Court weighs Detroit literacy battle: 'Is this really education?'

Detroit — Jamarria Hall stood outside Osborn High School, where he graduated at the top of his class in 2017, now saying that time there was four years lost.

Hall knew something was wrong the moment he stepped in the door his freshman year in 2014: the moldy smell of the school hallway, dead mice in the bathroom, water falling from the classroom ceilings into buckets or onto students' heads.

Teachers failed to show up for class for days, Hall said, and students were sent to the gymnasium to watch movies. Classrooms lacked textbooks. And no one, from students to teachers to administrators, seemed to care about the inferior learning environment at his Detroit public school, said Hall, now 19.

“Is this really school? Is this really education? Is this how it is supposed to be?" Hall said last week of the questions he asked while a student at Osborn. "How am I going to go to college and write a five-page essay ... when I’ve been watching movies or going down to the gym?”

After Osborn, Hall headed to community college in Florida in 2018. Knowing he had a lot of catching up compared to other students, Hall says he took three remedial courses instead of standard freshman courses.

"I didn’t feel confident enough to take regular college classes because I didn’t feel I was capable. It was a sad reality," Hall said. "Even though I had the education, I really felt like I lost education. I lost four years of time."

The long-term impact of a substandard K-12 public education is among several legal arguments raised in a high-profile civil lawsuit before the U.S. Court of Appeals for the 6th Circuit on Thursday. It was filed by Hall and six other Detroit school students.

A three-judge panel is set to hear oral arguments in Cincinnati in the 2016 case in which the Detroit students allege a lack of books, classrooms without teachers, deplorable building conditions and extreme temperatures deprived them of their right to access literacy in their public schools and should be remedied by the court.

The class-action lawsuit, which is seen as an unprecedented attempt to establish that literacy is a U.S. constitutional right under the 14th Amendment, is being closely watched by education, legal and civil rights experts with some saying it could make its way to the U.S. Supreme Court.

Legal experts are split on the case's ability to ultimately set a new precedent that could change the way states are required to deliver education in America. The U.S. Constitution does not explicitly guarantee the right to education, and the nation’s highest court so far has not weighed in.

But the students have tremendous support from the more than 45 amicus briefs filed in the case that urge the federal appeals court to declare the education being provided to children in Detroit is separate and unequal compared to its well-resourced neighbors, and that a lack of literacy dooms the children to a future with low earnings and no voice in a democratic society.

Laurence Tribe, a professor of constitutional law at Harvard University who is not part of the litigation, said the Detroit case gives the federal court system a chance to consider what he called the "massive body of evidence" demonstrating what under-funded schools do to the children attending them, including making them a "permanent underclass," a term referenced in a prior U.S. Supreme Court ruling involving education.

Tribe said every state makes K-12 education mandatory and basic education has been recognized unanimously by the Supreme Court as “necessary to prepare citizens to participate effectively and intelligently" in an open political system.

The Detroit students' case is unique, Tribe said, because it makes an innovative legal claim that Michigan — through its governor, state education department and others — has violated the 14th Amendment’s equal protection clause by effectively excluding them from the state’s system of free public education and denying them the right to literacy.

Tribe says that claim is "well-grounded" in decades of Supreme Court precedent, including a landmark 1982 decision, Plyler vs. Doe, in which the Supreme Court held, 5-4, that a state cannot bar undocumented children from its tuition-free public schools, saying “the stigma of illiteracy” would hobble them for the rest of their lives.

"I continue to believe our position in this case is legally and constitutionally sound and that the cause we are representing is morally compelling," Tribe told The News. "Hopefully, the first of those considerations will matter to the 6th Circuit. Whether the second will is a matter for conjecture."

Others disagree, calling the case a long shot or worse, dead in the water.

Justin R. Long, a state constitutional law expert and an associate professor of law at Wayne State University Law School, said the case has "zero likelihood of success" in federal court because the legal questions raised by attorneys for the students have already been answered by the U.S. Supreme Court.

