Does the U.S. Constitution include a right to literacy?

As a candidate for governor last summer, Gretchen Whitmer said yes. But in pleadings filed last week, the state sidestepped the question and urged the U.S. Court of Appeals to dismiss a lawsuit aimed at establishing that right. A federal judge had ruled earlier that no such right exists.

The state argued the 2016 lawsuit on behalf of Detroit schoolchildren is moot on technical grounds, noting that the officials named in it no longer hold office. Former Gov. Rick Snyder, members of the State Board of Education and the state superintendent of schools have all been replaced since the suit was filed. The state also has helped Detroit schools by replacing an emergency manager with an elected school board, according to the pleadings.

"Even if defendants were the proper parties when this case was filed, they are no longer the proper parties because of these changed circumstances, which has restored local control," the state argued. "As a result, the plaintiffs’ claims are now moot."

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Whitmer spokeswoman Tiffany Brown wouldn't say whether the governor still supports a constitutional right to literacy.

"The governor’s office has signed onto the first part of the lawsuit only, which argues that the State of Michigan is no longer a proper party to the lawsuit due to changed circumstances and the fact that local control has been restored," Brown told the Free Press in an email. "The Governor’s Office did not not join the second part that argued children did not have a right to literacy. The governor believes that every student deserves a quality public education."

'She campaigned on it'

Backers of the suit say that amounts to a flip-flop from Whitmer.

"She campaigned on it and she got votes on it," said Mark Rosenbaum, a lawyer representing the children. "She solicited and obtained votes representing that she was going to support a constitutional right to literacy."

If such a right were established, states could face new pressures to ensure that students can read. The lawsuit seeks to establish such a right, with backers comparing their quest to Brown v. Board of Education, the 1954 case which found segregated schools were unconstitutional.

The suit argued that the state had denied Detroit students access to literacy — the most basic building block of education — through decades of "disinvestment ... and deliberate indifference." It requested remedies such as the implementation of evidence-based literacy programs, universal screening for literacy problems and a statewide accountability system in which the state "monitors conditions that deny access to literacy" and intervenes.

A team of constitutional law experts from around the country was recruited to litigate the suit.

Last July, U.S. District Judge Stephen Murphy in Detroit, dismissed the case, granting the request from then-Attorney General Bill Schuette.

"Plainly, literacy — and the opportunity to obtain it — is of incalculable importance," Murphy wrote. "As plaintiffs point out, voting, participating meaningfully in civic life and accessing justice require some measure of literacy."

But those points, Murphy said, "do not necessarily make access to literacy a fundamental right." And, he said, the U.S. Supreme Court has repeatedly emphasized that the importance of a good or service "does not determine whether it must be regarded as fundamental."

Lawyers for the students appealed the ruling, prompting the latest round of pleadings.

In a July interview with WDET radio a few weeks after Murphy's ruling, Whitmer said Snyder was wrong on the case.

"Despite what the federal court said, despite what Bill Schuette and Gov. Snyder say, I believe every child in this state has a constitutional right to literacy," Whitmer said. "I believe you have a birthright to a good education. And it includes having a great teacher in your classroom, having facilities that promote the kind of learning that today’s day and age requires. All of these are pieces of that."

No resources

Jamarria Hall, 19, of Detroit is one of the plaintiffs in the suit. He graduated from Osborn High School in 2017 and is now studying business at Tallahassee Community College.

He said he feels the ill effects of his high school education every day.

"I felt like I really got cheated out of four years," he said. "I still have struggles today reading. I had the highest SAT score in my school and I still have struggles reading."

Hall said he's been able to catch up in his education by using resources at the college's library and elsewhere. If he can't understand something, he can get a book that covers it or meet with a professor who will explain it.

Those kinds of resources weren't available in Detroit Public Schools, he said. Many times, his high school classrooms didn't have enough textbooks. Teachers would use copy machines to reproduce pages that could be passed around to kids with no books. Hall said he'd often walk past trash cans placed in the hallway to catch water leaking through the roof and occasionally see rats in the building.

Hall said he knows friends and neighbors who have never read a novel and can't read well enough to know how to improve their own lives.

"People are complaining about who the president is, how the roads aren't fixed, how the schools aren't good," he said. "There are council meetings and elections and ways for us to protest and have our voices hear, but people aren't educated enough to know that. They think there's nothing we can do. They think this is just how it's going to be and there's nothing we can do about it."

More school spending

Brown said Whitmer is working to improve Detroit schools.

"Her proposed budget will make the biggest investment in public school operations in a generation of kids, including more than $22 million for Detroit public schools," Brown said. "Her budget will allow us to do things like triple the number of literacy coaches in Michigan, improve buildings and facilities, and help schools raise teacher pay, reduce class sizes and upgrade technology. The governor’s budget will also provide more funding for low-income and at-risk children and help them get on paths to good-paying jobs.”

Rosenbaum called those measures "a small drop in a very large bucket."

The state's pleading acknowledges that two current Republican members of the Michigan Board of Education, Tom McMillin and Nikki Snyder, conclude there is no constitutional right to literacy.

"The other defendants do not address these claims and the court need not reach them," according to the pleading.

But Board Vice President Pamela Pugh, a Democrat, said in a statement that she disagrees with the state's position, which was submitted on her behalf and that of her fellow board members.

"Anything short of Gov. Whitmer and state education officials completely separating from former Attorney General Bill Schuette’s arguments and taking responsibility for our children of color being granted the equal right to critical learning conditions that are afforded to students in other school districts is simply unacceptable," Pugh said.

She added that state emergency management of the Detroit district has "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."

Attorney General Dana Nessel's office didn't respond to a request for comment on the discrepancy between Pugh's statement and the pleadings filed on her behalf. The pleading was signed by Assistant Attorney General Joshua Smith.

"You'll notice that the attorney general's name does not appear in the pleading," said Daniel Olsen, a spokesman for Nessel. "She may make a decision to take a different position on the case, so a conflict wall has been established in our office."

Rosenbaum said the state's decision means the courts are the only recourse for Detroit students.

"This is why we have to go to court, because the politicians can't be counted upon to stand up and fight for these kids and address the fact that the state, for over a decade, decimated their schools," he said.

Contact John Wisely: 313-222-6825 or jwisely@freepress.com. On Twitter @jwisely