Activists win historic court victory for Detroit children

By Jerry Goldberg

In a historic decision in the case of Gary B. v Governor Gretchen Whitmer, the Sixth Circuit Court of Appeals for the first time in U.S. history held that an education that provides access to literacy is a fundamental right under the U.S. constitution. The court held that the Detroit Public Schools system, after years of cutbacks as result of the austerity imposed by finance capital on this once great working class city, and after being placed under State Emergency  Management for years which only further drained its coffers, had deteriorated to such a degree that the minimum standard of access of literacy was being violated.

This historic decision went counter to years of reactionary federal court decisions which had held that the right to education is not guaranteed under the US constitution. After examining the conditions described by Plaintiffs in the Detroit public schools, the court essentially reversed those holdings, stating:

The recognition of a fundamental right is no small matter. . . .Access to literacy is such a right. Its ubiquitous presence and evolution through our history has led the American people universally to expect it. And education—at least in the minimum form discussed here—is essential to nearly every interaction between a citizen and her government. Education has long been viewed as a great equalizer, giving all children a chance to meet or outperform society’s expectations, even when faced with substantial disparities in wealth and with past and ongoing racial inequality. Where, as Plaintiffs allege here, a group of children is relegated to a school system that does not provide even a plausible chance to attain literacy, we hold that the Constitution provides them with a remedy. . . .Plaintiffs have a fundamental right to a basic minimum education, meaning one that can provide them with a foundational level of literacy. The district court’s order is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

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, a 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 were represented by Public Counsel Opportunity Under the Law, a human and civil rights firm out of Los Angeles, CA.

Some of the conditions described by the Plaintiffs in their complaint were as follows:

1. The Detroit Public Schools Community District (DPS) is the only district under Michigan law where teachers are not required to be certified.
2. Students in Detroit schools are overwhelmingly African American and socioeconomically disadvantaged, as are the schools attended by Plaintiffs.
3. 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.
4. 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.
5. DPS students are on average 2.3 grade levels below their actual grade level in basic reading proficiency.
6. There is no literacy instruction program in Plaintiffs’ elementary schools, and the schools lack the staffing and capacity to implement such a program,
7. At Hamilton many students entered the 4th grade in the 2015-16 school year with a kindergarten-level vocabulary.
8. Students sit in facilities that are functionally incapable of delivering literacy access. Physical conditions include vermin infestation, extreme temperatures, and overcrowding.
9. Schools lack the capacity to meet students’ social-emotional needs and the learning needs of English learners.
10. 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.
11. 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.
12. During the 2015-2016 academic school year, none of the DPS buildings were in compliance with city health and safety codes.
13. Osborn has no air conditioning in the summer and had a broken boiler to supply heat in the winter.
14. 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.
15. 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.
16. Classrooms are overcrowded with up to 40 students crammed into small classrooms designed for far smaller numbers.
17. 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.
18. Plaintiffs’ schools employ no teachers trained in the delivery of English Language instruction for students from Spanish speaking families.

In its historic decision in favor of the Plaintiffs, the court remanded the case to the US District Court in the Eastern District of Michigan for a trial on how public education is to be provided, and how the entire system must be transformed so that literacy is guaranteed for Detroit’s students. There will be many components to that examination, which must take into account the racist and out of touch nature of the curriculum still taught in the public schools. It will have to factor how education must take into account the effect that poverty, parents working long hours in low wage jobs, water shutoffs, mass evictions and foreclosures have on young people trying to attend school. Where students’ survival is a day to day battle, the court will have to consider the need for support services in order to provide the opportunity to learn.

But at the root of the crisis is how in the current epoch of monopoly capitalism, the very resources that should be allocated to educate our youth and especially the poorest and most oppressed, are diverted to line the pockets of billionaire developers. Resources must be provided to insure books in the classrooms, and a sufficient number of teachers and support personnel.

An amicus brief filed by Pamela Pugh, a Michigan State Board of Education member who was named as a defendant in the case in her official capacity, but who instead procured her own counsel to side with the plaintiffs, discussed how the Detroit Public Schools need a minimum of $500 billion to pay for infrastructure repair. These repairs are needed to ensure that the schools have heat in the winter, windows are fixed, rain doesn’t pour into classrooms, and the water that flows in the schools isn’t poisoned with toxins. Her brief outlined how the property taxes that are supposed to pay for that repair, are instead “captured” by developers, meaning that every penny in tax dollars from revenue generated by gentrification and development, is stolen from the schools and libraries and provided as subsidies to billionaires like Dan Gilbert, the Illitch family, Ford, Chrysler and other billion dollar corporations.

The state is named as the Defendant in the case because in Michigan, while local districts run the schools, they do so under the auspices and control of the state government. Governor Gretchen Whitmer, who succeeded Rick Snyder as governor and assumed his position as lead defendant, has until May 7 to ask for reconsideration of the 6th Circuit decision, and two and one-half months after that to decide whether to appeal the decision to the U.S. Supreme Court.

Momentum is building on Governor Whitmer to reject an appeal and begin working with community organizations and Black leadership to meet the education crisis for students in Detroit and many other cities throughout Michigan.

Helen Moore and JoAnn Watson, leaders of the community group responsible for making this case possible, directed this statement to Governor Whitmer:

Dear Governor Whitmer,  God has given us an opportunity to free our children from permanent second class citizenship.  Will you be the instrument to support His will and set our children free?  Without reading, all education is in vain. 

This is our time to break the chains of slavery and to show the world that you support our children’s right to at least a minimal education. The ancestors and our elders are crying out to you to do the right thing.

Yours for Justice,
Helen, Moore, JoAnn Watson, Co-Chairs
Keep The Vote/No Takeover Coalition

In a  separate statement, entitled, “Black Leaders to Michigan Governor Gretchen Whitmer: This is Your Historic Moment, Settle the Detroit ‘Right to Literacy’ Case,” national civil rights attorney Ben Crump, Martin Luther King III and Yvonne M. White, President of the Michigan State Conference of the NAACP, joined Dr. Pamela L. Pugh in calling on Gov. Whitmer to settle the case of Gary B. v Whitmer and ensure equal access to education for Black children in Michigan. They stated:

“This is the Brown v. Board of Education of our lifetimes – the chance to change the life trajectory of countless underprivileged Black and brown children in Michigan,” Crump said. “This is Gov. Whitmer’s appointment with destiny. The next choice she makes will define her place in history.”

In the next period, Detroit will be center in the struggle across the U.S. to guarantee the right to a decent education to oppressed people throughout this country.