No Excuses -- Holding Mich. Accountable

Is Reading a Civil Right?
By Fawn Johnson

If want to read something that will make you gasp out loud, check out the American Civil Liberties Union's lawsuit filed last week against Michigan's Highland Park School District and the state entities that support it. ACLU sued the district and the state for failing to teach kids in the Detroit-area district to read. "The thing I whis this govern could do for my school is fix our bathroom," wrote one unnamed eighth grader who is a plaintiff in the case. The bathroom? Are you kidding? The complaint describes feces spread on the walls. It also says kids wear ski parkas and gloves in class during the winter. (By the way, give that student credit for using a difficult sight word like "could," but also note that "could" is taught in first grade.)

The case is potentially ground-breaking. The Detroit Free Press says it is the first of its kind to assert a child's fundamental right to read. ACLU built the legal theory of its case on Michigan's state Constitution, which requires the state Legislature to provide a free public elementary and secondary education. The complaint also cites a state law that says students who do not pass the fourth-grade and seventh-grade reading tests are entitled to special assistance to bring up their reading levels. It gets tricky from there because some state courts have said that education is not a fundamental right granted by the federal Constitution. The ACLU is relying for legal standing on evidence that the state Legislature considers literacy to be the root of all learning.

During the 2011-2012 school year, only 35 percent of the fourth graders in the Highland Park district scored "proficient" in reading, and even fewer seventh graders (25 percent) met their grade level in reading, according to the complaint. The school district did not provide the special assistance that 65 percent to 75 percent of the students needed, as required by law. The Detroit Free Press also points out that the district ended the year with an $11.3 million budget deficit.

Is reading a civil right? Is education a civil right? Can poverty-stricken school districts use lack of funding as a legal defense against a complaint like ACLU's? If reading were considered a legal civil right, would that make it easier to turn around failing schools? Are there better options? Or does illiteracy require drastic measures?

No Excuses -- Holding Mich. Accountable
By Kevin Welner

The lawsuit brought by the ACLU in Michigan is indeed important, but not so much because its claims are framed around the idea of reading as a civil right. Various courts in prior adequacy cases have framed their opinions and their orders in terms of the state’s responsibility to provide opportunities for reading and other basic learning. In New York, for instance, the constitutionally-required “sound basic education” was declared by the court in 1995 to consist of “the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury.”

Other courts have gone beyond basic literacy in defining the state’s constitutional obligation to educate its children. For example, New Jersey’s Abbott v. Burke accepted the academic standards in all seven core curriculum areas (visual and performing arts, comprehensive health and physical education, language-arts literacy, math, science, social studies, and world language) as the substantive level of education that must be provided to ensure all children are prepared for active citizenship and full participation in the economy.

Yet what strikes me most about the new Michigan complaint is its focus on a statutory provision and the decision to pursue something called a “Writ of Mandamus.” When a plaintiff petitions a court for such a writ, the contentions are (1) that governmental officials have a non-discretionary (generally called “ministerial”) duty to execute a law, (2) that the officials have neglected that duty, and (3) that the only real remedy available is for the court to order the officials to do their jobs. In this case, the plaintiffs are asking for enforcement of a statutory provision called “MCL 380.1278(8),” which provides as follows:

“Excluding special education pupils, pupils having a learning disability, and pupils with extenuating circumstances as determined by school officials, a pupil who does not score satisfactorily on the 4th or 7th grade Michigan educational assessment program reading test shall be provided special assistance reasonably expected to enable the pupil to bring his or her reading skills to grade level within 12 months” (emphasis added).

That is, the state legislature passed a law expressly mandating that a proven, effective reading intervention is to be provided for students who show a lack of reading proficiency. Because this is clearly not happening in Highland Park School District, the plaintiffs are asking to court to order state employees to carry out the law.

This is important for several reasons. First, while the language in MCL 380.1278(8) is unique, many states have unenforced laws on the books that set forth obligations to students. Other than shrugging and sighing, not much happens – they just remain unenforced. Second, a lawsuit of this type highlights a key element of successful accountability systems: the accountability runs in multiple directions. It’s ineffective and unfair for the state to hold schools, teachers and students accountable for outcomes if the state itself isn’t accountable for providing legally mandated inputs.

Finally, the lawsuit is important because it brings attention to the idea of opportunities to learn. The students in Highland Park have awful academic results. The typical response nowadays is to blame those at the school sites: the principals, the teachers and the children. But we know that learning follows from opportunities to learn. When schools are unsafe and academic supports are lacking – as the complaint alleges here – the results are sadly predictable. And the primary fault lies with an inequitable system.

How did we get to this point? The Highland Park district, like any other school district, is merely a construct of state law – a convenience set up by the state to carry out state educational obligations. While Michigan has now “taken over” the district, given its fiscal problems and academic underperformance, final responsibility for ensuring constitutional and statutory educational adequacy and equality was never fully delegable – it always remained with the state. The failure to provide basic literacy skills to Highland Park’s children has thus always been the state's failure. This lawsuit is merely an attempt to hold the state accountable for that failure and for its obligations to its children.

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Fawn Johnson

Fawn Johnson is a correspondent for National Journal, covering a range of issues including immigration, transportation and education. Johnson is a long-time student of Washington policymaking, previously reporting for Dow Jones Newswires and the Wall Street Journal where she covered financial regulation and telecommunications. She is an alumnus of CongressDaily,...

Kevin G. Welner

NEPC director Kevin G. Welner is a professor at the University of Colorado at Boulder School of Education, specializing in policy and law. He and Alex Molnar founded NEPC in 2010. Welner has authored or edited 12 books and more than 100 research articles and book chapters concerning education policy and law. His...