the suit argues, those skills are necessary to function properly in society. It’s the first case to argue that the U.S. Constitution guarantees the right to become literate (and thus to be educated) because other rights in the Constitution necessarily require the ability to read.

The case is a long shot. Late last week, the district-court judge in Detroit, Stephen J. Murphy, dismissed it. (The plaintiffs are appealing that dismissal.) Murphy essentially stated that he needed guidance from the Supreme Court if he were to weigh in on whether the students’ abysmal proficiency levels and learning conditions amount to a violation of the Constitution. He also concluded that the suit makes too many hard-to-prove causal claims. Even though Michigan subjects the predominantly black Detroit students to conditions to which it doesn’t subject, say, the predominantly white students of nearby Grosse Pointe, Murphy wrote, there isn’t enough evidence to suggest that the state is treating the former group differently because of their race and thus violating the equal-protection clause. Another obstacle: The federal judiciary has grown particularly restrained on educational-rights issues in recent decades, in part because of the backlash from parents and others and others opposed to integration efforts that followed the wave of school-desegregation rulings in the 1970s and ’80s.

The fact that a suit like Gary B. v. Snyder was even filed says a lot about the state of education in the United States today. The case is indicative of a new chapter in American education in which advocates, frustrated with persistent achievement gaps and glaring disparities in school quality despite efforts to combat those problems, are resorting to unconventional means to bring about change. Similar to the recent wave of teachers’ strikes , the lawyers behind Gary B. v. Snyder seek to interrupt what the plaintiffs and their supporters argue is a status quo of educational unfairness not only in Detroit, but also across the country.

The lawyers behind Gary B. v. Snyder sought recourse through the federal system, explained Kristi Bowman, an education-law scholar at Michigan State University who cowrote an amicus brief in support of the plaintiffs, because Michigan’s courts have generally refused to take on education-rights cases. That’s largely because the language on education in its constitution is even more vague and limited than that in the constitutions of many other states, some of whose courts have been very active in adjudicating suits about how schools are funded. States including Arkansas and Delaware, for example, constitutionally require the provision of “general” or “efficient” education, while states such as Colorado and Idaho stipulate that education be “thorough” or “uniform.” A few states, like Virginia, mention quality. And one state – Montana – guarantees “equality of educational opportunity” for all its residents. It also requires in its statutes that all schools provide a sound foundation for literacy in kids’ early years.

In Michigan, though, children’s right to education is simply about access – schools essentially only need to be in operation for that right to be fulfilled – rather than about “education of a particular level or quality,” said Bowman, who also serves as MSU’s vice dean for academic affairs. As Matthew Patrick Shaw, an assistant professor of public policy and education at Vanderbilt University, put it, Michigan’s constitution contains “no aspiration to high quality, no aspiration to efficiency.”

So, the plaintiffs in Gary B. v. Snyder decided to argue, as Bowman put it, that “what’s happening [in the Detroit schools] fell so far below any unacceptable level of education that it does violate the federal Constitution,” in the sense that, “If someone is functionally illiterate – unable to read at grade level – then how we can expect them to meaningfully engage in the rest of their explicit constitutional rights?” She went on, “How can we expect them to meaningfully participate in our government and exercise the right to vote and the right to free speech if their ability to obtain information and evaluate that information is so limited because the public schools that they attended did not even give them an opportunity to become literate?”

In his opinion explaining why he dismissed the case, Judge Murphy acknowledged that literacy is integral to one’s well-being – that, as the late Supreme Court Justice William J. Brennan once wrote in his opinion on a related educational-access case, “illiteracy is an enduring disability.” Yet Murphy concluded in his analysis that the due-process guarantee to life, liberty, and property does not “demand that a state affirmatively provide each child with a defined, minimum level of education by which the child can attain literacy.” Without that clarity, he was reluctant to assert that the right to literacy exists – let alone that the state violated it.

Murphy’s opinion may be right in a narrow sense, but some legal scholars I talked to said that he could have approached the subject more broadly. Murphy concluded that the plaintiffs failed to demonstrate that the state treated the given Detroit schools differently than it did others. But given that the students lack access to qualified teachers, to tolerable facilities, and to materials that support their learning – conditions that are far less common in predominantly white districts in the state — Murphy ignored the “strong racialized component, some of which has been engineered by the state,” that has contributed to these disparities, said Vanderbilt’s Shaw, who’s also an assistant professor of law. He added, “It has ignored the role that the states have played in creating these very systems,” noting that more prosperous school districts don’t need special assistance now because their neighborhoods were allowed by the government to develop differently.

“The court’s premise … ignores everything we all know about how endemic racism is—and has always been – in metro Detroit’s housing and employment patterns, and the role the state has had in allowing school districts to assign, hire, fund, and operate in reliance on these patterns,” Shaw argued. The decision to dismiss the case, he went on, “does not incorporate this very relevant history in any meaningful way, articulating instead a set of seemingly ‘neutral’ criteria to evaluate what it knows to be a very non-neutral, complex, and context-rich set of educational-rights questions.”

The merits of the case and Murphy’s dismissal aside, though, Gary B. v. Snyder is important in that it is a direct attempt to establish how, if at all, the Constitution ensures that all Americans, regardless of where they live, receive a decent education. As Michael Rebell, a professor of law and education practice at Columbia University’s Teachers College, noted, in previous cases the Supreme Court has never stated that the Constitution has no bearing on educational-right cases—it just has never deliberated over a suit that gets at the question without any legal snags. “Everybody agrees this has been left open,” said Rebell, who is planning to bring a different education-rights case in another federal district court this fall, “and that’s why Mark Rosenbaum [the lead attorney in Gary B. v. Snyder] brought this issue in Detroit.” While the district-court judge in this case didn’t address the question of whether learning to read and write is a constitutional requirement, according to Rebell and others, the fact that it is being appealed—and could potentially make its way up to the Supreme Court—is significant. Even if it proves too soon for the courts to respond favorably to this suit, the case has still raised important questions that might, for example, prompt changes to state constitutions.

The suit is talking about kids falling through the cracks, Michigan State’s Bowman said, and it’s arguing that “we don’t just want to fix the situation for the kids that we know about—we also want to seal up the cracks so that no one falls through them in the future.” Even if Gary B. v. Snyder isn’t ultimately the case to seal up those cracks, maybe it’s showing the way for another group of lawyers to mount an argument that will.

Written by Alia Wong for The Atlantic ~ July 6, 2018

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