Michigan wants to toss a historic “right to literacy” lawsuit filed on behalf of Detroit schoolchildren, but a state board of education member is urging officials to side with the students who’ve sued the state over the quality of their education. 

Lawyers from the state have asked the federal appeals court to throw out the lawsuit, saying the case is now moot because there is new state leadership, including a new governor, and because the district is now locally run again.

But board member Pamela Pugh said in a letter Tuesday that “special compensation is needed” for the Detroit Public Schools Community District students who weren’t adequately educated when the state was in control of the district, from 1999 to 2005 and again from 2009 to 2016.

“In my opinion, this robbed Detroit children of the basic right to literacy, a fundamental right which I believe should be determined to be guaranteed by the U.S. Constitution, as well as other constitutional rights which require literacy skills,” said Pugh, a Democrat from Saginaw and the board’s vice president.

The students’ case is the first made in federal court arguing that access to literacy is a right.

Eric Restuccia, the state’s deputy solicitor general, wrote in the Friday filing that state officials are no longer “the proper parties to provide the relief plaintiffs seek in their complaint.”

The lawsuit, which has been closely watched by education, civil rights and legal experts across the U.S., was filed more than two years ago. It has sought to hold state officials responsible for systemwide failures that the plaintiffs say have deprived Detroit children of their right to literacy, left many classrooms and buildings in terrible condition, and left teachers without the resources they needed to do their jobs.

The conditions persisted, they say, while the state was in control of the school district.

The lawsuit seeks remedies that include literacy reforms, interventions and facility fixes.

Pugh’s letter came on the same day Mark Rosenbaum, the lead attorney for the plaintiffs, blasted the state’s argument.

“She’s saying that the case is moot because there’s now a local board of education, and therefore the state is off the hook,” said Rosenbaum, referring to Whitmer. “You don’t have to be a legal scholar to know you cannot commit constitutional violations and then turn over the reins to someone else and say we’re not accountable.”

Meanwhile, another member of the eight-member state education board said she wants “to explore all the options.”

“I don’t necessarily agree with the stance that has been taken now,” said Tiffany Tilley, a Democrat from Southfield who was elected in November. “I wasn’t given enough information about the lawsuit and what was going to transpire.”

Pugh said in her letter that she is exploring her options after contacting the Michigan Attorney General’s Office and notifying them that she never agreed to support the state’s legal position. The filing indicates it was the legal position of all defendants of the lawsuit.

The lawsuit was originally filed in 2016 against former Gov. Rick Snyder, as well as state education leaders, members of the state education board and other state officials. It was updated in May to add Whitmer and newly elected board members as defendants.

The lawsuit was dismissed by U.S. District Judge Stephen Murphy III in June of 2018. But the plaintiffs immediately filed an appeal, which is now before the 6th Circuit Court of Appeals.

The students are represented by Public Counsel, which is based in Los Angeles and the nation’s largest public interest law firm.

During the governor’s race in 2018, Whitmer said that despite Murphy’s ruling, she believes every child has a right to literacy. A spokesperson for her transition team reiterated that to Chalkbeat in November.

Her election, and that of Attorney General Dana Nessel, had given some hope that the state would stop fighting the lawsuit, and might instead work with the plaintiffs to seek a settlement. The two sides did meet in April for a mediation session that Rosenbaum said lasted about four hours.

Tiffany Brown, a spokeswoman for Whitmer, said the governor has “only signed onto” the part of the lawsuit that argues the state is no longer a proper party to the lawsuit, and that the governor “believes that every student deserves a quality public education.”

Rosenbaum said he’s confident in the plaintiff’s arguments. He said the Detroit school district now has a strong superintendent and school board. But the district’s has been adversely affected by years of state control.

“The state decimated these schools,” he said.

The district last year produced a report that identified $500 million worth of repairs needed at buildings districtwide — a price tag that was expected to rise to $1.4 billion in five years if the district did nothing. In February, Chalkbeat reported that the district planned to spend $9.7 million to address some of the needs, but that amount was just a fraction of what it would cost to fix the district’s crumbling buildings.

Pugh, in her letter, noted that Michigan ranks among the worst states in the nation for the performance of African-American students.

“Through decades of inequitable funding and disastrous education program experiments, there’s been a perpetuation of children of color being deprived of the basic and proven conditions necessary for them to learn,” she wrote. “Classroom learning is thwarted without literacy. Essential to a decent education are an adequate number of well trained teachers, sufficient teaching resources, and school buildings that aren’t environmental health hazards.”

Rosenbaum said he will have two to three weeks to file a reply to the state motion. After that, he said, oral arguments will be scheduled before the appeals court.