Literacy rights ruling highlights Whitmer-Nessel divide

 A historic Sixth Circuit U.S. Court of Appeals decision ruling that Detroit students have a fundamental right to education threw into sharp relief the complicated positions of Democratic state leaders on the issue.

Gov. Gretchen Whitmer’s office, while not opposed to the idea of a right to education, has continued to fight the lawsuit, arguing the state should not be a named defendant because Detroit schools are now under local control and lawmakers had done much to improve Detroit public schools in recent years.

The Attorney General’s Office is representing Whitmer’s position, but Attorney General Dana Nessel last year attempted to distance herself from the state’s position and take the side of the students. 

More:Appeals Court: Detroit students have fundamental right to education

The Sixth Circuit wouldn't allow Nessel to file arguments in the case, but largely took her position on Thursday, ruling that Detroit students have a fundamental but limited right to basic minimum education and have standing to sue the state for alleged violations of the newly created right.

In a 2-1 ruling, the Appeals Court panel warned that the right to education “is narrow in scope” to include access to skills deemed “essential for the basic exercise of other fundamental rights and liberties, most importantly participation in our political system.”

The governor, who was listed as a defendant in place of Republican former Gov. Rick Snyder since he left office, is reviewing the decision to determine next steps, said Tiffany Brown, Whitmer's spokeswoman. 

“The governor did not challenge that ruling on the merits,” Brown said, referring to the governor's support of a student's right to literacy and opposition to blaming the state's involvement in education. 

“We’ve also regularly reinforced that the governor has a strong record on education and has always believed we have a responsibility to teach every child to read," Brown said.

Lawyers for the Detroit students last year said the governor’s position was a “complete abdication of responsibility to the kids in Detroit whose families and communities put them in office.”

But Whitmer's office maintained the governor’s proposed budget increased funding for Detroit schools as well as the number of literacy coaches, teacher pay, facility improvements.

Snyder’s attorneys took a more aggressive approach in 2016 against the lawsuit, arguing no right to literacy exists for Detroit schoolchildren. The lawyers sought to reject what they called an “attempt to destroy the American tradition of democratic control of schools.”

A Detroit U.S. district judge dismissed the lawsuit in June 2018, and it was appealed in July 2018. Whitmer was named in the lawsuit in May 2019.

The Appeals Court on Thursday dismissed Whitmer’s arguments that the state shouldn’t be part of the lawsuit, noting that current funding, policy and oversight still falls under the jurisdiction of the state.  

The state’s argument essentially creates “a liability catch-22, in which plaintiffs are forced to instead seek injunctive relief against local officials, only to be told that the resources they need can only come from the state,” wrote Judge Eric Clay, an appointee of President Bill Clinton who was joined by Judge Jane Stranch, an appointee of President Barack Obama.

"It is evident from the Michigan Constitution and statutes, as well as its prior interventions in the school system, that the state retains significant authority over Detroit’s public schools,” the decision said.

Both district and Appeals Court maintained the state was the proper defendant in the case, said Tacy Flint, a lawyer for the students. 

"The Michigan Constitution creates a critical role for the governor and the state superintendent of education and they really exercised authority in Detroit for many years and they have the authority to resolve the problems now," she said.

Nessel had argued in an amicus brief that “the absence of a minimally adequate public education jeopardizes the very foundation on which our American democracy rests.” 

But the Appeals Court would not accept the brief — or, as her office put it, "shut her down" — because it “misunderstood” the conflict wall that had been built within the Attorney General’s Office, Nessel said.

The September order denying the motion to appear as amicus in oral arguments also cited timing, noting "the amicus brief is late and its arguments have already been addressed by the parties."

Another lawyer in her office advocated for Whitmer, while Nessel intended to make her separate arguments. Nessel’s office has used a similar arrangement to prosecute and defend Flint water crisis prosecutions and litigation. 

When the Sixth Circuit rejected such an arrangement, Nessel said she “anxiously watched from the sidelines." The attorney general on Thursday praised the ruling, which amounted to a defeat of her department and Whitmer.  

“I am overjoyed with the court’s decision recognizing that the Constitution guarantees a right to a basic minimum education,” said Nessel, a fellow Democrat. “This recognition is the only way to guarantee that students who are required to attend school will actually have a teacher, adequate educational materials, and a physical environment that does not subject them to filth, unsafe drinking water, and physical danger."

eleblanc@detroitnews.com