United States District Court, Eastern District of Michigan, Southern Division

Q&A Brief on the Federal Class Action Lawsuit Dealing with Literacy Instruction in Detroit Public Schools

Gary B., et al V. Richard D. Snyder, et al, Class Action Complaint filed September 13, 2016

United States District Court, Eastern District of Michigan, Southern Division

Civil Action No.: 16-CV-13292

Prepared by Dan Mangan

ILA Director of Public Affairs

October 25, 2016

Synopsis

Q01: What type of lawsuit is this?

Q02: In what form has the lawsuit been filed?

Q03: What relief are the plaintiffs seeking?

Q04: Who are the defendants in this lawsuit?

Q05: What conduct by the defendants gave rise to the plaintiffs’ complaint?

Q06: What is the general theory of the plaintiffs’ case?

Q07: Why does this contention rise to the level of a constitutional challenge?

Q08: What is the significance of this lawsuit for literacy advocates?

Q09: Is there a direct legal precedent for such a view?

Q10: How does the plaintiffs’ class action complaint define literacy?

Q11: What does the plaintiff’s class action complaint say about literacy instruction?

Q12: What facts are alleged in the complaint to demonstrate a failure to deliver evidence-based literacy instruction and intervention programs in the plaintiffs’ schools?

Q13: What does the plaintiffs’ complaint identify as the necessary prerequisite for the acquisition and transmission of literacy?

Q14: How does the plaintiffs’ complaint define the consequences of illiteracy?

Q15: Does the plaintiffs’ complaint cite peer-reviewed literacy research?

Q16: Does the plaintiffs’ complaint reference the International Literacy Association (ILA)?

Q17: Does the plaintiffs’ complaint mention any ILA members or their work?

Q18: Who is representing the plaintiff students in this case?

Q19: Is anyone filing an amicus curiae brief in support of the plaintiffs’ class action suit?

Q20: Is ILA involved with the amicus curiae brief in the plaintiffs’ class action suit?

Links to the complaint and other case documents

Links to related articles

Q01: What type of lawsuit is this?

A: This is civil lawsuit filed in the US District Court for the Eastern District of Michigan. As a jurisdictional matter, the case has been filed in federal court because it deals with the alleged denial by state authorities of rights secured under the federal constitution and federal statutory law. The plaintiffs allege that they and the other members of the class they represent have been denied access to literacy by being deprived of evidence-based literacy instruction and being subject to school conditions that prevent learning, in violation of their rights under the 14th amendment to the US Constitution and Title VI of the Civil Rights Act of 1964.

Q02: In what form has the lawsuit been filed?

A: The suit has been filed as a class action, meaning that the plaintiffs, five students from the lowest performing public schools in Detroit, are suing on behalf of all students similarly situated in the city’s schools. Generally speaking, class actions are brought in situations where the numbers of persons affected by a specific actionable grievance are too large to make their individual involvement in a lawsuit practical.

Q03: What relief are the plaintiffs seeking?

The plaintiffs are seeking injunctive relief, asking the court to order the named defendants and their officers, agents, and employees to implement evidence-based programs for literacy instruction and to establish a system of statewide accountability for their performance, including monitoring, intervention, and the provision of compensatory and remedial education for all members in the plaintiffs’ class. Moreover, the plaintiffs are seeking a declaratory judgment that the defendants’ actions and inactions violated the plaintiffs’ federal constitutional and statutory rights.

Q04: Who are the defendants in this lawsuit?

A: Named as defendants in the class action complaint are: the governor of the State of Michigan, eight members of the Michigan State Board of Education, the State of Michigan’s Superintendent of Public Instruction, the Director of the Michigan Department of Technology, Management and Budget, and the State of Michigan’s School Reform/Redesign Officer.

Q05: What conduct by the defendants gave rise to the plaintiffs’ complaint?

A: The plaintiffs’ complaint summarizes the recent administrative history of public education in Michigan, starting with the passage in 1994 of Proposal A, which shifted school funding and authority to determine funding levels from local municipalities to the State. Thereafter, in response to the Detroit public school system’s fiscal deficit and failing student achievement outcomes, the State enacted Public Act 10, replacing Detroit’s elected school board and superintendent with a seven-member reform board.

