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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GARY B.; JESSIE K., a minor, by

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Yvette K., guardian ad litem;

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CRISTOPHER R. and ISAIAS R.,

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minors, by Escarle R., guardian ad litem; )

ESMERALDA V., a minor, by Laura V., )

guardian ad litem; PAUL M.; JAIME R., )

a minor, by Karen R., guardian ad litem, )

on behalf of themselves and all others )

similarly situated,

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Plaintiffs,

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v.

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RICHARD D. SNYDER, in his official )

capacity as Governor of the State of

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Michigan; JOHN C. AUSTIN,

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MICHELLE FECTEAU, LUPE

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RAMOS-MONTIGNY, PAMELA

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PUGH; KATHLEEN N. STRAUS,

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CASANDRA E. ULBRICH, EILEEN )

WEISER, and RICHARD ZEILE, in )

their official capacities as members of )

the Michigan Board of Education;

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BRIAN J. WHISTON, in his official )

capacity as Superintendent of Public )

Instruction for the State of Michigan; )

DAVID B. BEHEN, in his official

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capacity as Director of the Michigan )

Department of Technology,

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Management, and Budget; and

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NATASHA BAKER, in her official

)

capacity as the State School

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Reform/Redesign Officer,

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Defendants.

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Civil Action No.: 16-CV-13292 CLASS ACTION COMPLAINT

