An appalling Court of Appeals decision cries out for reversal

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.

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Comments

Amy
Tue, 12/30/2014 - 9:54am
Amen!
James
Tue, 12/30/2014 - 10:29am
The 90% deficiency in reading skills at the 11th grade level you cite in the article flies against the need for " individualized literacy intervention" and spending more money in that particular school district. Perhaps, the local school board should take action regarding the administration of the schools and perhaps parents in that district should take a more active role in the school. This is not a case of individualized need but rather community failure. This is a problem that can not be solved by throwing more money at the problem. Thank goodness that the Court of Appeals applied some logic to this particular issue. The state and federal government is not supposed to be a self appointed nanny for poorly run schools and the neglect of the community.
Scott Galloway
Tue, 12/30/2014 - 12:08pm
Aren't school districts merely a subdivision of state government? I thought that was the rationale for the state takeover of "troubled" districts. If so, then it isn't a matter of the state being a nanny, but rather the STATE failing at a core function of government.
Ron O.
Tue, 12/30/2014 - 11:59am
Here's the real question - since the transition to Leona - have scores improved or declined? It's "odd" how and why you would neglect to mention that - is there is no new data in over 2 years? It took how long for the tax base and school funding to deteriorate yet it seems you expect overnight results. My suspicion is that scores did improve and were intentionally omitted because they don't fit your narrative - which is - what exactly? That we should maintain the same MEA approved non-functional status quo?
David
Tue, 12/30/2014 - 1:53pm
Ron, you raise a legitimate question. The sad state-of-affairs in Highland Park were years in the making. Limited resources and an unrealistic timeline to demonstrate success would seem to make any improvements appear inadequate.
Danielle Funderburg
Tue, 12/30/2014 - 12:01pm
Thank you ACLU for leading the charge on this appeal. I find it rather appalling that our judicial system that interprets the law cannot draw a harsh line in defining said laws and enforcing its regulation. For quite some time I have known that the state of Michigan does not care about the education of our children especially those that are low-poverty and don't have access to quality education streams. The crippling laws that are being passed in Lansing is prove of that lack of empathy. Passing legislation that supposedly "helps" our school districts but cut them off at the knees with shell game spending and unfunded mandates. Well, the TRUTH has finally come out! Michigan could not really care less about educating those less fortunate and this ruling is the PROOF! At least we know what we are dealing with, and yes my vote does matter but its laughable at best when the general mindset of those individual legislatures in Lansing only see the less fortunate as menaces to society and intend on getting free labor from them once they've been incarcerated. This ruling was shameful, but at least I know what and WHOM I'm dealing with now in this struggle for QUALITY in our educational system!
Matt
Tue, 12/30/2014 - 1:23pm
So isn't saying that the state has an obligation to educate all students. mean they must be proficient? And isn't this the same as saying the students must actually learn a given subject? How do you really have a law requiring that anyone really learn anything? Isn't this really the point of giving the choice of where a given kid has the best shot of succeeding to whatever this definition may be rather than a general definition of proficiency?
John
Tue, 12/30/2014 - 1:49pm
First and foremost, I encourage everyone to read the opinions published by the Court of Appeals (COA). They can be easily located online by searching for any of their docket numbers: 317071, 317072, and 317073. This is a fascinating case and one should read as much first hand information as possible. The majority opinion is authored by Judge Kathleen Jansen, a concurring opinion is authored by Judge Christopher M. Murray, and a dissenting opinion is authored by Judge Douglas B. Shapiro. To follow that point, it's unfortunate the BRIDGE chose to introduce many of its readers to this case via the ramblings of Kary Moss. Her views are extreme and do not provide and accurate, objective analysis from which readers may form their own opinion. I find the majority of her comments to not be pertinent to the legal matter at hand. They seem aimed at whipping up public hysteria, not at working toward a rational solution. And she has succeeded. See Danielle Funderberg's reply for an example of comments completely irrelevant to the specifics of this case. I agree with James's assessment that this is a community failure, not an individual one. At the high school level, the 90% failure on the Michigan Merit Examination in reading was accompanied by a 97% failure in math, 94% failure in writing, 100% failure in social studies, and 100% failure in science. However, this lawsuit was brought on behalf of eight students and even though a demonstrated district-wide failure is obvious, the case only pertains Michigan law and the potential relief for these eight students. Thus James's comments, while agreeable to me, are also irrelevant to this case. In my opinion, all of the COA opinions (particularly Shapiro's) and Moss's article above rely far too heavily on opinions rendered in other states. Opinions that interpret state law that is not Michigan law. Ms. Moss's opening sentence states that the COA decided that "our state has no legal obligation to actually educate its schoolchildren." Well, yeah. Our state has no legal obligation to actually educate its schoolchildren. I accept that as fact. The actual education is in the hands of the schools and school districts, not the state. But that's not the question here. The question is what role and responsibility do the courts have, within Michigan law, to this end. The COA opinions are far too detailed to go into here, but I'd like to share two portions of text that struck me as I read them. In the majority opinion, Judge Jansen writes: "While there is little genuine controversy that the district defendants have abysmally failed their pupils, the mechanism to correct this failure is not through the court system, particularly given the remedy sought by plaintiffs. The problem is multifaceted, comprised of deficiencies in the manner and type of academic instruction received, but also impacted by a variety of social and economic forces unique to the circumstances of each student. Consequently, there is no one-size-fits-all solution and the greatest impact for each student will be one that is made up of several components and addresses his or her individual needs. Such a solution is not available through judicial intervention." In the dissenting opinion, Judge Shapiro writes: "The ultimate resolution of this case, if allowed to be heard, cannot not be known. Defendants may prevail on the merits. The parties may agree on a