Nessel splits with Whitmer, sides with Detroit kids in literacy suit

Dana Nessel, Michigan’s attorney general, opposed the State of Michigan in brief filed in U.S. Sixth Circuit Court of Appeals. She argued that the court should rule the Constitution requires public schools to provide students with a minimally adequate education that includes access to literacy

Michigan Attorney General Dana Nessel on Friday broke ranks with Gov. Gretchen Whitmer, a fellow Democrat, and sided with Detroit schoolchildren in their lawsuit against the state over literacy.

Nessel followed through on promises and filed an amicus brief in the U.S. Sixth Circuit Court of Appeals requesting the court rule that there is a constitutional right to a minimally adequate education.

The stance is in opposition to a brief the state filed last month on behalf of Whitmer and the state school board members who decline to address whether students have such a right. State attorneys for both Whitmer and former Gov. RIck Snyder, a Republican, have argued the courts have already decided there is no right to a minimum standard of public education.

Related: Candidate Whitmer: A Right to Literacy. As Michigan gov: No need to address

“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 in a written statement.

The dueling court briefs are related to the class-action lawsuit five Detroit students in low-achieving public schools filed against the governor and state school board, contending that Detroit children were denied access to literacy due to state disinvestment in the schools. The lawsuit accuses the state of “separate and unequal” treatment of students in Detroit’s low-performing schools, who are mostly poor children of color.

The students took their so-called “access to literacy” case to the appeals court after a district court judge in Michigan last year dismissed the lawsuit. Judge Stephen J. Murphy III ruled that education is important, but the U.S. Constitution does not provide a fundamental right to access to literacy nor the right to a “minimally adequate education.”

Nessel disagreed in her court filing.

“Granted, the right to a public education is not expressly mentioned in the Constitution, but neither are most of the rights we recognize as fundamental. 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,” Nessel said.

“A minimally adequate education cannot be just a laudable goal—it must be a fundamental right. 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.”

Whitmer’s office released a statement Friday that did not address Nessel’s arguments.

“As the governor has always said, she believes every child has a birthright to a good education… ,” Tiffany Brown, her spokeswoman, said in an email to Bridge.  “It’s also why the governor has offered the strongest education budget in a generation, with a laser-focus on literacy.”

Mark Rosenbaum, attorney with Public Counsel, the California-based law firm that represents the students, called Nessel’s move “a major development.”

“Nessel sees in that right (to a minimally adequate education) the future of the state and the promise of our democracy,” he said. “That’s in stark contrast to the governor who used these children to advance her future, not theirs.”

Related: Whitmer plan to boost funds for neediest K-12 students hits wall in Lansing

Detroit’s public school system ranked last for the fifth consecutive time among 27 of the nation’s large cities on the Nation’s Report Card reading tests in 2017.

The class action lawsuit blames years of low achievement in Detroit schools on what it calls the state’s “deliberate indifference” to the city’s students.

Nessel’s brief argues that a minimally adequate public education is critical to ensure citizens can “exercise their constitutional rights” and the lack of a minimal education jeopardizes the foundation of American democracy.

“As Michigan’s attorney general, acting on behalf of the general welfare of all the people – and particularly every child in this State – I am legally, morally, and personally compelled to advance this important concept,” said Nessel.

When Whitmer was campaigning to become governor, she criticized state Republican leaders for fighting the Detroit children’s lawsuit and claimed that public school students have a right to access to literacy and a quality education.

However, she took no stance on the isuse after she became governor and the target of the lawsuit. Whitmer’s office told Bridge last week that she remains committed to improving education in Michigan as proven, in part, by her proposed 2020 budget to increase education funding.

Her 2020 budget proposal would triple funding for literacy coaches statewide, adding $24 million to hire experts to help schools boost reading skills.

That money would increase the number of literacy coaches in the state from 93 to 279 for the 550 school districts and 300 charter schools in Michigan. Under the proposed budget, the state would pick up the full tab for those coaches, instead of the current system in which local districts pay half the cost.

However, that proposal has run into opposition. The House Appropriations Subcommittee on School Aid and Department of Education on Thursday approved a bill that did not include Whitmer’s recommendation for a weighted formula for education funding.

Whitmer’s proposal recommended an increase of a half-billion dollars to Michigan public schools, with funding increasing by $180 per student.

Nessel’s brief may explain why she was not involved in defending the state in the case so far.  

Eric Restuccia, the state’s deputy solicitor general, filed the brief on behalf of Whitmer and the state school board in the U.S. Sixth Circuit Court of Appeals last month, noting that the U.S. Supreme Court has not recognized that students have a Constitutional right to literacy or quality education.

He also argued that since Detroit schools are no longer controlled by a state emergency manager, as they were when the case was filed in 2016, the children should not be able to continue to sue the state over the condition of the schools.

