On the afternoon of Thursday, Aug. 10, at the Theodore Levin United States Courthouse, attorneys representing Gov. Rick Snyder argued that the state of Michigan, which has been so intimately involved with Detroit Public Schools for almost 20 years, has no responsibility to ensure students in the district are taught how to read.
The state's attorney moved for the dismissal of a lawsuit brought by seven Detroit schoolchildren in September of last year. That suit charged Gov. Snyder, the members of the Michigan Board of Education, and various other state officials with failing to provide an opportunity to learn. It was brought with the assistance of Los Angeles-based Public Counsel, the country's largest pro bono law firm.
The lawsuit describes "lack of textbooks and basic materials; overcrowded classrooms; failure to address students' specific learning needs; lack of English Language Learner instruction; and unqualified staff," and "unsafe temperatures in the classroom" where "students frequently can see their breath in the winter and are subjected to 90-degree heat in the summer." The lawyers associated with the case describe an environment where no homework can be assigned because no books exist. Students are essentially warehoused in a building for several hours a day, often without teachers.
In his motion for dismissal, the state's attorney argued before Judge Stephen J. Murphy III that the state of Michigan didn't agree that state officials had any responsibility for the situation. The attorney also said the state didn't concede that it has controlled Detroit Public Schools since 1999. The 14th Amendment, the state's attorney argued, contains no reference to literacy. Instead, counsel pointed to the charter operators, authorizers, boards, and intermediaries as possible culprits.
Then Mark D. Rosenbaum addressed the judge on why the suit should not be dismissed. As he said later on the courthouse steps, "Never in my life had I imagined I would stand before a court in the year 2017 arguing that the state had an obligation to provide students with textbooks and teachers" — let alone a building in which they could learn without being distracted by the sweltering heat or having to put on a second jacket to stay warm.
How did a California-based nonprofit law firm come to catapult seven Detroit schoolchildren into a civil rights suit in federal court? The firm, Public Counsel, takes a nationwide interest in substandard schools for poor minority students, given its mission to protect the legal rights of disadvantaged children. And, as the firm's Anne Hudson-Price describes it, Detroit has become ground zero for the issue.
"We had just been increasingly seeing districts that are not providing even the most minimal educational requirements," she says. "In this case, Detroit is one of the most segregated districts in the country. The plaintiff schools in this case are overwhelmingly low-income students, minority students."
The firm got an up-close-and-personal view of the problems in Detroit's schools thanks to Public Counsel lawyer Rosenbaum, who has taught for about 20 years at the nearby University of Michigan. With 40 years of experience in education equity litigation, he and other attorneys from the firm spent weeks on the ground in Detroit meeting the teachers and students.
Hudson-Price joined Rosenbaum as he toured the schools and quizzed staff and students. The more they learned, the more they recognized the need to file a case for the kids.
"He was flabbergasted at the extent of the conditions in the schools," Hudson-Price says. "Detroit isn't the only place to have such extreme inequities in the schools, but in Detroit we just couldn't believe what was going on."
These visits to take stock of conditions took place about when Twitter was flooded with photos of disrepair in Detroit Public Schools.
"Those photos are the tip of the iceberg of what we saw when we went into the schools," Hudson-Price says. "The teachers were understandably at their wits' end. Those conditions make it impossible to teach, impossible to learn, and those are not conditions you see throughout Michigan."
The conditions are spelled out in the lawsuit, which describes a welter of dysfunction. Some classrooms have no textbooks at all, and what books they have are "grossly insufficient" or "decades out of date, defaced, and missing pages." In addition to books, schools also lack basic supplies such as chairs, desks, pens, pencils, and even toilet paper.
Then there are the dangerous and unsanitary conditions seen so widely on Twitter: decrepit and unsafe buildings with leaking roofs, broken windows, falling ceiling tiles, black mold, contaminated drinking water, and dangerously overcrowded classrooms, as well as rodents and other vermin. Schools were sometimes closed or dismissed early due to extreme, unsafe classroom temperatures.
The schools also suffer a dearth of properly trained and certified teachers. When stand-ins are available, many don't have teaching credentials. The lawsuit even mentions one eighth grade student who "taught" a seventh and eighth grade math class for a month because no teacher could be found. Hudson-Price adds that the district recently pulled its well-established and successful Reading Recovery program from schools — due to lack of teachers.