However, in 2008 the governor declared a fiscal emergency and invoked Public Law 72 to appoint an emergency financial manager for Detroit schools. Then in 2011, the governor created a new state-controlled reform school district made up of 15 of the states’ lowest performing schools, to be governed by the Education Achievement Authority (EAA). For the first two years, all of the schools under EAA authority were former Detroit public schools.

The complaint describes Michigan’s recent interventions in the Detroit education system as reactive efforts to apply a band-aid over the State’s long term disinvestment and deliberate indifference. Indeed, the plaintiffs assert that the State’s administration and management of the Detroit schools has hastened in a period of dramatic decline. In particular, the plaintiffs claim that district administration is not guided by pedagogical decisions made by educators familiar with the unique needs facing Detroit schools, but rather by political decisions made by lawmakers and bureaucrats in Lansing who lack any expertise in education or familiarity with the Detroit schools’ needs.

Q06: What is the general theory of the plaintiffs’ case?

A: The plaintiffs contend that decades of disinvestment in and deliberate indifference to Detroit schools on the part of the state officials charged with the oversight and administration of public education have denied them and other similarly situated school children access to the most basic building block of education: literacy.

Q07: Why does this contention rise to the level of a constitutional challenge?

A. The schools the plaintiffs attend serve almost exclusively low-income children of color. As the complaint asserts, the abysmal conditions in the schools they attend are unprecedented and would be unthinkable in schools serving predominantly white, affluent student populations, meaning that the schooling afforded to the plaintiffs is both separate and unequal, and, further, that the plaintiffs are effectively excluded from Michigan’s statewide system for the delivery of public education.

Q08: What is the significance of this lawsuit for literacy advocates?

A: The suit is predicated on the assertion that equal access to effective literacy instruction is a constitutional entitlement, a fundamental civil right.

Q09: Is there a direct legal precedent for such a view?

A: Not exactly. The plaintiffs are basing their argument on the US Supreme Court’s 1982 decision in Plyler v. Doe, a case that dealt with a Texas statute that excluded undocumented children from the public education system. The Supreme Court held therein that that a state may not deny a discrete group of innocent children the free public education that it offers to other children residing within its borders. Noting that illiteracy is an enduring disability which takes an inestimable toll on an individual’s social, economic, intellectual, and psychological well-being, the court concluded that it would be most difficult to reconcile the cost or the principle of a status-based denial of basic education within the framework of equality embodied in the Equal Protection Clause of the US Constitution.

The plaintiffs in the Michigan case contend that the basic holding of Plyler stands apart from the fact that the children denied access to basic education in that case lacked lawful immigration status. It remains to be seen whether the Federal District Court will adopt this view.

Although not mentioned in the complaint, it should be noted that another well-known literacy case, S.S. v. State of Michigan, was previously tried in Michigan State courts. In that 2012 action (sometimes referred to as the “right to read” case), the Michigan ACLU filed a class action on behalf of students in the Highland Park Public Schools, claiming that outrageously poor oversight, management, and teaching controls at the state and local levels violated state law and the Michigan constitution by allowing students to fall behind in basic literacy skills and reading proficiency. Although the Wayne county Circuit Court denied the defendants’ motions to dismiss the case, holding that a compelling state interest was at stake, the Michigan Court of Appeals reversed the lower court, holding that the Michigan Constitution merely encourages education, but does not mandate it. The ACLU appealed the case to the Michigan Supreme Court, but the court declined to hear the appeal.

Because this former case was tried under the state constitution and statutory law, it has no direct bearing on the current case.

http://aclumich.org/article/right-read

Q10: How does the plaintiffs’ class action complaint define literacy?

A: The complaint defines literacy as the skill to decode letters and words, the ability to read and write well enough to access knowledge and communicate with the world, and the ability to compose, comprehend, synthesize, reflect upon, and critique.

Q11: What does the plaintiff’s class action complaint say about literacy instruction?

A: The complaint notes that since literacy development is progressive and cumulative, evidence based literacy instruction is required throughout the primary and secondary years, and proceeds along a continuum. According to the plaintiffs, elementary literacy acquisition, taught from kindergarten through third grade, requires instruction on phonemic awareness, phonics, fluency, comprehension, and vocabulary.

