Geoffrey R. Stone, New York Times, October 21, 2016

At one Detroit school, just 4 percent of third graders scored proficient on Michigan’s English assessment test. At another, 9.5 percent did. Those students are among the plaintiffs in a lawsuit filed last month that asserts that children have a federal constitutional right to the opportunity to learn to read and write.

Illiteracy is the norm at those “slumlike” schools and others in Michigan’s biggest city, according to the plaintiffs. The facilities are decrepit and unsafe. The first thing some teachers do each morning is clean up rodent feces before their students arrive. In some cases, teachers buy the books and school supplies, even the toilet paper.

Lawyers for the students are arguing, in effect, that Michigan is denying their clients the right to a minimally adequate education, an issue that has been raised over the years in courts in other states under their state constitutions.

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Now the litigation in Detroit is raising this issue under the United States Constitution. The Supreme Court has never addressed whether disparities among schools would be constitutionally permissible if, as the court put it in 1973, a state failed “to provide each child with an opportunity to acquire the basic minimal skills necessary” for success in life.

In that bitterly divided 5-4 decision, San Antonio Independent School District v. Rodriguez, the court upheld a Texas law that produced unequal levels of education to students living in different school districts based on the property tax revenues of each district.

The majority maintained that the law was constitutional because it served a rational policy of permitting each school district to decide for itself how much money to spend on education. Whether the level of education was at least minimally adequate in the state’s poorest schools was not at issue in the case.

In what is likely to be the opening chapter in a long legal saga, a federal district judge in Michigan must determine if a state can constitutionally provide a vast majority of its students with an excellent or at least adequate education while a minority of students receive an education that denies them the chance to acquire the minimum skills the court spoke of 43 years ago in Rodriguez.

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But in the case of children who are attending a public school, how do we know whether a state has denied some of its children even the minimal level of education required by the 14th Amendment? That is the burden that the plaintiffs in the Detroit case must meet. After reviewing their evidence, the case seems to be open-and-shut.

As the plaintiffs demonstrate, “decades of state disinvestment in and deliberate indifference to the Detroit schools” have denied these children “access to the most basic building block of education: literacy.” At the schools involved in this litigation, which serve almost exclusively low-income minority children, the student proficiency rates “hover near zero in nearly all core subject areas.” At one school, for example, 100 percent of the sixth graders scored below proficiency in reading.

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