If literacy is a right, who pays bill, judge asks in Detroit schools suit

Jamarria

CINCINNATI — They came by bus and plane to a small courtroom in southern Ohio, most hoping a three-judge panel would do something big –  rule that access to literacy through better schools is a fundamental right protected by the U.S. Constitution.

But though two judges, both appointed by Democrat presidents, appeared sympathetic, one asked the question that worries Michigan leaders: How much would it cost to fix the Detroit schools?

“What do you want us to do in that regard?” asked Judge Eric Clay of the U.S. Sixth Circuit Court of Appeals, almost perplexed. “Where would the money come from?”

Advocates for Detroit’s public school students want Clay and two fellow judges to overturn a U.S. District Court decision that dismissed the case brought by civil rights attorneys on behalf of several former and current Detroit students.

Plaintiffs argue that Michigan, which controlled the Detroit district for years, allowed it to deteriorate so badly that there weren’t enough books, teachers and furniture, creating an atmosphere where learning to read was near impossible.

Putting a dollar sign on any sweeping remedy, argued plaintiffs attorney Carter Phillips, was premature; the case hadn’t even gotten to trial before U.S. District Judge Stephen J. Murphy III dismissed the case and its argument that access to literacy was a fundamental right.

“Grant them that right and there will be many hours devoted to what that remedy is,” Phillips said. He said the best remedy could be crafted later, after the case proceeds through additional phases.

The exchange was one of several during the lightning fast, question-and-answer hour during which the three judges peppered Phillips and Ray Howd, attorney representing the state of Michigan.

How the judges rule could have a sweeping impact not only in Detroit but nationwide: Though the U.S. Supreme Court has ruled on similar cases over the years, it has specifically avoided a definitive ruling on whether citizens have a Constitution-protected right to an education.

The Detroit case has drawn nationwide attention from scholars, activists and economists who see the potential of a case that could expand the universe of rights.

Advocates for the students were cautiously optimistic following the hearing.

“We were really pleased with the questions from the three judges,” said Mark Rosenbaum, one of the civil rights attorneys who brought the case against the state of Michigan and the state board of education.

The case has drawn national and local attention, with more than 100 people from Detroit in two buses arriving at the courtroom. Leaving from the city at 3 a.m., they carried signs outside the courtroom reading “Keep Open and Rebuild Our Schools.”

For all that was at stake – an emotional debate educational equity, race and state control of a minority district –  the arguments inside the courthouse lasted just one hour and were well mannered and academic. 

The appeal will be decided by two judges appointed by Democratic presidents and one by a Republican, following last year’s dismissal of the case by Murphy. He was appointed by former President George W. Bush.  

The lawsuit claims the state grossly underfunded Detroit schools that they were schools “in name only.” Murphy was sympathetic to the arguments, but dismissed the case, ruling there is no constitutional right to literacy, citing educational cases that went to the U.S. Supreme Court in the 1970s and 1980s.

Rosenbaum and the plaintiffs hope that subsequent legal cases, including the one from 2015 that legalized same-sex marriages, would expand the court’s view of education as a fundamental right and return the case to Murphy for a possible trial.

Of all the cases he has seen, Rosenbaum said the Detroit case, and the conditions in the Detroit schools, was the “most egregious” in the nation. They found that some classes had just five books for 28 students, chairs for 37 in classes of over 50, and not enough teachers, forcing students to watch movies or educate themselves.

As Phillips, the lead attorney for the plaintiffs told the three-judge panel, “you had eighth-graders teaching eighth-graders” in the district.

Nikolai Vitti

Detroit Public Schools Community District Superintendent Nikolai Vitti speaks to attorney Mark Rosenbaum outside a U.S. Appeals Court courtroom following arguments Thursday in a case that could force Michigan to pour millions of dollars into his district to ensure students have access to quality schools. (Bridge photo by Mike Wilkinson)

“When you hear the arguments on both sides it just reminds you how the school district was deteriorated and how many children were lost in the process,  from an educational point of view, from a literacy point of view, from a civil rights point of view,” said Detroit Public Schools Community District superintendent Nikolai Vitti, who attended the hearing.

Vitti said the district is improving and some of the horrific conditions have been remedied since the lawsuit was filed in 2016. Students have textbooks, teacher pay has improved and fewer subs are leading classes. But much work has to be done; the district needs an estimated $500 million in repairs to its buildings –  money does not have, Vitti said.

“We just have to get this right moving forward,” Vitti said.