"The federal claim is just a loser," Long said. "(SCOTUS) said there is no federal constitutional right to literacy. The 6th Circuit will come out the same way. I don’t think it will get to Supreme Court."

Long said as a state constitutional law expert and father of a child attending a Detroit school, he strongly believes there needs to be a right to access literacy, and it needs to be judicially enforced.

"We do have a right to access literacy. It’s not located in the U.S. Constitution. Maybe it should be, but it's not," Long said. "Those kinds of questions under the state Constitution are much closer."

Historically lagging

The Detroit district has struggled with low test scores historically, on state tests like the M-STEP and on a national test known as the "Nation's Report Card."

In the last decade, the district has ranked dead last among 20 major urban cities in every subject on the National Assessment of Educational Progress, or NAEP. When the case was filed in 2016, proficiency levels hovered near zero in nearly all subject areas tested at the schools named in the case.  

Some sobering statistics persist today: 93% of DPSCD students read beneath grade level, most of the 100 city school buildings are in need of $543 million in repairs and teacher vacancies persist — at least 100 unfilled positions remain open.

In the literacy case, legal experts say the federal appeals court must determine if a state can legally provide a vast majority of its students with an excellent or at least adequate education while a minority of students receive an education that denies them the chance to acquire minimum skills.

Michael Rebell, a professor of law and educational practice at Teacher’s College at Columbia University, said the immediate issue before the appeals court panel on Thursday is whether the trial court’s decision in Detroit to dismiss the case was correct.

In 2018, U.S. District Judge Stephen J. Murphy III dismissed the case, saying, in part, that Detroit schools should not be compared to suburban, more affluent schools. Rebell said the ruling was not correct.

"He said the only fair comparison is these Detroit schools from other schools in Detroit," Rebell said. "Whatever was going on in suburban schools is not relevant. No. That is not right. I have never seen another equal protection case that made that claim.

"These kids are citizens of the state. The state has an obligation to provide an education equal to what other kids in the state get, and if they are not getting the same as in the suburbs, that is a fair comparison."

Patrick J. Wright, director at the Mackinac Center Legal Foundation, a public interest law firm, said the children's case is an attempt to get the federal courts to "rethink" their position on education not being a fundamental right.

Wright says Detroit's history is unique in that schools in the city tested last in the nation among urban districts on the National Assessment of Educational Progress, from 2009 through 2017.

"If there is a systemic failure to provide literacy, the real question is: Is there a federal education requirement that can be triggered?" Wright said. "My understanding is there no place for that. The courts have rejected it."

Wright said when one thinks about the importance of education in his or her own life, no matter how one views the law, you can see how many believe it to be a fundamental right.

"For most people, it does play an important role in our lives. It will be interesting if they will reconsider in light of the arguments made here," Wright said.

'Talking about basics'

Mark Rosenbaum, the lead attorney for the students in the case and director of Public Counsel’s Opportunity Under Law, said the lawsuit is the first federal case in the nation to seek to vindicate the right of all students to access to literacy, regardless of what state or city they live in.

“We are not talking about labs that split atoms. We are talking about the basics like teachers and books and facilities where kids need to learn," Rosenbaum said of the conditions the Detroit students endured. 

"You cannot compel children to be inside a government building for six to seven hours a day and warehouse them, when a stone throw away, they are getting an education that would fit a college student,” Rosenbaum said.

The appeal focuses on two areas, Rosenbaum said: first challenging the state's position that it has no responsibility in the case because it no longer controls Detroit schools, and second, how the Supreme Court has spoken about the role of literacy in a constitutional democracy, giving all of its residents the opportunity to play a meaningful role in society.

Rosenbaum said the large number of legal briefs filed by non-parities in the case is significant.

At the time of the lawsuit's filing, the plaintiffs were students at five low-performing schools in Detroit: three schools in the Detroit Public Schools district, which is now known as Detroit Public School Community District, and two charter schools.

Democratic Gov. Gretchen Whitmer, the state department of education, the state board, state superintendent and others are defendants in the case. Whitmer spokeswoman Tiffany Brown said education and literacy are among the governor's highest priorities. 

