In 1972, the Supreme Court of Michigan found that the state’s school finance system violated the equal protection clause of the U.S. Constitution in Governor v. State Treasurer, 203 N.W.2d 457. However, after the U.S. Supreme Court decision in San Antonio v. Rodriguez, 411 U.S. 1 (1973), the Michigan court vacated its earlier decision, in Milliken v. Green, 212 N.W.2d 711 (1973). In 1984, a coalition of school districts again challenged the school funding formula, but the suit was dismissed on the grounds that the school districts, as creations of the state, lacked the right to sue the state.
Between 1972 and 1992, voters in Michigan defeated eleven different referenda designed to change education funding. In 1991, the legislature adopted a law requiring districts with extensive industrial and commercial property to share their property wealth with property-poor school districts and, in 1993, eliminated the use of local property taxes for school funding. In 1994, Michigan voters approved a constitutional amendment increasing the sales tax, and the legislature expanded funding for the state education foundation program.
In 1997, the Supreme Court of Michigan held in Durant v. State, 566 N.W.2d 272 that the state must reimburse local school districts for the cost of special education. In 1999, in Durant II, plaintiffs challenged the constitutionality of Michigan’s school funding system, arguing that the state’s diversion of revenue from foundation allowance funding and requirement that local school districts allocate a portion of guaranteed per pupil funding to pay for special education expenses were unconstitutional (Durant v. State, 238 Mich. App. 185 ). The court upheld the constitutionally of using revenue from foundation allowance funding, but held unconstitutional the use of per pupil funding for general school operating expenses to pay for the state’s special education funding obligations. In 2002, in Durant III, the Court of Appeals of Michigan upheld the constitutionality of the “three-bucket” funding method enacted by the legislature in response to Durant II(Durant v. State, 251 Mich. App. 297 ).
In July 2012, the American Civil Liberties Union of Michigan filed a class-action lawsuit on behalf of students in the Highland Park School District (HPSD), charging the state, the school district and its emergency manager, and a number of state agencies with violating children’s “right to read.” (S.S. v. State of Michigan). Plaintiffs in this case took a new tack to adequacy litigations, basing their legal claims on the Michigan constitution’s requirement that “the legislature shall maintain and support a system of free public elementary and secondary schools as defined by law.” Plaintiffs’ also relied heavily on a state statute that stipulates that every regular education student in 4th and 7th grade whose performance on the state reading test is below a proficiency level shall receive “special assistance reasonably expected to enable the pupil to bring his or her reading skills to grade level within 12 months.” Plaintiffs sought the immediate implementation of the “right to read” provision, including the creation of a process to assess compliance with literacy standards and initiatives to ensure remediation reading teachers have with the proper training.
Holding that the state is ultimately responsible under Art. 8 of the state constitution for ensuring the integrity of the state’s system of public education, Justice Robert L. Ziolkowski of the Circuit Court, Wayne County in June, 2013 denied the state’s motion to summarily dispose of the students’ claims the and the Highland Park school officials had failed to implement MCL 380.1278(8), the statute that requires “special assistance” for students not meeting state standards in reading. Rejecting defendants’ argument that the statute “does not impose a clear legal duty of a ministerial nature” regarding how the statute should be enforced, the court held that the statute “sets a standard of special assistance that is reasonably expected to accomplish the goal of enabling the pupil to bring his or her reading skills to grade level within 12 months.”
In 2014, however, the state’s intermediate-level court of appeals held that the trial court had erred in denying the state defendants’ motion to dismiss plaintiffs’ action. According to the Court of Appeals, the issues raised in plaintiffs’ complaint were non-justiciable. Moreover, the court reasoned, education was not a fundamental interest under the state constitution and the ultimate responsibility concerning the “actual intricacies” of providing education rested with each district.
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Attorneys representing seven Detroit school children filed a 133- page class action complaint in September, 2016 in the U.S. District Court for the Eastern District of Michigan, alleging that the state of Michigan has disinvested in education in Detroit to such an extent that children lack fundamental access to literacy (Gary B. v. Snyder). The plaintiffs claim that “Achievement data reveal that in Plaintiffs’ schools, illiteracy is the norm. The proficiency rates in Plaintiffs’ schools hover near zero in nearly all subject areas.”
The complaint cites numerous studies that document the importance of learning literacy early in a child’s schooling career in order to succeed in school and in later life. It also alleges that the Detroit schools pervasively fail to provide Detroit’s students, almost all of whom are low income students of color, a reasonable opportunity to learn basic literacy skills:
The alarming outcomes in Plaintiffs’ schools are a predictable consequence of the State’s consignment of Plaintiffs to chaotic, under-resourced, and unsafe schools that lack the necessary learning and teaching conditions for effective delivery of literacy instruction. Plaintiffs’ schools do not have appropriate literacy programs and curricula to effectively teach literacy in the first instance, or to intervene and remediate when students fall behind. Nor does the State operate any system of accountability to ensure that students are delivered access to literacy, are assigned to classrooms where access to literacy can be delivered by qualified and trained teachers, and are identified when they fall behind to receive professionally appropriate interventions.
The Complaint asserts that the State of Michigan, which actually has run the Detroit schools for most of the past 15 years, is legally responsible for this state of affairs.