These abilities, once developed, do not automatically evolve into the higher level literacy skills needed to succeed in middle school high school, college, of the workplace. For this reason, the plaintiffs maintain, dedicated literacy instruction must continue through the middle and upper grades, and literacy instruction must also be integrated into content area classes. In this connection, the plaintiffs also point out that the role of literacy as a gateway to other subject matter content has been nationally recognized in the Common Core State Standards, which Michigan adopted in 2010.

The plaintiffs’ pleading also references the US Department of Education’s What Works Clearinghouse (IES) Practice Guides which provide evidence-based recommendations for improving literacy instruction and have been endorsed and adopted by Michigan’s Early Literacy Initiative.

Q12: What facts are alleged in the complaint to demonstrate a failure to deliver evidence-based literacy instruction and intervention programs in the plaintiffs’ schools?

A: The complaint cites universally abysmal achievement outcomes, as measured by state and national testing data tied to the Detroit school system’s demographics, as the consequence of the complete lack of any system for literacy instruction and remediation in the plaintiffs’ schools. None of the schools met the prescribed proficiency levels for literacy attainment. The referenced data reveal that, even when taking socioeconomic data into account, Detroit performs lower than almost all large urban districts that serve a similar demographic of students.

Among the factors existing in the plaintiffs’ schools that produced this massive failure, the complaint notes:

· No consistent literacy instruction program

· No system of regular assessment

· Teachers receiving no support or training in literacy instruction

· Lack of access to curricular materials such as lesson plans, pacing guides, and teacher editions of textbooks

· Cancellation of optional literacy professional development training

· Use of scarce reading interventionist staff to cover teacher vacancies

· Use of textbooks below grade level

· Lack of guidance on how to teach to varying levels of proficiency

Q13: What does the plaintiffs’ complaint identify as the necessary prerequisite for the acquisition and transmission of literacy?

A: The complaint states that the necessary prerequisite for effective literacy education is a basic environment for teaching and learning. While the plaintiff students can physically enter their respective school buildings, they sit in facilities that are functionally incapable of delivering literacy access. Concerning the most egregious components of the learning-defeating environment in the Detroit public schools, the complaint touches on three distinct categories: materials and plant, students’ learning needs, and the teaching staff.

With respect to materials and plant, the complaint mentions:

· Damaged, insufficient, and outdated books, and books which can’t be taken home

· Damaged computers, computers with scratched screens, lack of internet access

· Teachers having to buy classroom books and printer paper with their own money

· Under-resourced, unstaffed, and closed school libraries

· Vermin infestation

· Extreme temperatures cause by absent or malfunctioning heating and air conditioning systems

· Broken windows, doors, and fire alarm

· Unsafe drinking water

· Extreme overcrowding

Concerning students’ learning needs, the complaint identifies:

· Lack of trauma response capability for children who have witnessed violence

· Lack of support for children with mental health needs

· No English Learner (EL) instruction

· No teachers trained to deliver EL instruction

· No meaningful attempt to communicate with or engage significant numbers of non-English-speaking parents

Finally, the complaint focuses on unsupported and unstable teaching staff, noting that:

· Historical difficulty in staffing the plaintiffs’ schools with permanent teachers and administrators

· High teacher turnover

· Frequent salary freezes

· Heavy reliance on Teach for America (TFA) instructors

· Frequent teacher burnout

· High teacher vacancy rates

· Students taking over teaching duties

· High teacher absenteeism

· Inadequate budget for substitute teachers

· Unsupervised classes

· Legislation permitting use of non-certificated teachers in Detroit public schools

· Lack of charter school accountability

Q14: How does the plaintiffs’ complaint define the consequences of illiteracy?

A: The complaint defines the consequences of failed literacy instruction as follows:

· The inability to participate fully as a citizen in the political process of a democratic society

· Preclusion from constitutionally protected access to the judicial system, including meaningful participation as a juror

· Significant barriers to entering the workforce and securing economic self-sufficiency

· Vulnerability to delinquency and criminal behavior

· Poor health outcomes

· Social stigma, shame, and indignity

Q15: Does the plaintiffs’ complaint cite peer-reviewed literacy research?

A: Not a lot, which is not unusual for a legal pleading. For example, the brief cites a few resources devoted to literacy instruction, some scientific sources concerning the correlation of low literacy skills with poor health outcomes and criminal conduct, and the work of the National Early Literacy Panel, in addition to the What Works Clearinghouse.