Hearing the case were Clay, appointed by President Clinton, a Democrat; Jane Branstetter Stranch, appointed by President Obama, a Democrat; and Eric Murphy, who joined the bench this year after Republican President Trump appointed him.

The judges peppered the lawyers with questions, asking how this case differed from prior ones in a timed format where each side got just 15 minutes to speak. Attorneys for the students and the state both came in for hard questions.

After Howd, an assistant Michigan attorney general, pointed out that the state didn’t always control the Detroit schools and that it no longer does following a 2016 restructuring, Judge Stranch pointedly disagreed with his reasoning.

Stranch told Howd she was “struggling” to understand his argument that this district’s ills from years ago were no longer its responsibility. “They (the state) enabled that activity to go on,” she said.

And after Howd alluded to the impact that poverty can have on learning during an exchange identifying who was to blame for poor performance, Stranch interjected that those students from disadvantaged backgrounds were the ones who most need adequate support.

The exchanges with Stranch pleased Rosenbaum and his team. 

“She got it right,” he said. 

But it’s hard to speculate how an appellate court will rule based on oral arguments because they had difficult questions for all sides.

Howd did not comment afterward and the Michigan Attorney General’s Office said it does not comment on pending litigation.

Bus from Detroit

Students and activists from Detroit traveled to Cincinnati to support a legal case that could dramatically alter the city’s public schools. An appeals court on Thursday heard arguments about whether literacy is a fundamental right. (Bridge photo by Mike Wilkinson)

Should the plaintiffs prevail, it could open the door to similar suits across the country. Murphy, the Trump appointee, asked Phillips whether the question was already “settled” by a Texas case from 1973 that upheld that state’s laws on school funding that lead to disparate funding.

Phillips said it did not and pointed to a new vein of legal thought expanded by the same-sex marriage case: that by denying the right to marry, the government was “stigmatizing” same-sex couples.

By not providing the necessary environment that would allow students to become literate, the government was doing the same to them, Phillips said.

“We are saying you are now stigmatized for all time... because you were not put into a position to read,” Phillips said.

Afterward, one of the plaintiffs felt relief as he stood on the steps of the federal courthouse in Cincinnati. 

Jamarria Hall, 19, graduated from Osborn High School, one of the four schools that existed in deplorable conditions, according to the lawsuit. He came to the courthouse after flying from Florida, where he’s attending college, and taking a bus from Detroit.

Hall finished second in his class at Osborn High School and had the best SAT score in his class, he said. But that wasn’t good enough to get into the colleges he wanted and when he got to Tallahassee Community College, he had to take remedial classes “for things I should have learned in third or fourth grade,” he said.

“I know it’s not my fault,” he said. “It was the system I was in.”

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Comments

Mark
Fri, 10/25/2019 - 6:49am

Nobody wants to put blame on the Student side of the equation of decades and decades of failed academic achievement.....High Percentage of chronic absenteeism, lack of educational support at home, generation after generation, etc. Let's First get back to basics, lack of family structure is a key detriment to lack of academic achievement.

Matt
Fri, 10/25/2019 - 7:50am

There's never any specific individual fault for anything. It's always the general tax payer's fault for not providing enough money!!

JK
Sun, 10/27/2019 - 4:16pm

Lack of family structure. OK, what if you come from a family structure where your parents are illiterate themselves. How exactly are they supposed to provide educational support at home? Even if they want to, they're simply not capable. What if they family structure at home requires both parents working, multiple jobs, to keep a roof over their heads and food on the table? Where are they supposed to find the time to provide educational support at home? These are some of the big reasons that poverty begets poverty, but you don't break that cycle by expecting parents to do more than they're actually capable of in supporting their children's educations. Poor students often miss days of school for reasons people of means never contemplate or experience. When busing is unavailable due to lack of funds, a broken down car means no school until repairs can be afforded. Some students miss school because they don't have clean clothing because the trip to the laundromat, or the cost of running the machines, was prohibitive at that particular time. (Some schools have tried to address this problem by putting washers and dryers in their schools, and they've been proven effective). These situations are infinitely more complicated than most people realize.

Mark
Mon, 10/28/2019 - 7:08am

JK- Much of that is tough luck, result of tough choices in life. I recall MI Supreme Court Justice and Former MI Health and Human Services Director say that whenever she went to Detroit Public Schools, she would ask the class if their parents were married or if they knew anybody that was married....she was continually stunned by only a hand or two would be raised. I believe there isn't a Public Education Model anywhere that can successfully educate the Masses in this Demographic that you refer to. For decades these Children get Breakfast and Lunch in School, many provide open schools during summer for meals, now we are adding Washer n Dryers …..this has not increased Academic Achievement. It has though created increased Generational Comfortable Poverty. Bottom line, very few break the cycle of this demographic and the ones that do....is based on individual/family choice and motivation…..not making Schools nothing more than Child Care Centers.