"Although she has not taken a position on the merits of this case, the governor has always believed every child has a birthright to a good education,” Brown said.

In court, Whitmer's attorneys have argued that because Detroit schools have essentially been returned to local control, the state should not be subject to the lawsuit and the appeal should be dropped.

The state operated Detroit Public Schools for about 14 years, starting in 1999, when the Michigan Legislature removed the locally elected board of education amid allegations of mismanagement and replaced it with a 7-member reform board, until 2016, when the state released the district from eight years of emergency management.

On the side of the children are Michigan Attorney General Dana Nessel, Detroit's public school district, the City of Detroit, the state's teachers unions, civil rights groups and more than 68 leading education scholars and organizations.

Nessel, also a Democrat, took an opposing position from the state in the case, saying Detroit students have a constitutional right to an adequate education. Nessel filed a legal brief siding with Detroit school children.

Two busloads of Detroit students, parents, community activists and others are headed to Cincinnati early Thursday morning to attend oral arguments and show their support for Nessel and state board vice president Pamela Pugh, who supports the students in the case, despite being named a defendant.

DPSCD superintendent Nikolai Vitti is also headed to Cincinnati, he said, to "respect the dedication, fight and struggle" that the community has been a part of to restore local control for the school district. Vitti came to the district a year after the lawsuit was originally filed.

"This lawsuit ... speaks to years of educational injustice in Detroit linked to imposed governance structures that stripped the city of local control, low student achievement and disinvestment in children and employees who serve them," Vitti said.

"No district in this country experienced the brutal history of what DPS endured, more importantly, what children endured. No state government, regardless of legal interpretation, can morally say children do not have a right to literacy."

During emergency management, Vitti said students were denied a strong public education, and there must be accountability for that.

"The state took over the district, without the people's consent, and the district went backwards," he said. "Adults need to be held accountable for that, and more importantly, today's children cannot suffer the same consequences."

Helen Moore, a Detroit community activist, said on Tuesday the lower-court ruling dismissing the case was akin to sending students back to slavery. 

"If they don't have the right to read then where are we in 2019? Sending us back to slavery is something we will not tolerate and will fight to the end," Moore said. "We are at war. We are going to fight for our children's right to education."

'Take responsibility'

Elizabeth Moje, a literacy expert who is the dean of the University of Michigan College of Education and author of an amicus brief in the case, said every day children weren’t learning in Detroit schools was a lost opportunity.

"Those losses compound over time and make future learning more difficult," Moje said. " As a result, many children cannot take full advantage of improved learning opportunities now available because they have to first catch up on what they were denied."

Even though test scores in some Detroit schools are improving and the district has a seasoned educator leading substantial reform measures, Moje said it's in the best interests of everyone in the state to ensure all children have opportunities to learn literacy.

"The state still needs to take responsibility because there are children, youth, teachers and parents who still need support. It’s that simple," Moje said.

Vitti has instituted multiple reforms in the district in the last two years, including a teacher-driven K-8 literacy and mathematics curriculum, first in K-8 and more recently for high school students. He has increased professional development, principal training and funded new positions. The district has seen a drop in out-of-school suspensions, a decline in chronic absenteeism and an increase in reading and math scores.

During his four years at Osborn, Hall and his classmates lived through two emergency managers — Roy Roberts and Darnell Earley — as well as retired federal judge Steven W. Rhodes, who acted as a transition manager until the district returned to local control on Jan. 1, 2017.

Hall, who played point guard on Osborn's basketball team, left Detroit to attend Tallahassee Community College. He went for one semester the first year and stopped to work as a janitor. He began classes again this school year and is hoping to transfer to a four-year university.

Hall said he is happy he became a part of the case and part of the fight for change in education in Detroit.

"This case, knowing it changes not just Detroit, it can change everywhere; it can change how education is looked at as a whole," Hall said. "It's great being a part of that."

jchambers@detroitnews.com