Restuccia requested the court hear oral arguments from both sides before ruling on the case.

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Fri, 06/07/2019 - 3:37pm

The reason the Right to an adequate education doesn't appear in the Constitution is because it is so individualistic that it is meaningless with 300 million (or 7 billion for that matter), different definitions. Like a constitutional right to be happy and healthy. This kind of nonsense makes every judge a legislature and executive branch of one. Nessel is Michigan's Robespierre and there's little evidence that there any daylight between her and Whitmer.

Thor of the North
Mon, 06/10/2019 - 9:18am

Literacy Lawsuit my thoughts are
One is taught in accordance to ones' fitness to learn

Mon, 06/10/2019 - 11:15am

Students in Michigan already have the right to access a "minimally adequate" free public education in our state constitution. Students in Detroit Public Schools have been provided with school buildings, textbooks, and teachers at taxpayer expense for almost 200 years now. For decades, the public school education available in Detroit was much more than "minimally adequate". In the 1950s and 60's, graduates of Cass Tech could write their own ticket into drafting and design jobs in Detroit's auto industry, or selective engineering schools.

In the 1970's, when purely local funding based on property values was determined to be inadequate for Michigan's urban and rural school districts, Michigan changed our school funding model to combine both sales and property tax revenues for school funding. This move immediately produced significantly greater equity in school funding, which accelerated recently under Gov. Snyder, who led the effort to "bring up the bottom" faster. Proposal A was effective enough that Michigan is the second best state for providing equality of state education spending for students of all races as of 2017-18's school year, the latest for which I could find statistics.

When equality of funding wasn't enough to produce good results, Michigan's most indebted and poor-performing school districts have been coached, reorganized, provided with financial management experts, restructured, and dissolved, all based on efforts to improve learning for the students. In 2016, the Detroit school district was bailed out with $617 million dollars from state coffers, and split from the old district, which will collect property taxes to pay off the rest of their outstanding debts.

The root of the problem in Detroit Public Schools is not and has not been a lack of either money or of attention from Michigan's officials, elected or appointed. The solution is not throwing more money at the school districts, the teachers, or at the illiterate young people who have "graduated" in spite of their lack of basic math and language skills. Learning requires at least some effort on the part of the learner, and far, far too many of Detroit's students, including the plaintiffs in this case, have not been led by example, pushed, persuaded or coaxed by their parents or teachers into putting in the necessary effort to learn to read.

But the worst-in-the-nation academic results of Detroit's public schools are only the most extreme example of the slide in academic achievement we've seen across Michigan's public schools. Proclaiming a legal "right to read" or the right to a "minimally adequate education" will not help students learn more, or at all. As long as politicians like Dana Nessel, parents, students, administrators and teachers behave as if education was something done to or done for learners, all the money in the world is not enough. When students are eager to learn and minimally supported by their families and teachers, a few books, some pencils and paper, or a library computer connection to the internet are enough for almost all of them to learn to read. And once a student is a fluent reader, they can find and understand the resources they need to learn to their utmost capabilities.

Tue, 06/11/2019 - 12:12pm

All your points are correct but we're suffering from a cultural meltdown that makes progress very hard to get. Immigrants coming here that haven't been contaminated seem to thrive in spite of a less than great situation..

Mon, 06/10/2019 - 6:09pm

What exactly is in the governor's weighted formula? If half of the students in Michigan are poor and/or have special education needs how do you decide what levels require what funding? Do you give extra funding for a newly homeless student or a child with long term housing unstable issues? How about funding for foster kids who might move back and forth with different families and/or schools? How does the formula account for students without access to Internet outside of school or speeds so slow they can't view/access education based websites (i.e. Khan Academy,,,, ...)? Does funding have to be do so no students outside the formula can benefit, that could be hard for districts to manage especially if over 90% fall under the formula and a few don't or a student academically progresses too high for the formula? School districts who get highly educated students from other countries where English isn't the first language, but student already knows some English getting same funding as district with students from countries where education isn't free and student is several years behind because parents either couldn't afford or value the cost of an education. Does the formula consider the stable family units verses students who have divorce, or family members with serious/fatal diseases that sap the resources and time of family helping their younger members, even if it isn't the student with the diseases/medical issue.

Wed, 06/12/2019 - 10:29am

This seems to be telling us that we should expect AG Nessel is setting up her run for Governor in a few years. She needs to differentiate herself and best to start it early by diverging in the courts. This is an especially good opportunity because Nessel can claim her consistence with her campaign rhetoric while Whitmer switch when confronted with reality. What is better in a campaign than claiming adhering with principles over the facts, that is what her base needs.

Thu, 06/13/2019 - 9:39am

Complete waste of time and OUR funds. Is Nessel using the job to pander and slot herself for political ambitions?