Editor’s Note: Mark Rosenbaum is the director of the Opportunity Under Law project at Public Counsel, which calls itself the nation’s largest pro bono law firm based in California. A graduate of Harvard University Law School, he spent years as chief counsel as well as legal director of the American Civil Liberties Union in Southern California.
Rosenbaum was the lead attorney in the historic Detroit kids’ right to literacy case, which The PuLSE Institute, Detroit’s independent and non-partisan anti-poverty think tank prominently supported from the beginning. In this column, he explains how after the U.S. Sixth Circuit Court of Appeals issued a landmark ruling affirming that Detroit schoolchildren’s right to literacy is protected by the U.S. Constitution, The PuLSE Institute successfully shaped the public debate and the narrative in a community-wide push that prevailed on Democratic Governor Gretchen Whitmer to settle the case. For submission inquiries contact Bankole Thompson, the editor-in-chief of the Institute at firstname.lastname@example.org.
By Mark Rosenbaum
The settlement reached this past week in the historic Detroit right of access to literacy case was not achieved in just the days following the issuance of the U.S. Sixth Circuit of Appeals groundbreaking opinion on April 23. Nor if the real story is to be told about how the decision and resolution came to be, it did result from the filing of the lawsuit some four years ago.
As we reflect on May 17, the 66th anniversary of the ruling by the U.S. Supreme Court in Brown v. Board of Education case and also recognize that the Fourteenth Amendment was ratified over 150 years ago, we cannot say other than that we come to this moment by the force of history.
It is surely distressing then that it took so long to establish that children of color and children from low income families have a constitutional right to read, to attend schools where they have a fighting chance of finding teachers and books in classrooms fit for learning, free of rats and other vermin, in schools where temperatures are neither freezing nor in the 90’s or 100’s, and where drinking water is not toxic and toilets actually work.
At the same time, it is profoundly uplifting that the struggle for educational justice has never wavered in purpose or courage to secure what the political processes sought intentionally to deny. Why do those in power seek to subordinate and disenfranchise children on account of their race and class? Why do they deprive them of the opportunity to better their circumstances which was supposed to be the defining goal of American democracy and the public education system created to reach that end?
Anyone who is a regular reader of The PuLSE Institute will pause in answering this question. No matter the particular subject addressed in any issue, the narrative is always the same. To far too many of the haves, “equality” is a dirty word and “level playing field” the worst of all possible outcomes. In the Gary B litigation, the name of the Detroit case, lawyers for the State of Michigan argued before a federal judge that the Constitution admitted of no right to even a “basic minimum education,” and sought to explain the fact that Detroit students had the lowest reading and math proficiency scores on national assessment tests because of their “intellectual limitations” and because their parents practiced “domestic violence.”
Understood in this light, the opinion and settlement are landmark victories, as one commentator put it, the “bookend to Brown v. Board.” The community took on the powers that would hold them down and defeated them soundly. As a lawyer in the case, privileged to represent brave, bright children typical of all Detroit students, I know firsthand that the victory belongs least of all to lawyers. The community won this case upon the shoulders of generations of earlier communities.
While the settlement is but a first step and falls short of undoing all the damage that prior governors and legislatures and Betsy DeVos (U.S. Education Secretary) and her minions deliberately wreaked upon innocent children, it is a cause for celebration. Even as the Michigan Senate and House majorities and some of the same lawyers who wrote the vile words quoted above continue to try and undo the Sixth Circuit decision, it is important to thrill in the majesty and truth of Sixth Circuit Court of Appeals Judge Eric Clay’s words. Never has the Constitution been so fully understood.
It is time to give thanks to those who stood up for the children. Many, including many whose names will never be known, deserve our praise for their smarts, persistence, and most of all, love for children.
The PuLSE Institute belongs high up on that list, first for its trenchant analysis of the nexus between poverty and literacy submitted to the U.S. Sixth Circuit of Appeals in an amicus brief written by attorney Tina M. Patterson, the president and director of research at the Institute. It followed that commitment through its persistent articles calling for settlement of the case after the Appeal Court ruling by publishing a series of deeply insightful, profound and well-reasoned articles quoting civil rights leaders, business leaders, enlightened office holders, and community members making the irrefutable case that current leadership in Lansing would be judged by their action to resolve the case by taking it out of the courtroom and bringing opportunity into the classroom for once and for all. There’s no way to really quantify the contribution that The PuLSE Institute made as an important institution in the fight against poverty in Detroit, except to say its voice was indispensable in the push for a settlement. It continues to be needed now more than ever.