By Detroit FW Staff
On October 24, 2019, the Sixth Circuit Court of Appeals will hear oral argument on a remarkable court case. The case, Gary B, et. al. v. Gretchen Whitmer and the Michigan State Board of Education, centers on whether students in the United States are guaranteed the right to access literacy under the U.S. Constitution.
The case was filed in the US District Court for the Eastern District of Michigan Southern Division on September 13, 2016, and assigned Case No. 16-13292. The Plaintiffs in this class action filed on behalf of all students in Detroit are: Jessie K, an African American 9 year old third grade student at Hamilton, charter school in Detroit; Christopher R, Isaias R and Esmerelda V, Latinx 9th, 7th and 8th grade students, who all attended Experiencia, a Detroit Public School; Paul M, an African American 18 year old senior at the Detroit Public Schools Osborn High School; Gary B, an African American 18 year old senior at Osborn; and Jaimie R, an African American 17 year old eleventh grade student at Cody HS, a DPS school. (all descriptions are of the Plaintiffs’ status at the time of the filing of the case) The Plaintiffs are represented by Public Counsel Opportunity Under the Law, a human and civil rights firm out of Los Angeles, CA.
Defendants in the case were Governor Richard Snyder and the Michigan State Board of Education members in their official capacities. Governor Gretchen Whitmer, elected in 2018, has since replaced Snyder as Defendant. Despite pronouncements that she supported the plaintiffs when she was running for office, Governor Whitmer has chosen to defend the state’s position and joined in the call for dismissing the case since being elected.
Two State Board of Education members, Pamela Pugh and Tiffany Tilley, while formally Defendants in the case have chosen to separate themselves from the defense in this case and expressed support for the Plaintiffs. One of them, Pamela Pugh has even chosen to file an amicus brief in support of the Plaintiffs. And while the Michigan Attorney General’s Office is defending the lawsuit, Attorney General Dana Nessell has separated herself from that defense, and even attempted to file an amicus brief in support of the Plaintiffs.
Students face litany of horrors
In their complaint, the Plaintiffs cited a litany of horrors facing students in the City of Detroit that effectively amount to a denial of the right to access to literacy and equal protection under the law. The factual allegations in the complaint include:
- The Detroit Public Schools Community District (DPS) is the only district under Michigan law where teachers are not required to be certified.
- Students in Detroit schools are overwhelmingly African American and socioeconomically disadvantaged, as are the schools attended by Plaintiffs.
- On a percentile scale of 1 to 100 rating of Michigan schools, with the 100 percentile being the highest ranked schools in overall education quality, Plaintiffs’ schools ranked at a 4 percentile rank for Hamilton, 1 percentile rank for Osborn, 2 percentile rank for Osborn Evergreen, and 6 percentile rank for Cody.
- Only 12.5% of Osborn’s students scored college ready in English, 0% in Math, 5.4% in reading, and 1.8% in science reasoning; Osborn Evergreen’s ratings were 2.2%, 0%, 2.2% and 0%, and Cody’s were 10.2%, 0%, 1.7% and 0% respectively.
- DPS students are on average 2.3 grade levels below their actual grade level in basic reading proficiency.
- There is no literacy instruction program in Plaintiffs’ elementary schools, and the schools lack the staffing and capacity to implement such a program,
- At Hamilton many students entered the 4th grade in the 2015-16 school year with a kindergarten-level vocabulary.
- Students sit in facilities that are functionally incapable of delivering literacy access. Physical conditions include vermin infestation, extreme temperatures, and overcrowding.
- Schools lack the capacity to meet students social-emotional needs and the learning needs of English learners.
- Many classes do not have books, and the books available are decades out of date, defaced and missing pages. Not one of the Plaintiffs’ schools has textbooks for students to bring home.
- When teachers attempt to utilize technology to compensate for shortcomings in supplies and reading materials, they find the Internet connections in the schools are often too weak to accommodate more than one class at a time. In addition, 70% of Detroit students have no internet access at home.
- During the 2015-2016 academic school year, none of the DPS buildings were in compliance with city health and safety codes.
- Osborn has no air conditioning in the summer and had a broken boiler to supply heat in the winter.
- At Experiencia, pipes leaked during all three years the school was opened and burst through the ceiling in 2013-2014. The ceiling buckled or collapsed in several classrooms.
