The constitution has given us an endless parade of unanswered questions. How far, for instance, does its protection of certain rights stretch? And does each right really have to be directly carved in stone, or do certain rights obviously and necessarily entail others? With “Right to Literacy” back in a U.S. Court of Appeals after being dismissed last year, perhaps we can untangle these questions with a real-world example, one with enormous consequences for people’s lives.
As the Detroit News reports, dozens watched on October 5th as a three-judge panel heard the opening arguments. It all boils down to this: did the State of Michigan violate Detroit students’ constitutional right to learn to read by locking them into a chronically underfunded and crumbling school system?
Mark Rosenbaum, the students’ attorney, makes a straightforward argument: Sure, literacy isn’t mentioned in the constitution, but the ability to read is an obviously vital ingredient for the enjoyment of every other right. Without it, he says, a child can’t pursue “his or her dream, better his or her circumstances, or be meaningful participants in their democracy.”
In the other corner, the state of Michigan under Democratic Governor Gretchen Whitmer is picking up where her disgraced Republican predecessor, Rick Snyder, left off. Their main argument is twofold: that the state is “no longer the proper” party for the suit because they have “restored local control,” and that, besides this, “‘access to literacy’ is not a fundamental right” anyway.
The first point, Rosenbaum says, just “doesn’t make any sense.” Detroit’s schools suffer from widespread maintenance issues that are quickly racing towards $1 billion dollars. The public record leaves little confusion about why that is.
As the News reports, two of three judges identified the state as “the ultimate legal authority over Detroit schools” when the case was first filed in 2016, since state-appointed emergency managers ran the district “from 2009 through Dec. 31, 2016.” This followed an earlier five-year stretch of emergency management from 1999 to 2004. As state attorney Ray Howd had to be reminded, Michigan held unmatched and basically unlimited power over the district for the better part of two decades.
The Metro Times has reported extensively on how that power was used. “The state’s ‘rescue’” turned out to be an incineration, replacing a large surplus and healthy enrollment with rampant school closures and exploding deficits. If the state that left the system in ruins isn’t “the proper party,” who is?
Up next is an argument that was also pushed aggressively by the Snyder administration: that the suit is bogus because the 14th Amendment’s guarantee of Equal Protection does not, as opponents argue, include a right to literacy. It is the stronger point, and collapses just as hard on examination.
The 14th Amendment, it’s worth remembering, came after the fall of slavery, and essentially says that people must be treated equally under the law. Brown v. Board of Education was decided on this Equal Protection basis with the goal of ending legal apartheid in American schools. But the state’s opponents insist that education apartheid, barely spit-shined to pass scrutiny: Detroit’s overwhelmingly poor and working-class black students, they argue, have been subject to a vicious system of separate but equal, meaning that they are hauled into decaying schools that would never be tolerated in the city’s more white and affluent suburbs.
The state rejects the Equal Protection argument on two grounds. They first point out that Equal Protection only applies to “fundamental rights” — rights “that neither liberty nor justice would exist” without. And since there is no “Supreme Court precedent” that places reading in this category, Equal Protection is not relevant in this case.
Dana Nessel, the state’s Attorney General, broke with the governor to side with the students and has the most persuasive response to this argument. It’s worth quoting her at length:
“A minimally adequate education…must be a fundamental right. That 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. Granted, the right to a public education is not expressly mentioned in the Constitution, but neither are most of the rights we recognize as fundamental. The sparse constitutional text does not mention the right
to marriage or the right to privacy, yet we have found our treasured document to embody these rights.
“Finally, a minimally adequate education is a necessary vehicle to repair decades of race discrimination and to empower individuals to rise above circumstances that have been foisted on them through no fault of their own.”
Nessel’s argument is good and correct, leaving the state’s attorney with little to say in response. Instead, they take a strange and historically ignorant route, arguing that the comparison between Detroit schools and those in the suburbs gets it all wrong. They argue that because Detroit’s schools “predominantly serve children of color” and suburban schools haven’t “been subject to state intervention,” the latter is “not a proper comparative district.” The right comparison, they tell us, is with other predominantly poor districts of color that have come under emergency management. In other words: because Grosse Pointe’s largely white schools have never been criminally neglected by the state, you cannot meaningfully compare them to schools in Detroit.
But this is plainly nonsense. That Detroit’s affluent white suburbs — many of which, like Grosse Pointe, fiercely resisted desegregation for decades — have never been taken over and starved by the state is precisely the point. That such an occurrence would never happen is itself evidence of a stupendously racist system. It’s so thumpingly obvious that it feels silly to even write: it is exactly this type of unequal treatment that the 14th Amendment was supposed to eradicate. The state is either ignorant or dishonest on this point.
Evidence suggests it’s the latter.
While campaigning for her party’s nomination for governor, Whitmer spoke movingly about the trial, arguing that “Despite what the federal court said, despite what Bill Schuette and Gov. Snyder say, I believe every child in this state has a constitutional right to literacy.” Yet her administration is now taking a dizzying path to reach the same conclusion she campaigned against.
It’s important to remember what this means for the lives of actual people. “Denial of access to literacy,” Rosenbaum says, “has always been” a way “to subordinate or disenfranchise communities of color, going all the way back to when it was a crime to teach children how to read, going all the way back to literacy tests.” In other words, to say that there is no right to literacy is to uphold a hideous crime. Those who desperately cling to power — whether white people over black people, bosses over their workers, or men over women — have always used gaps in the constitution to smuggle in policies that protect that power and exploit the powerless, such as the country’s segregated black communities. Communities like ones all across Detroit.
It’s no secret that legal arguments are often made in their own needlessly complex language of technical gibberish. The immediate effect is to make these discussions almost impossible to follow, and thus guarding them against the scrutiny of everyday people who do not speak the language. But “You don’t have to be a constitutional scholar,” Rosenbaum says, “to know that you can’t put kids in a school and not educate them.”
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