Taken together, the lawsuit describes a sort of "throw a book at them and hope they learn something" method of education — only without the book to throw. Rosenbaum and company argue that the students are simply "warehoused for seven hours a day" in "an unsafe, degrading, and chaotic environment" that is a school "in name only."
They add that the outcomes are "both predictable and heartbreaking" — in the plaintiffs' schools, serving almost exclusively low-income children of color, almost 99 percent of the students are unable to achieve proficiency in state-mandated subjects. The suit says some students "have a vocabulary of only a couple hundred words," struggle when spelling simple words, or stumble over one-syllable words when reading aloud. High school students spend months struggling to read books designed for third- and fourth-grade reading levels.
"Just to be clear," Hudson-Price says, "we're not suing the district. The defendants in this case are state officers. We have met incredible teachers and administrators who are doing the best with what they have. The teachers we met across the board are spending on average hundreds of dollars of their own money each year, sometimes thousands of dollars, to provide things like toilet paper, hand sanitizer, bug spray, things that it wouldn't occur to me to come out of the teachers' pockets."
Given these extreme conditions and the state's considerable involvement in creating them, along with the example of Flint coloring views of how the Snyder administration treats majority-minority communities, you begin to see the unmistakable contours of a civil rights case. The same government that gives you toxic waste for drinking water also gives you a school district that cannot teach.
Jamarria Hall arrives just a couple minutes late to meet us at Osborn High School, but it's understandable. Earlier, he'd attended the funeral of a 14-year-old classmate, shot and killed in a drive-by shooting. He'll be gathering with friends tonight to remember her. On Friday, he'll be leaving for Tallahassee, where he'll be an incoming freshman in college. Between his schoolmate's death and the promise of sunny Florida, it's obviously a bittersweet day for the lanky young man.
It's also coming up on the one-year anniversary of the case in which he is a plaintiff. He uses the occasion to offer a brief tour of the building. (At least the outside; school administrators refuse us entry.) The 1956 structure is emblazoned with huge ads. One shows a field of high-tech windmills, another shows a student in a lab coat and gloves holding a petri dish. Are there really lab coats and petri dishes in this building?
"No, sir," Hall says. "And if you find them, they might be so old and dusty you might not even want to touch them."
The soft-spoken young man says he never dreamed he'd attend the school, let alone put in all four years there. Having grown up with his mother on the west side, he'd heard some tall tales about hooliganism at the east side's Osborn. But when his father, Lonell Williams, got a coaching job at the high school, his family decided it was best the basketball-playing son move in with Dad and go to school where he worked. Hall has since revised his views on the neighborhood, saying, "I learned that it's not like how everybody talked about it. It's really a good, strong community."
Though Hall grew up in poverty, he says his parents have always stressed the importance of education. One of his childhood memories is of an eviction that left him, his mother, and his little sister living in a motel for a week. Williams came to the motel and the parents spent a week-long layover quizzing the kids with flash cards in math and reading.
"Knowing that my mother and father wanted me to have an education that bad, I just was like ... I know I'm going to make it," he says. "If I put my mind to it, it doesn't matter what that obstacle is, I can make it. Whatever school I go to I can get good grades. Whatever I have to do I do."
That attitude served Hall well, because conditions at Osborn made learning a challenge. He winces when he recalls how he felt as an incoming freshman.
"When I came in the gym I was like, 'This is the gym? Is this the practice gym or something like that? Where's the real gym?' And then walking around the school and just looking around, like, what? Like, this is the school that people are going to? Walking into Osborn used to make me feel down. I used to like going to school. I used to love school.'"
Hall goes on to describe water fountains so old and decrepit he'd sit in school for six hours without water rather than drink from them. He describes restrooms with only a couple of working stalls, ceiling tiles with black mold, buckets in hallways under leaking ceilings, and mildewed carpeting.
"They've been trying to clean up," he says, "because a lot of people have been coming in to look at the school."
Hall says what few books the school had were so out of date that some were older than him. Arriving at class in the morning, Hall was as likely to be greeted by rodents as teachers.
But the problem he and other students have found most discouraging is the staffing — or lack of it.
"There's been times when substitutes go on lunch break and don't come back," Hall says. "Or they just get up and walk out. Or no-call-no-show to work. All types of things. So then maybe the girls sit in this room and watch this movie, and all the guys sit in this room and watch another movie. So it's like babysitting, not school. So now kids are frustrated, don't want to come. ... All those different things trickle down into people's lives ... missing out on days that could have been spent on learning something new, doing something useful."