- Water fountains, toilets, urinals, sinks and locker room showers at Osborn are frequently out of order, and students could not get a drink of water because the fountains were filthy or sealed off with plastic or unusable due to contamination with lead and/or copper.
- Classrooms are overcrowded with up to 40 students crammed into small classrooms designed for far smaller numbers.
- While Plaintiffs’s schools serve high numbers of low-income students, foster youth, homeless students, and students who have experienced or witnessed violence, there are no counselors available to support children with mental health needs.
- Plaintiffs’ schools employ no teachers trained in the delivery of English Language instruction for students from Spanish speaking families.
While the complaint cites conditions existing at the time the complaint was filed in 2016, there has been little change or improvement in the ensuing years. In 2019, the DPS reported that Detroit test scores among students in grades 3 to 7 “rose” so that now a whopping 12.7% are proficient in reading and 10.1% are proficient in math. A study by Raising a Reader reported that as of 2017 there were 80,000 children under the age of eight living in Detroit, with more than 60 percent of Detroit’s children under the age of five living in poverty. Approximately 86 percent of Detroit’s third-graders were not reading at grade level, which makes it more likely these children will struggle academically throughout their lives without intervention.
Racism creates vast disparities
In an amicus brief in support of the Plaintiffs filed by State Board of Education member Pamela Pugh, she examined how the system of education funding in Michigan perpetuates the vast racist disparities that exist across Detroit schools, The state fundamentally took over funding for school operating expenses in 1993, but in doing so it preserved in perpetuity the disparities already existing between the Black cities and the richer white suburbs. In addition, in the ensuing years since the state takeover of education funding, Michigan has ranked last in per pupil growth in student funding among all the 50 states. The state has specifically cut funding for at risk students by 60% since 2001.
While the state funds school operations, funding for infrastructure repair is dependent on local property tax revenues, DPS Superintendent Nicholas Vitti recently stated that Detroit schools need to raise $500 million for infrastructure repair: to fix the leaking ceilings, inadequate heat and air conditioning, to get rid of vermin infestation, and to remove the toxic lead and copper from continuing to flow into Detroit schools. However, property tax collections in Detroit, which took a hit with the mass foreclosures resulting from the banks’ predatory lending practices in the city which caused 65,000 Detroiters to lose their homes from 2005-2010, have continued to decline in the city despite large scale commercial developments throughout the downtown and midtown neighborhoods. This is a result of the fact that these developments are subsidized by tremendous tax breaks for the developers. Most notorious are tax captures, under which the increased property tax revenues resulting from this development are captured, or turned over, to billionaire developers like Ilitch, Gilbert, Ford, Gores, etc. The state government’s Michigan Strategic Fund has continued to approve these tax captures, robbing Detroit schools to fund billionaire gentrifiers. This issue is examined in depth in the amicus brief filed by Pamela Pugh in Plaintiffs’ appeal.
Judge upholds separate and unequal standards
Despite the horrendous conditions in Detroit schools cited by Plaintiff, on June 29, 2018, Judge Stephen Murphy dismissed Plaintiff’s case. While acknowledging that the conditions cited in Plaintiffs’ complaint were nothing short of devastating, Judge Murphy held that the United States Constitution does not guarantee a minimum level of education by which a child can attain literacy – there is no right to access to literacy under US law. Judge Murphy further dismissed the Plaintiffs’ equal protection count, which asserts that the state of Michigan provides one level of education for students in the white, affluent suburbs, and another for poorer, predominantly African American cities. Judge Murphy accepted the state’s argument that the proper comparison was between Detroit schools and those of other poor Black cities like Pontiac, Flint, or Benton Harbor, not white suburbs with palatial schools like Birmingham, Grosse Pointe or Bloomfield Hills. This continues to be the state’s argument on appeal, even under liberal Democrat Gretchen Whitmer — limit the comparison to among the Bantustans under Michigan apartheid’s education system.
The Detroit fight to guarantee access to literacy as a basic constitutional right is historic. But the ultimate determination will not be in the courts, but by the struggle of the teachers and community against the racist education system that perpetuates white supremacy across the US. The Chicago Teachers strike is showing the way in how this battle must and will be fought and won in the years to come.
This post was updated on October 28, 2019. The photo was changed.