remedy or, after trial, the trial court may impose a remedy from which none of the parties appeals. Whether a remedy is imposed and, if so, whether it is proper, is a question that we should not, and may not, determine at this stage of the case. Most important, the mere existence of that question should not lead us to refuse to hear the case altogether." The majority opinion grants summary disposition to all defendants. Essentially, there is no remedy within Michigan law for the specific allegations within this case. The dissenting opinion wishes to the case to be heard. At this time I agree with Shapiro. The state doesn't have a legal responsibility for the education of the students, nor can the courts enforce one upon it. But the courts do have the authority to hear the arguments and potentially enforce the parties (specifically the district and the students) to work together to seek a remedy. A remedy which may require state funding, depending on Michigan law. Thus, I concur with Ms. Moss's call for a reversal of the COA (which may occur if heard by the Supreme Court), but I disagree with all or virtually all of her arguments for doing so.
John
Tue, 12/30/2014 - 1:57pm
I apologize, there is a typo in my quoting of Judge Shapiro. It should read, "The ultimate resolution of this case, if allowed to be heard, cannot NOW be known." Emphasis added to identify typo.
charlie
Tue, 12/30/2014 - 3:02pm
This is why the For Profit Charters love Michigan. They get guaranteed $/head and cut corners on actual education so that they PROFIT! Taking $ from public education should be a crime since the experts say, compared to other countries, our K-12 education in the USA is abysmal.
Duane
Tue, 12/30/2014 - 4:47pm
The ACLU seems to be trying to make the support of education a guarantee of results. If the State creates a structure, provides funding (limited versus unlimited) to communities across the state how is that not support? If communities with local control have varied results, if students have varied results all with similar State support how can results not be determined locally? Ms. Moss seems to feel that the law is what educates children and children have no role or responsibility in their education. She talks about “right to read” law and ignores people have to make an effort to use a ‘right’. If one never proclaims their views they are not exercising their ‘right’ to free speech, if one never socializes they are not exercising their right to assembly, if a child never tries to read then they are not using the supposed ‘right’ to read. Again it seems Ms. Moss feels people don’t have to make an effort, take responsibility, to benefit from a ‘right’. If the ACLU is so sure it is the law and not the student that makes someone literate then what we need is an ACLU/Ms. Moss law that declares all who enter the 11th grade as literate.
Duane
Tue, 12/30/2014 - 4:49pm
Ms. Moss is wrong, “It elevates education because education is the underpinning of democracy, a thriving economy and educated workforce…”, education isn’t the under pinning of democracy, it is the people who are the underpinning. When this country was founded few of those who sacrificed for our country were formally educated, even literate, and yet they understood freedom, personal responsibility, personal sacrifice. I have found that education takes personal effort, person attention, personal sacrifice, regular practice to be a tool for people to use. I value education, I appreciate the many ways people can become educated, what I have found education doesn’t make people free, doesn't make people wise, doesn't make people work and sacrifice, it doesn't guarantee results, it is only a tool. The individual must think and do for themselves to make themselves free. Ms. Moss and the ACLU want assured results and can only see them provided by the State. That isn’t being free.
Charles Richards
Tue, 12/30/2014 - 5:10pm
Ms. Moss says, "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." So why didn't the ACLU sue the Highland Park school district to provide such intervention? Highland Park was spending about $20,000 per student per year. Surely that was sufficient to provide the desired intervention. Why sue the state? She goes on to say "The second law – our state Constitution – guarantees that this State will “support and maintain a system of public education.” The state complies with that provision. It is silent on the question of whether each district shall provide equal results. The state funding gap between the lowest- and higher-funded schools is on average about $1,000 per student per year, much narrower than the $2,300 per-student funding gap that existed in 1994-95 when Proposal A took effect. I suspect that the $2,300 gap in 1994-95 was much larger in percentage terms than the current $1,000 gap. Apparently that is not enough for Ms. Moss. Her real, unstated objective is to have the judicial system allocate educational resources. That is, and should be, a function of the political process. It should be left to the voters acting through the governor and legislature.
Dennis Thering
Wed, 12/31/2014 - 8:14am
What would happen to parents of they quit sending their kids to school? The state would step in and compel them to with threats. Why is the state allowed to cheat them of an education with no impunity, but if parents do it, they're threatened with child removal and in some cases jail? Once again, those who need help from the state the most are the ones that are ignored. Way to go Michigan
Nancy
Thu, 01/01/2015 - 10:05am
Dennis--great point you have made!
John
Thu, 01/01/2015 - 10:50am
Dennis & Nancy - What evidence do you have that if parents didn't send their kids to school that the "state would step in and compel them to with threats"? Why wouldn't it be the proper local authorities investigating and enforcing state law regarding school attendance? How can the state "cheat" anyone "of an education" when the state has no responsibility to educate individuals. The state's responsibility is primarily fiduciary. Read the law. And read the COA opinions for this case. Ms. Moss is selling the emperor's new clothes and you're both buying. Perhaps you could contribute positively to this situation if you directed your indignation to those who actually failed these students: the board, administrators, educational staff, and community of Highland Park, Our tax dollars throughout the state are funding this district. How are the locals allocating the funds? Whatever they're doing they're not producing what most would consider an acceptable level of academic achievement.
Gus
Fri, 01/02/2015 - 2:57pm
Here is the problem with the ACLU position and the liberal opinion nicely summed up by the author: “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?” The answer is quite simple – the children are YOUR Children, lady, not the states. It is up to parents to raise their children and care for them, not the state. It is up to parents to make sure the children get up in the morning, get dressed and go to school, not the state. It is up to parents to make sure their children study and do their homework, not the state. Hilary Clinton was wrong – it does not take a village to raise a child; it takes a mother and a father.