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Saturday, August 19, 2017

Should Literacy Instruction Be a Constitutional Right?

From Education Week's Blog
"Curriculum Matters"

By Stephen Sawchuk
August 15, 2017

A federal lawsuit centering on the Detroit school district raises a fascinating argument about the relationship of literacy to citizenship: Is it possible to be a participating member of society without the ability to read and write?


The plaintiffs in the lawsuit, Gary B. v. Snyder, don't think so. And they argue that Michigan's failure to help Detroit's needy students, and students of color, to read falls afoul of the 14th Amendment to the U.S. Constitution, which guarantees liberty and equality under the law.

Think about it, they say: If you can't read and write, you will have trouble voting, reading the news, getting a job, or otherwise being a fully formed citizen.

The unusual lawsuit is among the first to argue that public education should lead to a specific educational outcome in a content area: if not literacy outright, the schools must give access to literacy instruction.


A Complex History

As you probably know, the U.S. Constitution doesn't say anything explicit about education, leaving it up to states to define in their own constitutions what educational rights are guaranteed. That's why most litigation over school adequacy has been fought at the state level, rather than at the federal level.

(And in some states, including Michigan, courts have even held that the state constitution doesn't create a "cause of action" over education—or allow individuals to sue over educational rights.)

The U.S. Supreme Court has generally been suspicious of attempts to read educational rights into the constitution. Most notably, in the 1973 case San Antonio v. Texas, it ruled that even though Texas' school financing system yielded big disparities in per-pupil funding, it did not run afoul of the 14th Amendment's equal-protection clauses.

That seems pretty open-and-shut.

But according to the plaintiffs in the Michigan case, brought by the pro bono law firm Public Interest, the San Antonio case left open the possibility that a school system could be so dysfuctional and fail so greviously to provide a "basic" education that it might run afoul of the constitution's equal-protection clause.

And, in effect, the Gary plaintiffs say that's exactly what's happened in Detroit, thanks to the falling spending, the crumbling schools, the outdated textbooks, and the lack of qualified teachers. What's more, the state is doing a disservice to a particular class of students who are disadvantaged and non-white.

Not surprisingly, the state of Michigan is fighting this argument. In its motion to dismiss the case, which was heard by U.S. District Judge Stephen Murphy last week, the state argued that "there is no fundamental right to literacy" in the constitution, and that it is not responsible for the Detroit school district's woes.

"Plaintiffs' claims go far beyond mere access to education and ask this Court to serve as a 'super' legislature tasked with determining and dictating educational policy in every school district and school building throughout the United States where an illiterate child may be found," the state's lawyers wrote. "This Court should soundly reject Plaintiffs' attempt to destroy the American tradition of democratic control of schools by creating a fundamental right out of whole cloth."


Mark Rosenbaum, the director for Public Counsel's Opportunity Under Law project, said that during the hearing, he argued that the right the plaintiffs are fighting for isn't as anywhere near as extensive as the defendants claim.

"It's not clear to me beyond basic education and access to literacy how much the 14th Amendment would admit," he said in an interview. "But if kids can't read and write, they are excluded from democracy and the ability to achieve based on merit."

Expanding Educational Rights

No matter which way this case ends up, it is emblematic of a subtle shift in lawsuits over educational rights. For years, access to school finance and funding were the name of the game in such lawsuits. And now, a handful of lawsuits are arguing that equity contains an instructional component.

The primary example is probably Vergara v. California, the 2014 case that sought to overturn that state's teacher-tenure and dismissal rules, arguing that they were concentrating poorly performing teachers in schools serving large number of needy students, in violation of the state constitution. That lawsuit was successful at the trial-court level, but an appeals court overturned it.

Public Counsel wasn't involved in Vergara, but Rosenbaum was a key figure in another, similar equity lawsuit, Reed v. California. That case, in 2010, argued that seniority-based layoffs violated needy and minority students' civil rights by subjecting them to a revolving door of teachers.

It resulted in a settlement with the Los Angeles school district, but the settlement was also overturned, this time over procedural problems raised by United Teachers Los Angeles.

The Gary plaintiffs' legal team includes two law professors, Evan Caminker of the University of Michigan and Erwin Chemerinsky of the University of California, Irvine, alongside the Public Counsel and other pro bono lawyers.

Lori Higgins, the Detroit Free Press' excellent education reporter, has a great rundown on some of the complex legal arguments in this case and will be following it as it develops. Her most recent piece is here.

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