HP students win in court
State, EM not protected against lawsuits when children’s constitutional right to education is at stake
By T. Kelly
The Michigan Citizen
DETROIT — A historic civil rights case can move ahead after Wayne County Circuit Court Judge Marvin R. Stempien ruled June 27 that the children of Highland Park have a statutory and constitutional right to a basic education. He ruled further that the state and emergency manager are not immune from lawsuits when a child’s constitutional right to a basic education is at stake.
The American Civil Liberties Union of Michigan filed suit July 2012 on behalf of eight students in the Highland Park District (HPSD). According to the ACLU complaint, HPSD ranks among the lowest performing school districts in the state.
The ACLU suit sought immediate implementation of the state law that mandates that special remedial assistance shall be provided every regular student who does not show proficiency on the fourth and seventh grade reading portion of the Michigan Educational Assessment Program (MEAP) test. The law says the special assistance should bring the student up to grade level within 12 months. Inability to read means inability to learn the subject matter in other classes as well, the ACLU argued.
“The legislature cannot abandon its duty of educating children to the vagaries of finances,” Stempien ruled when denying the state’s motion to dismiss the case. He affirmed state laws and the constitution grant the right to a basic education.
“This is a tremendous victory for the rights of children in the state to receive an adequate education,” ACLU Legislative Director Michael Steinberg said after court.
“We will now have the opportunity to prove to the court what educational experts, students and parents in the district already know — the state has failed to fulfill its obligation to our students and provide them with a quality education, which is every child’s right,” said ACLU of Michigan Executive Director Kary Moss.Following the ruling, Assistant Attorney General Darrin Fowler immediately jumped to his feet to file “an oral motion for a stay pending appeal.”
Stempien denied the motion. The trial is set for July 22.
The defendants are State of Michigan, State Board of Education, Michigan Department of Education, State Superintendent of Education Michael P. Flanagan, former Emergency Manager Joyce Parker, Highland Park School District, Highland Park Public School Academy System and the Leona Group, L.L.C.
Emergency Manager Donald Weatherspoon and the Highland Park district he oversees as well as the Leona Group, the private, for-profit charter the EM hired to run the three schools in the district, all filed motions to be dismissed from the suit. They argued they were protected under PA 436, which bans any legal action against the EM or other state agent. Stempien ruled no act of the legislature can grant immunity from protection of Constitutional rights. He dismissed the motion.
Nearly a dozen lawyers representing the nine defendants were in court. Noel Massie of Birmingham, attorney from Kienbaum Opperwall Hardy & Pelton, represented the emergency manager. In arguing on behalf of the EM, Massie also added comments to protect the Leona Group from added costs. Massie told the judge that it “is hard to imagine what remedy there would be to bring these students up to grade. Reality is reality.”
Some of the court room arguments during the four-hour hearing provided a glimpse into the history of education “reform” under market-based school measures that Gov. Rick Snyder and the Republican lawmakers have pushed. Mark Rosenbaum, lead attorney for the ACLU, at one point quoted from Attorney General Bill Schuette to argue against Assistant Attorney General Fowler.
Fowler argued before Stempien that the state only provided a general education role and it delegated to the districts the responsibility to carry out education duties. Fowler said Highland Park District, not the state, had responsibility for HP students’ education.
However, Rosenbaum quoted from Schuette v Rev. David Murray, the lawsuit the attorney general brought last year to oust the elected DPS board members who represented districts. Rosenbaum said that Schuette argued then, “My job as attorney general is to insure state law is followed and our children get the quality education the state constitution promises.”
According to Stempien’s written opinion, “Appellate case law tells us that the State of Michigan has a broad compelling state interest in the provision of an education to all children. Although the legislature has chosen to establish a decentralized system of education, which gives broad discretionary authority to local school districts, those districts, such as the Highland Park Public School District, are still carrying out a delegated duty of the state under Constitution, Article 8. It follows, then, that by simply enacting statutes that mandate specific criteria for the local school districts in order to carry out the constitutional duties of the legislature to encourage and maintain education of children, the legislature cannot abandon the education of those children to the vagaries of local school finances.”
While three of Stempien’s rulings supported the ACLU, he ruled the civil rights group had not provided enough factual information for him to allow the suit to pursue the issue of equal protection.
During the year the lawsuit has been before the court, things in the Highland Park schools have worsened. In the 2013-14 year, no fewer than 78.9 percent of current fourth graders and 73 percent of current seventh graders will require the special intervention mandated by statute. By contrast, entering the 2012-13 school year, 65 percent of then-fourth graders and 75 percent of then-seventh graders required the remedial help the law mandates.
In effect, more children will require special reading assistance this coming year than in the year that just ended. Yet, judging by this past year’s results, the state, district and charter company have no program in place to systematically deliver the reading assistance that is mandated, Moss said in a news release. The ACLU’s legal team includes Moss, Rosenbaum, Steinberg, Mark Fancher and Shana Schoem of the ACLU of Michigan; Jennifer B. Salvatore and Nakisha Chaney of Nacht Law; and Steven Guggenheim of Wilson Sonsini Goodrich & Rosati.
To view court documents and related news releases, visit www.ACLUMich.org/rightoread