Education Week - July 18, 2018 - 6

Right-to-Read Lawsuits Press On, Despite Court Setback
By Stephen Sawchuk
It's been called the Holy Grail of
education lawsuits: getting a federal
court to recognize a right to some
degree of public education within
the U.S. Constitution.
The chances got a bit dimmer last
month, when a federal district court
judge dismissed a lawsuit brought
by several Detroit students alleging
that Michigan policymakers' failure
to teach them to read violated their
Constitutional rights.
But a small but determined group
of legal scholars say that, despite the
setback, the hunt for the Holy Grail
lives on.
"It's this idea that we just can't let
go," said Derek W. Black, a professor
of law at the University of South Carolina, who has argued extensively in
a series of law-review articles that the
Constitution contains an educational
guarantee. "Even though people have
been told, 'No, this is a nonstarter,' it's
an idea they can't let go of."
Indeed, at least two other pending lawsuits advance similar arguments. And at a time when political
and constitutional rights are being
looked at with fresh eyes, the spate
of litigation embodies a growing
concern about the link between
schooling and the prerequisites for
functioning in a democracy.
The word "education" appears nowhere in the Constitution, and that
remains the primary obstacle to any

effort to read educational rights into
the document.
A series of previous cases, notably
1973's San Antonio Independent
School District v. Rodriguez, conclude that there is no fundamental
constitutional right to an education.
Most education litigation over the
past 40 years has instead prioritized
state challenges, since state constitutions almost always explicitly
spell out the right to an education.

From State to Federal Court
So why the sudden interest in
returning to a federal venue in the
past few years?
It's partly because, after dozens
of successful school financing lawsuits in the 1990s and 2000s, state
courts have grown far more wary of
education adequacy litigation, noted
William Koski, a professor of law at
Stanford University.
"We're not doing well in state
courts anymore. More recently,
they've become really nervous of
these big educational rights litigations," Koski said. "Maybe it's time
to look at the federal courts again."
Many legal experts also agree
that the federal rulings have left
the door open a crack to additional
challenges-for example, one arguing for an implicit right to an education. Both the 1954 Brown v. Board
of Education of Topeka and the
Rodriguez decisions make the link

between education and citizenship
rights, such as the exercise of free
speech and the ability to vote.
In effect, the lawsuit brought in
Michigan argued that the students,
who have attended primary and secondary schools in Detroit, are precluded from exercising such rights.
The case, Gary B. v. Snyder, hinged
on the idea that the students were
deprived of access to literacy in a
violation of their due process and
equal protection rights under the
Constitution's 14th Amendment.
The district has been in a state of
financial crisis in the two decades
since a state-appointed emergency
manager first took control of its finances. In 2017, students there had
lower 4th grade reading scores than
any of the 26 other urban areas included on "the nation's report card,"
a periodic federal gauge of student
learning. News reports have documented vermin, crumbling classrooms, and textbooks that fail to
align to Michigan state standards.
Judge Stephen J. Murphy III sympathized with the students, but in
his June 29 ruling, rejected their
due process claim. He also said that
the students hadn't proven that
they were given an inferior education because of their race.
"Applying for a job, securing a
place to live, and applying for government benefits routinely require
the completion of written forms.
Simply finding one's way through

We're not doing well
in state courts
anymore. ... Maybe
it's time to look at
federal courts again."
WILLIAM KOSKI
Professor of Law,
Stanford University

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many aspects of ordinary life stands
as an obstacle to one who cannot
read," he wrote. "But those points do
not necessarily make access to literacy a fundamental right."
Supporters say there's a bit of a silver lining in the decision: The judge
didn't rely on the earlier education
precedents in dismissing the case, and
concluded instead that the U.S. Supreme Court had never ruled on the
narrower issue of a right to literacy.
That might explain why the ruling
tread so carefully, legal experts said.
"It would have been heartening, but
what I saw was a court unwilling to be
bold," said Black of the University of
South Carolina. "You can understand
why a district court plays it safe. It's
kind of hard to imagine your average
court of appeals being bold, either.
It's a monumental step people have
talked about for half a century or longer, and it's really the U.S. Supreme
Court that could take the next step."
The students plan to appeal, said
Mark Rosenbaum, the director of the
Project for Opportunity Under Law
at Public Counsel, a public-interest
law firm representing the Detroit
students.
"There's not a more meaningful,
more relevant civil rights issue in
the United States today than what
happens to children when they go
to public schools," he said. "It's the
hope of the democracy, the linchpin,
the means by which children have
opportunity to better their lives and
become civic participants."

In the Wings
Other similar federal lawsuits are
pending. A Connecticut challenge
filed in 2016 argues that the state
has failed to provide all its students
with a "minimally adequate education" and seeks to win them more
schooling options.
And Michael Rebell, a professor
and executive director of the Campaign for Educational Equity at
Teachers College, Columbia University, said he plans to file a federal
education lawsuit this fall, though he
wouldn't disclose the venue yet. In it,
he'll argue that the right to an education goes beyond the minimally adequate one outlined in the other cases.
"We agree with plaintiffs in the
Detroit case that there is a right
under the federal Constitution but
want to present evidence that the
rights should be defined in much
broader terms," he said.
Even if any or all of the cases advance, they are virtually guaranteed
to be appealed up to the U.S. Supreme Court. And the experts acknowledge that the court's ideological makeup makes it unlikely that
any of them will succeed-if it even
takes up one of them. The court has
four conservative judges, and President Donald Trump has nominated a
fifth conservative, Brett Kavanaugh,
to fill the open slot.
Still, supporters say it's worth rolling the rock up the hill some more.
"These efforts will last until there's
a sense that it's just not going to
work," Stanford's Koski said. "I think
we need to test it a whole bunch of
times."

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Education Week - July 18, 2018

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