Settlement Reached in Detroit Case on Access-to-Literacy Right

By Mark Walsh — May 14, 2020 4 min read
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Michigan Gov. Gretchen Whitmer announced a settlement Thursday with the plaintiffs whose lawsuit alleging deplorable conditions in the Detroit public schools led to a groundbreaking federal appeals court ruling recognizing a U.S. constitutional right of access to literacy.

“Students in Detroit faced obstacles to their education that inhibited their ability to read—obstacles they never should have faced,” Whitmer, a Democrat, said in a statement. “Today’s settlement is a good start, but there’s more work to do to create paths to opportunity for our children.”

The settlement includes payment of $280,000 to the seven Detroit schoolchildren who were plaintiffs, $2.7 million to be paid to the Detroit school district for literacy programs, and proposed legislation to provide $94.4 million for efforts to improve literacy in the Detroit system over a longer term.

Whitmer was not in office when the lawsuit was filed on behalf of seven Detroit schoolchildren that conditions in their schools were so bad—due to the absence of qualified teachers, crumbling facilities, and insufficient materials—that the schools failed to provide access to literacy. It further alleged that the state was responsible because it had direct control of the Detroit system from the 1990s until recently.

The suit led to an April 23 decision in Gary B. v. Whitmer by a 2-1 panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, recognizing a right under the 14th Amendment’s due-process clause to a basic minimum education, in the form of access to literacy. The decision, which attracted wide discussion among legal observers and advocates of education equity, revived the schoolchildren’s lawsuit and led to the settlement talks.

“It was time to move this case from the courtroom to the classroom and begin to get these children what they deserve and what they have long been denied,” Mark D. Rosenbaum, the legal director of Public Counsel, a Los Angeles-based public interest law firm that is behind the Detroit suit, said in a conference call with reporters.

“There is no illusion” that the programs described in the settlement “will solve all the problems of the Detroit school system,” Rosenbaum said. “But we recognize this as a force of history.”

Jamarria Hall, who is now 20 and was in the class of plaintiffs attending five schools whose substandard conditions were detailed in the suit, said the settlement meant that “we now have hope.”

“It’s not for me as a former student, but it’s for my nieces” and others, he said on the conference call. “We have been through hard times, but the sunshine is coming.”

Besides the financial terms, the settlement announcement says the governor will request that the Michigan Department of Education advise school districts throughout the state “as to how they might use evidence-based literacy strategies, initiatives, and programs to improve access to literacy and literacy proficiency, with special attention to reducing class, racial, and ethnic disparities.”

The settlement will also create two task forces in Detroit, one to conduct yearly evaluations of literacy among the city’s schoolchildren, and the other to focus on “the stability and quality of the overall educational ecosystem in Detroit.”

Rosenbaum said the settlement was structured so it does not need the approval of the Michigan legislature, but the biggest-ticket item—the $94.4 million in literacy aid for Detroit—will require support from lawmakers.

Both the state Senate and House have Republican majorities, and some political observers say the extra funding may face tough terrain at a time when the coronavirus pandemic is hitting the state budget.

The Michigan House and Senate last week asked the full 6th Circuit court to reconsider the panel’s decision.

Two lawyers who helped represent the Detroit schoolchildren said Thursday that the settlement would put an end to the case and would either dissuade or not permit the full, or en banc, 6th Circuit to reconsider the panel decision.

“I don’t think it’s fair to say [the settlement] completely insulates” the panel decision, said Carter G. Phillips of the law firm Sidley Austin, who argued the children’s case before the 6th Circuit panel. “But I would think it would dampen any enthusiasm to take the case en banc.”

Evan Caminker, a professor and dean emeritus of the University of Michigan Law School and also on the children’s legal team, said, “I might describe the precedent even more strongly than [Phillips] does. The 6th Circuit has held in the past that when a case becomes moot by virtue of the settlement of the parties, that is the end of the matter.”

John J. Bursch, a lawyer representing the Michigan legislature in its attempt to intervene in the case, disagreed that the settlement was the end of the matter.

“The governor’s proposed settlement will not moot the case,” he said via email. “When the executive branch fails to defend, federal courts routinely allow the legislative branch to intervene and defend the government’s interests. Assuming the 6th Circuit follows the usual course and allows the Michigan Senate and House to intervene, they will vigorously pursue en banc review. Courts should never allow state defendants to collaborate with plaintiffs to lock in precedential rulings that are adverse to the state’s interests.”

A version of this news article first appeared in The School Law Blog.