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Michigan’s top lawyer asks court to recognize right to a ‘minimally adequate’ education in Detroit literacy lawsuit

Michigan’s top lawyer is asking a federal court to recognize that children have a right to an adequate education.

The Friday filing from Attorney General Dana Nessel comes two weeks after Gov. Gretchen Whitmer and other defendants — all state officials — asked the court to dismiss a closely watched “right to literacy” lawsuit filed on behalf of Detroit school children. The state has argued that the lawsuit is now moot because of changes in school and state leaders.

In her filing, Nessel argues that Michigan and the nation suffer when public education is available in name only but is substandard in quality.

“A minimally adequate education cannot just be a laudable goal — it must be a fundamental right,” she says. “That is the only way to guarantee that students who are required to attend school will actually have a teacher, adequate educational materials, and a physical environment that does not subject them to filth, unsafe drinking water, and physical danger.”

The lawsuit, which has been closely watched by education, civil rights, and legal experts across the country, was filed in 2016. It has sought to hold state officials 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 needed to do their jobs.

In a news release, Nessel said she is “legally, morally, and personally compelled,” to file the brief in her role acting on behalf of the general welfare of Michigan residents.

“There are moments in our state’s and, indeed, our nation’s history when silence in the face of abhorrent circumstances is not an option. Today is one such moment,” Nessel said.

Some legal scholars have argued that the case could be a tough sell, given the U.S. Constitution does not mention a right to an education. It was a key argument made last summer when U.S. District Judge Stephen Murphy III dismissed the case.

Nessel’s brief acknowledges that the right to education isn’t “expressly mentioned” in the Constitution.

“But neither are most of the rights we recognize as fundamental,” the brief says. “The sparse constitutional text does not mention the right to marriage or the right to privacy, yet we have found our treasured document to embody these rights.”

The brief also notes that international law for decades “has recognized a basic human right to education.”

A minimally adequate education must include appropriate content, sufficient materials and a safe environment — all things that are “rooted in history and tradition,” and “implicit in the concept of ordered liberty,” the brief says.

“Indeed, it is a gateway to exercising other fundamental rights such as free speech and association rights, the right to citizenship, and the right to travel.”

The lawsuit was filed by Public Counsel, a Los Angeles-based law firm that is the nation’s largest public interest law firm.

The lawsuit seeks remedies that included literacy reforms, a systemic approach to instruction and intervention, as well as fixes to crumbling Detroit schools.

After it was dismissed by Murphy, the plaintiffs filed an appeal. In November, a number of briefs were filed on behalf of the plaintiffs, including one by the Detroit school district. The case is now before the 6th Circuit Court of Appeals.

Read Nessel’s brief below: