I am continually amazed by how low US politics and courts can go. The fact that US Supreme Court decisions can be predicted with great accuracy based on the political party of the justices is simply disgusting. But the Court of Appeals in the State of Michigan has taken this to a whole new low.
On November 6th, the Michigan Court of Appeals issued this decision. The suit, brought by the American Civil Liberties Union on behalf of 8 children in Highland Park School District, charged that
plaintiffs’ receipt of inadequate and deficient instruction from the Highland Park Public Schools.According to plaintiffs, this inadequate and deficient instruction has resulted in their failure to obtain basic literacy skills and reading proficiency as required by the state. Specifically, plaintiffs sought special assistance in accordance with MCL 380.1278(8), premised on their demonstrated lack of proficiency on the reading portion of the standardized Michigan Educational Assessment Program (“MEAP”) test.
Basically, the kids couldn’t pass the state required test and the for-profit charter school given control of their education did not provide appropriate remediation as required by state law.
I will say that some of the court decisions, while arguably proper, are full of legal wrangling to get the state out of trouble.
The part of the state constitution (1963, article 8) involved reads as follows.
Section 1. Encouragement of education Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.
Section 2. Free public elementary and secondary schools; discrimination The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed,race, color or national origin.
The court states the these parts of the constitution only “encourage” education and do not mandate it. Further, while the legislature is responsible for providing free schooling, it the job of the local school to “provide for the education”.
By this method the court says that the State (in the form of the Board of Education) isn’t a proper party to the suit.
Similarly, subsection(8) leaves the determination of students identified as deficient on the MEAP reading tests for“school officials,” indicating decision making at the local, and not state, level.
The law establishing the Michigan Educational Assessment Program (MEAP) reads, in part
A statewide program of assessment of educational progress and remedial assistance in the basic skills of students in reading, mathematics, language arts and/or other general subject areas is established in the department of education which program shall:
(a) Establish meaningful achievement goals in the basic skills for students,and identify those students with the greatest educational need in these skills.
(b) Provide the state with the information needed to allocate state funds and professional services in a manner best calculated to equalize educational opportunities for students to achieve competence in such basic skills.
(c) Provide school systems with strong incentives to introduce educational programs to improve the education of students in such basic skills and model programs to raise the level of achievement of students.
Even thought the state law mandates the minimum reading levels, the for-profit charter running the school district seems to be unable to meet those minimums. According to this news article
MEAP test results from 2012 painted a bleak picture for Highland Park students and parents. 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, 65 percent of then-fourth graders and 75 percent of then-seventh graders required statutory intervention entering the 2012-13 school year.
Almost 8 out of every ten children in 4th grade in that school district are NOT meeting the minimum reading requirements. That’s really, stunningly low. Even Texas does a better job than that.
Basically, the court ruled that, while the state set these goals, they are not mandated and, thus the state is not a proper party to the lawsuit.
The court acknowledges that the local school has a more direct requirement, but then they argue that any decision could only directly affect those 8 students (not the hundred or more that also need help). Further the court states, that of the 8 students in the lawsuit, only two are actually impacted, having low MEAP scores. The others, while having low MEAP scores have been moved to other grades or entered the 4th grade and thus there are no test scores that would accurately reflect their present learning.
Then, the court says
Further, it remains to be determined whether the qualifying students are subject to exclusion from additional instruction premised on “extenuating circumstances as determined by school officials.” MCL 380.1278(8). While the form of the additional instruction may be deemed insufficient given the lack of progress in developing reading proficiency for these students, this would constitute a separate and distinct claim.
This, to me, says that the 125 unique counts of insufficient education still did not cover the actual claims that the two potentially eligible students could have rightfully sued under.
Then they note that none of the statutes have any course of remedy for a school district that fails to comply. Indeed, the court continues, it is clear that the legislature did not intend that there be an remedy.
In other words, even if everything that happened above wasn’t true, there still wouldn’t be a lawsuit, because there is no way to do anything about the situation. There is no provision for monetary damages to a private party.
Then, the court says that the school district, the board members, and the employees are protected by government immunity. Michigan law states that unless the legislature expressly allows a government agency to be sued for damages, then it can’t be sued for damages. Since, school boards and employees are a part of a government agency, then they cannot be sued because the relevant statutes do not have a provision for a lawsuit.
Like any legislator would allow a law to pass that allows for a lawsuit.
But, the students weren’t suing for monetary damages. They were suing to get the education that they need to be functioning members of a modern society.
Although the underlying question whether the writ should be issued is reviewed for an abuse of discretion, “this Court reviews de novo as questions of law whether a defendant has a clear legal duty to perform andwhether a plaintiff has a clear legal right to performance.” Barrow v Detroit Election Comm 301 Mich App 404, 411; 836 NW2d 498 (2013).
This is a cited earlier court decision. The defendant (in this current case, the school district) has to have a clear legal duty to provide (education in this case) and the plaintiff (the students) have a clear expectation of the defendant (said education).
To me, this is trivial. I can’t really imagine anyone thinking that the job of a school district NOT being giving students a proper education. But, apparently, a detailed reading of the law shows me to be wrong.
What precludes issuance of such a writ, however, is that the act to be performed cannot be considered ministerial in nature, as the school district is afforded wide-ranging discretion.Initially, the school district is permitted to identify the qualifying students, but the statute fails to define which pupils may have “extenuating circumstances” and thus may not be encompassed within the statute. In addition, the service to be provided is comprised of “special assistance reasonably expected to enable the pupil to bring his or her reading skills to grade level within 12 months.” While a defined end goal is therefore provided, the actual method to be used is undefined and quite subjective, with the selected programs and instruction varying considerably based on the individual needs of the pupils and their respective academic grade and proficiency levels. Consequently, by definition, a writ of mandamus is not an appropriate remedy in this case.
Remember that quote above about the “extenuating circumstances”? This is why it’s in there.
This is basically saying that, the law that requires certain minimum scores fails to define which pupils may have extenuating circumstances and are therefore not required to be appropriately remediated. Let me give you an example. I have worked with students who were basically completely unable to function. These students were at the far, far lower end of functioning. In at least one case, the student waking up every morning was considered a minor miracle. By the age of 16, they could basically grunt in response to questions. I think it fair that significant effort to remediate reading levels on students with that level of cognitive deficiency should not be made.
In this case though, because the statutes did not specify, the court (nor the lawyers or even the school district) could not determine if the statute even applied to them .
At the end, the court does make some sense.
While there is little genuine controversy that the district defendants have abysmally failed their pupils, the mechanism to correct this failure is not through the court system, particularly given the remedy sought by plaintiffs. The problem is multifaceted,comprised of deficiencies in the manner and type of academic instruction received, but also impacted by a variety of social and economic forces unique to the circumstances of each student.Consequently, there is no one-size-fits-all solution and the greatest impact for each student will be one that is made up of several components and addresses his or her individual needs. Such a solution is not available through judicial intervention. We conclude that the specific dispute at issue in this case, calling for the implementation of individualized reading programs and complex educational services, perhaps over a long period of time, is nonjusticiable in nature as it would necessitate undue intrusion upon the other branches of government and would require us to move beyond our area of judicial expertise
All that is true. It can be very difficult for people with little or no training to develop an individual remediation plan for anything. Reading can be especially tough.
There’s no reason for a judge to determine the individual needs though. There’s no reason for the court to determine the solution. That’s not the court’s job. And they recognize it. But the court’s job is to require compliance with the law. And the law is clear.
As the dissenting judge stated
“abandonment of our essential judicial roles, that of enforcement of the rule of law even where the defendants are governmental entities, and of protecting the rights of all who live within Michigan’s borders, particularly those, like children, who do not have a voice in the political process.”
This court has failed in their duty. While the letter of the law may support their opinion, the state has not enforced the law or required the school district to enforce the law. The law requires literacy intervention for students not on grade level. I would hope that no one would argue that capable students should be denied education just because the MIGHT be a special circumstance.
Reading for many people is easy. We learned at an early age to appreciate books. But even today, there are many people who cannot read at anything approaching the kind of level you are reading right now. Their children don’t have anywhere to learn to read except school.
In 2003 National Assessment of Adult Literacy (PDF) was conducted. Given to over 19,000 adults, the test consisted of 152 tasks in three broad areas: Prose, Document, and Quantitative tasks related to reading. For example, quantitative tasks might be identifying two numbers and correctly adding them together. See page 22-26 of the PDF for sample questions.
Almost half of the sample was at Basic or Below Basic skills in Prose reading and more than 55% were at basic or Below Basic in Quantitative. Only 34% were at Basic or Below basic in Document reading.
The Basic level in prose is “reading and understanding information in short, commonplace prose text.” The example given is reading a pamphlet explaining how people are selected for a jury pool. A below basic task would be reading a short, simple text, for example determining what a patient is allowed to drink before a medical text.
Almost 50% of the US population cannot do more than that in prose reading.
To help you understand this, a proficient level of reading is what I did when describing the court case. I was reading a lengthy, complex, somewhat abstract prose piece synthesizing information and making complex inferences. That is considered to be “proficient” and there isn’t a higher category. Less than 15% of the US population reached proficient in any of the three categories of text.
I bring all this up, because it’s good to be reminded. If you are reading this post to this point (thank you!), then you are significantly above average in terms of basic reading skills.
And we wonder why we’re having problems presenting things like evolution and climate change to people. “Read Dawkins, it’s great.” Almost 50% of people in the US do not have the reading skill to even attempt a book written by Dawkins… or Harris… or any of the philosophers or scientists that we talk about so much. Half of US adults read fewer than 5 books a year. In my prime, I would do that in two weeks.
The point is that reading is critical to knowledge. More than 90% of what I have learned was not in school, it’s been through reading. These kids have to be able to read. They want to read. But they don’t have anyone to teach them. The NAAL results didn’t specify socioeconomic status, but half of the Below Basic group in each category did not graduate high school. I think it likely that these are not high SES people.
Take a group of kids whose parents don’t read well, put them in a school that doesn’t help them learn to read and you have a group of kids that will end up like their parents. The judges supported that status quo of poor readers generating more poor readers.