We play devil's advocate for a moment, pointing out that, after all, Hall can read and write, and is getting into college due to his good grades.
"I can't read as good as I would like to read," the young man says. "I don't think I could read a super-long 12th grade book. Because I haven't been taught 12th grade English really thoroughly through. Like, at Osborn, we do have teachers that care. But a lot of them are older and probably won't stick around too long. So it's just like ... the ones who are here are just here. Maybe this was their last option, or they just took the job to have it ... sitting in class on their phones. It's just crazy."
Jamarria Hall doesn't ever get angry discussing his experiences at Osborn, but he does see the outlines of institutional injustice clearly. "We're getting set back behind everyone else," he says. "But we're still taking the same test that they are. Still taking the same SAT. So now we at the bottom, but working hard to be at the bottom. So what's the point of it?"
He'd like to see more hands-on education and athletics. "Maybe a cooking class in the school?" he says. "Or maybe even a swimming pool so everybody could get some exercise. We would love being in the water. Maybe the showers even work. At least after a hard day of gym, or for the basketball team."
Even the showers don't work?
"They look like they've never worked," Hall says, shaking his head. "Like, ever. They're so deserted and broken-down."
Despite these pitiable conditions, you can still expect a chorus of voices ascribing illiteracy to a number of other factors, such as irresponsible parenting, lack of interest, or various moral failings.
The people making such claims can take heart knowing that Lansing is on their side.
"The state has actually taken that exact position," Hudson-Price says. "The state has said you can't trace the low proficiency scores to the state, because you're not accounting for intellectual capacity, poverty, parental interest, or lack thereof.
"Of course, we find that incredibly offensive. It has not been our experience in the least."
Husdon-Price describes the students she met with as eager to learn, excited about school. "These aren't students who went into school looking for ways to avoid it," she says. "You know, the public schools don't provide buses for general education students. These are students who've traveled pretty far to get there, and they want to be there."
As for the parents, she says, "They want the best for their children. They just don't have the options of schools that are available to their children without going outside of Detroit, and a lot of parents don't have the resources for that, and they shouldn't have to." In a city where so many of the poorest households lack a car, it's a compelling argument.
Legally speaking, even if students and their families lived up to the grotesque stereotypes they're often cast in, that would still be a separate issue from whether the state is required to provide access to learning. "Our lawsuit is not saying that you must deliver literacy," Hudson-Price points out. "We are saying you must deliver access to literacy, and these students don't even have the chance. It doesn't matter what you're coming into the school with if you don't even have a teacher."
Indeed, even with the most engaged parents and students, one wonders how learning is possible without books, heat, or teachers. Hudson-Price describes schools where they regularly have two substitutes a day, or regularly have classes where there is no teacher at all, "so they're sent to the gym, or the ROTC room, or a video is just put on."
"One student said he couldn't help but sing along every time he hears the Frozen soundtrack come on," she says, "because he has seen that movie so many times in his high school class."
The Aug. 10 hearing in Judge Murphy's court makes poor courtroom drama. Without a jury to play to, it's a polite game of argument and counterargument that, frankly, could easily make a layperson's eyes glaze over. The men at the bar are arguing extremely fine points of law, sharpened by more than a dozen Supreme Court decisions.
Not that any of the high court's rulings on education are radical or sweeping. The Supreme Court has never said everybody has a right to a first-rate education. Court decisions do seem to agree that Americans have a right to a basic, minimal education, though — one that at least teaches reading, writing, and math.
The perception that Detroit's schools do not meet this minimal, basic standard makes the plaintiffs' case that much stronger. The suit draws on sobering statistics to paint its picture. According to the respected National Assessment of Education Progress, in 2015, 93 percent of Detroit eighth-graders were not proficient in reading, and 96 percent were not proficient in math. Over the last eight years, Detroit fourth-graders and eighth-graders had lower math and reading scores than students in any other U.S. city. The suit quotes one urban-education expert as saying, "There is no jurisdiction of any kind, at any level, at any time in the 30-year history of NAEP, that has ever registered such low numbers."
Another job of the Public Counsel law team is to highlight Supreme Court rulings that have condemned similar conditions. They take some choice angles. The court has given heightened importance to basic education, not just as a state responsibility, but as integral to a functioning democracy. Furthermore, the court has repeatedly frowned on selectively denying one class of students access to education that others enjoy, and the Public Counsel team references such rulings as Brown v. Bd. of Ed., San Antonio Independent School District v. Rodriguez, and Plyler v. Doe to support that perception.
As expected, when the lawyer for the defense, Deputy Attorney General Timothy Haynes, stands before Judge Murphy, he moves that the case be dismissed. He argues that federal courts have never deemed literacy to be a legally protected interest. And he also contends that the conditions in Detroit's schools are not the state's responsibility.
The arguments seem curious, given how high-toned appeals to saving Detroit's schools left the state's fingerprints all over the district. Lansing first wrested control of the district from its elected school board in 1999, under Republican Gov. John Engler. And as counsel for the plaintiffs points out in the suit, the state had appointed five different emergency managers for the district to supplant local authority for almost a decade. (In what seems an odd about-face, the state now argues that emergency managers are actually "local officials.") The evidence of the state's intervention doesn't end there, and includes the Education Achievement Authority's plan to "dramatically redesign public education" in Detroit's lowest performing schools, and even a law Gov. Snyder signed in June of last year allowing Detroit's school district to employ non-certified teachers.
What's more, before the state of Michigan intervened, the district had a surplus of $93 million, healthy enrollment, and test scores that were on the rise. After the state's "rescue" in 1999, and then after the ensuing succession of emergency managers, little remained of those promising figures. By 2015, as reported by Curt Guyette in Metro Times, enrollment had plummeted by nearly 50 percent, the number of schools cut in half, and a tide of red ink annually amounted to tens of millions of dollars, and sometimes hundreds of millions of dollars.
But even had all that intimate involvement never taken place, Hudson-Price declares, the state would still be responsible for providing a basic education to every student in Michigan. That duty is spelled out in the state constitution, which says that leadership and general supervision over all public education is "vested in a state board of education." She says the extent of Lansing's involvement "just emphasizes the extent to which this was the state's responsibility."
The state defense team also lobs a Hail Mary pass with a legally obscure 11th Amendment gambit — something called the Rooker-Feldman doctrine, which gives states immunity from lawsuits. But plaintiffs' counsel has anticipated this tactic. They have named the state officials, not the state, in the suit, and are not seeking monetary damages.
"We're only seeking forward-looking remedies," Hudson-Price says. "The 11th Amendment doesn't preclude lawsuits that are seeking forward-looking injunctive relief — requiring the government to comply with federal law. ... The past is important, because it demonstrates what has happened, but the remedy is forward-looking, not backward-looking."
What will come of this legal jousting will have to wait until another day. After the lawyers speak, and then rebut each other, the judge draws the session to a close, hinting that a decision will be on its way around mid- to late September.
Meanwhile, as Judge Murphy and his staff buckle down to pore over the complicated legal arguments, Jamarria Hall gets ready to head off to college in Florida. He's one of the lucky ones, and he knows it. His experience at Osborn has left him in a philosophical frame of mind, trying to make the best of a bad situation — something he's used to.
"Sometimes, going through hardship will help you. It will show you where your weaknesses are," he says. "Your teacher may not always be there, but you have to get the assignment done anyway."
He considers himself fortunate to have seen a bit of the world, especially by playing basketball, which took him places he normally would never have seen, such as the state-of-the-art schools he played at in Oakland County. It showed him there was a world beyond Osborn. That knowledge gave him hope and courage.
"A lot of kids don't know that there's other things outside of here," he says. "There's a real world, and Osborn is not regular. The things that go on around here aren't regular. And just because you come from around here doesn't mean you have to stay here."
That perception of the world outside was only heightened by his involvement in the lawsuit. In the last year, he's been on television and has taken all-expenses-paid trips to speak at Harvard University and in Los Angeles. Between podcasts and phone calls from European documentary producers, he has made connections to people he'd never dreamed he'd become acquainted with, let alone have in his corner rooting for him. He counts himself blessed by the choices he's made, and he promises, "I'm going to try to make the most out of them."
Sitting on the bleachers, he looks back at Osborn High School and offers a poetic description of the school, calling it a "crab barrel," where you can't escape because you keep getting pulled — or pushed — back in.
"When you think you almost out," he says, "something brings you right back down. Crabs get up to the rim of that barrel and just get brought right back down by all types of things, like other crabs."
But he shows his newfound knowledge when he adds, "A lot of the time, the crab is the state. 'Cause, starting out, they're the ones at the top of the barrel."
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