Judge says there's no fundamental right to learn to read and write

Lori Higgins | Detroit Free Press

Few could dispute the importance of literacy. But children have no fundamental right to learn to read and write, according to a federal judge whose ruling in a closely watched lawsuit Friday left some disheartened and others raising questions.

"I'm shocked," said Ivy Bailey, president of the Detroit Federation of Teachers. "The message that it sends is that education is not important. And it sends the message that we don't care if you're literate or not."

The ruling came in a federal lawsuit that was closely watched across the U.S. because of its potential impact: Filed on behalf of Detroit students, it sought to hold a dozen state officials — including Gov. Rick Snyder — accountable for what plaintiffs said were systemic failures that deprived Detroit children of their right to literacy.

The lawsuit sought remedies that included literacy reforms, a systemic approach to instruction and intervention, as well as fixes to crumbling Detroit schools. Earlier this month, officials with the Detroit Public Schools Community District said it would cost $500 million to bring school buildings up to par.

The City of Detroit, the American Federation of Teachers, the AFL-CIO, the community group 482Forward, Kappa Delta Pi, the International Literacy Association and the National Association for Multicultural Education all filed briefs in support of the plaintiffs.

The lawsuit was filed by Public Counsel, a Los Angeles-based law firm that is the nation's largest public interest law firm. Mark Rosenbaum, the lead attorney for the plaintiffs, declined to comment Saturday, saying he wanted an opportunity to first speak with his clients.

Spokespeople for Snyder couldn't be reached for comment.

The ruling also comes as the state ups the stakes for third-graders. Beginning with the 2019-20 school year, schools must begin holding back third-graders who are more than a grade level behind on reading assessments. Last year, just 44 percent of the third-graders who took the Michigan Student Test of Educational Progress passed the exam; the year before, it was 46 percent. In Detroit, far fewer students are proficient in reading.

The state had argued in its motion to dismiss the suit that there is no fundamental right to literacy. Lawyers for the city, in a brief opposing the motion to dismiss, said city officials are "all too familiar with illiteracy's far reaching effects."

"Widespread illiteracy has hampered the City’s efforts to connect Detroiters with good-paying jobs; to fill vacancies on its police force, and to grow its tax base. Illiteracy, moreover, has greatly exacerbated the effects of intergenerational poverty in Detroit."

U.S. District Judge Stephen Murphy III, in his ruling Friday, noted the importance of literacy.

"Plainly, literacy — and the opportunity to obtain it — is of incalculable importance," Murphy wrote in a 40-page opinion. "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."

A similar lawsuit claim was made in so-called "right to read"litigation the American Civil Liberties Union of Michigan filed in 2012 alleging Highland Park students had been denied a benefit guaranteed under Michigan's constitution.

That constitutional provision states that "the means of education shall forever be encouraged," and "the Legislature shall maintain and support a system of free elementary and secondary schools."

But the Michigan Court of Appeals dismissed that lawsuit in 2014, saying:

"The cited provisions of the Michigan constitution require only that the Legislature provide for and finance a system of free public schools. The Michigan constitution leaves the actual intricacies of the delivery of specific educational services to the local school districts."

The ACLU appealed to the Michigan Supreme Court, which opted not to hear the case.

More: Read U.S. District Judge Stephen Murphy's ruling here

More: Judge dismisses lawsuit against Snyder over Detroit kids' literacy

Michael Addonizio, a professor of educational leadership and policy studies at Wayne State University, said that "morally and politically," Murphy's ruling is "a disappointing outcome. It's a difficult theory to swallow."

But he said he suspects constitutional scholars won't be surprised. He cited as a precedent a U.S. Supreme Court case from the '70s that found education was not a fundamental right under the U.S. Constitution.

"The plaintiffs wanted to make this not a case about funding or resources, but a case about the fundamentality of reading, and the right of every student to have access to that skill," Addonizio said of the Detroit lawsuit. "But I think a lot of people felt that this case was very closely related," to the earlier case.

He said the plaintiff's argument "was a very worthwhile argument to make."

"In today's world, the skill of reading and comprehension is more important than it has ever been," Addonizio said. "There are just so many opportunities that are closed off for people who are not good readers."

The lawsuit was filed on behalf of students who attend three schools in the Detroit Public Schools Community District and two Detroit charter schools. It covered a period in which the school district was under the control of a state-appointed emergency manager. And it chronicled poor academic and physical learning conditions and a serious lack of resources.

"The State of Michigan’s systemic, persistent, and deliberate failure to deliver instruction and tools essential for access to literacy in Plaintiffs’ schools, which serve almost exclusively low-income children of color, deprives students of even a fighting chance," the lawsuit said.

"It's time to do something if we're going to be serious about education," Bailey said.

Addonizio said if Michigan officials want to address the disparities in educational opportunities for children, "we've got to do it legislatively."

He hopes the ruling will steer more focus to an issue with which he's intimately involved — an effort to ensure Michigan schools are adequately funded. A study released earlier this year called for increased funding for children who are more costly to educate.

"The decision in this court case ... just attaches greater importance to our leaders coming to grips with understanding the resource needs of our children, particularly in the schools that disproportionately educate children from low-income families, English language learners and children with other special education needs."

Contact Lori Higgins: 313-222-6651, lhiggins@freepress.com or @LoriAHiggins. Staff writer Ann Zaniewski contributed to this report.