11:34, July 03 176 0 abajournal.com

2018-07-03 11:34:06
Judge dismisses lawsuit alleging constitutional right to literacy; plaintiffs vow appeal

A Detroit federal judge dismissed a lawsuit last week that accused the city's schools of denying children their fundamental right of access to literacy.

In an issue of first impression for the U.S. District Court for the Eastern District of Michigan, U.S. District Judge Stephen Murphy III ruled Friday in the case of Gary B. v. Snyder that there is no fundamental right of access to literacy under the U.S. Constitution. Agreeing that literacy is vitally important to public life and that the conditions in Detroit public schools are “devastating,” Murphy, nonetheless, concluded that the Due Process Clause of the 14th Amendment “does not require a state to provide access to minimally adequate education.”

“When a child who could be taught to read goes untaught, the child suffers a lasting injury—and so does society,” Murphy’s opinion says. “But the court is faced with a discrete question: does the Due Process Clause demand that a State affirmatively provide each child with a defined, minimum level of education by which the child can attain literacy? Based on the foregoing analysis, the answer to the question is no.”

The judge also rejected an argument that the disrepair of many Detroit schools amounts to disparate treatment of minority groups and violates the Equal Protection Clause of the 14th Amendment. (According to the state of Michigan, 97.5 percent of Detroit Public Schools Community District students are nonwhite.) The court found that such a claim requires plaintiffs to show that the state “intervened in a school with a different racial makeup and treated that school disparately.”

The plaintiffs, represented by the Los Angeles public interest firm Public Counsel and Sidley Austin, issued a statement Monday promising to appeal to the Cincinnati-based 6th U.S. Court of Appeals.

“The court got it tragically wrong when it characterized access to literacy as a privilege,” said Public Counsel attorney Mark Rosenbaum in a statement. “Children from affluent communities in Michigan do not attend schools in their communities lacking teachers, books and safe and sanitary conditions, and children of color and from less advantaged communities are entitled to no less.”

As the ABA Journal reported in March of 2017, the plaintiffs in Gary B., a group of minor children who attend, or have attended Detroit public schools, argues that those schools are so underfunded and mismanaged by the state of Michigan that their condition denies students a right of access to literacy. When Rosenbaum visited the schools to prepare for the case, he found schools with outdated textbooks, malfunctioning climate control and rat droppings in classrooms. Some classrooms were without teachers, he said, and those students “just sat for a period of time,” learning nothing.

The complaint asked the court to rule that access to literacy is a fundamental right—an issue of first impression for the court, as Murphy pointed out in his opinion. The U.S. Supreme Court has declined opportunities to rule that access to education is a fundamental right. Sidley Austin partner Tacy Flint told the ABA Journal in March of 2017 that the court did leave open, in San Antonio Independent School District v. Rodriguez, the question of whether it’s unconstitutional to have a school system that “occasioned an absolute denial of educational opportunities to any of its children.” That, she said, was what the plaintiffs argued is happening in Detroit.

Education professor Benjamin Superfine of the University of Illinois at Chicago told the Journal in 2017 that post-Rodriguez school finance litigation has generally not succeeded in federal courts, though claims based on state constitutions have sometimes succeeded.