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TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1 PARTIES.................................................................................................................. 17 FACTUAL ALLEGATIONS ..................................................................................23 I. Literacy Is a Fundamental Right ...................................................................24
A. The Meaning of Literacy and Literacy Instruction .............................25 B. Literacy Is the Foundation of Citizenship and Well-Being in a
Democratic Society .............................................................................30 C. The Tradition of Compulsory Education in the United States............39 D. Exclusion from Access to Literacy Creates an Enduring Stigma .......40 II. The State of Michigan’s Role in Securing Education Rights........................43 A. The State’s Authority Over Public Education in Detroit ....................44 B. The Decimation of the Detroit Public Schools Under State
Control .................................................................................................49 C. The State’s Failed Interventions in Detroit Schools ...........................51 III. The Failure to Provide Access to Literacy in Plaintiffs’ Schools .................59 A. Demographic Data...............................................................................59 B. State Achievement Data ......................................................................62 C. National Achievement Data ................................................................68 D. Graduation and College Attendance Rates .........................................70 IV. Failure to Deliver Evidence-Based Literacy Instruction and Intervention Programs in Plaintiffs’ Schools .....................................................................73 V. Failure to Ensure Educational Conditions Necessary to Attain Literacy......77 A. Insufficient Course Offerings and Instructional Materials .................78 B. Decrepit and Unsafe Physical Conditions...........................................84 C. Failure to Meet Student Learning Needs ............................................95 D. Unsupported and Unstable Teaching Staff .........................................98 E. Lack of Accountability for Charter Schools and School Closures ...104 VI. The State’s Failure to Implement Evidence-Based Reforms to Address Literacy ........................................................................................................109
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A. Establish an Evidence-based, Systemic Approach to Literacy Instruction and Intervention, with Appropriate Accountability Measures ............................................................................................ 110
B. Increase Teacher Capacity and Stability ...........................................117 C. Monitor and Eliminate Deplorable School Conditions that are
Barriers to Learning...........................................................................118 D. Implement Practices to Promote Learning Readiness.......................118 CLASS ACTION ALLEGATIONS ......................................................................119 CAUSES OF ACTION ..........................................................................................123 REQUEST FOR RELIEF ......................................................................................128
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Unless explicitly stated to the contrary, all allegations are based on information and belief. Plaintiffs allege as follows:
INTRODUCTION 1. Decades of State disinvestment in and deliberate indifference to Detroit schools have denied Plaintiff schoolchildren access to the most basic building block of education: literacy. Literacy is fundamental to participation in public and private life and is the core component in the American tradition of education. But by its actions and inactions, the State of Michigan’s systemic, persistent, and deliberate failure to deliver instruction and tools essential for access to literacy in Plaintiffs’ schools, which serve almost exclusively low-income children of color, deprives students of even a fighting chance. Michigan’s compulsory attendance laws require Plaintiffs to attend these schools, but they are schools in name only, characterized by slum-like conditions and lacking the most basic educational opportunities that children elsewhere in Michigan and throughout the nation take for granted. Plaintiffs sit in classrooms where not even the pretense of education takes place, in schools that are functionally incapable of delivering access to literacy. This abject failure makes it nearly impossible for young people to attain the level of literacy necessary to function—much less thrive—in higher education, the workforce, and the activities of democratic citizenship. The abysmal conditions and appalling outcomes in Plaintiffs’ schools are
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unprecedented. And they would be unthinkable in schools serving predominantly white, affluent student populations. In short, the schooling afforded to Plaintiffs is both separate and unequal. These students are effectively excluded from Michigan’s statewide system for the delivery of public education. In 2009, U.S. Secretary of Education Arne Duncan described Detroit as “New Orleans . . . without Hurricane Katrina, and I feel a tremendous sense of both urgency and outrage.”1 Seven years later, the Detroit schools have spiraled further downward into crisis and despair, irreparably damaging children’s futures and depriving them of their constitutionally-guaranteed fundamental right of access to literacy.
2. This action is brought on behalf of a class of Detroit schoolchildren from five of the lowest performing schools in Detroit: three Detroit Public Schools Community District (“DPSCD”) schools—Osborn Academy of Mathematics (“Osborn MST”), the Osborn Evergreen Academy of Design and Alternative Energy (“Osborn Evergreen”), and the Medicine and Community Health Academy at Cody (“Cody Health”)—and two charter schools—Hamilton Academy (“Hamilton”) and Experiencia Preparatory Academy (“Experiencia”) (collectively, “Plaintiffs’ schools”). Plaintiffs’ schools serve more than 97% children of color and primarily low-income students: Detroit is bounded by the most economically
1 U.S. Education Secretary: Detroit Schools ‘Ground Zero’, MLive (May 29, 2009), available at http://www.mlive.com/education/index.ssf/2009/05/education_secretary_detroit_sc .html.
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and racially segregating school district boundary in the country.2 Like all children, Plaintiffs desperately want to learn and succeed, and they depend on the promise of education to improve their lives. But unlike most children, Plaintiffs—and other children attending Plaintiffs’ schools—cannot take for granted that their public schools will serve as engines of democracy and social mobility, or even adequately provide the most fundamental elements of literacy.
3. Literacy is the foundation of all education. Experts agree that in the twenty-first century, literacy means having the ability to encode and decode language so as to access knowledge and communicate. Literacy means not only the ability to recognize or pronounce a written word, but the ability to use language to engage with the world—to understand, analyze, synthesize, reflect, and critique. Literacy development is progressive and cumulative, and literacy instruction must therefore extend throughout both primary and secondary education.
4. Educators agree that basic, commonsense conditions must be in place to ensure that all children have the opportunity to attain literacy. Access to literacy requires evidence-based literacy instruction at both the elementary and secondary school levels, a stable, supported, and appropriately trained teaching staff, basic instructional materials and safe physical conditions that do not impede learning,
2 EdBuild, Fault Lines: America’s Most Segregating School District Borders, http://viz.edbuild.org/maps/2016/fault-lines/. The poverty rate in Detroit is seven times that of Grosse Pointe, and 75.3% of Grosse Pointe Public Schools students are white, compared to 2.2% of DPSCD students.
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and support for students’ social-emotional needs. Yet these conditions are almost entirely absent from Plaintiffs’ schools. As a direct result, Plaintiff children predictably cannot attain literacy from their schools and are unjustly stigmatized as unwilling learners uninterested in education. Their families and communities are similarly stereotyped as uncaring about their children’s education. And the teachers and administrators who strive to do everything in their power—often at great personal sacrifice—to assist Plaintiffs to overcome the overwhelming obstacles to achieving access to literacy are regarded as engaging in quixotic exercises or inexplicably tolerating conditions that demean their status as professional educators.
5. Achievement data reveal that in Plaintiffs’ schools, illiteracy is the norm. The proficiency rates in Plaintiffs’ schools hover near zero in nearly all subject areas. On a percentile scale of zero to 100, Michigan’s statewide accountability system rates Plaintiffs’ schools that are currently open one, two, four, and six.3 The non-profit organization Excellent Schools Detroit has likewise assigned grades of Fs and Ds to Plaintiffs’ schools. Many students in Plaintiffs’ schools cannot read, write, or comprehend at a grade-appropriate level. These students struggle to write proper paragraphs or even complete sentences, let alone essays or narratives. And because the rest of the curriculum assumes a level of
3 Experiencia was not assigned a ranking by the State.
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literacy that the students do not attain, they are also unable to learn State-mandated content in all other subject areas.
6. Plaintiffs’ schools have failed them at every stage of the educational system. In the primary grades, Plaintiffs’ elementary schools—Hamilton and Experiencia—have failed to deliver access to the foundational literacy skills of letter- and word-recognition and phonetics. For example, in the third grade at Hamilton, only 4.2% of students scored proficient or above on the State of Michigan’s 2015-16 English assessment test, compared with 46.0% of third-grade students statewide. In practice, this means that many students have a vocabulary of only a couple hundred words. Some students cannot even sound out letters. Last year, the only books in the third-grade classroom at Hamilton were picture books, until the teacher purchased others with her own money more than halfway through the year. Likewise, at Experiencia, only 9.5% of third-grade students scored proficient in English, as compared to 46.0% of third-graders statewide. A number of second and third graders were still working on handwriting and sounding out the letters of the alphabet. When students without basic literacy skills move on to middle and high school, they lack the foundation necessary to build on these skills and attain more sophisticated and grade-level appropriate comprehension and fluency in the higher grades.
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7. Moreover, literacy instruction cannot stop in elementary school. Dedicated literacy instruction must continue throughout middle and high school for students to develop the “knowledge capabilities” necessary for functional adult literacy, including the ability to comprehend, compose, reflect upon, and critique. But Plaintiffs’ high schools—Osborn MST, Osborn Evergreen, Cody MCH, and Experiencia—do not provide meaningful access to such instruction. So even if students somehow acquire basic, elementary-level literacy skills, they would still lack the opportunity to attain adolescent literacy skills. For example, at Cody MCH, 12.5% of eleventh-graders scored proficient in English in 2014-15, compared with 49.2% statewide. At Cody MCH, the ninth-grade English-Language Arts teacher spent a good part of the year reading, paragraph by paragraph, a novel with a third-grade reading level, because no more lexically advanced novel would have been readable by his students. When the class was asked to read the book aloud in class, a number of students experienced enormous difficulty reading monosyllabic words. Similarly, at Experiencia, the ninth and tenth grade class was assigned a book with a fourth-grade reading level, because the students lacked the literacy skills to access more complex texts and because they were the only books available. At Osborn MST, in 2014-15, 1.8% of eleventh-graders were proficient in English. A number of the students struggled to sound out basic words when they read aloud in class, and one student asked her
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classmate how to spell the word “the”. In all of Plaintiffs’ high schools, the failure to offer access to literacy had dire consequences for students’ overall education. Each currently open school’s eleventh graders has 0% proficiency in at least one of Math, Science, or Social Studies.
8. The alarming outcomes in Plaintiffs’ schools are a predictable consequence of the State’s consignment of Plaintiffs to chaotic, under-resourced, and unsafe schools that lack the necessary learning and teaching conditions for effective delivery of literacy instruction. Plaintiffs’ schools do not have appropriate literacy programs and curricula to effectively teach literacy in the first instance, or to intervene and remediate when students fall behind. Nor does the State operate any system of accountability to ensure that students are delivered access to literacy, are assigned to classrooms where access to literacy can be delivered by qualified and trained teachers, and are identified when they fall behind to receive professionally appropriate interventions. Instead of providing students with a meaningful education and literacy, the State simply provides buildings—many in serious disrepair—in which students pass days and then years with no opportunity to learn to read, write, and comprehend.
9. The schools Plaintiffs attend, and attended, are not truly schools by any traditional definition or understanding of the role public schools play in
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affording access to literacy. They are instead marked by a host of shock-the-conscience conditions, including the following:
10. Lack of textbooks and instructional materials. Many classes in Plaintiffs’ schools do not have appropriate textbooks. Where they are provided, they are often long out of date, torn and beyond repair, or marked up to be unreadable in places. One high school history text, for example, was published in 1998 when the president was Bill Clinton, making it older than the majority of the high school students in the class. In multiple classes, students were forced to share a single book in groups of four or more during class periods, and were not able to take books home. As a result, despite the teachers’ best efforts, it was not possible to assign meaningful homework.
11. Lack of basic classroom resources. The State has failed to ensure that Plaintiffs schools have basic school supplies. As a result, Plaintiffs’ schools must either go without or must rely on donations from teachers or more affluent schools, unfairly stigmatizing students as victims in need of charity. In many cases, the only books, furniture, pens, pencils, markers, paper, cleaning substances, or even toilet paper that are in the classroom or buildings are purchased by teachers with thousands of dollars of their personal funds. Schools from affluent communities like Grosse Pointe donate surplus materials or materials the school would
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otherwise throw away to Plaintiffs’ schools, a humiliating fact of which the entire school community is aware.
12. Overcrowded classrooms. Classrooms are stuffed with as many as fifty students and often do not have enough chairs and desks. Students sometimes sit on the floor, lean against walls, or congregate around teachers’ desks.
13. Unsanitary and dangerous conditions in classrooms. For years, classrooms and campuses have been unable to satisfy minimal state health and safety standards, let alone deliver basic education. Plaintiffs have been subjected to unsafe physical conditions in their schools that make learning nearly impossible. Although the City of Detroit has recently reported that it brought buildings up to code and exterminated rodents in a number of schools including Osborn, the City has not completed repairs at Cody MCH or Hamilton, and unsafe physical conditions continue to exist at all Plaintiffs’ schools. The unsafe conditions that have plagued Plaintiffs’ schools include the following:
a. Extreme classroom temperatures. Classroom temperatures in Plaintiffs’ schools regularly exceed 90 degrees during both the summer and winter due to malfunctioning furnaces and, at other times during winter, are frequently so cold that students and their teachers can see their breath and must wear layers of winter clothing indoors. Students and their teachers cannot receive or impart literacy instruction under such conditions;
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b. Vermin infestations. Mice, cockroaches, and other vermin regularly inhabit Plaintiffs’ classrooms, and the first thing some teachers do each morning is attempt to clean up rodent feces before their students arrive. Hallways and classrooms smell of dead vermin and black mold;
c. Unsafe conditions throughout the school. Perilous conditions throughout these schools further destabilize the environment and pose additional obstacles to achieving literacy. The drinking water in some of Plaintiffs’ schools is hot, contaminated and undrinkable. Bathrooms are filthy and unkempt; sinks do not work; toilet stalls lack doors and toilet paper. In some classrooms, ceiling tiles and plaster regularly fall during class time. In one elementary school, the playground slide has jagged edges, causing students to tear their clothing and gash their skin, and students frequently find bullets, used condoms, sex toys, and dead vermin around the playground equipment. In another school, fires have broken out in hallways and the school lacks the capacity to notify students and teachers and even lacks regulation fire safety equipment. In the same school, the swimming pool has been unusable for over six years, sitting empty except for broken tiles, filth, and dead rodents. 14. No material improvements were made at Plaintiffs’ schools for the
2016-2017 school year, which just began on September 6. In at least some of the schools, learning conditions have in fact worsened, making it all but impossible to
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teach or learn. At Hamilton, temperatures of over 100 degrees caused students and teachers to vomit and pass out during the first week of school, and at Osborn MST and Osborn Evergreen, school was closed early on September 7, 2016, because of sweltering temperatures. Both Hamilton and the Osborn schools continue to have numerous teacher vacancies or absences in core subject areas, and teachers continue to have to purchase basic teaching materials using their personal funds.
15. Unaddressed trauma. Plaintiffs’ schools also lack the capacity to meet the specific learning needs of the students they serve, preventing them from providing conditions under which children attain literacy. Plaintiffs’ schools serve large numbers of low-income students, homeless youth, and students who have experienced or witnessed violence. Unaddressed exposure to trauma and adversity impedes a child’s ability to learn, and students impacted by trauma require socialemotional and trauma-informed support. But Plaintiffs’ teachers and staff are not trained to recognize or respond to childhood trauma, and counseling by mental health professionals is not available to support children with mental health needs. In those schools that do have access to a social worker, the social worker is often restricted to special education students, does not come every day, and is stretched beyond capacity, such that students wait months for an appointment. The response to children who act in ways motivated by the trauma they have experienced is to
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punish and exclude them from the classroom, rather than to implement restorative practices to provide support and assist in healing.
16. Lack of English Learner (“EL”) instruction. Plaintiffs’ schools also serve a number of students whose first language is not English. But despite claiming to the contrary, Plaintiffs’ schools provide no pedagogically-appropriate EL instruction and not one of Plaintiffs’ schools consistently employed qualified teachers trained to deliver EL services. In one school that aggressively recruited EL students, there were frequently no properly trained or qualified EL teachers, though a large percentage of the students enrolled required instruction to become fluent in English. Students who spoke some English assisted other students who spoke English less fluently, effectively serving as their instructors. There was no differentiated instruction meeting professional standards based on the level of English proficiency of individual students.
17. Insufficient or unqualified staff. Predictably, given the many challenges of teaching in Plaintiffs’ schools, these schools lack the qualified teaching staff required to bring students to literacy—that is, teachers who are certificated, properly trained, and assigned to a class within the area of their qualifications and expertise. Teacher shortages result from high turnover, appalling school conditions, insufficient materials and support, and uncompetitive salaries. These classes are covered by non-certificated paraprofessionals,
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substitutes, or misassigned teachers who lack any expertise or knowledge in the subject-matter of the course. In one case, an eighth grade student was put in charge of teaching seventh and eighth grade math classes for a month because no math teacher was available.
18. In June 2016, the State further exacerbated this problem by passing legislation permitting non-certificated instructors to teach in DPSCD schools. This legislation does not apply to any school elsewhere in the State. Rather, it singles out the children of Detroit—the vast majority of whom are children of color—for separate and inferior treatment.
19. The State of Michigan is the entity responsible for securing and ensuring Plaintiffs’ opportunity to access literacy. Not only does the Michigan constitution assign responsibility for the state system of public education to the State, the State has directly controlled DPSCD—formerly known as Detroit Public Schools (“DPS”)—for most of the past fifteen years through variations of an emergency manager system. The State has long been aware of the education crisis in Detroit, which is reflected in the State’s own assessment data, has been the subject of countless news articles, and has prompted the State to implement an emergency manager system in Detroit. Yet despite this awareness, the State has failed to take necessary and effective steps to protect Plaintiffs’ most basic right of access to literacy. To the extent that any literacy instruction is provided Plaintiffs,
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it is in spite of, not because of, the State. Rather than support Plaintiffs’ education, the actions of the State—placing the Detroit schools largely in the hands of administrators with no backgrounds in education—have only hastened the demise of Plaintiffs’ schools. Indeed, the Emergency Manager appointed by Defendant Governor Richard Snyder in 2015 to administer the DPS schools was responsible for the actions that created the public health crisis of dangerous levels of lead in Flint’s drinking water. The State’s failure to provide access to literacy in Plaintiffs’ schools has caused a generation of children to grow up without access to the most elemental skills necessary to function in public and private life.
20. By creating, permitting, failing to correct, and exacerbating the deplorable conditions that have persisted for decades in Plaintiffs’ schools, the State has functionally excluded Plaintiffs from its system of public education available to other children throughout the State and denied Plaintiffs the critical opportunity to attain literacy. As the U.S. Supreme Court held in Plyler v. Doe, the exclusion of a discrete group of children from the ability to attain literacy necessary to participate in college and career, and as citizens in our democracy, is incompatible with the guarantees of liberty and equality enshrined in the Fourteenth Amendment of the U.S. Constitution. 457 U.S. 202 (1982). As the Plyler Court held:
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Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The inestimable toll of that deprivation on the social economic, intellectual, and psychological well-being of the individual, and the obstacle it poses to individual achievement, make it most difficult to reconcile the cost or the principle of a status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause. Id. at 222 (emphasis added). Plyler struck down a Texas statute that excluded undocumented children from the public education system, but its basic holding stands apart from the fact that the children denied access to basic education lacked lawful immigration status. Rather, the Plyler Court held that a state may not “deny a discrete group of innocent children the free public education that it offers to other children residing within its borders.” Id. at 230. As in Plyler, Plaintiffs are a discrete class—nearly all children of color and low-income—who have been excluded from the access to literacy that public education provides to other students in the State of Michigan. The consequences of denial of access to literacy are profound, both for the children who have been excluded, and for all citizens of the State of Michigan and the United States. As the Plyler Court cautioned, “[w]e cannot ignore the significant social costs borne by our Nation when select groups
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are denied the means to absorb the values and skills upon which our social order rests.” Id. at 221. Our constitutional commitments to individual liberty, equality, and participatory democracy are empty unless all children enjoy equal opportunity to attain the basic literacy skills necessary to participate in the economic, political, and civic life of the nation.
21. Plaintiffs’ schools are unrecognizable by any of the characteristics traditionally associated with schools. As operated by the State, they wholly lack the capacity to deliver basic access to literacy, functionally delivering no education at all. These are precisely the types of schools about which the U.S. Supreme Court expressly reserved judgment in San Antonio Independent School District v. Rodriguez, acknowledging that a state system of education that “occasioned an absolute denial of educational opportunities to any of its children,” or “fail[ed] to provide each child with an opportunity to acquire . . . basic minimal skills” may run afoul of the U.S. Constitution. 411 U.S. 1, 37 (1973).
22. The functional exclusion of Plaintiffs from Michigan’s statewide system of education has profound and predictable consequences. “The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.” Plyler, 457 U.S. at 223. The
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message communicated by excluding a discrete group of children from the most fundamental institution of our democracy is that these children are disposable or unimportant; they are not citizens invited to participate on equal terms in the economic, civic, and political life of our nation. This message irreparably damages the dignity and life chances of Plaintiffs. And it is not a message that our Constitution countenances.
PARTIES Plaintiffs 23. Plaintiff Jessie K. resides in Wayne County in the City of Detroit, Michigan, within the boundaries of the DPSCD. Plaintiff Jessie K. lawfully attends school at Hamilton, a charter school, and is legally required to attend school. Jessie K. is nine years old and is in the third grade. She is AfricanAmerican. She has attended Hamilton since Kindergarten. Plaintiff Jessie K. does not qualify for special education services. Plaintiff Jessie K. has been denied access to literacy by being deprived of evidence-based literacy instruction and by being subject to school conditions that prevent her from learning. As a direct result of the State’s failure to ensure that Hamilton has the capacity to deliver access to literacy, Jessie K. has been functionally excluded from Michigan’s statewide system of public education. The mother of Plaintiff Jessie K., Yvette K., has
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concurrently filed a petition with the Court to act as her guardian ad litem in connection with this litigation.
24. Plaintiffs Cristopher R., Isaias R., and Esmeralda V. reside in Wayne County in the City of Detroit, Michigan, within the boundaries of the DPSCD. Plaintiffs Isaias R., Cristopher R., and Esmeralda V. lawfully attended school at Experiencia and are legally required to attend school. Plaintiff Cristopher R. is fourteen years old and is in the ninth grade, Isaias R. is twelve years old and in the seventh grade, and Esmeralda V. is thirteen years old and is in eighth grade. Plaintiffs Cristopher R., Isaias R., and Esmeralda V. are Latino. Cristopher and Isaias R. attended Experiencia for one-and-a-half years, until the school closed at the end of the 2015-16 school year, and Esmeralda V. attended Experiencia for two years, from sixth to seventh grade, until it closed. Plaintiffs Isaias R., Cristopher R., and Esmeralda V. do not qualify for special education services. Plaintiffs Cristopher R., Isaias R., and Esmeralda V. have been denied access to literacy by being deprived of evidence-based literacy instruction and by being subject to school conditions that prevent them from learning. As a direct result of the State’s failure to ensure that Experiencia had the capacity to deliver access to literacy, Cristopher R., Isaias R., and Esmeralda V. were functionally excluded from Michigan’s statewide system of public education. The parents of Plaintiffs Isaias R., Cristopher R., and Esmeralda V. , Escarle R. and Laura V., have concurrently
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filed petitions with the Court to act as Plaintiffs’ guardians ad litem in connection with this litigation.
25. Plaintiff Paul M. resides in Wayne County in the City of Detroit, Michigan, within the boundaries of the Detroit Public Schools. Plaintiff Paul M. lawfully attends school at Osborn MST. Plaintiff Paul M. is eighteen years old and is a senior in high school. He is African-American. He has attended Osborn MST since his sophomore year. His freshman year of high school, Paul M. attended Osborn College Preparatory Academy. Plaintiff Paul M. does not qualify for special education services. Paul M. has been denied access to literacy by being deprived of evidence-based literacy instruction and by being subject to school conditions that prevent him from learning. As a direct result of the State’s failure to ensure that Osborn MST has the capacity to deliver access to literacy, Paul M. is functionally excluded from Michigan’s statewide system of public education.
26. Plaintiff Gary B. resides in Wayne County in the City of Detroit, Michigan, within the boundaries of the Detroit Public Schools. Plaintiff Gary B. lawfully attends school at Osborn Evergreen. Plaintiff Gary B. is eighteen years old and is a senior in high school. He is African-American. Plaintiff Gary B. does not qualify for special education services. Gary B. has been denied access to literacy by being deprived of evidence-based literacy instruction and by being subject to school conditions that prevent him from learning. As a direct result of
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the State’s failure to ensure that Osborn Evergreen has the capacity to deliver access to literacy, Gary B. is functionally excluded from Michigan’s statewide system of public education.
27. Plaintiff Jaime R. resides in Wayne County in the City of Detroit, Michigan, within the boundaries of the Detroit Public Schools. Jaime R. lawfully attends school at the Cody MCH and is legally required to attend school. Plaintiff Jaime R. is seventeen years old and is in the eleventh grade. He is AfricanAmerican. Jaime R. has attended Cody MCH since he was a freshman. Plaintiff Jaime R. does not qualify for special education services. Jaime R. has been denied access to literacy by being deprived of evidence-based literacy instruction and by being subject to school conditions that prevent him from learning. As a direct result of the State’s failure to ensure that the Cody MCH had the capacity to deliver access to literacy, Jaime R. is functionally excluded from Michigan’s statewide system of public education. Plaintiff Jaime R.’s mother, Karen H., has concurrently filed a petition with the Court to act as Plaintiff’s guardian ad litem in connection with this litigation.
Defendants 28. Defendant Richard D. Snyder, sued here in his official capacity, is the Governor of the State of Michigan. As Governor, Defendant Snyder is the chief executive officer of the State of Michigan, the legal and political entity with
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plenary responsibility for educating all Michigan public school students, including the responsibility to establish and maintain the system of common schools and a free education, under the Michigan Constitution, Article 8, §§ 1, 2, and 3. As chief executive officer of the State of Michigan, Defendant Snyder has the ultimate obligation to ensure that all Michigan public school students receive their fundamental right to literacy under the Fourteenth Amendment of the U.S. Constitution. The Governor is responsible for appointing the Transition Manager charged with administering and overseeing the DPS.
29. Defendants John C. Austin, Michelle Fecteau, Lupe RamosMontigny, Pamela Pugh, Kathleen N. Straus, Casandra E. Ulbrich, Eileen Weiser, and Richard Zeile, sued here in their official capacities, are members of the State Board of Education. The members of the State Board of Education are responsible for determining and enforcing the policies governing Michigan’s public schools, including those necessary to carry out constitutional and statutory mandates, and for adopting rules and regulations for the supervision and administration of all local school districts. The State Constitution provides that the State Board of Education retains “[l]eadership and general supervision over all public education” and is the “planning and coordinating body for all public education.” Const. 1963, art. 8, § 3; see also Michigan Compiled Laws (“Mich. Comp. Laws”) § 388.1009 et seq.
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30. Defendant Brian J. Whiston, sued here in his official capacity, is the Superintendent of Public Instruction for the State of Michigan. The Superintendent is appointed by and responsible to the State Board of Education. Const. 1963, art 8, § 3; Mich. Comp. Laws § 388.1014. He is the principal executive officer of the Michigan Department of Education, the department of the State of Michigan government responsible for administering and enforcing laws related to public education. Mich. Comp. Laws § 16.400-16.402. The Superintendent sits on the Governor’s Cabinet, the State Administrative Board, and acts as chair and a non-voting member of the State Board of Education. The Superintendent is responsible for the implementation of bills passed by the Legislature and policies established by the State Board of Education. He is also the primary liaison to the United States Department of Education and other federal agencies.
31. Defendant David B. Behen, sued here in his official capacity, is the Director of the Michigan Department of Technology, Management and Budget (“DTMB”). The Director of the DTMB has the authority to appoint the State School Reform/Redesign Officer responsible for implementing the provisions of Mich. Comp. Laws § 380.1280c, which concerns schools designated as Priority Schools. Priority schools are those schools in the bottom 5% of a complete top-to-bottom list of schools published annually. The ranking is based on a
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number of factors, including minimal students outcomes in a number of subject areas, low achievement coupled with declining performance or large achievement gaps, or a combination of multiple of these factors.4 All of Plaintiffs’ schools that are currently operating have been designated as Priority Schools.5
32. Defendant Natasha Baker, sued here in her official capacity, is the State School Reform/Redesign Officer responsible for carrying out the powers, duties, functions, and responsibilities of Mich. Comp. Laws § 380.1280c, which concerns schools designated as Priority Schools
33. Defendants Richard Snyder, John C. Austin, Michelle Fecteau, Lupe Ramos-Montigny, Pamela Pugh, Kathleen N. Straus, Casandra E. Ulbrich, Eileen Weiser, Richard Zeile, Brian J. Whiston, David B. Behen, and Natasha Baker are herein referred to collectively as “Defendants.”
FACTUAL ALLEGATIONS 34. Literacy plays a unique role in our democracy, enabling people to access the rights and discharge the obligations of citizenship and participation in public and private life. Literacy is so important that every state commits to teach it to all children, and indeed requires children to attend school so it can do so. Yet the State of Michigan, which directly oversees public education in Detroit, has
4 See FAQ Michigan’s Priority Schools, available at https://www.michigan.gov/documents/mde/Priority_FAQ_427729_7.pdf.
5 Experiencia was closed before the 2016-2017 school year.
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functionally excluded Plaintiffs from its statewide system of public education, denying them the opportunity to attain literacy. Achievement data generated and collected by the State documents the near-universal failure to meet proficiency standards in Plaintiffs’ schools and the consequent high drop-out and low college attainment rates. These dramatic proficiency shortfalls result predictably and inevitably from the deplorable conditions in Plaintiffs’ schools that are antithetical to learning and teaching. Despite its awareness of this education crisis, the State has failed to take measures to ensure that effective literacy instruction is available to all students.
I. Literacy Is a Fundamental Right 35. Literacy is central to the American tradition of education; in fact, it is
the basic unit of education. Literacy is necessary for success not only in English/Language Arts, but also for subject-matter competency in other core subject areas like history, science, and math. As the U.S. Supreme Court has repeatedly emphasized and decades of social science confirm, literacy is essential to succeed in higher education and the workplace, to be an informed citizen capable of participating in a democracy, and to secure personal well-being. This is why Michigan—and every state—makes public education available to every child and even compels children to attend school full time and mandates testing to determine whether students are benefitting from the required instruction. The
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unique importance of literacy to civic, political, and economic participation means that effectively excluding a discrete class of children from the right to an opportunity to attain literacy stamps them with a badge of indignity that will profoundly affect them for the rest of their lives. This stigma places a debilitating burden on these children’s morale, psyche, and life chances and creates a caste system that perpetuates the social, economic, and political subordination of low-income communities of color.
A. The Meaning of Literacy and Literacy Instruction 36. Every schoolchild in America grows up learning the “The Three Rs”—reading, writing, and arithmetic. Since the time of Thomas Jefferson, “[T]he [T]hree R’s” have made up the basic, skills-oriented work of schools. Wisconsin v. Yoder, 406 U.S. 205, 226 n.14 (1972). Education experts agree that to succeed as adults in the twenty-first century, children must learn not just the skill to decode letters and words, but the ability to read and write well enough to access knowledge and communicate with the world. These essential knowledge capabilities—which include the ability to compose, comprehend, synthesize, reflect upon, and critique—require conscious and sustained development throughout primary and secondary schooling.6
6 See generally Catherine Snow et al., Preventing Reading Difficulties in Young Children (1998).
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37. The United States Department of Education (“DOE”) has
operationalized and ratified these concepts in its What Works Clearinghouse
Institute of Education Sciences (“IES”) Practice Guides, which are prepared by a
DOE-appointed and sponsored panel of national literacy experts to provide
evidence-based recommendations for improving literacy instruction and have been
endorsed and adopted by Michigan’s Early Literacy Initiative, a major activity of
the Michigan Department of Education.7 The panel defines reading
comprehension8 as “the process of simultaneously extracting and constructing
meaning through interaction and involvement with written language.”9 The
panel explains that “[e]xtracting meaning is to understand what an author has
stated, explicitly or implicitly. Constructing meaning is to interpret what an author
7 See Early Literacy Task Force, Mich. Ass’n of Intermediate Sch. Adm’rs, Gen. Educ. Leadership Network, Essential Instructional Practices in Early Literacy 1, 5 (2016) (setting forth state task force’s conclusions regarding researchsupported instructional practices that could “make a measurable positive difference in the State’s literacy achievement”); see also Early Literacy Initiative Overview, Mich. Dep’t of Educ., http://www.michigan.gov/mde/0,4615,7-140-28753_74161--,00.html#acc2 (last visited Sept. 9, 2016).
8 Reading comprehension is also the measure of literacy used to assess whether students are meeting standards in many nationally-administered achievement tests, including the National Assessment of Education Progress (NAEP), the SAT, and the ACT, as well as Michigan’s state achievement examinations, including the Michigan Student Test of Educational Progress (MSTEP) and the Michigan Merit Examination (MME).
9 T. Shanahan et al., Improving Reading Comprehension in Kindergarten Through 3rd Grade: A Practice Guide 5 (2010). The panel noted that this definition of reading comprehension is consistent with the common and widely used definitions of reading comprehension. Id.; see also M. Kamil, et al., Improving Adolescent Literacy: Effective Classroom and Intervention Practices (2008).
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has said by bringing one’s ‘capacities, abilities, knowledge, and experiences’ to bear on what he or she is reading.”10
38. Functional adult literacy requires both elementary literacy—the letter-and word-recognition abilities and phonetics taught in kindergarten through third grade—and adolescent literacy—the knowledge capabilities that build on primary literacy skills and develop the ability to compose, comprehend, reflect upon, and critique. Because literacy development is progressive and cumulative, evidence-based instruction is required throughout the primary and secondary years.
39. Elementary literacy acquisition—taught in kindergarten through third grade—requires instruction in the foundational areas of alphabetics (phonemic awareness and phonics), fluency, and comprehension (basic vocabulary and text comprehension). Early literacy instruction is designed to develop a child’s basic ability to recognize letters and words, understand spelling-sound relationships, and obtain meaning from print. As students progress through elementary school, they must develop a working understanding of how sounds are represented alphabetically, practice reading to achieve fluency with different kinds of texts, attain sufficient background knowledge and vocabulary to render texts meaningful and interesting, learn strategies for monitoring comprehension and repairing misunderstandings, and maintain interest and motivation to read.
10 T. Shanahan et al., supra note 9, at 5.
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40. When students reach middle and high school without basic literacy skills, they cannot build on these skills to attain more sophisticated and grade-level appropriate comprehension and fluency in the higher grades. But even for students who reach middle school with adequately developed primary literacy skills, direct literacy instruction cannot end in the elementary years. The basic literacy skills that students develop in early elementary school do not automatically evolve into the higher-level literacy skills needed to succeed in middle school, high school, and ultimately the adult workplace. Rather, dedicated instruction in adolescent literacy (grades four through twelve) must continue throughout secondary school in the areas of comprehension, motivation, word study, fluency, and vocabulary, and literacy instruction must be integrated into content area classes.
41. Because literacy development is cumulative and sequentially dependent, students who have been denied early the opportunity to learn fall further behind with each year of schooling as pre-existing gaps are compounded and expanded. For example, students with low reading comprehension skills have trouble progressing further in school because they cannot read age-appropriate texts. There are very few books written at a third-grade reading level that are cognitively appropriate for high school-aged students, so students who are behind in their literacy development often cannot read texts that can engage and educate them with high school content. Failure to engage students with interesting and
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developmentally appropriate content relevant to their lives then deters students from investing in further development of their literacy skills, causing these students to fall even further behind.
42. Attaining proficiency in literacy is necessary to achieve mastery of content in all other core subject areas. Without the levels of literacy that the curriculum assumes, students are denied meaningful access to not only content and skills in English Language Arts, but also to mathematics, history/social studies, science, technical subjects, and the visual and performing arts. Students who lack literacy are unable to access word problems in mathematics class, do not sufficiently understand grammatical concepts in English to be able to apply them in foreign language class, lack the vocabulary to express their thoughts in laboratory reports in science class, and lack the reading comprehension skills to access textbooks that deliver high-school level content in history class. As a result, schools that fail to deliver to students the opportunity to attain literacy deprive students of the ability to satisfy national and state standards in any content area and leave students unable to compete with their peers elsewhere in the state and nationally.
43. The essential role of literacy, and its role as a gateway to other subject matter content, is nationally recognized in the development and adoption of Common Core State Standards in English Language Arts & Literacy in
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History/Social Studies, Science, and Technical Subjects. The Common Core standards were developed by education leaders in 48 states with the purpose of establishing a set of uniform and clear standards that ensure “all students have the skills and knowledge necessary to succeed in college, career, and life upon graduation from high school, regardless of where they live.”11 The Common Core English Language Arts/Literacy standards lay out what students should know and be able to do by the end of each grade to ensure they graduate from high school prepared for college and career. Michigan adopted the Common Core standards in June 2010.12
B. Literacy Is the Foundation of Citizenship and Well-Being in a Democratic Society
44. Literacy is, and always has been, uniquely significant to American civic life because it is essential to the maintenance of a robust and well-functioning democracy and plays a determinative role in the economic participation, wellbeing, and life chances of individuals. The U.S. Supreme Court has repeatedly recognized that literacy lies at the foundation of citizenship and participation in democratic society. In Brown v. Board of Education of Topeka, for example, the
11 Frequently Asked Questions, Common Core State Standards Initiative, http://www.corestandards.org/wp-content/uploads/FAQs.pdf (last visited Sept. 8, 2016).
12 Common Core Standards Fact Sheet: Frequently Asked Questions, Michigan Department of Education, available at https://www.michigan.gov/documents/mde/FAQ_4.10.13_418299_7.pdf.
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Court eloquently expressed the “importance of education to our democratic society”:
It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. Brown v. Bd. of Ed. of Topeka, 347 U.S. 483, 493 (1954). In Plyler, the Court likewise stressed education’s “fundamental role in maintaining the fabric of our society” and the “significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.” 457 U.S. at 221. The Plyler Court went on to explain, “[b]y denying . . . children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.” Id. at 223. 45. Participation in the Political Process: Literacy is a prerequisite to constitutionally protected participation in the political process. As the Supreme Court recognized in Yoder, “some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.” 406 U.S. at 221. Without access
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to basic literacy skills, citizens cannot engage in knowledgeable and informed voting for the candidates of their choice, much less read and comprehend the complicated ballot initiatives that populate state and municipal ballots. Nor can citizens effectively exercise their right to engage in political speech and public discourse regarding the important civil and political issues of the day.
46. Participation in Activities of Citizenship: Literacy skills are also necessary to engage in many other activities of citizenship. Applicants seeking to enlist in military service must pass the Armed Services Vocational Aptitude Battery, a multiple-choice test administered on a wide range of subjects including word knowledge and paragraph comprehension. Individuals without basic literacy skills cannot complete written application forms necessary to obtain government entitlements such as Medicare, Medicaid, Social Security Disability Insurance, or General Relief benefits. Nor can they comply with mandatory government requirements such as filing tax forms or selective service registration. As many scholars and commentators have noted, as activities become digitized in the twenty-first century economy, literacy has become even more essential for carrying out these citizenship activities. 13
13 See, e.g., Caitrin Blake, “The Changing Landscape of 21st-Century Literacy,” Concordia University Nebraska (Aug. 21, 2014), http://online.cune.edu/the-changing-landscape-21st-century-literacy/; Preparing 21st Century Students for a Global Society, National Education Association 5 (2011); Timothy Shanahan, Introduction, in Developing Early Literacy: Report of
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47. Access to Justice: Individuals denied the opportunity to attain literacy are also effectively precluded from constitutionally protected access to the judicial system. In practice, literacy skills are a functional prerequisite to a number of activities that are not only essential to access the courts but are constitutionally protected in their own right, including the retention of an attorney and the receipt of notice sufficient to satisfy due process. Likewise, lack of literacy also precludes meaningful participation in the judicial process, including serving as a member of a jury.
48. Educational Attainment and Economic Participation: Individuals who have been denied access to literacy experience significant barriers to participating in the workforce and securing economic self-sufficiency. The Supreme Court has recognized that “education prepares individuals to be selfreliant and self-sufficient participants in society.” Yoder, 406 U.S. at 221. National data backs up what is readily apparent: individuals with low literacy are often unable to earn wages adequate to support themselves and their families, and they are less likely to be employed at all. These trends begin with educational attainment: students who lack literacy skills are less likely to graduate from high school, and those who do are unprepared for admittance and success in post-secondary education. Data from the National Association of Adult Literacy the National Early Literacy Panel, National Institute for Literacy xii (2008), available at http://lincs.ed.gov/publications/pdf/NELPReport09.pdf.
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(“NAAL”), which is sponsored by the U.S. Department of Education’s National Center for Education Statistics reflects that individuals with the lowest levels of literacy are less likely than their peers to graduate from high school and succeed in post-secondary education.
49. Data from the Bureau of Labor statistics shows that greater educational attainment is positively correlated with higher median weekly earnings and negatively correlated with unemployment.14 The chances of children in the lowest income quintile making it to the highest quintile nearly quadruples with a college degree,15 but a low-income individual without a college degree will very likely remain in the lower part of the national earnings distribution.16 Sadly, if denial of access to literacy is left to continue, this means that the 74.4% of Cody MCH students and 80.5% of Osborn MST students who qualify for free or reduced priced meals are unlikely to escape from poverty in their lifetimes.
50. Adults with low literacy face a significant economic disadvantage, earning lower wages and experiencing higher unemployment rates. NAAL data reveals that 43% of adults with the lowest levels of literacy live in poverty, as
14 U.S. Bureau of Labor Statistics, Employment Projections, http://www.bls.gov/emp/ep_chart_001.htm (last updated March 15, 2016).
15 Exec. Office of the President, Increasing College Opportunity for LowIncome Students: Promising Models and a Call to Action (2014), available at https://www.whitehouse.gov/sites/default/files/docs/white_house_report_on_increa sing_college_opportunity_for_low-income_students_1-16-2014_final.pdf.
16 Michael Greenstone et al., The Hamilton Project, Thirteen Economic Facts About Social Mobility and the Role of Education (2013).
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compared to only 4% of those with the highest levels of literacy. Adults with lowest levels of literacy who work full time are more likely to be low-wage workers, earning less than $300 per week. Even controlling for educational attainment and all other personal characteristics, adults who had difficulty filling out forms were more likely to be low-wage workers. And low-literacy adults are less likely to be employed at all. Those with the lowest literacy levels were 16.5 times more likely than those in the highest literacy group to receive public assistance in the past year.17
51. The damage lack of literacy does to employment prospects can be seen in the numbers of applicants from Detroit who cannot pass the entrance exams for the plumbing and electric unions, written exams that also require basic mathematical skills. This in turn affects Detroit as a whole, which cannot find sufficient local labor to rebuild areas that have remained burnt out for decades, or build new housing, or do other work necessary to restore the city center to life.
52. Incarceration and Crime: “Illiteracy is perhaps the strongest common denominator among individuals in correctional facilities.”18 Research shows a strong association between low levels of educational attainment and the onset,
17 See William C. Wood, Literacy and the Entry-Level Workforce: The Role of Literacy and Policy in Labor Market Success (2010) (analyzing NAAL data).
18 William Drakeford, The Impact of an Intensive Program to Increase the Literacy Skills of Youth Confined to Juvenile Corrections, 53 J. of Correctional Educ. 139, 139 (2002).
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frequency, persistence, and severity of delinquency.19 One study found that
reading failure was more predictive of aggression in confined delinquent
adolescents than any other factor considered, including age, family size, number of
parents present in the home, rural versus urban environment, socioeconomic status,
minority group membership, or religious preference.20 A report sponsored by the
U.S. Department of Education asserts that “literacy and criminality are umbilically
joined;”21 another sponsored by the U.S. Department of Justice argues that “the
link between academic failure and delinquency, violence, and crime is welded to
reading failure.”22 Youth with pronounced reading difficulties are vulnerable to
marginalization in their schools and lifelong risk of involvement in the juvenile
and criminal justice systems.23 One of the first national studies of the link between
reading failure and delinquency found that the average reading ability of
19 See, e.g., Center on Crime, Communities, and Culture, Education as Crime Prevention: Providing Education to Prisoners, Research Brief (1997); Denise C. Gottfredson, School-based Crime Prevention, in Preventing Crime: What Works, What Doesn’t, What’s Promising (1995); Eugene Maguin & Rolf Loeber, Academic Performance and Delinquency, in Crime and Justice: A Review of the Research (1996).
20 Dennis L. Hogenson, Reading Failure and Juvenile Delinquency, 24 Bull. of the Orton Soc. 164 (1974).
21 Anabel P. Newman et al., National Center on Adult Literacy, Prison Literacy: Implications for Program and Assessment Policy (1993).
22 Michael S. Brunner, Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, Reduced Recidivism and Increased Employment Opportunity Through Research-Based Reading Instruction (1993)
23 Peter E. Leone et al., Organizing and Delivering Empirically Based Literacy Instruction to Incarcerated Youth, 13 Exceptionality 89 (2005).
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incarcerated adolescents was at the fourth-grade level and that more than one third of the youth were illiterate.24 A more recent study examining reading comprehension of detained and committed youth found that the average reading ability of incarcerated adolescents has since decreased.25 According to the National Assessment of Adult Literacy Prison Survey, at least half of all incarcerated adults surveyed scored “basic” or “below basic” in each of three literacy categories: prose, document, and quantitative.26 This means the adults lacked the literacy skills to perform such everyday tasks as following directions using a clearly labeled map, or determining what time medicine can be taken based on a prescription drug label.27 Only 5% of incarcerated adults had literacy skills that were “proficient.”28
53. Health Outcomes: The link between literacy and health outcomes has likewise been extensively documented in social science and medical literature. In fact, literacy skills are more predictive of an individual’s health status than are
24 Brunner, supra n. 22. 25 Leone, supra n. 23, at 95. 26 Elizabeth Greenberg et al., Literacy Behind Bars: Results from the 2003 National Assessment of Adult Literacy Prison Survey 13 (2007). According to the survey, 56% of incarcerated adults scored “basic” or below in prose literacy; 50% in document literacy; and 80% in quantitative literacy. 27 Id. at 6-7. 28 Id. at 13.
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race, income, employment status, education level, or age.29 At least two studies
have shown that health disparities in both race and educational attainment were
attenuated and in some cases eliminated after accounting for literacy.30 Literacy
plays an essential role in child and adolescent health in particular: research has
repeatedly shown that children with low literacy experience worse health outcomes
and behavior.31 One study of adolescents from low-income neighborhoods found
that youth who read two years or more below grade level were more likely to
engage in risky behaviors and be in a physical fight that required medical treatment
than youth who were reading at grade level.32 In addition, multiple studies have
demonstrated the link between literacy and health outcomes in the management of
chronic diseases such as diabetes,33 asthma,34 and HIV.35 Death rates for chronic
29 Jennifer F. Wilson, The Crucial Link Between Literacy and Health, 139 Ann. of Internal Med. 875 (2003).
30 Somnath Saha, Improving Literacy as a Means to Reducing Health Disparities, 21 J. of Gen. Internal Med. 893 (2006); see also Barry D. Weiss et al., Health Status of Illiterate Adults: Relation Between Literacy and Health Status Among Persons with Low Literacy Skills, 5 J. of the Am. Bd. of Family Practice 257 (1992).
31 Darren DeWalt & Ashley Hink, Health Literacy and Child Health Outcomes: A Systematic Review of the Literature, 124 Pediatrics S265 (2009).
32 Terry C. Davis et al., Low Literacy and Violence Among Adolescents in a Summer Sports Program, 24 J. of Adolescent Health 401–11 (1999).
33 Dean Schillinger et al., Does Literacy Mediate the Relationship Between Education and Health Outcomes? A Study of a Low-Income Population with Diabetes, 121 Pub. Health Reps. 245–54 (2006).
34 Carol A. Mancuso & Melina Rincon, Impact of Health Literacy on Longitudinal Asthma Outcomes, 21 J. of Gen. Internal Med. 813–17 (2006).
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disease, communicable diseases, and injuries have been shown to be inversely related to literacy.36 Lack of literacy impedes the ability to make appropriate health decisions and according to Proliteracy, “an excess of $230 billion a year in health care costs is linked to low adult literacy.”37
C. The Tradition of Compulsory Education in the United States 54. Literacy’s essential role in the maintenance of democracy is reflected in education’s unique status as not only a public good that we have committed to make available to all children since the earliest days of our republic, but also an activity in which participation is mandatory and coerced through compulsory education laws. That is, access to literacy is not only guaranteed to every child, it is required of every child, creating a special relationship between the state and children between the ages of 6 and 18. 55. The universal provision of public education has deep roots in U.S. history and laws. Every state constitution includes a provision establishing a state duty to provide public education. Indeed, as early as the Articles of Confederation in 1781 the Continental Congress imposed the development of
35 Seth C. Kalichman et al., Adherence to Combination Antiretroviral Therapies in HIV Patients of Low Health Literacy, 14 J. of Gen. Internal Med. 267–73 (1999).
36 Rima Rudd et al., Literacy and Health in America, Educ. Testing Service, 5 (2004).
37 See “Adult Literacy Facts,” ProLiteracy, https://proliteracy.org/Resources/Adult-Literacy-Facts (last visited Sept. 8, 2016).
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public schools as a condition for admitting states into the union. The Supreme Court has recognized that “providing public schools ranks at the very apex of the function of a State.” Yoder, 406 U.S. at 213. States have actualized this duty by investing significantly in schools. 2013 Census Bureau data shows that states collectively spend almost 30% of their budgets on education.
56. The compulsory nature of education is likewise an essential feature of the American political system. Schooling is compulsory for all children in the United States; every state in the union has had a compulsory education law since at least 1918. Michigan’s law, for example, dates to 1871 and now requires every child from ages six to eighteen to attend school full-time. Mich. Comp. Laws § 380.1561. These compulsory attendance laws reflect a national judgment that education is so essential to the maintenance of democracy and the ability to participate in public and private life that compelling it is justified.
D. Exclusion from Access to Literacy Creates an Enduring Stigma 57. Given the universal provision of literacy and its supreme importance to civic, political, and economic participation, excluding children from the opportunity to become literate marks them with a badge of shame and indignity that profoundly affects them for the rest of their lives. The Plyler Court’s finding that the “stigma of illiteracy” takes an “inestimable toll” on the “social economic, intellectual, and psychological well-being of the individual,” 457 U.S. at 222-23, is
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borne out by decades of social science research. Severe literacy deficits inflict immeasurable damage to the mental health and self-esteem of students and require greater resilience to remediate with each passing year. Studies have demonstrated a significant relationship between reading level and mental health, with one finding that the psychological health of subjects with extremely low reading levels was comparable to that of populations with severe psychosocial disabilities.38 Students with low literacy may act in ways too frequently labeled as disruptive or defiant in the classroom, in order to deflect being seen by others as a student who cannot read.
58. The denial of access to literacy also creates a discrete underclass in our society, which “presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.” Plyler, 457 U.S. at 219. The denial of literacy has long been used as a tool to subordinate marginalized groups. Indeed, the denial of access to literacy was employed as a badge of slavery—a tactic, as the Court has recognized, used to subordinate and dehumanize slaves, and to deprive them of legal and human rights.39 Later, literacy requirements were
38 Weiss, supra n. 30 at 257. 39 Regents of Univ. of California v. Bakke, 438 U.S. 265, 387-88 (1978) (“Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of his
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used as tools to discriminate against subordinated populations by barring them from voting.40
59. Reacting against such stigma, and acknowledging the power of
literacy, African-Americans have placed a special value on acquiring literacy since
the time of slavery. Even under the yoke of slavery, when learning to read was
prohibited, some slaves devised creative and subversive means to do so. When
slavery ended, those who had acquired literacy became the first teachers of their
fellow freed people, called on society to assist in teaching, building schools, and supporting teachers, and claimed education as a right.41 During this period, the
literacy rate among African-Americans rose sharply from 5% at the end of the
Civil War to 50% by 1900. This commitment to education persists within the
African-American community to this day.
60. The denial of access to literacy to a discrete group of students
demeans and excludes them, resulting in separate and unequal schooling that
“generates a feeling of inferiority as to their status in the community that may
master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave.”) (emphasis added).
40 See, e.g., Katzenbach v. Morgan, 384 U.S. 641, 653-54 (1966); see also Oregon v. Mitchell, 400 U.S. 112, 147 (1970) (Douglas, J., partial concurrence) (“[Literacy tests] have been used at times as a discriminatory weapon against some minorities, not only Negroes but Americans of Mexican ancestry, and American Indians”).
41 Heather Williams, Self-Taught: African American Education in Slavery and Freedom (2007); James D. Anderson, The Education of Blacks in the South, 1860-1935 (1988).
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affect their hearts and minds in a way unlikely ever to be undone.” Brown, 347 U.S. at 494 (1954).
II. The State of Michigan’s Role in Securing Education Rights 61. The State of Michigan is ultimately responsible for complying with all
constitutional mandates regarding public education. But it has particular responsibility for the schools in Detroit, as it has controlled the DPS (and now, DPSCD) schools since 1999. During this period of State management and control, the Detroit schools have been decimated through disinvestment and deliberate indifference. Today, they waver in a precarious condition characterized by indefensibly low achievement scores, precipitously declining enrollment, the threat of additional school closures, and financial collapse. Governor Richard Snyder has acknowledged that “[a] good education is the bedrock of success and kids in chronically failing schools are at significant risk for lifelong struggles.”42 Yet the Governor has also recently admitted that many of Michigan’s most vulnerable students are being deprived of this opportunity, acknowledging that many of the State’s schools have not “achiev[ed] satisfactory outcomes” and “continue to perform at levels that hamper the ability of students to receive an education that prepares them for career and college readiness and success.”43
42 Gov. Snyder’s office, Press Release, March 12, 2015, available at http://www.michigan.gov/snyder/0,4668,7-277-57577_57657-349746--,00.html.
43 State of Michigan, Executive Order No. 2015-9 (Mar. 12, 2015).
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62. According to the recently released National Assessment of Education
Progress examination results for 2015, Michigan is ranked last—43 out of 43
reported jurisdictions—in reading proficiency for fourth grade African-American
students.44 In fourth grade reading and math, about 91% of African-American
students are below proficiency.45 In eighth grade reading, 91% of black students
are below proficiency in reading and 95% are below proficiency in math.46 DPS
students ranked last in reading and math proficiency among all big-city school
districts.47
A. The State’s Authority Over Public Education in Detroit
63. In Michigan, the ultimate legal obligation for providing education and
for protecting legal rights with respect to education rests with the State.
Michigan’s State Constitution was derived from the Northwest Ordinance of 1787,
which conditioned Michigan’s statehood on its setting aside land to be used for
44 See Nat’l Ctr for Educ. Stats., 2015 Reading Grades 4 and 8 Assessment Report Cards: Summary Data Tables for National and State Average Scores and Achievement Level Results (2016), available at http://www.nationsreportcard.gov/reading_math_2015/#?grade=4.
45 See id.; Nat’l Ctr for Educ. Stats., 2015 Mathematics Grades 4 and 8 Assessment Report Cards: Summary Data Tables for National and State Average Scores and Achievement Level Results (2016), available at http://www.nationsreportcard.gov/reading_math_2015/#?grade=4.
46 Id. 47 See Nat’l Ctr. for Educ. Stats., 2015 Mathematics TUDA Assessment Report Card (2016), available at http://www.nationsreportcard.gov/reading_math_2015/#?grade=4; Nat’l Ctr for Educ. Stats., 2015 Reading TUDA Assessment Report Card (2016), available at http://www.nationsreportcard.gov/reading_math_2015/#?grade=4.
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funding public schools. Article III of the Northwest Ordinance provided: “Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” (Emphasis added.)
64. The State’s founding Constitution—as well as its three successive Constitutions—retained language and added additional language defining the State’s role in providing for public schools. Michigan’s current State Constitution mandates that “[t]he Legislature shall maintain and support a system of free public elementary and secondary schools as defined by law,” Mich. Const., art. VIII, § 2, and vests “leadership and general supervision over all public education” in the State Board of Education, id. art. VIII § 3. Throughout its history, the Michigan Supreme Court has interpreted these provisions to establish the State’s ultimate decision-making authority over and legal obligation to supervise the Michigan public school system. In 1917, for example, the Michigan Supreme Court declared, “We have repeatedly held that education in this State is not a matter of local concern, but belongs to the State at large.” Bd. of Educ. of City of Grand Rapids v. Bacon, 196 Mich. 15, 17 (1917). Under Michigan’s constitutional structure, local school districts are creations and agents of the State. The Legislature created local school districts for the administrative purpose of effectively delivering public education, and these districts possess only those
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powers that the State has delegated to them, either expressly by statute or otherwise.
65. Similarly, Michigan’s public school academies, commonly known as charter schools, are subject to the same constitutional provisions as the local school districts. Mich. Comp. Laws § 380.501(1) (“A public school academy is a public school under section 2 of article VIII of the state constitution of 1963, is a school district for the purposes of section 11 of article IX of the state constitution of 1963 . . . and is subject to the leadership and general supervision of the state board over all public education under section 3 of article VIII of the state constitution of 1963.”). Charter schools are thus “under the ultimate and immediate control of the state and its agents.” Council of Organizations & Others for Educ. About Parochiaid, Inc. v. Governor, 455 Mich. 557, 573 (1997). Like traditional public schools, charter schoolss are subject to the leadership and supervision of the State Board of Education to the same extent as are all other public schools. Id. at 583-84. The Board has powers of supervision over all public education, Mich. Comp. Laws § 388.1009, and has the same constitutional authority over charter schools as it does over traditional public school districts. Council of Organizations & Others for Educ. About Parochiaid, Inc., 455 Mich. at 584.
66. The State’s role in overseeing Michigan’s schools has only increased with time. In 1994, the passage of Proposal A shifted responsibility for school
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funding and authority to determine funding levels from local municipalities to the State. Proposal A expressly eliminated the ability of local taxpayers to approve new taxes to contribute to the schools’ general funds. And, in 2013, the legislature passed Public Act 96, which granted Michigan’s Treasurer and State Superintendent, in consultation with the school district, the power to dissolve school districts.
67. While the State of Michigan has ultimate obligation for ensuring access to literacy in all Michigan schools, the State has an additional, even greater responsibility with respect to the DPS because the State has been the de facto administrator of the school district for most of the past fifteen years. This period has been characterized by primary or exclusive State control over all aspects of the DPS, with little to no local role in decision-making.
68. Beginning in the 1990s, in part in response to DPS’s fiscal deficit and failing student achievement outcomes, the State of Michigan began to introduce new governance systems that placed the DPS system under increasing State control. In 1999, the Michigan legislature enacted Public Act 10, replacing Detroit’s elected school board and superintendent with a seven member “reform board” whose only power was to hire, monitor, and evaluate a Chief Executive Officer for DPS. Six members of the reform board were appointed by the Mayor of Detroit, and the seventh was appointed by the Governor. Because the reform
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board required unanimity to act, in practice this structure gave the Governor’s appointee veto power over the selection of the CEO as well as every other decision.
69. While control of DPS returned briefly to a locally elected school board from 2006-2008 as a result of a Detroit voter referendum, in December 2008, Governor Jennifer Granholm declared a fiscal emergency and invoked Public Act 72 to appoint an Emergency Financial Manager for DPS. Although the locally elected school board shared power with the State-appointed Emergency Financial Manager until 2011, the Emergency Financial Manager exercised authority not only over financial decision-making, but some educational decision-making as well. In 2011, the Michigan legislature transferred all decisionmaking authority over DPS to a State-appointed “Emergency Manager.” This remains the case; the emergency manager may unilaterally exercise any authority typically residing in a school board of school superintendent. See Mich. Comp. Laws § 141.1554(f). Although elections will be held to fill seats on the Board of Education for the Detroit Community School Board in January 2017, the State’s Financial Review Commission will remain involved in the oversight of the Detroit schools, and has not yet revealed the scope of authority or direction that will be granted to the elected board.
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70. Since 2010 the State also has assumed a special responsibility over what it calls Priority Schools, or the most poorly performing five percent of schools in the State. This includes all of Plaintiffs’ schools currently open. Mich. Comp. Laws § 380.1280c. The Priority Schools are supervised by the State School Reform/Redesign Office (“SRO”), which was transferred in May 2015 from the Department of Education to the Department of Technology, Management and Budget. Mich. Exec. Order No. 2015-9. The SRO is charged with “creat[ing] the necessary conditions for sustainable and positive student outcomes.”48 Yet Plaintiffs’ schools continue to be deprived of even the most basic resources and conditions necessary for meaningful learning and teaching to occur.
B. The Decimation of the Detroit Public Schools Under State Control 71. The Detroit Public Schools have been under the direct authority of the State of Michigan for 11 of the past 15 years, and remain so today. During this period, the State’s disinvestment and deliberate indifference has contributed to a precipitous decline in the school system that has left the approximately 100,000 children of Detroit, overwhelmingly low-income students of color, without the ability to meet their basic educational needs. Although aware of the State’s failure to educate children, the State has taken no effective steps to remedy the massive educational deprivation. 48 Gov. Snyder’s office, Press Release, March 12, 2015, available at http://www.michigan.gov/snyder/0,4668,7-277-57577_57657-349746--,00.html.
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72. The State’s administration and management of the Detroit schools has ushered in and hastened a period of dramatic decline. Achievement scores have remained abysmal— for example, between 2010 and 2013, DPS’s overall proficiency scores for seventh grade reading ranged from 23.9% to 33% proficient, compared to a statewide range of 55.6% to 62%. The State’s period of control has been marked by decisions affecting the education of minority children that would never be permitted in predominantly white school districts. District administration is not guided by pedagogical decisions made by educators familiar with the unique needs facing the struggling district, but rather by political decisions made by lawmakers and bureaucrats in Lansing, most of whom are not from the community and lack any expertise in education or familiarity with the Detroit schools’ needs.
73. For example, the State has appointed four emergency managers and one transition manager since 2009 without regard to whether any of these individuals possessed professional competence or experience in the area of K-12 education. Darnell Early was appointed emergency manager of the DPS by Defendant Governor Snyder in January 2015. Earley, who had no prior experience in education, had just been the emergency manager in Flint, Michigan who carried out the infamous decision to use the Flint River as a drinking water source for the city, resulting in dangerous levels of lead in Flint’s drinking water. After Earley
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resigned in February 2016, the State replaced him with Transition Manager Judge Steven Rhodes, a former federal bankruptcy judge.
C. The State’s Failed Interventions in Detroit Schools 74. The State’s only response to the literacy crisis in Detroit has been superficial, ill-considered, and counterproductive, driven by Lansing bureaucracy and political considerations instead of the students’ educational well-being. Indeed, the State’s recent interventions in the Detroit education system can best be summarized as reactive efforts to apply a band-aid over the acute and obvious symptoms of the devastating effects of the State’s long-term disinvestment and deliberate indifference. The State has not addressed the root causes of its failures in any systematic or meaningful way. 75. Establishment and Dissolution of EAA School District: In 2011, the Governor created a new, state-controlled reform school district made up of 15 of the state’s lowest-performing schools, to be governed by the Education Achievement Authority (“EAA”). Although the EAA is a statewide district, for the first two years of the program all of the schools under EAA’s authority were former DPS schools. Currently, 15 former DPS schools are administered by the EAA. The State, in conjunction with Eastern Michigan University, administers EAA and has responsibility for EAA’s accountability. Seven of the eleven members of the EAA’s board of directors are appointed by the Governor, and the
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Governor also appoints the executive committee from among the board members. The executive committee then appoints the EAA chancellor, who has great autonomy and control over the administration of the EAA schools.
76. The EAA schools have not improved on the State’s watch. In fact, the most recent Michigan state achievement test results reflect that fewer than 5% of EAA students are proficient in core subject areas. And despite the fact that EAA continues to actively recruit students and hire teachers, the State has announced that the district will dissolve at the end of the 2016-2017 school year, and that EAA schools will thereafter transition back into the Detroit school system.
77. Marion Law Academy (“Law”) is a prime example of the current deplorable state of EAA schools. The school serves over 99% African-American students. In its 2013-2014 ranking, the State assigned Law a 1 percentile rank, and in the most recent report card rankings, Excellent Schools Detroit assigned the school an F.
78. From the outset of State control, the State failed to provide Law appropriate teaching support, staffing, resources, and school conditions that would permit the teachers to deliver literacy to students. During its first year as an EAA school, Law had an instructional coach and academic dean to support the predominantly new teaching staff—approximately 70-80% were TFA teachers, and many of the rest were also new to teaching— but the instructional coach was
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quickly re-designated and given other responsibilities, and the academic dean was unable to focus on curriculum development or literacy interventions due to the unpredictable and extensive obligations that fell on her. Lacking a consistent and planned curricular approach, teachers used Google to search the Internet for lesson plans the night before class, and many paid out of their own pockets to obtain lesson plans on teacherspayteachers.com. To the extent there was curricular guidance in other years, the school rotated through approaches, and administrators would give teachers directives, at one point informing them, for instance, not to teach spelling or basic reading comprehension.
79. This has translated into an inability of teachers to impart literacy to their students. In 2013, the administration ignored specific requests by teachers for support in providing literacy instruction to struggling first-graders. Many classrooms at Law are mixed-grade, with some students performing as much as four years below reading level, making proficiency levels even more varied and contributing to the challenge of effectively delivering literacy instruction. The teaching resources at Law are woefully deficient; textbooks, library books, and other curricular materials were thrown away into a dumpster at the beginning of the 2012-2013 school year when the school opened as an EAA school; the intent was to switch to digital learning. But the new digital platform was ineffective, lacked existing instructional materials, and was abandoned in the 2015-16 school
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year. Administrators told teachers at Law that they were expected to buy their own supplies.
80. Since it opened, Law has experienced an enormous amount of turnover. The school has had four principals in three years, and a number of teachers left the school in the middle of the school year. Three out of the 20 classrooms were taught by long-term substitute teachers in the 2013-2014 school year. Classrooms become so crowded that a teacher who managed to obtain chairs for all 42 students had to pack them together so tightly that a left-handed student could not sit next to a right-handed student. One year, upper-level math and English were both taught by long-term substitute teachers. When a teacher is absent and no short-term substitute is available, classes are frequently combined so one teacher may have up to 60 students in a single classroom.
81. The State has also abdicated its responsibility to keep Law safe and hygienic. While the City recently reported that it has brought buildings up to code and exterminated rodents and mold on the Osborn and some other Detroit campuses, the City’s website does not report any inspection of Law at all. Law has experienced a serious mouse infestation, and mice and their droppings are frequently seen by students, including during class. The air conditioning and heating systems are frequently broken; on some days students can see their breath inside their classrooms, and, on other days, the rooms reach 90 degrees or more.
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Several classrooms have flooded. In one fourth-grade classroom, a leaking hole in the ceiling created what students called “the lake,” and the teacher surrounded the area with yellow caution tape after multiple requests for repairs were ignored.
82. Proliferation of Unregulated Charter Schools: During this same time period, the number of charter schools operating in Detroit has grown dramatically. In 1994, the State of Michigan passed legislation authorizing the creation and operation of charter schools—privately run schools that are eligible for state funding. Fourteen charter programs initially opened in 1995, and, by 2014, 96 charter school programs operated in Detroit, as compared to 103 public school programs. By 2013, more Detroit students enrolled in charter schools than in the DPS schools.
83. Although the State legislatively encouraged the rise of charter schools, it failed to implement the necessary oversight mechanisms to hold charter schools accountable for their achievement or to protect students’ legal rights with respect to literacy and educational equity. Despite the fact that the approximately 40 entities permitted to approve new charter schools have a financial incentive to open new charter schools—they can reap up to 3% of the funds that go to the charter school—the State has failed to regulate those authorizers via guidelines for when to grant, renew, expand, or revoke a charter. Nor has the State ever used its power to suspend charter authorizers that consistently fail to maintain quality
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control over their charter schools or otherwise to hold authorizers accountable based on their students’ learning outcomes. The State has also failed to demand full transparency from charter schools, around 80% of which are operated by forprofit companies, as to how they spend the taxpayer money that funds them.
84. Transfer of the State School Reform Office from the Department of Education to the Department of Technology, Management and Budget: Acknowledging that the SRO had not achieved “satisfactory outcomes” or “implemented the rigorous supports and processes needed to create positive academic outcomes,”49 Governor Snyder transferred the SRO from the Department of Education to the DTMB in May 2015. Yet this bureaucratic shuffle has not resulted in improved outcomes or improved learning conditions for students in Plaintiffs’ schools.
85. Hiring of Non-Credentialed Teachers: In June 2016, the Michigan legislature passed legislation providing that a “noncertificated, nonendorsed teacher” may serve as a teacher in the new DPS district. Nowhere else in Michigan may children in public school be taught by teachers who lack appropriate state-mandated credentials and qualifications. This legislation sends a clear message that the State of Michigan regards the children of Detroit—the vast majority of whom are children of color—as second-class citizens and imposes a
49 Mich. E.R.O. No. 2015-2, Sec. 18.445 (May 12, 2015).
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“special disability upon those persons alone.” Romer v. Evans, 517 U.S. 620, 631 (1996). The State would never tolerate children in the districts of Ann Arbor or Grosse Pointe being taught by persons without the credentials and experience necessary to be an effective teacher, and yet the State has determined that teachers with such inferior qualifications are good enough for the children of Detroit.
86. School Closures: The State recently responded to persistently low academic performance among DPS schools by irresponsibly and counterproductively threatening to close failing schools. In 2009, the Michigan legislature passed a law permitting the State School Reform Office to close chronically underperforming schools. Mich. Comp. Laws § 380.391. On August 15, 2016, only weeks before the start of school, the School Reform Office announced plans to close up to 100 Michigan schools that have been in the bottom five percent of schools statewide for at least three years—a list that includes all of Plaintiffs’ schools that are currently operating and 47 schools in Detroit—at the end of the 2016-17 school year. A few days later, the State announced that it would close fewer than 100 schools, but it did not clarify how many or which schools. And just two weeks later, on September 1, 2016, the State reversed course and announced that no Detroit schools would be closed until 2019 at the earliest.
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87. This ill-conceived plan to close schools that were never given the resources and support necessary to succeed would only further harm students already suffering from the State’s failings. Through its own disinvestment, the State has created conditions under which schools are failing, but instead of implementing effective and meaningful remedies to ensure that Detroit students receive the access to literacy they are due, the State has chosen to shut the schools down at even greater costs to students, dedicated teachers, and the community. School closures can have a profoundly negative impact on individual children and the community—raising logistical problems for families and disrupting children’s educational and emotional development by introducing instability and uncertainty.
88. The haphazard and chaotic timing and method by which the State announced these potential closures further illustrates the State’s indifference to the well-being of Detroit schoolchildren. Plaintiffs’ schools have been in the bottom 5% of schools in Michigan for years. But there was no discussion of closures until August 2016, when the State revealed this plan through the media just weeks before the start of school. This sent students and teachers scrambling, leaving them worried and confused when they should have instead been preparing to start the new school year. Moreover, the State has offered no plan to ensure that any contemplated school closing will not disrupt students’ educations, further entrenching denials of access to literacy. It has said nothing about where displaced
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students would go were their schools to be closed, or about what efforts must be undertaken to remediate past denials of access to literacy and address the impact of the school closure on students’ social-emotional health.
III. The Failure to Provide Access to Literacy in Plaintiffs’ Schools 89. The State’s deliberate disinvestment in and indifference to the needs
of Detroit schoolchildren has had catastrophic consequences for Plaintiffs’ access to literacy. Plaintiffs attend, or attended, five schools—DPSCD and charter—that are among the lowest performing schools in the City of Detroit. As data collected and maintained by the State shows, the literacy instruction provided in Plaintiffs’ schools is so wholly insufficient that ninety percent or more of the students are unable to meet state proficiency standards. Many students are multiple grade levels below their peers in other schools throughout the State. This abysmal achievement data reflects a statewide system of education that has functionally excluded Plaintiffs from its reach.
A. Demographic Data 90. Figures 1 and 2 demonstrate that students in DPS schools are overwhelmingly African-American and socioeconomically disadvantaged. Like most Detroit schools, Plaintiffs’ schools serve predominantly low-income students of color:
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a. Hamilton Academy, a charter school, served 254 students in grades K-8 in the 2015-16 school year, of whom 99.6% were African-American and 89.0% were eligible for free or reduced price lunch.
b. Experiencia Preparatory Academy, a charter school, served 338 students in grades K-11 in the 2015-16 school year, of whom 31.1% were African-American, 64.2% were Latino and 99.7% were eligible for free or reduced price lunch.
c. Osborn MST, a DPSCD school, served 266 students in grades 9-12 in the 2015-16 school year, of whom 97.7% were African-American and 80.5% were eligible for free or reduced priced lunch.
d. Osborn Evergreen, a DPSCD school, served 327 students in grades 9-12 in the 2015-16 school year, of whom 97.2% were African-American and 78% were eligible for free or reduced priced lunch.
e. Cody MCH, a DPSCD school, served 407 students in grades 9-12 in the 2015-16 school year, of whom 97% were African-American and 74.4% were eligible for free or reduced priced lunch.
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Figure 1: District Achievement across Michigan in relation to percentage of black students
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Figure 2: District achievement across Michigan in relation to socioeconomic status
B. State Achievement Data 91. Student performance data collected by the State has long established that students at Plaintiffs’ schools are effectively denied the opportunity to achieve proficiency in literacy, particularly as compared to schools elsewhere throughout the State. The Michigan Student Test of Educational Progress (“M-STEP”) measures students’ progress toward achieving state-mandated academic content standards. Beginning in 2014-15, the State has required the administration of the M-STEP in the following grades and subjects: English and Math in grades 3-8 and 11; science in grades 4, 7, and 11; social studies in grades 5, 8, and 11. The
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Michigan Educational Assessment Program (“MEAP”) measured the previous state standards prior to the adoption of Common Core in 2014-15. For years, students in Plaintiffs’ schools have disproportionately failed to meet the proficiency standards established by the State in all content areas. The 2015-16 elementary M-STEP and 2014-15 high school M-STEP50 results are representative: Figure 3: 2016 Elementary M-STEP Results for English Language Arts
50 Full results for the high school M-STEP are not yet available, but the partial data suggests that for Plaintiffs’ high schools, the proficiency levels for 2015-16 are as low as or worse than the scores in 2014-15.
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Figure 4: 2016 Elementary M-STEP Results for Mathematics

Figure 5: 2016 Elementary M-STEP Results for English Language Arts and Mathematics (data)

2015-16 M-STEP Percentage of Students Scoring Proficient or

Above

Grade 3 Grade 4 Grade 5 Grade 6 Grade 7 Grade 8

Eng/Math

E M E M E M E M E M E M

Hamilton

4.2 4.2 2.9 3.1 10.5 5.0 0.0 0.0 10.0 3.4 6.5 3.2

Experiencia 9.5 4.8 13.8 13.3 3.1 5.7 3.7 0.0 10.7 3.8 14.3 0.0

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State of Michigan

46.0 45.2 46.3 43.9 50.6 33.8 45 0

32.8 47.1 35.3 48.8 32.7

Figure 6: 2014-15 M-STEP Results for Plaintiffs’ High Schools

School
Osborn MST Osborn Evergreen Cody MCH State of Michigan

M-STEP Grade 11 English
Percentage of Students Scoring
Proficient or Above 2014-15
1.9
4.2
12.5
49.2

M-STEP Grade 11 Math
Percentage of Students Scoring
Proficient or Above 2014-15
3.7
0.0
1.8
28.4

M-STEP Grade 11 Science
Percentage of Students Scoring
Proficient or Above 2014-15
0.0
0.0
0.0
29.4

M-STEP Grade 11 Social Studies
Percentage of Students Scoring
Proficient or Above 2014-15
1.9
0.0
1.8
43.9

92. In addition to the M-STEP, the State has used the Michigan Merit

Examination (“MME”) to assess students in grade 11 based on state high school

standards. The 2013-2014 MME results similarly reflect the longstanding failure

of students in Plaintiffs’ high schools to meet the proficiency standards established

by the State in all content areas:

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Figure 7: 2013-14 MME Results for Plaintiffs’ High Schools

School
Osborn MST Osborn Evergreen Cody MCH State of Michigan

MME Reading Percentage of Students Scoring Proficient or Above
10
11
13
58.7

MME Math Percentage of Students
Scoring Proficient or Above
0
0
0
28.8

MME Writing Percentage of Students Scoring Proficient or Above
1
4
2
51

MME Science Percentage of Students Scoring Proficient or Above
0
0
0
28.4

MME Social Studies Percentage of Students Scoring Proficient or Above
1
0
0
43.9

93. Michigan’s school accountability system uses this state assessment

data to create a “Top-to-Bottom” School Rankings of the Michigan public schools

based on their student performance and graduation rate data. All Michigan schools

are included in the ranking if they have over two years of assessment data for 30 or

more students in two or more tested subjects. A school’s percentile rank reflects

how the school ranks against all other schools in the State. For example, a score of

70 means that the school performed better than 70% of Michigan’s ranked schools.

The State then categorizes schools based on their percentile rank. “Priority

Schools” are the lowest performing 5% of schools in the State.

94. Plaintiffs’ schools are among the very lowest-performing schools in

the State. For the most recent ranking, the 2013-2014 school year, the State

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assigned Hamilton a 4 percentile rank; Osborn MST a 1 percentile rank; Osborn Evergreen a 2 percentile rank; and Cody MCH a 6 percentile rank. All of Plaintiffs’ schools that are currently operating have been designated by the State of Michigan as Priority Schools.
95. In addition, Excellent Schools Detroit, a non-profit coalition of Detroit’s education, government, community, and philanthropic leaders, assigns letter grades to every school in Detroit based on proficiency/college-readiness, academic growth, graduation and post-secondary matriculation rates, and school climate. In the most recent report card rankings, Excellent Schools Detroit assigned an F to Hamilton and a D to Osborn MST, Osborn Evergreen, and Cody MCH.
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Figure 8: District achievement across all districts in Michigan in grade equivalent units
C. National Achievement Data 96. State and national achievement test results likewise show that students in Plaintiffs’ schools are trailing far behind their peers across the nation. All Michigan public high school students have traditionally taken the ACT college admissions test as part of the Michigan Merit Examination (“MME”), and Michigan assesses students in grade 11 and eligible students in grade 12 based on college-readiness standards. (Michigan is currently transitioning to the SAT.) The ACT achievement scores in Plaintiffs’ high schools show that these schools have
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utterly failed to deliver literacy instruction sufficient to achieve college-readiness,

particularly as compared to students elsewhere in the State:

Figure 9: 2014-15 ACT Results for Plaintiffs’ High Schools

School
Osborn MST Osborn
Evergreen Cody MCH
State of Michigan

ACT English ACT Math ACT Reading ACT Science

(2014-15) (2014-15) (2014-15) Reasoning

Percentage of Percentage of Percentage of (2014-15)

Students

Students

Students Percentage of

Scoring

Scoring

Scoring

Students

College- College-Ready College-Ready Scoring

Ready

College-Ready

12.5

0

5.4

1.8

2.2

0

2.2

0

10.2

0

1.7

0

58.4

33.5

36.1

32.4

97. In addition, national data show that students in Plaintiffs’ schools are

lagging far behind their peers in the rest of the country. Professor Sean Reardon

and a team of researchers in the Stanford Graduate School of Education have

analyzed state assessment data for grades three through eight for each of the

12,000 school districts in the country, data generated and collected pursuant to the

No Child Left Behind Act in order to make state-by-state comparisons. The data

show that students in the DPS schools district are, on average, 2.3 grade levels

below their actual grade level in basic reading proficiency. Because Plaintiffs’

schools are among the poorest performing schools in Detroit, this means that

students in Plaintiffs’ schools are performing far lower. The data further reveal

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that, even when taking socioeconomic status into account, Detroit performs lower than almost all large urban districts that serve a similar demographic of students. Figure 10: District achievement of the 100 largest districts across the United States in relation to socioeconomic status
D. Graduation and College Attendance Rates 98. The low proficiency rates in Plaintiffs’ schools have devastating consequences for educational attainment and college and career preparedness. As social science research demonstrates, low academic achievement and a personal perception of incompetency negatively impact student motivation, engagement, and mental health, which frequently lead to dropping out.51 Among high school 51 See, e.g., NAT’L RESEARCH COUNCIL, INST. OF MED., ENGAGING SCHOOLS: FOSTERING HIGH SCHOOL STUDENTS’ MOTIVATION TO LEARN 13-44 (2004); Fred
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graduates, students with very low proficiency may lack the credentials, including standardized tests scores and grades, necessary for admission to many colleges and universities. And unfortunately, many low-skilled students who do matriculate to a college or university find that they are many years behind their peers and unprepared for college-level work. Most students who attend a community or four-year college must take remedial classes, reducing the likelihood of graduation. Of students who continued from the Osborn schools to higher education in 2013-14, 76% and 80% from Osborn MST and Osborn Evergreen respectively had to take remedial coursework. Of students who went on from the Cody MCH to higher education in 2013-14, 82% had to take remedial coursework.
99. These patterns are reflected in drop-out and college matriculation data. There were 124,279 students in Michigan’s 2014 senior cohort. In 2013-14, 103,002 students graduated and 71,861 enrolled in an institute of higher education within a year. Of those students, 40,549 successfully completed at least one year of higher education in 12 months. This means that about 32.6% of Michigan’s senior cohort went on to timely complete at least a year of higher education. By contrast, in Plaintiffs’ schools:
M. Newmann et al., The Significance and Sources of Student Engagement, in STUDENT ENGAGEMENT AND ACHIEVEMENT IN AMERICAN SECONDARY SCHOOLS 11-39 (Fred M. Newmann ed., 1992).
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a. There were 93 students in Osborn MST’s 2014 senior cohort, yet in 201314, only 89 students graduated from Osborn MST and only 44 enrolled in an institute of higher education within a year. Of those 44 students, only 9 students successfully completed at least one year of higher education coursework within 12 months. This means that less than 10% of Osborn MST’s senior cohort went on to timely complete at least a year of higher education.
b. There were 63 students in Osborn Evergreen’s 2014 senior cohort, yet in 2013-14, only 53 students graduated from Osborn Evergreen and only 22 enrolled in an institute of higher education within a year. Of those 22 students, only 4 students successfully completed at least one year of higher education coursework within 12 months. This means that less than 7% of Osborn Evergreen’s senior cohort went on to timely complete at least a year of higher education.
c. There were 94 students in Cody MCH’s 2013-14 senior cohort, yet in 2013-14, only 82 students graduated from Cody MCH and only 40 enrolled in an institute of higher education within a year. Of those 40 students, only 4 students successfully completed at least one year of higher education coursework within a year of enrollment. This means that less than 4.3% of
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Cody MCH’s senior cohort went on to timely complete at least a year of higher education. IV. Failure to Deliver Evidence-Based Literacy Instruction and
Intervention Programs in Plaintiffs’ Schools 100. These universally abysmal achievement outcomes are the inevitable consequence of the complete lack of any system for literacy instruction and remediation in Plaintiffs’ schools. Experts agree that meaningful access to literacy can be delivered, including in schools serving demographics of students similar to Plaintiffs’ schools, through a high-quality literacy-focused program and curriculum. Yet Plaintiffs’ schools lack the capacity to provide effective literacy instruction at the elementary or adolescent levels or to intervene with appropriate remediation for students who have fallen behind. At all of Plaintiffs’ schools, there is no evidence-based program for delivering access to literacy and for remediating past and ongoing deprivations. This includes lack of qualified staff, necessary training, instructional materials and tools, protocols for regular assessment and follow up interventions, and identification and elimination of conditions impeding access. 101. Elementary Literacy Instruction: There is no consistent literacy instruction program in Plaintiffs’ elementary schools, and the schools lack the staffing and capacity required to effectively implement such a program. Moreover,
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none of Plaintiffs’ elementary schools have a system of regular assessment to determine individual reading levels and tailor lessons to student needs.
102. Adolescent Literacy Instruction: Plaintiffs’ high schools likewise lack the capacity to effectively implement an evidence-based, consistent program of literacy instruction to develop essential adolescent literacy capabilities, including dedicated literacy instruction in content area classes. At the Osborn schools, for example, teachers receive no support or training in literacy instruction. At all the Osborn schools and Cody MCH, teachers lack access to curricular materials such as lesson plans, pacing guides, and teacher editions of textbooks and are forced to rely on unreliable, independent research to prepare for class.
103. Osborn MST has attempted to address literacy by organizing optional reading groups. Teachers leading the reading groups have not been properly trained to provide literacy instruction or support, and an optional literacy professional development training scheduled for two weeks before the start of the 2016-17 school year was cancelled at the last minute. Regardless of proficiency level, none of the general education students are provided one-on-one literacy instruction. The most advanced of the reading groups read books at a fourth- and fifth-grade reading level, even though the students are in high school.
104. In the upper level English Language Arts classes at Experiencia, teachers dedicated significant class time to reading aloud from books with reading
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levels multiple grades below the chronological age of the class, yet students struggled to sound out simple words. In 2015, the school attempted to implement a literacy program wherein students were assigned to a reading group based on skill level rather than grade level. As a result, an individual reading group would contain students ranging in age from eight to twelve, significantly damaging the self-esteem of the older students and making effective instruction nearly impossible. Moreover, only the lowest-proficiency group was supported by a trained reading specialist, and the teachers leading the other groups never received meaningful training on how to effectively provide literacy instruction. After one semester, the program was abandoned.
105. Intervention and Remediation: Furthermore, none of Plaintiffs’ schools can deliver effective intervention or remediation for students who have failed to achieve basic literacy skills in the early elementary years or to develop adolescent knowledge capabilities. Intervening with students who are far behind, in particular, requires one-on-one and small group time that is not feasible when a single teacher is serving a classroom.
106. At Hamilton, many students entered the fourth grade in the 2015-16 school year with a kindergarten-level vocabulary, yet staff were not trained to deliver literacy intervention or remediation, and no additional classroom support was provided. As a result, the teacher had to choose between leading the entire
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class in an exercise that disregarded the extreme range of skillsets, and working with each student one-on-one while the other thirty-nine students worked on their own.
107. At Cody MCH, many of the students struggle when called upon to read aloud, with some stumbling over even monosyllabic words. Yet the few instructors originally designated as reading interventionists, already insufficient in number, must cover teacher vacancies in other classrooms, and there is no meaningful training in literacy intervention available, even when requested by teachers. English Language Arts classes are often limited to reading aloud from a book, but the books used are far below grade level. For example, Plaintiff Jaime R. was in an English Language Arts course in ninth grade during which the class spent a large part of the year going paragraph by paragraph through a single novel, which has a third grade reading level.
108. In addition, many secondary school teachers lack appropriate training to support students who are performing far below grade level, as many students are in Plaintiffs’ schools. For example, high school teachers in Plaintiffs’ schools must work with students reading at an elementary school level, but most have not received the training in teaching reading fundamentals that a typical elementary school teacher would have. In particular, many classrooms in Plaintiffs’ high schools serve students of widely varying levels of proficiency. Yet teachers in
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Plaintiffs’ schools receive no training in the skills necessary to deliver differentiated instruction to students performing a wide range of proficiency levels. At Osborn MST, for example, teachers who have students in the classroom ranging from fifth grade to twelfth grade reading levels receive no guidance on how to teach to widely varying proficiencies. The skeletal curricula provided are not tailored to the students’ needs, and even an experienced teacher who was new to the Detroit school system had to spend several hours a day independently researching out how to adapt lesson plans to the wide range of proficiency levels in one classroom.
V. Failure to Ensure Educational Conditions Necessary to Attain Literacy
109. The State has failed to ensure a basic environment for teaching and learning that is the necessary prerequisite for the acquisition and transmission of literacy. Plaintiffs may physically enter their school buildings, but they sit in facilities that are functionally incapable of delivering literacy access.
110. Plaintiffs’ schools have inadequate instructional materials. The physical conditions of the school are unsafe and include vermin infestation, extreme temperatures, insufficient or inappropriate facilities, and overcrowding. The schools lack the capacity to meet students’ social-emotional needs and the learning needs of English Learners. As a result of the incredible challenge of teaching at these school sites, Plaintiffs’ schools predictably lack sufficient
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qualified teachers—meaning teachers who are certificated, properly trained, and assigned to a class within the area of their qualifications and expertise—necessary to implement the required literacy instruction and intervention. Instead, Plaintiffs’ schools are characterized by illogical or inadequate allocation of resources, and the complete lack of any considered policy or system for the delivery of education.
111. The presence in a school of any one of these conditions antithetical to learning may be enough to deny students meaningful access to literacy, but in Plaintiffs’ schools, all of these challenges overlap, interact, and conspire to defeat the opportunity to access literacy. Effective literacy instruction simply cannot take place in a learning environment characterized by these unpredictable, unsafe, and reprehensible conditions.
A. Insufficient Course Offerings and Instructional Materials 112. Plaintiffs’ schools lack the course offerings and instructional materials necessary to implement effective, appropriate literacy instruction and intervention programs. 113. Insufficient and Outdated Books, Instructional Materials and Technology: Many classes in Plaintiffs’ schools do not have books, and the books that are available are decades out of date, defaced, and missing pages. Not one of the Plaintiffs’ schools has textbooks for students to bring home, and therefore teachers, despite their best efforts, cannot assign meaningful regular homework.
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114. At Hamilton, there are so few textbooks that even small classes have to break up into groups of three to five students to do classwork. One second-grade class did not have any English Language Arts books, and the books they did have were age-inappropriate picture books. Plaintiff Jessie K., a thirdgrade student at Hamilton, struggles to learn to read because the books that were available to her in her second-grade class were mostly picture books. Her second-grade teacher sometimes directed her to use the computer for educational purposes, but the computers are frequently unable to connect to the Internet and Jessie K. often spends her computer time staring at a scratched screen.
115. Textbooks at Experiencia were damaged and many years out of date, with taped spines and ripped and missing pages. The computers at the school were frequently broken, and when they did work, the Internet connectivity was so poor that they were nearly unusable. The third floor of the building technically had a library, but there was no librarian and students were not permitted to access the library or check out books without a teacher escort. Most of the time, the library remained locked.
116. At Osborn Evergreen, an ELA teacher told her twelfth-grade students that she didn’t have their literature books yet because she was still taping them back together. At Osborn MST, a U.S. History class had only 5 textbooks for a class of 28 students, and an economics teacher had 25 textbooks for 118 students.
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Another set of history textbooks at Osborn MST is from 1998. In 2015, an outside non-profit threw away the books in the Osborn library because they were deemed too old. The books have not been replaced. There are no textbooks for the Earth Science, Physics, or Research and Development science classes at Osborn MST, so the teachers in each of those classes rely on a section of the Biology textbook most closely related to the subject they are teaching. Because students periodically have to share textbooks for classwork, they are often unable to complete the day’s assignment, especially when the books being shared are defaced and have missing pages. Thus, a student like Plaintiff Paul M. does not have enough time to complete his work in class, but he also cannot take the book home with him, because there are not enough for all students. In fact, Plaintiff Paul M. has never had a book that he could take home from school. Many teachers seek to make up for the lack of books by photocopying assignments, but the copy machine at Osborn is frequently broken and teachers generally have to provide their own printer paper. One Teach for America (“TFA”) teacher would regularly purchase her own printer paper and leave her house at 4:30 a.m. most mornings to utilize the copy machines at the TFA central office.
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Figures 11 and 12: Textbooks at Osborn MST, August 2016
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117. At Cody MCH, teachers periodically turn to the charity website donorschoose.com to solicit donations in order to purchase novels for English classes. The textbooks that are available are defaced, missing pages, and more than ten years out of date. A single classroom set of chemistry textbooks is used
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by the approximately 200 students enrolled in chemistry each year at Cody MCH. As a result, students cannot take textbooks home to study or for homework. There are no computer classes at Cody MCH, and the limited computers available are years out of date and frequently broken. Computers may be broken for over a year before repairs are made.
118. To make up for the shortfall in instructional materials and other basic supplies, including books, pens, pencils, notepaper, and printer paper, teachers in all of Plaintiffs’ schools frequently pay out of their own pockets or privately raise money online. It is not uncommon for a teacher to spend more than a thousand dollars on school supplies in a single year, and some spend as much as $5000, roughly one-sixth of their annual salary. At all of Plaintiffs’ schools, teachers applied for grants, requested donations on donorschoose.com to obtain textbooks and classroom supplies, scavenged yard sales, or solicited donations from friends and families. Many teachers attempt to utilize technology to compensate for these shortcomings, but there are insufficient computers at the school sites, and the Internet connections are often too weak to accommodate more than one class at a time. Moreover, many of the students lack access to the Internet outside of school; a 2015 article in the Detroit Free Press found that 70% of Detroit students have no Internet access at home.
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B. Decrepit and Unsafe Physical Conditions 119. Plaintiffs face unsafe and unsanitary physical conditions that make learning nearly impossible. Overcrowding, failure to regulate temperature, dangerous or missing equipment, pervasive rodents, and the other conditions described here mean that sustained, consistent instruction of the sort necessary to lay a foundation for and build up literacy through the years simply cannot occur in Plaintiffs’ schools. The City of Detroit admitted that during the 2015-16 academic year, none of the school district’s buildings were in compliance with city health and safety codes.52 While the City recently reported that it has brought buildings up to code and exterminated rodents and mold on the Osborn and some other Detroit campuses, the City’s website admits that Cody schools and Hamilton are not currently in compliance.53 On each of these campuses, students returned to school on September 6, 2016, in buildings that the State knows to be unsafe. Moreover, no entity has taken steps to address other learning-prohibitive physical conditions in Plaintiffs’ schools, including extreme temperatures and excessive
52 Dana Afana, 86 of 94 Detroit Public Schools Now Up To Code After Rodent, Mold Crisis, MLIVE (Aug. 29, 2016), available at http://www.mlive.com/news/detroit/index.ssf/2016/08/91_percent_of_detroit_publi c_s.html.
53 School Inspection Reports, CITY OF DETROIT http://www.detroitmi.gov/How-Do-I/Find/School-Inspection-Reports (last visited Sept. 11, 2016).
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overcrowding. The unsafe conditions that have plagued Plaintiffs’ schools include the following:
120. Vermin: All of Plaintiffs’ schools that are currently operating have been infested by vermin. Students and teachers have frequently encountered mice, mice droppings, rats, bedbugs, and/or cockroaches. Figure 13: Cockroaches at Hamilton, September 2016
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121. At Hamilton, teachers keep canisters of Raid on their desks to address the many cockroaches throughout the school. Plaintiff Jessie K.’s classes are interrupted by students calling the teacher over to kill a cockroach or screaming as a mouse runs across the floor. As in the beginning of the 2014-15 and 2015-16 school years, in the first week of the 2016-17 school year, Hamilton was filled with yellow-jackets and multiple students and teachers were stung.
122. At Cody MCH, teachers find mouse droppings on desktops and bookshelves in the mornings, and students periodically see mice scurrying in the cafeteria. A rat in a science classroom used by 100 students a day interrupted class and caused students to run into the hallway. One teacher was forced to work on a computer next to a decomposing mouse that produced a horrible smell.
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123. Extreme Temperatures: Absent or malfunctioning heating and airconditioning systems subject students and teachers to extreme temperatures, sometimes necessitating school closings or early dismissal and thereby frequently preventing effective instruction and meaningful learning. All of the Plaintiffs’ schools periodically experience classroom temperatures that range from so cold the students can see their breath to above 90 degrees, depending on the time of the year.
124. During the summer months, there is no air conditioning at Hamilton, and one west-facing classroom has reached 110 degrees during the school year. The windows open only a few inches. On the first day of the 2016-17 school year, the temperatures in the school grew so extreme that multiple students fainted, both students and teachers got so sick they threw up, and multiple teachers developed heat rashes. While teachers bring in their own fans, they do little to combat the summer heat, and a number of students spend class time asleep resting their heads on the tables. In contrast, the heat did not come on for several days after the students returned from winter break in the 2015-16 school year, and the students and teachers had to wear winter coats, hats, and scarves and could see their breath. Third-grader Plaintiff Jessie K.’s classroom was sometimes so cold that she felt like she had to go to sleep and was unable to concentrate on learning. Those students who do not have sufficiently warm winter coats visibly shiver throughout
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the day. Even when the heat is functioning, the radiators are turned on only between 7:30 a.m. and 9:00 a.m. when the part-time “morning custodian” is in the building. In order to keep the classroom sufficiently warm throughout the day, classrooms must become suffocatingly hot by 9:00 a.m., but the classrooms are still uncomfortably cold by the end of the day when the early-morning heat has dispersed.
125. In the 2015-16 school year, Experiencia contracted with a boiler operator only through March in order to save money, despite the fact that temperatures remained below freezing well into April and students were periodically sent home when the classrooms were too cold. In the summer, the air conditioners rarely worked and the windows either couldn’t open or had to remain closed because they were unstable and would crash down unpredictably. The students and teachers were left sweating in class.
126. At the Osborn schools, the classrooms are not air-conditioned. The teachers often turn off the lights and bring in fans from home in an attempt to cool their classrooms, but the darkness and loud noise from the fans make it difficult to teach and learn. The Osborn gym also lacks air conditioning, and the temperatures during sporting events frequently exceed 90 degrees. In the first week of the 2016-17 school year, students from all of the Osborn schools were already sent home early due to heat. During winter 2015-16, one of the boilers necessary to
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deliver heat to the school was broken. The remaining boiler was turned on maximum to heat the entire school. As a result, some classrooms were so cold that students needed to wear coats and hats, and others reached 90 degrees despite the windows being open to the snow. Students were periodically sent home if their classrooms were too cold.
127. Cody MCH’s temperatures are similarly extreme. The boilers are not up to code and the windows are damaged, periodically requiring students to wear their coats in the classrooms in the winter while they can see their breath in class. One teacher turned to the charity website donorschoose.com in order to solicit donation of a space heater for his classroom, remarking that “student success tends to drop with the temperature.” In the summer months, the Cody schools periodically shut down due to the heat. In both the winter and the summer Plaintiff Jaime R. sometimes feels his head spinning because of the heat, forcing him to put his head down on his desk. At other times of the year, his classroom is so cold that he can see his breath, making it difficult to focus on learning.
128. Insufficient or Inappropriate Facilities: The physical conditions of school buildings are decrepit and unsafe. Broken windows, doors, and fire alarms go unaddressed for months or years. Drinking water is often unsafe.
129. At Hamilton, the playground equipment—which is designed for 2-5 year olds, although the school serves children ages 5-14—is frequently broken.
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One of the playground slides is disconnected at the base so it shifts around, and the other has cracks with sharp pieces of plastic sticking out. Multiple students have sliced or otherwise injured themselves while playing. Students also find bullets, used condoms, sex toys, and dead vermin on the playground, although teachers try to arrive early to clean the playground themselves. The hallway floors are littered with fallen ceiling tiles. They are also frequently covered in water from leaks, causing students to slip and fall and generating moldy smells. Although the school provides breakfast and lunch for a number of students, it is not uncommon for meals to feature moldy bread and expired milk. The students know not to drink out of the water fountains, which are frequently infested with cockroaches and maggots, and the teachers and principal bring in bottled water they purchase themselves. The seats in the auditorium are broken, and the entrance to the school is riddled with potholes, causing students and parents to twist their ankles on the way into the building. Although a bullet hole was discovered in one of the classroom windows when teachers returned before the start of the 2016-17 school year, it was not repaired before the students returned to class.
130. At Experiencia, pipes leaked during all three years the school was open and burst throughout the 2013-14 school year. Ceilings buckled or collapsed in several classrooms, raining plaster onto the floor. One of the classrooms had a repugnant odor all year, similar to rotten fish. The only outside area for the
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students to play was a small, fenced-in rectangle in front of the school, so the school held recess across the street in an open field where it could not control access from individuals who might pose a threat to the children.
131. At the Osborn schools, the roof leaked for two years. Every time it rained or snowed, buckets were put out to catch dripping water. The walls were covered in water stains. The roof was not repaired until the principal obtained an outside grant through a private foundation to cover the costs. In one classroom, a window that fell out was not fixed for over a year. During the winter of 2015-16, the teacher covered the gaping hole with corrugated cardboard, duct tape, and a bookcase. In another classroom, a window was broken for over a year; the window, which was stuck slightly ajar, could not be opened fully in the summer or closed in the winter to address the extreme temperatures. An Osborn MST teacher and students became temporarily trapped in a classroom when the doorknob broke.
132. The water fountains, toilets, urinals, sinks, and locker room showers at Osborn are frequently out of order, and the bathrooms are frequently out of toilet paper and soap. Even when he feels like his head is spinning from the heat, Plaintiff Jaime R. cannot get a drink of water to help with the heat because the water fountains are filthy or sealed off with plastic or unusable because they are contaminated with lead. Walking through the halls and bathrooms, students see broken water fountains and toilets covered in black garbage bags. Teachers use
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their own money to purchase paper towels, toilet paper, hand sanitizer, and soap. At Osborn MST, urine frequently leaks out of the men’s room and soaks the carpet in the hallway, causing the hallway to smell for days. Although there is a swimming pool at Osborn, it has been empty for over 6 years. Plaintiff Jaime R. used to be on the swim team, which he loved, but he can no longer use the facility. Figure 14: Water Fountain at Osborn, August 2016
133. At the Osborn schools, fire exits are frequently locked and chained to prevent unauthorized individuals from entering from the street. During the
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2015-16 school year, a fire broke out in the school and students were given no notice to evacuate because the Osborn fire alarm system failed. One teacher became aware of the fire only after a student opened the door and thick smoke poured inside. The alarm system was not fixed until teachers called the fire marshal, and there continue to be missing fire extinguishers. At Osborn Evergreen, bullet holes in a window went unrepaired for over a year.
134. At Cody MCH, the roof leaked in many classrooms, requiring teachers to place trashcans on desks and on the floor to catch rainwater and melting snow. The walls in corner classrooms are water-stained, and water-soaked tiles periodically fall from the ceiling, sometimes hitting students in the middle of class. To shelter the students from these conditions as best possible, teachers spend a great deal of their own money on cleaning supplies and arrive early in an attempt to get rid of mouse droppings, dead cockroaches, and fallen plaster and tiles. In the 2015-16 school year, a large piece of plaster fell onto the auditorium stage during a school-wide assembly, requiring early dismissal from school. Despite promises of repairs, Cody was recently notified that it will not be receiving a new roof this year. The sewage at Cody MCH periodically backs up, leading to waterlogged carpets and mold. One room with black mold walls has been sealed off. Many of the school’s water fountains and restrooms are inoperable.
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Figure 15: Buckets Collecting Leaks in the Hallway at Cody MCH, August 2016
135. Extreme Overcrowding: Declining student enrollment in Detroit means that many former school buildings are sitting empty. But the remaining classrooms are overcrowded; students outnumber desks and students are squeezed together so tightly that teachers cannot walk through the room.
136. At Hamilton, up to 40 students have to cram into one small classroom designed for many fewer students. Due to insufficient space and seating, four students must sit together at tables designed to hold two. The seventh- and eighthgrade classes are often so full that the desks are crammed wall-to-wall, with no room for aisles. This year’s third-grade class has started every year since kindergarten in one classroom with over forty students, only for the school to split
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the class in half several months into the school year, forcing half of the class to adjust to a new teacher and classroom.
137. One Osborn MST class had 42 students but only 32 desks. Another classroom had 52 students but only 37 chairs and fewer desks. The overcrowding also significantly exacerbated the extreme heat at many points during the year.
C. Failure to Meet Student Learning Needs 138. Plaintiffs’ schools also lack the capacity to meet the specific learning needs of the students they serve, which is necessary to create conditions under which children attain literacy. 139. Absence of Support to Address Trauma and Social-Emotional Health: Plaintiffs’ schools serve high numbers of low-income students, foster youth, homeless youth, and students who have experienced or witnessed violence. At Osborn Evergreen, for example, one of the walls has visible and unrepaired bullet holes from a drive-by shooting. Unaddressed exposure to trauma and adversity impedes a child’s ability to learn, and students impacted by trauma require social-emotional and trauma-informed support. But in Plaintiffs’ schools, teachers and staff are not trained to recognize or respond to childhood trauma, and counseling is not available to support children with mental health needs. For example, after a Hamilton student was kidnapped and murdered, his classmates were not provided any opportunity to grieve. No additional counselors were
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brought in, and the teachers were not offered any support or training on how to speak with the students about the tragedy. Instead, on the day the police found the boy’s body, the only school-wide reaction was an announcement by loudspeaker to remind the students, who were using their phones to share details about what happened and to communicate their grief, that cell phones were not allowed at school.
140. When children act in ways motivated by the trauma they have experienced, or act out due to embarrassment over their inability to perform basic academic tasks successfully, the schools’ response is to punish and exclude them from the classroom, rather than to implement restorative practices for support and healing.
141. Failure to Provide Instruction to English Learners (“ELs”): Plaintiffs schools also serve a number of students whose first language is not English. But despite representations to the contrary, Plaintiffs’ schools employ no teachers trained in the delivery of EL instruction and provide no dedicated EL instruction whatsoever.
142. Experiencia advertised itself as a dual language immersion school and recruited monolingual families through door-to-door solicitations, but EL students like Plaintiffs Isaias R., Cristopher R., and Esmeralda V. were largely left to fend for themselves. There were no certificated EL teachers for long stretches of
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Experiencia’s three years of operation. In the upper grades, about 20 of the approximately 80 students were English learners, but the English language class available to them covered the same elementary phrases for two years, regardless of the skill level of the individual students. As a result, multiple students, including Plaintiffs Isaias R. and Cristopher R., never obtained even basic English proficiency and were unable to follow any of the material covered in core classes unless a teacher happened to speak conversational Spanish and was willing to take time away from class to translate the lesson. Instead of being given the support that she needed in English language instruction, Plaintiff Esmeralda V.—who was more comfortable in Spanish than in English—was frequently called upon to assist her Spanish-speaking classmates by summarizing the material for them in Spanish. Some students relied on Google Translate in order to teach themselves English, although many EL students did not have access to the Internet outside of school. One student stole his history textbook so that he could translate it at home using his phone. The school made no meaningful attempts to communicate with or engage the significant number of parents who did not speak English, with the consequence that monolingual parents were frequently unable to participate actively in their children’s education. Report cards were not translated into Spanish, and where teachers did not speak Spanish, no parent-teacher meetings with monolingual parents took place. Thus, Escarle R., the mother of Plaintiffs Cristopher R. and
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Isaias R., was unaware until recently that her sons were so far behind because she received English-only report cards for them.
143. At Cody MCH, there are multiple students who do not speak or write fluently in English, yet there are no EL teachers at the school. When a family of Iraqi refugees sought to register their daughter at Cody MCH, their community school, DPS attempted to transfer the child to a school over 25 miles away because it could not support her EL needs. The teachers ultimately relied on other students who spoke Arabic to assist the EL students.
D. Unsupported and Unstable Teaching Staff 144. Plaintiffs’ schools lack a sufficient, and sufficiently stable, set of qualified and properly trained teaching staff. 145. Vacancies and Lack of Qualified, Full-Time Teachers: Given the challenging teaching and learning conditions in Plaintiffs’ schools, unsurprisingly these schools are historically difficult to staff with permanent teachers and administrators and experience high teacher turnover. Teachers in DPS are frequently subject to salary freezes, and many feel they must spend their own meager salaries to make up for shortfalls in classroom supplies and instructional materials. Heavy reliance on TFA instructors, who typically stay for only two to three years, also contributes to high turnover. Failure to provide adequate support to students who have experienced adversity also results in burnout and vicarious
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trauma among teachers. The frequent teacher turnover on Plaintiffs’ campuses
predictably creates teaching vacancies, some of which occur during the school year
because teachers cannot continue working in these conditions or they are forced to
take medical leaves.
146. In the 2015-16 school year, there were approximately 170 teacher vacancies in the nearly 100 schools that made up the DPS school system.54 In the
2016-2017 school year, there were up to 200 vacancies just before the start of the school year.55 Filling these vacancies with new teachers who possess the necessary
background to achieve success in teaching literacy proves difficult or impossible.
Instead, these classes are covered by non-certificated paraprofessionals, substitutes,
or misassigned teachers who lack any expertise or knowledge in the course
content.
147. At Hamilton, the majority of teachers have been at the school for less
than two years. Approximately 9 of the 15 teachers are new for the 2016-17
school year. The middle school science classes at Hamilton are currently taught by
54 See Ann Zaniewski, DPS Facing Surge of Midyear Teacher Departures, DETROIT FREE PRESS (Nov. 26, 2015), available at http://www.freep.com/story/news/local/michigan/detroit/2015/11/26/dps-teachersleaving/76311802/.
55 See Josh Sanburn, Inside Detroit’s Radical Experiment to Save Its Public Schools, TIME (Sept. 6, 2016), available at http://time.com/4390000/detroit-publicschools-charters-debt/; Ann Zaniewski, Detroit Schools to Hold Teacher Job Fair to Fill 200 Open Positions, DETROIT FREE PRESS (Aug. 17, 2016), available at http://www.freep.com/story/news/education/2016/08/17/detroit-teacher-jobfair/88888604/.
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a paraprofessional who states that she does not understand the material and cannot lead classroom experiments. In the 2015-16 school year, the seventh- and eighth-grade math teacher left several weeks after the start of school due to frustration with large class sizes and lack of support. He was temporarily replaced by a paraprofessional and then a special education teacher. Eventually, the highest performing eighth grade student was asked to take over teaching both seventh and eighth grade math, while the paraprofessional remained in the room to assist with classroom management. This student taught both math classes for a month. Due to overcrowding, the kindergarten and second grade classrooms were split in half early in the 2015-16 school year, but the school was unable to find additional teachers so the new classes were covered by long-term substitutes for the remainder of the school year.
148. Approximately half of the 25 teachers who started at Experiencia in the fall of 2012, including the two English-Language Arts teachers, quit by the end of the second semester. By the end of the second year, the high school science teacher had changed seven times, the high school history teacher three times, the high school math teacher more than five times, and the high school English teacher six times. After the Spanish teacher quit, teachers who were not certificated to teach Spanish but who happened to know some Spanish took over teaching the Spanish classes on a rotating schedule. After the physical education teacher quit,
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the homeroom teachers surrendered their prep periods to cover gym class until it was eliminated altogether.
149. At Osborn MST, the Chemistry and Biology classes were both taught by long-term substitutes for an entire year. When the Physics teacher was pulled out to teach another class three weeks into the 2015-16 school year, the students were redistributed into classes that were pedagogically inappropriate. For example, one student who wants to be a nurse was transferred into a French class, despite the fact that she was already taking Spanish and had requested another science class.
150. At Cody MCH, approximately 30-40% of the teachers were uncertificated TFA teachers. In the 2015-16 school year, 5 of the approximately 35 teachers quit before the end of the year. As a result, a number of classes, including Science and Health, were taught by uncertificated long-term substitutes. Even when students were fortunate enough to avoid long-term substitutes, they still frequently saw a rotating list of certificated teachers. For example, one English class had three different teachers in a single year.
151. Teacher Absences and Lack of Short-Term Substitutes: Plaintiffs’ schools also experience teacher absences of shorter duration. Teachers in these schools face appalling conditions, an almost total lack of teaching materials, and support woefully inadequate to the needs of the schools. Although many teachers
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perform heroically under these stressful and demanding conditions, others are understandably less able to cope. As a result of these stressful conditions, some teachers in Plaintiffs’ schools miss classes. Some teachers are absent as many as 50 days in one year.
152. In addition, due to the appalling school conditions, short-term substitute teachers often cannot be obtained.
153. At Hamilton, when a teacher is absent and no short-term substitute is available, classes are frequently combined so one teacher may have up to 60 students in a single classroom. The budget for short-term substitute teachers is generally exhausted by January. After this date, classes are typically covered by paraprofessionals or by teachers from other classes who have a preparation (“prep”) period. If no teacher or paraprofessional is available, the students are split up and sent to sit in other classrooms with no regard to age group or subject matter. In addition, because of the substitute shortage, teachers were told that they would be able to use only 5 of their 10 allotted sick days and would be docked pay for any additional days they took off.
154. In Plaintiffs’ high schools, other teachers must sacrifice their prep periods to cover classes for absent teachers. Students at Osborn MST, for example, estimate that they have a substitute teacher or no teacher at all during at least one, and often two, class periods a day. Osborn MST teachers estimate they
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are asked to cover for an absent teacher approximately twice per week. If no teacher is available, two classes are often combined, resulting in upwards of 60 students in a single classroom. When a teacher is asked to substitute or classrooms are combined, that teacher’s qualifications to teach the relevant subject matter are not considered. In other circumstances, classes may be covered by administrators, security guards, paraprofessionals, or no one at all. When there is no adult available to staff a classroom, sometimes students are permitted to sit in classrooms or the gym unsupervised. At Cody MCH, Jaime R. and his classmates were frequently sent to other classrooms that could accommodate all the students. They would then be shown a movie, such as Kung Fu Panda 3 or Frozen. At one point in the 2015-16 school year, so many teachers were absent and so few substitutes were available that over 80 students gathered in the gym despite no physical education class being scheduled for that time.
155. Legislation Permitting Non-Certificated Teachers: In June 2016, the State further perpetuated the shortage of qualified teachers in Plaintiffs’ schools by passing legislation permitting non-certificated instructors to teach in DPS schools. This legislation does not apply to any school elsewhere in the State. Rather, it singles out the children of Detroit for separate and inferior treatment.
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E. Lack of Accountability for Charter Schools and School Closures 156. The State’s booming number of charter schools has not addressed and cannot address the lack of access to literacy. Michigan’s charter schools are notoriously poorly performing. For African American students, two-thirds of Michigan charter districts perform below the low-performing DPS.56 The U.S. Department of Education found Michigan’s charter sector to have an “unreasonably high” representation among the state’s “priority” schools list, meaning the state’s worst performing five percent of public schools.57 157. Yet charter school authorizers and operators have significant financial incentives to open new charter schools, and almost no accountability. Under Michigan law, around 40 charter authorizing institutions—more than in any other state—are permitted to open and authorize charter schools. For each school they open, these authorizers receive up to 3% of the taxpayer funded money that goes to the charter school, regardless of how well the school performs. Mich. Comp. Laws § 380.502(6). In 2011, the cap on the number of charter schools that could be opened by certain authorizers was lifted by the State, permitting a proliferation of new charter schools, without imposing any requirements for quality control.
56 THE EDUCATION TRUST MIDWEST, ACCOUNTABILITY FOR ALL: 2016. THE BROKEN PROMISE OF MICHIGAN’S CHARTER SECTOR 8 (2016).
57 Id. at 9 (citing U.S. DEP’T OF EDUC., EDCAPS-G5 TECHNICAL REVIEW FORM (NEW) (2015), available at https://www2.ed.gov/programs/charterrehqcs/2015/republictrf.pdf).
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158. Even as all the financial incentives encourage authorizers to open more and more charter schools, charter authorizers have little or no accountability. There are no statewide standards for how an authorizer should monitor a charter’s performance or decide when it should close a charter. Nor are there academic performance standards for openings, renewals, or expansions of charter schools. Authorizers can allow for-profit companies to open and operate new schools even if other schools they already run are low-performing. By the terms of the statute, the State apparently has no power to revoke the ability of an authorizer to open or expand charter schools; it may only suspend an authorizer. Mich. Comp. Laws § 380.502(5). Yet the State has failed to use even this power to hold charter authorizers accountable. Despite the dismal track record of a number of authorizers—a report by Education Trust-Midwest rated roughly 20% of charter operators D or F, and another 20% C or “mediocre”58—none has been suspended to date.
159. The lack of standards for opening, closing, or maintaining charter schools produces an unstable educational landscape in which new charter schools pop up or disappear from one year, or week, to the next, at great cost to the students.59 School closures have a devastating impact on both individual children
58 THE EDUCATION TRUST MIDWEST, supra note 56, at 18-19. 59 For example, two weeks before the school year was set to begin, University YES Academy in Detroit abruptly announced the closure of its high
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and the community. As a practical matter, a school closure raises a host of logistical and educational problems for parents and children. Parents must find a new school, often without any help from the closing institution, that has space for their child and is accessible to the family. Parents must then start from scratch in organizing the child’s transportation to and from the school and adapting to the new school’s schedule, policies, and after school programs. For the child, a school closure means being abruptly removed from a known environment and placed into a new physical space with an unfamiliar set of teachers, students, pedagogical practices, and school disciplinary policies. Studies show that students affected by school closure are more likely to change schools again in the future, which may be due to the receiving school not being a good fit for the student. Changing schools can be particularly difficult for a student when the receiving school is underfunded, underresourced, and unable to provide the transferring student with the individualized attention necessary to integrate her into a new environment.
school program, leaving hundreds of students stranded. Students and their parents received no meaningful assistance in finding a replacement school. Rather, students were simply handed a list of schools prepared by the management company; the first listed school was run by the same management company and located 13 miles (approximately an hour and forty minutes by public transportation) from University YES. As a consequence of the late notice, dozens of students missed the opportunity to enroll in a large number of Detroit schools, whether because of missed enrollment deadlines or the fact that higher performing and/or geographically convenient schools had already reached capacity.
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160. Moreover, school closures often negatively affect the community. They are often perceived as a symbol of disinvestment and disrespect for poor communities of color, increasing those communities’ sense of discrimination and marginalization. Decrepit or abandoned buildings are thus not only symbolic harms. They also can materially hurt neighborhoods by making the area less attractive to businesses and workers, lowering property values, and detracting from the vitality of the neighborhood.
161. At Experiencia, the board voted to close the school in December 2015, although families were not notified until several months after this decision. In fact, at the same board meeting in which the board voted to close the school, the agenda included “recruitment” as an agenda discussion item, and the school continued to recruit students for months after the decision to close was made. Once students and their parents were notified of the closing, Experiencia provided them little assistance in finding a new school. Students and parents, including Plaintiffs Cristopher R. and Isaias R. and their mother Escarle R., were provided no individualized assistance in identifying a new school appropriate for English Learners. The building that formerly housed Experiencia is currently vacant, although the school sign is still standing and plastic refuse remain strewn across the grass in front of the former school.
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162. Nor is there accountability for the performance or management of charter schools themselves. Defendant Casandra Ulbrich, Vice President of the State Board of Education, stated that there are “a lot of issues, primarily . . . financial oversight and transparency,” concerning the Michigan charter school system.60 Around eighty percent of Michigan’s charter schools are run by for-profit companies, compared to about one-third in states like Florida, Ohio, and Missouri. Yet such schools are often not held to account for the way they use taxpayer dollars that fund their schools. Teacher salaries, executive compensation, vendor payments, and other expenses are often not disclosed, sometimes even to the charter school board members. In some cases, school boards let management companies handle the money and make the decisions. According to Defendant John Austin, president of the Michigan State Board of Education, “with many schools, we don’t know where the money we’re spending now is going, who’s getting rich, and at what price to the taxpayer.”61
163. This lack of transparency and accountability has led, predictably, to the mismanagement of money intended to fund the education of Detroit’s children. This is a particular problem in the for-profit charter sector, where management
60 Jennifer Dixon, Michigan Spends $1B on Charter Schools but Fails to Hold Them Accountable, DETROIT FREE PRESS (June 22, 2014), available at http://www.freep.com/story/news/local/michigan/2014/06/22/michigan-spends-1bon-charter-schools-but-fails-to-hold/77155074/.
61 Id.
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companies can steer lucrative deals to the friends and relatives of board members and school founders, and charter boards can give contracts to friends and relatives of school officials, both of which create multiple levels of conflict of interest. As former State Schools Superintendent Tom Watkins said of charter schools, “in a number of cases, people are making a boatload of money, and the kids aren’t getting educated.”62 Yet in recent years, the State has demanded less, not more, accountability from charter school operators; the longstanding requirement that the State Department of Education issue yearly reports monitoring charter school performance, Mont. Comp. Laws section 380.501a, was repealed in 2011.
VI. The State’s Failure to Implement Evidence-Based Reforms to Address Literacy
164. Defendants are aware of the disproportionate literacy deficits in Plaintiffs’ schools and the destructive consequences for Plaintiffs’ futures. Data generated and collected by the State reveals that hardly a single student has reached proficiency in Plaintiffs’ schools, and the State’s own accountability system ranks Plaintiffs’ schools in the zero to sixth percentile of the State’s schools. Moreover, recent teacher sick-outs and widespread social media campaigns have published photographs of the deplorable and unsafe conditions in Plaintiffs’ schools. In fact, the State has justified its intervention in DPS by citing declining academic achievement. Yet despite this knowledge, the State has failed
62 Id.
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to require implementation of literacy intervention programs that have proved effective in high-poverty communities, and failed to ensure that teachers with appropriate training and credentials and a track record of serving low-performing students are assigned to deliver literacy intervention services to all students performing below grade level. The State has likewise failed to ensure that Plaintiffs’ schools have safe and stable teaching and learning conditions necessary to facilitate effective literacy instruction.
165. The nation’s leading experts in literacy and urban schools agree that there are concrete, evidence-based steps that the State can and must take to ensure the students in Plaintiffs’ schools have the opportunity to attain literacy. Since 2002, the DOE’s IES has made such programs publicly available through the What Works Clearinghouse, which presents and reviews the effectiveness of literacy programs using a consistent and transparent set of standards. These programs, practices, and policies have been shown to be effective in districts serving lowincome youth with demographics very similar to those in Plaintiffs’ schools.
A. Establish an Evidence-based, Systemic Approach to Literacy Instruction and Intervention, with Appropriate Accountability Measures
166. Under the right conditions, schools can systemically implement effective evidence-based literacy programs and practices to ensure that every student learns to read in the first instance and to intervene and remediate when students fall behind. Research validating the effectiveness of these programs and
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practices shows that the quality of a school’s program, not its enrollment demographics, determines its academic performance. And interventions have been proven to effectively remediate literacy deficiencies at all grade levels.
167. Effective evidence-based literacy programs share the following components:
i. Elementary Literacy (Kindergarten to Third Grade) 168. Reading instruction in the primary grades K-3 must include instruction in three areas: the alphabetic principle, fluency, and comprehension. 169. The alphabetic principle (or alphabetics) is the idea that written spellings systematically represent spoken words. To grasp this principle, children must acquire phonemic awareness, or the ability to focus on and manipulate phonemes, which are the smallest units of spoken language. Phonemic awareness instruction benefits normally developing readers as well as children at risk for future reading problems, children with disability, and English Learners. Studies have documented that students who receive phonemic awareness training are able to learn to read more quickly than children of similar backgrounds who do not receive such training. 170. Children must also receive phonics instruction. Phonics is the use of correspondences between written and spoken language to decode or spell words. Phonics instruction helps children decode words with both regular and irregular
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spellings, helps children learn to spell, and improves reading comprehension. Systemic phonics instruction helps children at all socio-economic levels, and children with disabilities and those at risk of developing reading problems make significantly greater gains in reading with than without phonics instruction.
171. Fluency is the ability to read text with speed, accuracy, and proper expression. It depends on well-developed word-recognition skills, the ability to group words into meaningful grammatical units for interpretation, the use of punctuation, and the determination of where to place emphasis. Guided repeated oral reading procedures are effective in improving reading fluency and overall reading achievement. Such procedures have a consistent positive impact on word recognition and comprehension at a range of grade levels and for students with varying reading problems.
172. Reading comprehension is a complex cognitive process in which vocabulary learning, instruction, and development plays a critical role. In addition to using a variety of methods for vocabulary learning, students should receive direct instruction about comprehension strategies, specific procedures that guide students to develop awareness of how they are comprehending as they attempt to read and write. Research shows that students who are taught a variety of comprehension strategies experience increased ability to use such strategies, increased retention and understanding of new texts, and improved comprehension.
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ii. Adolescent Literacy (Grades 4-12) 173. Direct literacy instruction cannot end with third grade. The basic literacy skills that students should develop in early elementary school do not automatically evolve into the higher-level literacy skills needed to achieve in middle school, high school, and beyond. Literacy instruction should be embedded in content, both in language arts and in the content areas. Language arts teachers should teach strategies not as abstract concepts but as applied to content-area materials, and they should help students transfer key literacy skills to other areas. Content-area teachers should reinforce key skills by providing literacy instruction and practice in their respective subject areas, emphasizing the reading and writing practices that are specific to their subjects. 174. Research shows conclusively that older readers require literacy instruction in five areas: comprehension, motivation, word study, fluency, and vocabulary. 175. For adolescent reading instruction, comprehension is the most important component. Students must receive direct and explicit instruction in comprehension strategies. Because comprehension strategies improve students’ ability to engage in all disciplines, it should be a classroom activity for both language-arts and content-area teachers.
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176. Motivation is also essential in adolescent literacy instruction. Students require motivation and engagement in order to develop their literacy at the secondary level. Research shows that reading motivation and engagement can be improved by providing goals for reading, supporting student autonomy, providing interesting texts, and increasing reading-related social interactions among students.
177. Word study is particularly important for older students who struggle with reading at the word level. Many readers who struggle in the adolescent years are proficient at reading single-syllable words but lack strategies to decode the multi-syllable words that populate higher-level reading materials. Instruction in advanced word study teaches students to be flexible decoders who can access and employ strategies of word analysis and recognition.
178. Fluency instruction for older struggling readers can also be appropriate when combined with word-learning instruction, frequent and varied exposure to newly learned words, and supervised practice.
179. Adolescent learners need to understand the words they encounter in increasingly difficult texts and need strategies to figure out unknown words. Teachers in both language-arts classes and content-area classes should provide explicit vocabulary instruction.
iii. Assessments and Interventions
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180. In the primary grades, all students should be screened for potential reading problems at the beginning of the year and again in the middle of the year. Universal screening is a critical first step in identifying students who are at risk for experiencing reading difficulties and who might need more instruction.
181. Older readers must be screened as well. Struggling readers can be identified through initial screening assessments and specific diagnostic tests, as well as by consistently low scores on annual reading tests.
182. Research supports the use of multi-tiered intervention strategies, such as Response to Intervention, to provide the appropriate level of support to prevent or remediate reading difficulties. Under the multi-tier approach, the first tier is general instruction. Tier 2 interventions are provided to students who demonstrate problems based on screenings or show weak progress in regular classroom instruction. Tier 2 interventions involve three to four students using curricula that address alphabetics, fluency, and comprehension for 20 to 40 minute sessions, three to five times per week for at least five weeks.
183. Students who do not progress after a reasonable amount of time are provided Tier 3 interventions, which typically involve one-on-one tutoring with indepth modeling and extensive feedback.
184. Ongoing summative assessments are necessary for accountability. Summative assessment systems allow teachers to track a student throughout a
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school year and over an entire academic career, so student progress can be monitored individually, by class, by cohort, and by school.
185. Research shows that professional development for teachers has consistent positive effects on student achievement. Ongoing, evidence-based, long-term professional development promotes lasting positive changes in teacher knowledge and practice. Professional development opportunities should be built into the regular school schedule. Effective professional development will help school personnel develop a team-oriented approach to improving the instruction and institutional structures that promote student literacy.
iv. Examples of Successful Evidence-Based Programs 186. The DOE’s IES is the nation’s leading source for rigorous and independent education research, evaluation, and statistics. The IES maintains the What Works Clearinghouse (“WWC”), which identifies studies that provide credible and reliable evidence of the effectiveness of a given program, policy, or practice using a scientific, systematic, and comprehensive review process.63 The WWC reviews a wide range of education topics including literacy. Specifically, the WWC has reviewed studies that examine the impact of interventions on the following outcomes: alphabetics, general literacy achievement, reading
63 See generally WWC Procedures and Standards Handbook, WHAT WORKS CLEARINGHOUSE, INST. OF EDUC. STUDIES, http://ies.ed.gov/ncee/wwc/DocumentSum.aspx?sid=19 (last visited Sept. 12, 2016).
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achievement, reading fluency, early reading/writing, print knowledge, reading comprehension, and writing achievement.64 The WWC has determined numerous literacy interventions to be effective.65 For example, the “Literacy Express” intervention in early childhood education, the “Sound Partners” intervention in beginning reading, the “Success for All” intervention in beginning reading, and the “Project CRISS” intervention have all received strong positive effectiveness ratings with a medium to large amount of evidence.
187. Some of the most effective interventions are culturally appropriate, inquiry-based approaches that engage struggling young people with meaningful questions and interesting content. For example, Professor Catherine Snow at the Harvard Graduate School of Education has developed an intervention called “Word Generation,” which motivates young people to develop vocabulary and comprehension skills by asking questions that are relevant to their own experiences.
B. Increase Teacher Capacity and Stability 188. In order to effectively implement literacy instruction and intervention programs, teaching staffs must be supported, well-trained, and highly qualified.
64 Literacy, WHAT WORKS CLEARINGHOUSE, INST. OF EDUC. STUDIES, http://ies.ed.gov/ncee/wwc/topic.aspx?sid=8 (last visited Sept. 12, 2016).
65 Find What Works!, WHAT WORKS CLEARINGHOUSE, INST. OF EDUC. STUDIES, http://ies.ed.gov/ncee/wwc/findwhatworks.aspx (last visited Sept. 12, 2016).
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The State can implement a number of practices and policies to stabilize and professionalize the teaching force to enable the delivery of consistent, high-quality literacy instruction and intervention, including: implementing systemic, coordinated, and high-quality professional development; implementing programs designed to address secondary/vicarious trauma among educators; and providing support and incentivizing teaching in Plaintiffs’ schools.
C. Monitor and Eliminate Deplorable School Conditions that are Barriers to Learning
189. The State must implement an accountability system to ensure that Plaintiffs’ schools have the necessary teaching and learning conditions to provide access to literacy, including adequate instructional materials and course offerings, and safe, clean, and functional facilities, including the absence of vermin, extreme temperatures, and overcrowding. Dedicated instruction to meet the needs of English Learners must be provided by appropriately trained teaching staff.
D. Implement Practices to Promote Learning Readiness 190. As social science and public health research has conclusively established, exposure to trauma is a key predictor of academic failure. It is unsurprising, then, that schools that serve disproportionate numbers of young people who have been exposed to trauma are often marked by the greatest literacy shortfalls. When schools fail to meet the social-emotional and mental health needs of their students, they compromise the effectiveness of even the most faithfully
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implemented literacy programs. Therefore, a first step to ensuring that every child has a meaningful opportunity to attain literacy, particularly in school districts in which many children have been exposed to the destabilizing consequences of poverty and violence, is to promote learning readiness by implementing schooland district-wide trauma-informed practices. These practices include: training educators to understand, proactively recognize, and address the effects of complex trauma; incorporating social-emotional learning into curricula; developing restorative justice programs to build healthy relationships; resolving conflicts peacefully; avoiding re-traumatizing students through the use of punitive discipline; and providing access to mental health support.
CLASS ACTION ALLEGATIONS 191. This action is maintainable as a class action under Federal Rule of Civil Procedure 23. 192. Plaintiffs bring this class action on behalf of current and future students enrolled in Hamilton Academy, Osborn Academy of Mathematics, Science and Technology, and Osborn Evergreen Academy of Design and Alternative Energy, The Medicine and Community Health Academy at Cody, and students who attended Experiencia Preparatory Academy (collectively, “Plaintiffs’ schools”), and on behalf of the following subclasses: a. A subclass of current and future students enrolled in Hamilton Academy;
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b. A subclass of current and future students enrolled in Osborn Academy of Mathematics, Science and Technology;
c. A subclass of current and future students enrolled in Osborn Evergreen Academy of Design and Alternative Energy;
d. A subclass of current and future students enrolled in The Medicine and Community Health Academy at Cody; and
e. A subclass of past students enrolled in Experiencia Preparatory Academy. 193. Questions of law and/or fact common to the entire class and to each
subclass exist. Common questions of law and/or fact include, without limitation: • Whether Plaintiffs have a fundamental right of access to literacy guaranteed by the Fourteenth Amendment to the United States Constitution; • Whether Defendants’ policies and practices violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution by depriving Plaintiffs of their right to access to literacy and by failing to provide Plaintiffs access to literacy equal to that of other students in the Michigan Public Schools; • Whether Defendants’ system of public schools functionally excludes Plaintiffs from the public education to which they are entitled;
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• Whether Defendants’ policies and practices violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by discriminating against Plaintiffs on the basis of race;
• Whether Defendants violated the Substantive Due Process Clause of the Fourteenth Amendment to the United States Constitution by knowingly placing Plaintiffs at risk of danger through their acts and omissions concerning the maintenance of the system of public schools; and
• Whether Defendants’ practices violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and 34 C.F.R. § 100.3(b)(2), by maintaining a federally funded system of public schools in a manner that intentionally discriminates on the basis of race, color, or national origin.
194. The named Plaintiffs have claims that are typical of the claims of the class and of their subclasses. Each Plaintiff is a member of the class and/or subclass he or she seeks to represent. The named Plaintiffs and the unnamed class members all attend, will attend, or attended schools that are functionally excluded from Michigan’s statewide system of education. Moreover, as a result of Defendants’ acts, omissions, policies, and procedures that apply to named Plaintiffs and all class and subclass members, named Plaintiffs and the unnamed class members are denied the opportunity to attain basic literacy.
121

