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.
Gary B. v. Snyder
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 states 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 state funding systems and failures to provide students an adequate education 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, and also constitutes racial discrimination under Title VI of the 1964 Civil Rights Act. 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.
The students are represented by Mark Rosenberg of Public Counsel, the attorney who had also brought the S.S. v. Michigan case in the state courts. In addition, a major California public interest law firm; Sidley Austin LLP; Michigan law firm Miller Cohen PLC; University of Michigan Law School Professor Evan Caminker; and Irvine School of Law Dean Erwin Chemerinsky at the University of California are also representing the plaintiff class pro bono.
After taking the case under advisement for almost a full year, Judge Stephen J. Murphy granted the state’s motion to dismiss the case. In his decision, Judge Murphy explored in depth prior U.S. Supreme Court cases regarding the right to education and acknowledged that, although the Supreme Court held in Rodriguez v. San Antonio Ind’t Sch. Dist, 411 U.S. 1 that there is no right to equitable funding under the 14th Amendment, the Supreme Court has not yet decided whether the 14th Amendment does guarantee “an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.” Accordingly, the Court determined that, in the absence of explicit guidance on this question from the Supreme Court, the district court must “take up this task” on its own.
After rejecting the defendants’ challenges to the plaintiffs’ standing and other procedural objections, the Court examined plaintiffs’ due-process and equal-protection claims. Noting that, despite the Supreme Court’s willingness recently to declare that a right to same-sex marriage is a fundamental interest in Obergefell v. Hodges, 135 S. Ct. 2584, (2015), Judge Murphy emphasized that “The Supreme Court is historically reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended.” Accepting that cautionary perspective, he then held that there is no fundamental right to education under the due process clause, stating in this regard that there was not even a public school system at the time the Constitution went into effect and that there has not been a substantial evolution toward seeing education as a fundamental right among the states since “State courts that have found a right to a minimum level of education have not done so based upon the intrinsic necessities of a free society, but rather, on the precise wording of the relevant state constitutions.”
Judge Murphy then denied plaintiffs’ equal protection claim by rejecting that plaintiffs’ argument that the Detroit schools attended largely by African-American students were severely under-resourced, chaotic, and unsafe compared with schools elsewhere in Michigan attended primarily by White students. He held that “Michigan schools as a whole are not the proper comparator. Plaintiffs have not challenged a statewide funding scheme, a specific statute, or any particular decisions by Defendants applicable to all Michigan schools.” He also held that plaintiffs had failed to demonstrate that the defendants’ actions in Detroit did not constitute rational public policy because plaintiffs failed to “identify the specific decisions Defendants made concerning Plaintiffs’ schools that could have been made differently.”
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.”