Right-to-Read Advocates Undeterred by Court Setback

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It's been called the Holy Grail of education lawsuits: getting a federal court to recognize a right to some degree of public education within the U.S. Constitution.

The chances got a bit dimmer last month, when a federal district court judge dismissed a lawsuit brought by several Detroit students alleging that Michigan policymakers' failure to teach them to read violated their Constitutional rights.

But a small but determined group of legal scholars say that, despite the setback, the hunt for the Holy Grail lives on.

"It's this idea that we just can't let go," said Derek W. Black, a professor of law at the University of South Carolina, who has argued extensively in a series of law-review articles that the Constitution contains an educational guarantee. "Even though people have been told, 'No, this is a nonstarter,' it's an idea they can't let go of."

Indeed, at least two other pending lawsuits advance similar arguments. And at a time when political and constitutional rights are being looked at with fresh eyes, the spate of litigation embodies a growing concern about the link between schooling and the prerequisites for functioning in a democracy.

The word "education" appears nowhere in the Constitution, and that remains the primary obstacle to any effort to read educational rights into the document.

A series of previous cases, notably 1973's San Antonio Independent School District v. Rodriguez, conclude that there is no fundamental constitutional right to an education. Most education litigation over the past 40 years has instead prioritized state challenges, since state constitutions almost always explicitly spell out the right to an education.

From State to Federal Court

So why the sudden interest in returning to a federal venue in the past few years?

It's partly because, after dozens of successful school financing lawsuits in the 1990s and 2000s, state courts have grown far more wary of education adequacy litigation, noted William Koski, a professor of law at Stanford University.

"We're not doing well in state courts anymore. More recently, they've become really nervous of these big educational rights litigations," Koski said. "Maybe it's time to look at the federal courts again."

Many legal experts also agree that the federal rulings have left the door open a crack to additional challenges—for example, one arguing for an implicit right to an education. Both the 1954 Brown v. Board of Education of Topeka and the Rodriguez decisions make the link between education and citizenship rights, such as the exercise of free speech and the ability to vote.

In effect, the lawsuit brought in Michigan argued that the students, who have attended primary and secondary schools in Detroit, are precluded from exercising such rights. The case, Gary B. v. Snyder, hinged on the idea that the students were deprived of access to literacy in a violation of their due process and equal protection rights under the Constitution's 14th Amendment.

The district has been in a state of financial crisis in the two decades since a state-appointed emergency manager first took control of its finances. In 2017, students there had lower 4th grade reading scores than any of the 26 other urban areas included on "the nation's report card," a periodic federal gauge of student learning. News reports have documented vermin, crumbling classrooms, and textbooks that fail to align to Michigan state standards.

Judge Stephen J. Murphy III sympathized with the students, but in his June 29 ruling, rejected their due process claim. He also said that the students hadn't proven that they were given an inferior education because of their race.

"Applying for a job, securing a place to live, and applying for government benefits routinely require the completion of written forms. Simply finding one's way through many aspects of ordinary life stands as an obstacle to one who cannot read," he wrote. "But those points do not necessarily make access to literacy a fundamental right."

Supporters say there's a bit of a silver lining in the decision: The judge didn't rely on the earlier education precedents in dismissing the case, and concluded instead that the U.S. Supreme Court had never ruled on the narrower issue of a right to literacy. That might explain why the ruling tread so carefully, legal experts said.

"It would have been heartening, but what I saw was a court unwilling to be bold," said Black of the University of South Carolina. "You can understand why a district court plays it safe. It's kind of hard to imagine your average court of appeals being bold, either. It's a monumental step people have talked about for half a century or longer, and it's really the U.S. Supreme Court that could take the next step."

The students plan to appeal, said Mark Rosenbaum, the director of the Project for Opportunity Under Law at Public Counsel, a public-interest law firm representing the Detroit students.

"There's not a more meaningful, more relevant civil rights issue in the United States today than what happens to children when they go to public schools," he said. "It's the hope of the democracy, the linchpin, the means by which children have opportunity to better their lives and become civic participants."

In the Wings

Other similar federal lawsuits are pending. A Connecticut challenge filed in 2016 argues that the state has failed to provide all its students with a "minimally adequate education" and seeks to win them more schooling options.

Related Blog

Michael Rebell, a professor and executive director of the Campaign for Educational Equity at Teachers College, Columbia University, said he plans to file a federal education lawsuit this fall, though he wouldn't disclose the venue yet. In it, he'll argue that the right to an education goes beyond the minimally adequate one outlined in the other cases.

"We agree with plaintiffs in the Detroit case that there is a right under the federal Constitution but want to present evidence that the rights should be defined in much broader terms," he said.

Even if any or all of the cases advance, they are virtually guaranteed to be appealed up to the U.S. Supreme Court. The experts acknowledge that the court's ideological makeup makes it unlikely that any of them will succeed—if it even takes up one of them. The court has four conservative judges, and President Donald Trump has nominated a fifth conservative, Brett Kavanaugh, to fill the open slot.

Still, supporters say it's worth rolling the rock up the hill some more.

"These efforts will last until there's a sense that it's just not going to work," Stanford's Koski said. "I think we need to test it a whole bunch of times."

Vol. 37, Issue 37, Page 6

Published in Print: July 18, 2018, as Right-to-Read Lawsuits Press On, Despite Court Setback
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