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195. The class is so numerous that joinder of individual actions by each class member is impracticable. The class includes all students at Hamilton Academy, Osborn Academy of Mathematics, Science, and Technology, and Osborn Evergreen Academy of Design and Alternative Energy, The Medicine and Community Health Academy at Cody, and the students who attended Experiencia Academy. The size of the class exceeds 1,254 students, which was the approximate number of students enrolled in the schools attended by Plaintiffs for the 2015-16 academic year. Moreover, the inclusion in the class of future members and the dispersal of the class at nine school sites make joinder impracticable.
196. The subclasses are also so numerous that joinder of all members of individual actions by each subclass member is impracticable, and the inclusion in the subclass of future members also makes joinder impracticable.
a. The size of the Hamilton Academy subclass is at least 254 students; b. The size of the Osborn Academy of Mathematics, Science and Technology
subclass is at least 266 students; c. The size of the Osborn Evergreen Academy of Design and Alternative
Energy subclass is at least 327 students; d. The size of the Medicine and Community Health Academy at Cody subclass
is at least 407 students; and
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e. The size of the Experiencia Preparatory Academy subclass is at least 338 students. 197. The named Plaintiffs will fairly and adequately protect the interests of
the class and of the subclasses. Plaintiffs are represented by experienced counsel who will adequately represent the interests of the class and subclasses.
198. Defendants have acted and refused to act on grounds generally applicable to the class and to the subclasses, thereby making appropriate final injunctive relief and/or corresponding declarative relief with respect to the class and subclasses as a whole.
CAUSES OF ACTION FIRST CAUSE OF ACTION—Violation of 42 U.S.C. § 1983 (All Plaintiffs Against All Defendants for Violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States
Constitution) 199. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 200. Defendants, who are responsible for the education of all Michigan public school students and for the system of Michigan public schools, have denied and continue to deny Plaintiffs the fundamental right of access to literacy and fundamental interest in access to literacy, as compared to other students in the
123

