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Historic suit over poor conditions in Detroit schools gets new backers, fresh hope

A historic federal lawsuit that claimed that deplorable conditions in Detroit schools are violating children’s civil rights suffered a seemingly devastating blow last summer when a federal judge rejected its central claim. But six months later, local advocates and civil rights experts across the country are stepping up, arguing for the suit to continue through the appeals process.

At the same time, the transfer of power in the state’s leadership could revive the so-called “right-to-literacy” lawsuit, which argues that the state — which controlled the city’s main school district for much of the last two decades and set policies that governed dozens of charter schools — is responsible for the poor literacy skills of students. Mark Rosenbaum, the lead attorney for the plaintiffs, said he is “really blown away” by the breadth of more than a dozen supporting briefs filed this week by local advocacy groups and experts in education, law and the economy.

A brief from the city’s main school district is important, Rosenbaum said, because it “confirms the allegations in the complaint, that the state was responsible, that the state dug a deep hole for this district to climb out of.” It’s the first time the school district has intervened in the lawsuit.

The lawsuit outlines a mountain of inequities Detroit students face, including a lack of books, supplies and curriculum materials, as well as dilapidated building conditions.

“There is nobody … that says the conditions in these schools is defensible,” Rosenbaum said.

He declined to speculate about what will happen come January, when Democrats take over both the governor and attorney general offices, wresting responses to the lawsuit out of the hands of Republicans who have vigorously fought it for two years.

“I know that the governor-elect (Gretchen Whitmer) and the attorney general-elect (Dana Nessel) have expressed a genuine concern about Detroit students and the state of the schools,” Rosenbaum said. But, “I won’t make any predictions.”

The key question is whether Whitmer and Nessel will continue defending a lawsuit that has been fought by the current attorney general, Bill Schuette, who lost his bid for governor to Whitmer earlier this month. Schuette’s office has argued that there is no right to literacy. Whitmer, during the gubernatorial campaign, repeatedly criticized Schuette for that stance.

Here’s what Whitmer’s transition office said in a statement Wednesday:

“The governor-elect believes that every child has a right to literacy,” said Clare Liening, the press secretary for Whitmer’s transition. “Her transition team is working to review pending litigation so that the governor-elect and her team are ready to consult with counsel at the Department of Attorney General after Jan. 1.”

A spokesperson for Nessel’s transition team said she isn’t commenting on specific cases until after she takes office.

New leadership in Michigan could change the state’s approach to the lawsuit, said Robert Sedler, a Wayne State University law professor and constitutional expert.

“The governor and the attorney general could decide they don’t want to defend this case anymore and they want to work out a settlement with the plaintiffs,” Sedler said.

“That’s the best solution,” he said. “This way, the plaintiffs accomplish their objectives.”

The lawsuit, which has been closely watched by education, civil rights and legal experts across the U.S., was filed more than two years ago by Public Counsel, a Los Angeles-based law firm that is the nation’s largest public interest law firm. The suit has sought to hold state officials — including Gov. Rick Snyder — responsible for systemwide failures that the plaintiffs say have deprived Detroit children of their right to literacy, left many classrooms and buildings in terrible condition, and left teachers without the resources they need.

This persisted, they say, while the state was in control of the school district from 1999 until 2005 and again from 2009 until the end of 2016. It is the first case made in federal court that argues access to literacy is a fundamental right.

The lawsuit was dismissed by U.S. District Judge Stephen Murphy III in late June. But the plaintiffs immediately filed an appeal, which is now before the 6th Circuit Court of Appeals. At the time, constitutional experts such as Sedler saw little chance of success. Sedler said the Constitution doesn’t guarantee a fundamental right to literacy, and the U.S. Supreme Court isn’t likely to add any new fundamental rights.

The briefs were filed this week to meet a court deadline.

Rosenbaum said the state has until late December to file a response, and then the plaintiffs will have 14 days after the state responds to file its reaction. After that, the court would schedule oral arguments.

Detroit schools fire back

The state’s largest school district argued that the state’s arguments carry racial undertones. Specifically, they targeted the state’s claim that :

“While pointing the finger at Defendants, Plaintiffs ignore many other factors that contribute to illiteracy, such as poverty, parental involvement (or lack thereof), medical problems, intellectual limitations, domestic violence, trauma, and other numerous influences.”

The school district notes, “The only logical conclusion to be reached from reading the state’s motion to dismiss is that they are using the fake ‘intellectual limitations’ factor as code for race.”

Superintendent Nikolai Vitti, in an interview Tuesday, said some of the state’s arguments were appalling, shallow and racist and “reflective of the justification of emergency management and the imposition of emergency management to begin with.”

Vitti, who was hired in May 2017 to head the Detroit Public Schools Community District, has long argued that a racist element contributed to the conditions the district was left in after state control.

“When you frame your argument to say low performance is linked to intellectual capacity, you’re talking about our children, and you can’t avoid the issues of race and class,” Vitti said.

The brief said the more than 14 years of state control had a “disastrous” impact.

“Although not beaten by torrential winds of a storm like the schools in New Orleans, DPSCD schools have too been decimated by a storm. Not a natural storm, but a storm of neglect. A storm of constitutional violations. A storm of legislation appointing emergency and transition managers with no experience in education to operate the district. And yes, a storm of racism.”

As a result, the brief said, 93 percent of students read below grade level and 50 percent of school buildings need significant repairs.

The “district continues to suffer from teacher vacancies because many highly qualified teachers choose not to teach in a district whose students cannot read (or read very poorly) and where buildings are crumbling, leaking, too hot in the spring/summer and too cold in the fall/winter.”

Academics speak out

A number of academic experts on education, civil rights, and education law joined several of the briefs filed this week.

Elizabeth Moje, dean of the school of education at the University of Michigan, and 67 other scholars argued that Detroit children must contend with an education system that is separate and unequal. They asked the court to imagine “waking every morning to head off to buildings infested with rats and other vermin, piped through with lead-tainted water, with failing heating systems only to sit in decrepit classrooms with no certified teachers and no books.”

It’s a reality, she said, for too many Detroit children.

“Such a situation does not model for Detroit’s youth their right to liberty or a commitment to the common good of all members of a society. Compelled to attend school, but consigned to at best inadequate learning environments, Detroit youth learn the opposite of what the Constitution’s framers intended about the core democratic values of United States society,” the brief says.

“They are not only denied access to the same education opportunities of their more affluent neighbors, but also are forced to endure poor, and at times inhumane, conditions in the name of schooling. This is not equal education; despite the Brown v. Topeka Board of Education ruling of 64 years past, separate education remains intact in Detroit.”

American Federation of Teachers weighs in

Detroit students fail to become literate “not because of a lack of effort, persistence, or devotion by educators, but due to the willful disregard of the state of Michigan,” wrote the AFT, the umbrella national union of the Detroit Federation of Teachers.

The AFT brief said the state has “failed to provide educators in Detroit with the resources and tools necessary to ensure that students receive evidence-based literacy instruction at the elementary and secondary levels.”

The brief also said that Detroit students ultimately need what is plentiful in suburban schools: “Proper professional development for educators, reasonable class sizes, appropriate diagnostic assessments that enhance learning opportunities, and evidence-based tools for literacy instruction.”