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ACLU asks Supreme Court to hear “right-to-read” case

Dec 19, 2014

Credit Steve Carmody/Michigan Radio

Last month the ACLU’s lawsuit on behalf of eight Highland Park students was thrown out by the Michigan Court of Appeals in a 2-1 decision.

The suit says the schools didn’t provide students with even basic literacy or math skills, and that therefore the state and the district should be held responsible for that failure.

But the court of appeals tossed the suit, basically because of three points.

  1. The majority found there is no constitutional mandate that the state has to provide even an adequate education, just that the constitution says providing an education is “encouraged."
  2. There’s no legal avenue for students to sue district-level authorities.
  3. The courts would be overstepping their role if they tried to solve a situation that’s about educational policy, economics, and social issues as much as it is about a basic education. 

Now the ACLU has filed a request for the Michigan Supreme Court to take the case.

Why these students sued in the first place

Everybody agrees on this much, at least: The Highland Park School District did not ensure kids were able to read or do math at their grade level.

In fact, according to the Court of Appeals minority opinion, a majority of  fourth-graders tested below proficient on the Michigan Educational Assessment Program’s (MEAP) reading test.

A full 87% of those fourth-graders also tested below proficient in math.

In high school, at least 90% of students failed the state’s reading, math, and writing tests. Every student failed the social studies and science tests.

Many classrooms didn’t have heat, textbooks were rare, student records were basically nonexistent, and for a while, a homeless man was able to live in the facilities without anyone noticing – again, based on the Court of Appeal’s minority opinion.

So the ACLU sued the state Board of Education and the district on behalf of eight Highland Park kids, claiming that students have a constitutional right to a basic education.

Three reasons the Court of Appeals thinks the ACLU is wrong

Basically, while all the judges on the Court of Appeals said they’re sympathetic to the kids’ plight, the majority did not see a legal avenue for the executive branch of the state to get sued here.

Why not?

1. The court says the state constitution only “encourages,” but does not actually mandate, the state to provide an education. And when we say “the state” here we’re specifically talking about the executive branch, since that’s where the Board of Education lives. Judge Kathleen Jansen wrote the majority opinion, and in it she points out the following parts of the constitution:

“Section 1. Encouragement of education

 Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

2. Even if there was a constitutional mandate, Jansen writes, the state would have only a supervisory role at most, because the following section of the constitution means it’s up to the Legislature to support (give money to) the school system, and it’s up to the districts to handle the actual educating parts:

 “Section 2. Free public elementary and secondary schools; discrimination

 The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.”

But the majority also finds that students don’t have the right to sue the district, either. Basically they lose out on some technicalities: The court says governmental immunity protects the district from getting sued for economic damages, and that there isn’t even a clear legal avenue for the students to ask the courts just to tell the district in writing to give them a better education.

3.  Finally, Jensen says this is better solved by individuals working things out with the administration – both the district and the state – rather than having the courts step in and try and solve things.

“Moreover, it would be difficult, if not impossible, for the courts to fashion innumerable individual remedies,” writes Jansen.

And figuring out what kind of specific services a kid needs to be able to read is something that should “fall within the expertise of the schools – not the courts,” she says.

While the kids got crummy educations, Jansen argues there are a lot of factors at work here, some of them social and economic, as well as academic.

To solve this, she writes, kids need complex education plans and policies instituted, and that’s just not the court’s job.

Three reasons why the ACLU thinks they can win anyway

1. The idea that the constitution doesn’t require a good education for kids is bananas. That’s what Kary Moss, the director of the Michigan ACLU, says.

“There are other state constitutions that are very similar to Michigan, and all of those states have found it not only to be a duty, but also that the state shall provide minimally adequate decision.

“So with the court of appeals decision, they’re making Michigan once again an outlier in the rest country, one of a handful of states that don’t have an enforceable duty in their constitution.”

2.   The districts are obviously at fault here too, as well as the state, Moss argues.

“The irony is that we’re in a state where there’s been a drumbeat for accountability and teacher accountability in particular. But the court of appeals says whoops, the state’s not responsible, and whoops, the district is not responsible either! Who’s responsible?

It’s ludicrous to think nobody is responsible, and to have all of these adults pointing their fingers at each other and unwilling to first and foremost, teach these kids to read.”

3. The ACLU is not asking for the court to micromanage schools. They’re just asking the courts to make the state and the districts do their jobs.

“We didn’t ask the court to step in and devise an individual literacy plan. The dissenting Judge Shapiro pointed out that no one is asking the court to micromanage, just that the law be enforced and that minimally adequate education be provided.” 

Also: State of Opportunity reporter Jennifer Guerra did some crazy good reporting on what, exactly, the constitution gives Michigan kids in terms of an "equal" education. Worth checking out.