Plaintiffs’ legal theory is based on the proposition that there is a constitutional right to literacy under the 14th Amendment to the United States Constitution. Virtually all of the dozens of challenges to the adequacy of state school funding systems that have been brought in recent decades have been filed in state courts, since the United States Supreme Court held in 1973 in Rodriguez v. San Antonio Ind’t School District that education is not a “fundamental interest” under the U.S. Constitution. Plaintiffs in this case are asserting that a failure to provide students an opportunity to learn basic literacy skills constitutes a violation of equal protection and due process under the Fourteenth Amendment. They base their federal claim largely on the precedent of the Supreme Court’s holding in the 1982 case of Plyler v. Doe in which the Supreme Court upheld the right of children of undocumented immigrants to attend public schools in Texas because “Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life.”
The plaintiffs are seeking relief that includes remedial classes to bring students up to grade level, screening for literacy problems, state monitoring and fixing school conditions that hinder learning.
After taking the case under advisement for almost a full year, Judge Stephen J. Murphy granted the state’s motion to dismiss the case, denying the equal protection claim on procedural grounds (plaintiffs did not show that they were treated differently from students similarly situated) and denying the substantive due process claims on the merits. Plaintiffs then appealed that decision to the U.S. Court of Appeals for the Sixth Circuit. Interestingly, on the appeal, the newly-elected governor, Gretchen Whitmer, and a majority of the state board of education did not claim on the merits that there is no constitutional right to literacy; instead, they argued that the case should be considered moot because of recent actions they have taken to re-structure education in Detroit and to provide additional resources to the Detroit schools.
In a major decision issued in late April, 2020, the U.S Court of Appeals for the Sixth Circuit reversed the lower court’s decision and held there is a “fundamental right to a basic minimum education” under the U.S. Constitution. Gary B. v. Whitmer. The panel’s two-to-one decision defined the right in terms of “access to literacy.”
The opinion held that there is a “fundamental right to a basic minimum education” that provides access to literacy as a matter of substantive due process. The U.S. Supreme Court has held that a fundamental right for substantive due process purposes must be “deeply rooted in this Nation’s history and tradition.” Accordingly, the Sixth Circuit discussed in detail the history of education in the United States, especially at the time of the adoption of the Fourteenth Amendment. The Court also relied on the precedent of the Supreme Court’s 2016 ruling in Obergefell v. Hodges that single-sex marriage was a fundamental right as a matter of substantive due process.
This is the first time a court has affirmed a federal right to education since the Supreme Court’s 1973 holding in Rodriguez, that education is not “a fundamental interest” entitled to strict scrutiny analysis under the equal protection clause. In Rodriguez, however, the Supreme Court did not consider the possibility of such a right existing as a matter of substantive due process.
The Gary B. case has been remanded to the trial court for further proceedings. Governor Whitmer and the other defendants have not yet indicated whether they intend to appeal the Sixth Circuit’s ruling or ask for re-consideration by all of the Sixth Circuit judges.
For procedural reasons, similar to, but different from, the procedural problem articulated by the trial court, the Sixth Circuit did not decide the claims plaintiffs had raised under the equal protection clause of the Fourteenth Amendment. That issue may be decided by the U.S. District Court for Rhode Island where a decision is currently pending in Cook v. Raimondo, another case seeking to establish a right to education under the U.S. Constitution. The main argument asserted by the Cook plaintiffs is that, in the Rodriguez decision, the Supreme Court left open the question of whether there is a right to the “quantum of education” students need to exercise “meaningfully” important constitutional rights like the right to vote, to serve on a jury, to exercise free speech, and to participate in political activities.
Michael A. Rebell, executive director of the Center for Educational Equity at Teachers College and lead attorney for the plaintiffs in Cook v. Raimondo, said:
We applaud the outcome of the Gary B. case, which may bring important relief to students in Detroit. Nevertheless we are concerned about the narrow scope of the right to education as defined by the Sixth Circuit opinion. We are hopeful that Judge Smith in Rhode Island will declare that under the Equal Protection Cause, or other constitutional provisions, students have a fundamental right to a more robust and meaningful education—one that provides the knowledge, skills, experiences, values, and civic integration necessary to prepare them to function effectively as civic participants in a democratic society.
Council of Organizations v. State of Michigan
A group of major education groups including the Michigan Association of School Administrators, the Michigan Association of School Boards, and Michigan Parents for Schools filed a suit in March, 2017 that seeks to block the governor and the legislature from appropriating $2.5 million to private schools. The funds would reimburse them for state “mandates” such as background checks, immunizations, and compliance with state building, health and fire codes.
Plaintiffs’ claim is based on Art. 8 § 2 of the state constitution, a “Blaine Amendment,” that states that: “No public monies or property shall be appropriated or paid … directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary or secondary school.” Governor Rick Snyder had asked the State Supreme Court for an advisory opinion while the legislation was being considered, but the Court declined to render one.
Although plaintiffs prevailed in an initial ruling in the Court of Claims, in October, 2018 a panel of the Court of Appeals ruled that state funding to reimburse private schools for complying with health and safety laws is not inherently unconstitutional despite a ban on public aid for private education. so long as the funding is a) “incidental” to teaching and providing educational services, b) does not support a “primary” function critical to the school’s existence and c) does not involve or result in “excessive religious entanglement.”