Kevin Grand
Fri, 10/25/2019 - 7:36am

Is there any particular reason why Mr. Wilkinson, and also The Bridge, are reticent to report to readers that Detroit still receives a disproportionately larger share of funding when ALL SOURCES are taken into account?

https://www.mackinac.org/depts/epi/fiscal.aspx

That Detroit Public Schools received a very significant Michigan Taxpayer bailout about three years ago?

https://www.freep.com/story/news/education/2016/06/21/michigan-governor-...

Those facts get "omitted" on a regular basis.

Why is that?

middle of the mit
Sat, 10/26/2019 - 11:01pm

I refuse to take into account anything that The Mackinaw Center for Public Policy has to say until YOU and the Heritage Foundation accept that Obamacare IS Heritage Foundation Care.

Until that time, and if you need proof I CAN AND WILL PROVIDE VIDEO AND AUDIO of Mitt Romney and Heritage Foundation officials proving me right, and then I will show you the same people including Newt Gingrich and Mitt Romney debating in 2012 that it was all a lie.

Of course we just saw House Republicans taking unsecured electronic devices into a SCIF area they weren't supposed to be for a sit in complaining they had no representation, but more than 10 of them actually had seats, not to mention that the dems were using the rules WRITTEN BY JOHN BEOHNER AND PASSED BY REPUBLICANS IN 2015 FOR BENGHAZI!

YOU literally can not be trusted.

Did ya see Bill Barr exonerated Hillary? Just like Darryl Issa and Trey Gowdy?

When is individual 1 going to sit under oath for 13 hours?

middle of the mit
Sun, 10/27/2019 - 12:20am

Why did you have no comments when it came to the Mackinaw Center for Public Destruction...hmm sorry Policy opinion when it came to road funding?

https://www.bridgemi.com/michigan-government/pure-michigan-gets-reprieve...

[[“The program is not only ineffective, it is unfair and expensive," said Michael LaFaive, fiscal policy director for the Mackinac Center for Public Policy. The free market firm conducted its own study in 2016 and found that every dollar Michigan spent on tourism promotion returned created only 2 cents of value for the state's hotel industry. (Why is he only concerned with the Hotel industry?)

The $37.5 million the Legislature had earmarked for Pure Michigan would be better spent on "something that does produce a positive return on investment, like an efficient road system and better bridges," LaFaive said, praising Whitmer’s veto. “Whether it was a bargaining chip or not, I recommend that the line item stay at zero (dollars) for the sake of our roads or some other higher priority,” he added. ]]]]

You really should read my comment on that article. It's not hard, there are literally only two comments on the whole article. I wonder why?

Could you please inform the readers of Bridge, who also read comments, why conservative commenters on this board refrain from commenting on opinions when their progeneters? don't agree with established talking points?

Once again, GOVERNOR WHITMER. STAND YOUR GROUND!

Kevin Grand
Mon, 10/28/2019 - 7:25am

Probably it's because of the fact that I only post a comment when I have some time to kill at work.

And, if you scour all of the boards looking for my responses as you claim to, then you would've already known my take on that particular issue.

Much like a stopped clock being right twice a day, I agree that Gov. Whitmer's veto of Pure Michigan was the right call.

Let the Michigan Chamber pay for this if they feel that there is such a great ROI.

middle of the mit
Mon, 10/28/2019 - 9:33pm

Kevin,
I don't scour every board searching for your comments. I simply look up articles from relevant sources to back up what I say and believe. The Heritage Foundation IS the basis for Obamacare. He used it to troll you. And then for some strange reason (share holder preference) liberals ran with it.

Because it IS NOT Government run healthcare. It IS Government Forcing you to purchase a PRIVATE product that includes shareholder value.

Staying on topic? Isn't that what everything, including this article boils down to? MONEY. And who gets it and who has to spend it. And whose job provides "value" and whose doesn't?

Yeah, that's how it works. And you don't want your tax money being spent to make sure "unworthy kids" (poor) get to be able to read. Let us all go back to the dark ages, well, except those that can afford it. But then again, that is exactly where we would end up.

Ron Andersen
Fri, 10/25/2019 - 9:28am

This is not a new problem with Detroit schools. When I was sent to basic training in 1972 the drill sergeant said "great here comes another group of Detroit high school graduates who cannot read or write". Yet Ben Carson went to Detroit public schools and became a brilliant surgeon. It is not only the schools fault, it is the lack of any support at home. The kids fall behind in school and never catch up.

