Editor’s Note: Godfrey Dillard is a renowned civil rights lawyer who served as the lead counsel for a group of minority students in the pivotal 2003 U.S. Supreme Court decision that upheld the University of Michigan’s race-based admissions policy. He is a graduate of the University of Michigan Law School. In this column written for The PuLSE Institute, Detroit’s independent anti-poverty think tank, Dillard, takes us through the legal synopsis of the right to literacy lawsuit that Detroit kids won recently in the U.S. Sixth Circuit Court of Appeals. He explains why the ball is in Gov. Whitmer’s court now to settle the case. For submission inquiries contact Bankole Thompson, the editor-in-chief of The PuLSE Institute at firstname.lastname@example.org
By Godfrey J. Dillard, Esq.
In Gary B. v. Whitmer, a group of students from the Detroit Public Schools sued the State of Michigan claiming that they had been denied equal protection and due process in violation of the 14th Amendment to the US Constitution. They claimed that the education they received was inferior, by any standard. They made claims of absent qualified teachers, crumbling facilities, and insufficient materials. “Plaintiffs sit in classrooms where not even the pretense of education takes place, in schools that are functionally incapable of delivering access to literacy … schools in name only, characterized by slum-like conditions and lacking the most basic educational opportunities that children elsewhere in Michigan and throughout the nation take for granted…They wholly lack the capacity to deliver basic access to literacy, functionally delivering no education at all.”
A federal court has recently ruled that the students are entitled to their day-in- court. A Detroit District Court judge had dismissed the case. The federal panel bottomed its ruling on a violation, by the State of Michigan, of the due process clause of the 14thAmendment. The Court said, the Detroit students had been “deprived of access to literacy.” Absent an appeal, the case will be sent back to the District Court for a hearing. At that hearing, the students will be given the opportunity to offer evidence as to whether or not their fundamental right to education had been violated. Just as important, it will give the citizens of Michigan and Detroit an opportunity to judge again the actions of the State of Michigan in its educational policies toward Detroit. It does not, however, guarantee the students will win.
During her campaign, the candidate reportedly said, “every child in this state has a constitutional right to literacy.” Recent reports out of Lansing suggest she may be back-tracking on her repeated campaign slogans of improved educational opportunities for marginalized, black and brown children of Detroit, and seeks cover in legalism.
Those reservations rely on two principal legal arguments. First, even assuming the facts are true (Detroit children are denied minimal standards of education or literacy), the guilty party was the prior Republican Administration of Governor Snyder, and not her administration. The legal doctrine for this position is “mootness.”
Second, she contends changes in state law and practice have removed the state from day-to-day control over education in Detroit (no more emergency manager); consequently, Plaintiffs can only claim retroactive monetary damages, which are barred by the legal doctrine of “sovereign immunity.” Both Courts were not fooled by these slights-of-hand and rejected both of these arguments.
In all fairness, the State also claimed that the 14th Amendment does not recognize a fundamental right to education.
Consequently, plaintiffs’ case should be dismissed on grounds that the State of Michigan did not deny Detroit students due process.
One does not hear much championing from the Governor’s office these days about a 14th Amendment based fundamental right to education or literacy. Rather, Whitmer seems to side-step these substantive legal arguments and turn to the aforementioned abstract legal doctrines, waffle and pivot to an appeal of the case.
Why? Is she hoping to overturn an historic due process ruling, which would offer hope to inner-city kids for a better life promised by minimum standards of education? The most overlooked aspect of this case will be the rationale adopted by the Federal Appeals Court for inching away from the generally accepted notion that education is not a fundamental right. In its review of the case law, the Court noted “the Supreme Court has not yet definitively settled the question of whether a minimally adequate education is a fundamental right.”
The Court looked to constitutional history for rulings in support of the expansion of fundamental rights, not specifically found in the Bill of Rights; and found it, in Brown v. Board of Education, Loving v. Virginia and Obergefell v. Hodges. Cases that acknowledged here-to-fore unrecognized fundamental rights to freedom from racial discrimination in education and marriage. “The nature of injustice is that we may not always see it in our times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” Thus, the ruling establishes a legal framework for future due process rulings, which could offer precedent in support of fundamental rights to health care and equal pay championed by the Democratic Party.
Or, is she pandering to political expediency? A fear of an airing of the state’s dirty linen in public. A pull-back from an open-door hearing which could embolden the Legislature to financially do something about Detroit’s education morass, caused in part by the state’s emergency manager intervention. A hearing could not have come at a worst time, as the state anticipates a significant budget deficit and a scrutiny of its handling of the COVID-19 pandemic. Even, the “fix-the-roads” mantra has fallen silent.
But, the faux pas of the Republicans were substantial contributing factors to her election a-top-a-wave of Detroit voters! Her decision to appeal or not to appeal will tell Detroiters a lot about where she stands on issues fundamental to urban America. Detroiters will remember come reelection time, when she seeks their votes. Black votes may be predictable in favor of Democratic candidates, but decisive turnouts are not.