Jacques: Literacy settlement may stand; precedent shouldn't

Less than a month after a federal appeals court panel determined a narrow right to a basic education exists in the Constitution, the full U.S. 6th Circuit Court of Appeals on Tuesday said it would rehear a case many have called historic because of its precedent-setting nature.

The full court’s decision to give the case an en banc review “vacates the previous opinion and judgment of the court, stays the mandate and restores the case on the docket pending appeal,” the court states.

Some legal observers weren’t expecting the full panel of judges to get involved, since last week Gov. Gretchen Whitmer reached a settlement in the 2016 case brought by seven Detroit students. The students, represented by a California public interest law firm, claimed they’d been denied their right of access to literacy and school buildings conducive to learning. 

Sadly, many of these students’ claims are true. And they shouldn’t have had to resort to a lawsuit, says Brian Gutman with the Education Trust-Midwest, an education advocacy organization. He says the settlement is “just a step to solving real inequities” for students.

“It’s important that the state not continue to fight that students don’t have a basic right to an education,” Gutman says.

But the heart of this case has always been about who’s at fault, and who is responsible for making things right for Detroit students — and others who are trapped in failing schools. 

Involving the courts has never been the right answer. 

More:Appellate court to rehear Detroit literacy case

More:Editorial: Fight for education, but not in court

Rather, students and parents must hold their local school boards and legislative leaders to account for how schools are funded and overseen. Taking these policymaking decisions out of the hands of elected officials and placing them in the hands of appointed federal judges would be a significant governing shift, and it’s what got the attention of the 6th Circuit judges.

As the Tennessee Attorney General’s Office wrote in an amicus brief on behalf of 10 states asking the full panel to hear the case, the opinion “will radically transform the public education system” by stripping important policy decisions from elected officials and “mire states in unremitting and costly litigation.” 

In 2018, the Connecticut Supreme Court overturned a judge’s decision to get deeply involved in school funding and policy decisions, including teacher evaluations, writing that “such judgments are quintessentially legislative in nature.”

Even though the Michigan Legislature and the 10 other states had asked for a review following the panel’s decision last month, the court made the decision apart from those petitions. Rather, it chose to take up the case “sua sponte” — on its own accord.

“This is a huge sign that the court is troubled by the panel’s decision,” observes Anthony Sanders, director of the Institute for Justice’s Center for Judicial Engagement and a senior attorney. 

And while it’s unclear how the appeals court may proceed, it’s not likely to let the panel’s decision stand. Sanders called the previous opinion a “very surprising ruling,” saying while state constitutions, including Michigan’s, offer more specific language about providing some form of education, the U.S. Constitution does not, and the U.S. Supreme Court has not found that a right to literacy or education exists. In fact, Sanders says courts are reluctant to find that there are “actual positive rights” for citizens guaranteed by the Constitution, such as a right to education. 

Now that the full panel has taken up the matter, it could overturn the former panel’s findings or it could simply vacate the ruling — erasing the precedent of a new constitutional right. 

Regardless, the appeals court decision won’t necessarily change the settlement agreement the governor forged with the plaintiffs. Those budget discussions will likely still play out in the Legislature.

Whitmer’s settlement with the students includes the promise of $94.5 million in future literacy funding and $280,000 for the plaintiffs. Two Detroit education-related task forces are also planned. The settlement comes at an awkward time, with the state facing a $3.2 billion budget shortfall related to the impact of the COVID-19 stay-home orders. 

GOP leaders say they will wait for the court’s ruling in the matter. 

Ensuring all students in Michigan have access to a decent education should be the goal of our state's leaders. But these fights don't belong in the courtroom. 

ijacques@detroitnews.com 

Twitter: @Ingrid_Jacques