Barry Visel
Fri, 10/25/2019 - 10:20am

What section(s) of the Constitution are they arguing provides for a “right to literacy?”

Shelly Latinen
Fri, 10/25/2019 - 10:05pm

Vitti is a fraud, profiting from the most vulnerable and marginalized, Detroit's children. He manipulated 2019 MSTEP scores and state testing protocols in a scheme to inflate growth. Half of the lowest performing students did not take the 2019 MSTEP in an intentional scheme by district leadership to influence growth reports. In one case, an entire class of 8th graders were sent on a field trip during a scheduled testing day. Vitti has also covered up pupil accounting fraud in building level master schedules, allowing middle school students to enter high school, knowing these students did not receive science or math instruction for an entire school year. Vitti also allowed false grade and attendance records to be submitted to the state under fake teachers of record for courses where students received no instruction during the 2018-2019 school year.
The problem with DPS/DPSCD is decades of fraud and mismanagement. If the district utilized a conservative, priority based budgeting model rather than lining Vitti and his numerous deputy superintendents' pockets with $300K salaries, they would solve half their problems. Sounds like his inner circle has quite the track record in Florida, too.

Chuck Jordan
Sat, 10/26/2019 - 10:54am

Is there evidence to back up these claims. Disturbing to say the least.

middle of the mit
Sun, 10/27/2019 - 1:54am

It's funny, because I punched this ;vitti 2019 mstep dps/dpscd fraud report, into my browser and found nothing what the commenter you are replying to said I would find. Then I punched this in;vitti 2019 mstep dps/dpscd fraud report 2019 MSTEP in an intentional scheme by district leadership to influence growth reports.

I will admit that I didn't read the articles, but a commenter on this board told me that I didn't need to read anymore than the headlines to find out what the truth is about an article. Of course, fraud was keyword, and it didn't show up.

Would you like to know who I think is the fraud?

It may be just the Republican stunt taking unsecured electronic devices into an area of Government where unsecured electronic devices are not allowed and then complaining about their ability not to record testimony that half of them would have been allowed to hear anyway because they had seats in same said arena, not to mention that those laws for closed door meeting were set by Republicans for republicans during the Benghazi hearings. Republicans not wanting others to follow the rules THEY SET THEMSELVES.

Who could'a thunk that?

Me!

Let the kids fend for themselves!! The poor? SCREW EM!

Who could'a thunk that?

Again..Me!

The question everyone has to ask is why do thinking people literally have to think these things about republicans?

WHY DO WE EXPECT THE WORST FROM PEOPLE WHO ARE SUPPOSED TO BE THE MOST MORAL AND SELFLESS?

Because they love themselves and money and that is it. Period. You read it with everyone of their comments. Try to notice it. It really is a slap in the face when you start looking for it.

Kevin Grand
Sun, 10/27/2019 - 10:53am

"In an era of click bait and biased news, we focus on taking the time to learn both sides of a story before we post it. "

Time to see if The Bridge puts into practice what they like to preach to its readers.

middle of the mit
Mon, 10/28/2019 - 9:42pm

How many comments/opinion articles from "both sides" do you see in ANY Mackinaw Center for Public destruction (sorry) policy published? Care to talk about what conservative talk radio/ media or TV has on schedule?

Pot! This kettle is NOT black! It's copper!

middle of the mit
Mon, 10/28/2019 - 9:50pm

Kevin?
Why didn't you have anything snarky to say about my last post on this article? Yeah! That post! 10/26/2019 @ 11:09 pm.

middle of the mit
Sun, 10/27/2019 - 1:08am

If every conservative district took a conservative philosophy they would be like my district and most of the districts in Northern Michigan. Some of the districts are willing to TAX THEMSELVES TO PAY FOR UPGRADES to the school buildings and pay for new teachers, most however are not. And the buildings up here are older than me. In fact, MY parents went to those schools when they were kids, and they were just new then. I am in my mid 40's. The upkeep is getting to be more expensive than replacement on everything. And yet no one wants to be taxed more to replace them. What is going to happen?

Only the wealthy have a place to educate their kids? I sure hope all your kids get a education now. In a few years, some of your grandkids might be left in the dust. But that's OK with you. Because even though I don't really think that a superintendent should be making $300 grand, I think that a CEO and or shareholder making millions or billions drives up prices for EVERYTHING more than any superintendents salary.

But you don't. In fact, you believe those people should get tax breaks that makes YOUR share of YOUR KIDS EDUCATION GO UP. But hey!

