An appalling Court of Appeals decision cries out for reversal

Kary Moss is executive director of ACLU of Michigan.

On November 6, the Michigan Court of Appeals, by 2-1, issued a decision in SS vs. Michigan that our state has no legal obligation to actually educate its schoolchildren. This week, we at the ACLU of Michigan asked the state Supreme Court to reverse this appalling decision.

The ACLU filed this case in July 2012, representing eight children in a district where 90 percent of 11th-grade students were not reading proficient. More than two years later, families have fled. The district – placed under emergency control and turned over to a for-profit charter called the Leona Group – is still in deficit. And test scores remain abysmally low. Our expert, Dr. Elizabeth Moje, urged the court to act well over a year ago, describing urgent conditions.

When we brought this case, we did not intend for it to be pro- or anti-charter, pro- or anti-emergency manager or pro- or anti-union. Rather, we sought to give children who were not learning to read a voice and a chance to enforce the two laws that should grant them their day in court.

The first law, passed in 1993, was intended to ensure that children not reading at grade level receive individualized literacy intervention. We have called it the “right to read” law. It has never been enforced before.

The second law – our state Constitution – guarantees that this State will “support and maintain a system of public education.” It doesn’t guarantee a similar status to sports or other activities that may build character. It elevates education because education is the underpinning of democracy, a thriving economy and educated workforce, the American dream and the ability of every individual to realize their human potential.

The idea that this should be, and is, an enforceable right is not a radical idea. Many state courts with similar constitutional language have found their own constitutional mandates – with virtually identical language – to mean that kids should have more than just a physical building:

In South Carolina, the state Supreme Court said that each child should “receive a minimally adequate education” – including “the ability to read, write, and speak the English language[.]”

The state Supreme Court in Tennessee said that that state’s constitution imposed “an enforceable standard for assessing the educational opportunities provided in the several districts throughout the state.”

In Washington State, the state Supreme Court said that the duty to provide an education goes “beyond mere reading, writing and arithmetic” and “must prepare our children to participate intelligently and effectively in our open political system to ensure that system's survival.”

Once again, Michigan has become a tragic outlier. Now, we not only rank in the bottom five states in the country in our NAEP test scores and rank low in terms of access to educational opportunity for students from historically disadvantaged groups – but we have a Court of Appeals decision that tries to protect these poor results. We have the additional and dubious distinction of being one of only a handful of states in the country that this court would say has no judicially enforceable constitutional right to an education.

At its core, the decision gives immunity to the state for any of its decisions made in a school district under the control of an emergency manager. It then lets districts off the hook by declaring that the “right to read” law is only advisory and that individual students can't use it to file a lawsuit even if their districts ignore the law. In a state that has championed accountability for teachers, it is unconscionable to allow public officials off the hook for such an important public duty.

In a passionate, well-written and well-reasoned dissent, Judge Douglas Shapiro blasted the majority opinion as “miserly.” He said that even though courts should avoid managing schools or fine tuning educational policy, “this does not excuse the majority’s abandonment of our essential judicial roles, that of enforcement of the rule of law even where the defendants are governmental entities, and of protecting the rights of all those who live within Michigan’s borders, particularly those, like children, who do not have a voice in the political process.”

At a recent dinner with the parents of several of our plaintiffs, one mom explained her dissatisfaction with the ruling this way: "If I neglect my children the state would want to come in and remove them. So why does the state get to neglect our children? Who will pay for the neglect of the children by the state?"

There is much that people from across the political spectrum would agree upon or acknowledge as true: education is a driver of economic prosperity for individuals, communities or the state; many children do not have access to books or computers; high-school counselors are in short supply, leaving many children poorly positioned to plan for and apply to college; we need to hire and retain high-quality teachers in low-performing districts; school districts cannot do it alone; the classroom matters; state oversight matters; and students who are poor readers in third grade will almost always remain poor readers for the rest of their lives.

Despite our agreement on these truths, however, we cannot come together on solutions – although the remedy we asked for in this case is simple and straightforward: individualized literacy intervention for children not reading at grade level. For the court to tell the plaintiffs that their remedy is to go to the ballot box, especially in a district under the control of an emergency manager who is heavily insulated from the voters, is shortsighted.

What we see happening in Highland Park doesn’t have to continue. High-poverty schools don’t have to be low-performing. This is why we’ve asked for an appeal. We cannot afford to leave our most vulnerable children to such a miserable fate.