‘Settle it.’ With the clock ticking, education advocates push Gov. Whitmer to end the Detroit literacy lawsuit

Gov. Gretchen Whitmer during a press conference on May 4, 2020.

The Constitutional right to education was in danger the moment it was established by a federal panel last month.

Whether that precedent survives — and what it means for Detroit students — is up to Gov. Gretchen Whitmer.

Advocates and plaintiffs in the Detroit-based “right to read” lawsuit are pressuring Whitmer to settle the case quickly. They worry that their win and the precedent, long sought by education advocates, will be undone if Whitmer appeals it to a more conservative higher court.

But they hope that a settlement could make gains for Detroit students. Advocates say there’s a wide range of policies Whitmer could put in place to partially make up for problems that have long plagued Detroit schools — including shifting the state funding formula or creating a literacy fund for struggling Detroit schools.

“We have an opportunity right now to reset this and make it right,” said Arlyssa Heard, a parent organizer with the advocacy group 482Forward. “Think about all the harm that has been done.”

Heard says her two sons struggled in city schools with leaky roofs, outdated books, and a shortage of certified teachers. She moved them repeatedly, but found that many schools suffered from the same problems. “The bottom line was this: My son was not in an environment where he could learn,” she said.

The family’s experience is similar to ones described in the literacy lawsuit, Gary B. v. Whitmer, which argued that the state was responsible for the poor condition of the city’s schools.

Last week, Eric Clay, a federal judge on the Sixth Circuit Court of Appeals, ruled in favor of the seven students who brought the suit. “Education — at least in the minimum form discussed here — is essential to nearly every interaction between a citizen and her government,” he wrote.

Detroit schools are still badly underserving its students. Citywide, student scores on Michigan’s reading exam lag far behind the state average, though they made gains last year. The Detroit district’s literacy levels consistently rank below those of any other major city in the National Assessment of Educational Progress, a national exam considered the gold standard for measuring student learning.

Representatives of the plaintiffs, and Whitmer did not return requests for comment. Detroit district leaders urged Whitmer to settle the suit in a letter last week.

From the moment Whitmer was elected, the lawsuit put her in an awkward position. As a candidate, she had insisted that “every child in this state has a Constitutional right to literacy.” But as the state’s top official, she argued that the case should be thrown out because the state no longer controls Detroit schools. Another top Michigan Democrat, Attorney General Dana Nessel, declined to take part in the case, saying she sided with the students. 

If Whitmer appealed the case now, though, the students’ victory could be overturned by a higher court. The Supreme Court has repeatedly declined to rule that education is a Constitutional right. The current court, with two appointees of President Donald Trump, is unlikely to rule in the Detroit students’ favor, said Mark Paige, an education law professor at the University of Massachusetts, Dartmouth.

The clock is ticking: Whitmer has only 90 days from the April 23 ruling to appeal the case to the Supreme Court, and 14 days from that date to ask the Sixth Circuit to undertake a rare review of Clay’s ruling.

Advocates have already begun to lay out a wish list. Angie Reyes, executive director of the Detroit Hispanic Development Corporation, which has pushed Whitmer to settle the case, said the problems in the lawsuit hurt students across Michigan.

“There have been two or three generations where the schools have not met kids’ needs,” she said. “And it’s not just Detroit.”

Reyes hopes that a settlement might shift the state’s school funding formula, sending more money to schools whose students have greater needs connected to poverty, disability, or English proficiency.

She offered another idea: A “literacy fund” that would send money to schools that have failed to teach students to read. Parents and school staff would have a say in how the money was spent. A settlement reached in a similar lawsuit in California included a literacy fund.

Any settlement would be complicated by the economic crisis brought on by the coronavirus outbreak, which is projected to cost Michigan billions of dollars in revenue. The Republican-led state legislature would need to sign off on any major spending included in a settlement, an unlikely prospect as they work to cut the state budget.

But new spending might not be the only way to help schools.

“There are a variety of things that would represent a step forward for education conditions in the state that may not have a large price tag in the short run,” said David Arsen, professor of education policy at Michigan State University.

One example: The 2016 law that prevented the Detroit district from going bankrupt also limited the district’s ability to raise local tax money, a major problem for a school system whose buildings urgently need more than $500 million in repairs. A settlement could return the district’s full power to raise funds from Detroit residents, Arsen said.

A settlement could also breathe life back into a proposed citywide administrative body tasked with overseeing district and charter schools, Arsen said. That idea was initially included in the 2016 law but was removed at the urging of U.S. Education Secretary Betsy DeVos, who was an education activist and philanthropist at the time.

In an email, a spokesperson for the Detroit Public Schools Community District said that the district is advocating for a range of possible settlements, including: A commitment to equitable school funding, funding for literacy initiatives, facilities improvements, debt restructuring, elimination of the Financial Review Commission that oversees the district, bonding authority, and assurance that the state can no longer impose emergency management without the consent of voters in any district.  

Reyes agreed that the city’s school system, which is composed of the city district and dozens of charter schools, could use an administrative overhaul.

“We want there to be some sort of oversight, and that both systems are meeting the needs of our children,” she said, referring to the district and charter schools.

More important, Reyes said, is that any settlement should address the root causes of the problems in Detroit schools.

“We want to be sure that it addresses some of these systemic issues, and that it’s not just a Band-Aid.”

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