Bizznizz creates jobs and when they make money the pass it on. That is why Kansas and the Brownback experiment and all of trickle down economics is a complete and total success!

Tax cuts for the USA means the rest have to accept austerity!!

Yeah! I'm going with that!

Also, I vote Blue 4 U!

Will you accept it? You will if it means a better education than Republicans have left our kids with.

middle of the mit
Sat, 10/26/2019 - 11:09pm

In 2019, the State of Michigan requiring students above a certain grade to be able to read?

What is this State? A dictatorship? Should we have to provide an education to anyone?

Isn't that a personal responsibility? Why should the State require any education? It is simply overreach by liberals and the nanny state. Our employers and the wealthy will help those they deem worthy of an education. Families, churches and charities are in the best position to determine who is worthy of spending money on for an education. The rest?

Let them fend for themselves.

This is only partially snark. Conservatives really believe this. And I am about ready to start voting for this....at least locally.

Give them what they want. When they receive it, they might not like it.

Governor, STAND YOUR GROUND.

THEY DESERVE IT!

Maryanne
Mon, 10/28/2019 - 7:39am

Michigan taxpayers find 895 PUBLIC school districts (approx. 250 charter districts and 650 traditional k-12 districts. according to MDE). we are ridiculously overburdened with EXPENSIVE and REDUNDANT rabidly unionized layers of administration, support staffers, buildings, maintenance, transportation etc. Funding RARELY reaches the actual classroom.
Florida, by comparison, has 1.5 million MORE students and there are 74 public school districts. The argument for this always boils down to the parents need for a 'local voices' at school board meetings and 'local' control established when Michigan became a state in 1837. Virginia, a state regularly in the top ten academically, has 108 public school districts. Both states have vast urban and suburban districts with multi-cultural, multi-lingual, multi-racial students as well as remote rural districts. We no longer live in a time when it is a day's ride on horseback between school districts or townships (similar layer of wasteful tax-funded redundant government -30 states have NO township government) to make our voices heard. We live in a time when autos travel 70 mph and one can communicate instantaneously with just about anyone on the planet.
Michigan's State Constitution is not the Ten Commandments carved in stone. It has been amended and even rewritten MANY times. Michigan currently ranks 45th in education, yet spends more on education per students than 2/3 of the states WITH WHOM WE COMPETE. Michigan taxpayers pay MORE THAN ENOUGH money to fund a quality education for every Michigan student. We need to consolidate districts, reduce redundance, and funnel money into excellent classroom resources AND REQUIREMENTS for students. We need a well educated workforce to ATTRACT modern business and industry to our state. Currently, we are a rapidly aging state in decline. We have been losing our best and brightest young professionals to other states for DECADES. what family has not said goodbye to children and grandchildren who are no future here? Our infrastructure is crumbling and we are overburdened with REDUNDANT costs of duplicate state and local government, as well as school districts. It's time for Michigan to get in the game - we are already 20 years into the 21st century. We have been left behind.

Erik Kengaard
Tue, 10/29/2019 - 8:55pm

Christopher D. Cerf, New Jersey Commissioner of Education in the Education Funding Report, February 23, 2012, http://www.nj.gov/education/stateaid/1213/report.pdf

"So, economically disadvantaged districts sought redress from the courts, first in the form of Robinson v. Cahill and later in the more familiar guise of Abbott v. Burke. Their's was a logical argument: close the spending gap and the achievement gap will follow. Their argument won in the courts, but not in the classroom"
Page 5 http://www.nj.gov/education/stateaid/1213/report.pdf

"In 1973, at the time of the Robinson decision, the average per-pupil expenditure in the former-Abbott districts was nearly $7,000 (measured in 2010 dollars).ii By 2010, the average per-pupil expenditure in those districts had nearly tripled to $18,850, or $3,200 more than the State average (excluding the former-Abbotts) and $3,100 more than the State’s wealthiest districts. But despite “adequate” (some might argue, more than adequate) funding, the achievement gap between economically advantaged and disadvantaged students persists and, in some instances, has widened. For example, in 2011, 76% of economically advantaged third through eighth grade students scored proficient on the Language Arts Literacy portion of the New Jersey Assessment of Skills and Knowledge; only 45% of economically disadvantaged third through eighth grade students scored the same. More troublingly, the Language Arts Literacy gap in proficiency rates has increased by 5 percentage points since 2005, from 26% to 31%."
Page 5 Christopher D. Cerf, New Jersey Commissioner of Education in the Education Funding Report, February 23, 2012