Editor’s Note: Samuel Bagenstos, a 2018 candidate for the Michigan Supreme Court, is the Frank G. Millard Professor of Law at the University of Michigan, where he specializes in constitutional and civil rights litigation. In this column written for The PuLSE Institute, Bagenstos highlights the issue of poverty and inequality and the role of the courts, which is rarely discussed in the public domain. For submission inquiries contact the Institute’s editor-in-chief Bankole Thompson at email@example.com
By Samuel Bagenstos
It may seem odd to ask what the Michigan Supreme Court can do about poverty in our state. Courts aren’t like the other branches of government. They don’t go out into the world and solve problems. For the most part, they don’t even choose what problems to address. Their principal function is to decide cases – cases brought by private entities or the executive branch of government. In those cases, the parties before the court frame the issues and develop the factual record. A court’s role is necessarily reactive.
The executive and legislative branches thus must play the lead role in responding to the problem of poverty in our state. They are the ones who can act affirmatively, engage in wide-ranging fact-finding, and formulate and implement policies that will reduce poverty and alleviate its effects. But we can’t let the courts off the hook. When the political process fails in a way that violates the constitutional rights of poor Michiganders, the courts must step in.
In 2015, the Michigan Supreme Court had an opportunity to address the crisis of inadequate education in our state’s poorer communities. In S.S. v. State of Michigan, commonly known as the “Right to Read” case, students in Highland Park challenged the education they were receiving in the impoverished city’s public schools. The allegations in the suit were shocking — or should have been shocking to anyone who cares about the right to a public education.
Judge Douglas Shapiro, who sat on the panel of the Michigan Court of Appeals that heard the case, summarized the key allegations. The Highland Park schools did not have enough textbooks for students to be able to take them home at night, school buildings lacked heat in the winter, the buildings were “unsecured such that a homeless man was able to live and sleep in the facilities without detection by school officials,” and student records were missing crucial educational information.
As a predictable result of these failings — and not because of anything wrong with the children — students in the Highland Park schools were not receiving anything that could be described as an education. As Judge Shapiro described the allegations, “[a]t the high school level, 90% of students failed the Michigan Merit Examination reading test, 97% failed the math test, 94% failed the writing test, 100% failed the social studies test, and 100% failed the science test.”
Agreeing with the trial court, Judge Shapiro concluded that these allegations supported a claim that the state and the school district had violated Article 8, Section 2 of the Michigan Constitution. That provision commands that the legislature “shall maintain and support a system of free public elementary and secondary schools” and that “[e]very school district shall provide for the education of its pupils.” Whatever the Highland Park Public Schools was providing, it was not an “education” in any sense.
Unfortunately, Judge Shapiro was the dissenting judge on the court of appeals panel. A majority of the judges rejected the Highland Park students’ claims. The next stop was the Michigan Supreme Court. But the court refused to hear the case. The political process failed the kids of Highland Park, just as it has failed kids in other impoverished school districts in the state. The court has a duty to step in to protect constitutional rights when the other branches fail to do so. But the Michigan Supreme Court refused to heed that duty.
A suit similar to the “Right to Read” case (this one on behalf of Detroit public school students) is currently pending in the federal Sixth Circuit Court of Appeals. Since the 1970s, however, the U.S. Supreme Court has read the federal Constitution in a way that makes it difficult to challenge educational inequalities based on wealth and poverty in federal court.
It is the state courts that have taken the lead on this issue — and not just in especially progressive states. The Highland Park plaintiffs relied on cases from the supreme courts of South Carolina, Arkansas, Tennessee, and Kentucky, among others, interpreting provisions of their states’ constitutions that are quite similar to Article 8, Section 2 of the Michigan Constitution.
By taking a different path than the courts in those states, the Michigan Supreme Court has left poor Michiganders without an adequate avenue of redress. That needs to change. Our courts need to stand up for the rights of those whose voices are suppressed in the political process. And our state’s poor communities are among those whose voices are the most squelched.
The next time a “Right to Read” case arises, the courts need to step up — but not only then. When addressing cases involving the actions of emergency managers, in Flint or elsewhere, the courts must recognize that they are the last line of defense for poor, disenfranchised communities. And when administering the criminal justice system from day to day, they must recognize that cash bail, fines, and fees can trap people in a vicious cycle of impoverishment, and they must act to protect the public while avoiding these consequences.
The courts are not the principal agency of government that addresses poverty. But they have many opportunities to alleviate — or exacerbate — it. Let’s hope that the Michigan Supreme Court’s new, more moderate majority heeds its constitutional responsibilities.
Samuel Bagenstos has been a civil rights lawyer for more than two decades. Under former President Barack Obama and Attorney General Eric Holder, he served as the Principal Deputy Assistant Attorney General for Civil Rights at the U.S. Department of Justice. He is a now a law professor at the University of Michigan.