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Wednesday, July 4, 2018

Reading is Fundamental. But It's Not a Fundamental Right, Court Rules

From Education Week's Blog "Curriculum Matters"

By Stephen Sawchuk
July 2, 2018

A federal district court has dismissed a legal challenge asserting that Michigan policymakers deprived Detroit students of a constitutional right to literacy.

The case, Gary B. v. Snyder, based its claims in the U.S. Constitution rather than in state laws—the basis of most education-equity lawsuits—arguing that students in the Detroit schools were so ill-served by Michigan policymakers that their failure to learn how to read ran afoul of their due process and equal protection rights under the 14th Amendment.

While sympathizing with the students who brought the lawsuit, Judge Stephen J. Murphy III wrote that despite the well-documented problems of vermin-filled classrooms, outdated textbooks, and dysfunctional leadership, the U.S. Constitution doesn't guarantee literacy.

"The conditions and outcomes of Plaintiffs' schools, as alleged, are nothing short of devastating. When a child who could be taught to read goes untaught, the child suffers a lasting injury—and so does society," Murphy wrote.

"But the Court is faced with a discrete question: does the due process clause demand that a state affirmatively provide each child with a defined, minimum level of education by which the child can attain literacy? Based on the foregoing analysis, the answer to the question is no." 

An Uphill Battle on Literacy

As I reported last fall, though, one of the reasons this case matters is because it characterized equity in terms of a specific educational outcome: literacy. That is a shift from prior lawsuits, which have tended to focus on school access or on school financing.

The case was always going to be a bit of an uphill battle, given the historic reluctance of courts to read educational rights into the U.S. Constitution, which doesn't mention education at all.

But Murphy's decision notes that, other famous education rulings notwithstanding, federal courts had not before addressed the question of literacy.

"The court is left to conclude that the Supreme Court has neither confirmed nor denied that access to literacy is a fundamental right. The Court must therefore cautiously take up the task," he noted.

Ultimately, he ruled, while literacy is crucial and a necessity for public life, it is not a positive right. (Similarly, the judge noted, federal courts have not found a fundamental right to sanitary housing or water and sewer service, though those are also arguably prerequisites for a productive life.)

Nor could the plaintiffs prove that the students were treated differently because of their race, he added.

Policy Collision?

To an extent, the ruling seems to conflict with local and state policy decisions on reading.

The Detorit Free Press' Lori Higgins noted, for example, that Michigan has a third grade law that requires students to pass a literacy test to move onto the next grade.

  • June, 2018: Judge rules there is no right to access to literacy. June, 2019: Likely thousands of Michigan third-graders will be told they can't become fourth-graders b/c they're not proficient in reading, per state law.— Lori Higgins (@LoriAHiggins) June 30, 2018

And here's a take from Camika Royal, a teacher-educator:
  • Apparently, the state of Michigan is required to have schools, and schooling is compulsory, but the state is not required to actually teach students to read. Got it.— Philly Jawn (@DrCamikaRoyal) July 2, 2018

The plaintiffs have vowed to appeal the decision.

"Historically, denial of access to literacy has been a tool of unlawful discrimination used in an attempt to stigmatize, disenfranchise, and otherwise hold back certain communities. The most telling fact in Michigan is that this remains the case today," said Mark Rosenbaum, an attorney for Public Counsel, one of the groups representing the plaintiffs, in a statement. "That is why we will continue to fight for the children of Detroit to have their day in court."

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