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State of Michigan receiving an education in Michigan Public Schools, by functionally excluding Plaintiffs from Michigan’s statewide system of public education, as described above, in violation of their substantive right to due process of law, their liberty interest, and their right to equal protection under law protected by the Fourteenth Amendment to the United States Constitution.
201. Defendants were acting under color of state law, thereby violating section 1983.
SECOND CAUSE OF ACTION—Violation of 42 U.S.C. § 1983 (All Plaintiffs Against All Defendants for Violation of the Due Process Clause
of the Fourteenth Amendment to the United States Constitution – StateCreated Danger)
202. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
203. By the acts and omissions described above, Defendants affirmatively created or increased the risk that Plaintiffs would be exposed to dangerous conditions, which placed Plaintiffs specifically at risk, and Plaintiffs were harmed as a result.
204. Defendants knew or should have known that their acts or omissions specifically endangered Plaintiffs.
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205. Defendants were acting under color of state law, thereby violating section 1983.
THIRD CAUSE OF ACTION—Violation of 42 U.S.C. § 1983 (All Plaintiffs Against All Defendants for Violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution –
Discrimination on the Basis of Race) 206. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 207. Defendants, who are responsible for the education of all Michigan public school students and for the system of Michigan public schools, have denied and continue to deny Plaintiffs the fundamental right of access to literacy and fundamental interest in access to literacy, pursuant to the Fourteenth Amendment to the United States Constitution, by intentionally discriminating against them on the basis of race. 208. Defendants have functionally excluded Plaintiffs from Michigan’s statewide system of public education on the basis of their race, denied Plaintiffs access to literacy equal to the access provided to students in other schools in the State on the basis of their race, and responded with deliberate indifference to such exclusion and such denial, as described above.
125

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FOURTH CAUSE OF ACTION (All Plaintiffs Against All Defendants for Maintaining Schools in a Manner that Discriminates on the Basis of Race in Violation of Title VI of the Civil
Rights Act of 1964, 42, U.S.C. § 2000d and 34 C.F.R. § 100.3(b)(2)) 209. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 210. Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 211. The federal regulations implementing Title VI prohibit a recipient of federal financial assistance from utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin. 34 C.F.R. § 100.3(b)(2). 212. As stated above, by its actions and inactions, Defendants have maintained a public school system without establishing standards sufficient to deliver access to literacy to Plaintiffs. Plaintiffs’ schools serve more than 97%
126

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African-American and Latino students. Even when violations have become known to the State, Defendants have taken no effective steps to remedy known violations. Defendants’ conduct intentionally discriminates against Plaintiffs on the basis of their race, color, or national origin in violation of Title VI and its implementing regulations.
FIFTH CAUSE OF ACTION (All Plaintiffs Against All Defendants for Declaratory Relief) 213. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 214. An actual and existing controversy exists between the Plaintiffs and the Defendants because Plaintiffs contend, and Defendants dispute, that Defendants’ actions and inactions as described above have violated the Fourteenth Amendment of the United States Constitution and Title VI of the Civil Rights Act of 1964, 42, U.S.C. § 2000d and 34 C.F.R. § 100.3(b)(2). 215. Plaintiffs seek a judicial declaration that the Defendants have violated this constitutional provision.
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REQUEST FOR RELIEF Plaintiffs respectfully request the following relief:
1. A determination by this Court that this action may be maintained as a class action;
2. Injunctive relief requiring Defendants and their officers, agents, and employees to ensure that Plaintiffs’ and class members have the opportunity to attain literacy, including, but not limited, to:
a. Implementation of evidence-based programs for literacy instruction and intervention, such as:
i. appropriate literacy instruction at all grade levels, including instruction in the alphabetic principle, fluency, and comprehension in grades K-3, and instruction in comprehension, motivation, word study, fluency, and vocabulary in grades 4-12;
ii. universal screening for literacy problems, including screening at the beginning and middle of the year for all students in primary grades and appropriate periodic screening of older students;
iii. timely and appropriate intervention with individual students to prevent or remediate reading difficulties;
b. Establishment of a system of statewide accountability whereby the State:
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i. monitors conditions that deny access to literacy, taking into account the identified conditions antithetical to literacy instruction in Plaintiffs’ schools, such as insufficient teacher capacity, deplorable school conditions, and failure to promote learning readiness through trauma-informed practices; and
ii. intervenes in a timely manner to address identified conditions that deny access to literacy.
c. Provision of compensatory and remedial education for all class members—including students who previously attended but no longer attend Experiencia—including, but not limited to, assessing the literacy proficiency of each student and developing an individualized plan to bring each student up to grade level;
3. The issuance of a declaratory judgment that Defendants’ actions and inaction complained of herein violate Plaintiffs’ rights under the Fourteenth Amendment of the United States Constitution and Title VI of the Civil Rights Act of 1964, 42, U.S.C. § 2000d and 34 C.F.R. § 100.3(b)(2);
4. An award of costs, disbursements, and reasonable attorneys’ fees and expenses pursuant to 42 U.S.C. § 1988 and any other applicable provisions of law; and
5. Such other relief as this Court deems just and proper.
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Dated: September 13, 2016

Respectfully submitted, PUBLIC COUNSEL

By: lWtJ;~&~ KAT YN . IDMANN
MARK D. ROSENBAUM (admission pending) KATHRYN A. EIDMAN (admission pending) ALISA L. HARTZ (admission pending) ANNE M. HUDSON-PRICE (admission pending) 610 South Ardmore Avenue Los Angeles, California 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089 mrosenbaum@publiccounsel.org keidmann@publiccounsel.org ahartz@publiccounsel.org aprice@publiccounsel.org
Attorneys for Plaintiffs

".'".-.._ _ _ __..;;>"'

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 Case 2:16-cv-13292-SJM-APP ECF No. 117 filed 07/27/18 PageID.2785 Page 1 of 40

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GARY B., et al.,

Plaintiffs,

Case No. 2:16-cv-13292

v.

HONORABLE STEPHEN J. MURPHY, III

RICHARD SNYDER, et al.,

Defendants.

______________________________/

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [60]

Plaintiffs are minor children who attend, or attended, public schools in Detroit. They

have alleged that the conditions of their schools are so poor, and so inadequate, that they

have not received even a minimally adequate education. Specifically, they alleged they

have been denied access to literacy on account of their races, in violation of their rights

under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of

the United States Constitution. They brought suit against the Michigan state officials they

believe to be responsible. Defendants filed a motion to dismiss the Complaint, principally

because they believe Plaintiffs sued the wrong parties. Defendants also contend that

Plaintiffs' alleged harm is not cognizable under the Constitution. Many amici weighed in

on the matter and the Court held a hearing. For the reasons below, the Court must grant

the motion and dismiss the case.

STANDARD OF REVIEW The Court may grant a Rule 12(b)(6) motion to dismiss if the complaint fails to allege facts "sufficient 'to raise a right to relief above the speculative level,' and to 'state a

Case 2:16-cv-13292-SJM-APP ECF No. 117 filed 07/27/18 PageID.2786 Page 2 of 40
claim to relief that is plausible on its face.'" Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). The Court will view the complaint in the light most favorable to the plaintiff, presume the truth of all well-pled factual assertions, and draw every reasonable inference in favor of the non-moving party. Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). If "a cause of action fails as a matter of law, regardless of whether the plaintiff's factual allegations are true or not," then the Court must dismiss it. Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005 (6th Cir. 2009).
DISCUSSION The Complaint contains five counts: Count One is brought under 42 U.S.C. § 1983 and alleges the deprivation of a fundamental right under the Fourteenth Amendment's Due Process Clause. Count Two is also a § 1983 claim under the Due Process Clause and alleges that Defendants, as state actors, created or increased a danger. Count Three is also a § 1983 action and alleges disparate treatment on the basis of race, in violation of the Equal Protection Clause of the Fourteenth Amendment. Count Four is brought under Title VI of the Civil Rights Act and related federal regulations and alleges that Defendants used federal funds to intentionally discriminate against Plaintiffs on the basis of race. Count Five seeks a judicial declaration that Defendants violated the Constitution and federal law.
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Plaintiffs voluntarily dismissed Counts Two and Four, see ECF 64, PgID 1445 n.11; ECF 109, PgID 2590–91, so two avenues of relief remain: the Due Process Clause and the Equal Protection Clause.
Defendants move to dismiss the Complaint on two grounds. First, they insist that they cannot be sued. According to Defendants, the State of Michigan and its officials never operated Plaintiffs' schools, so they are the wrong parties to enjoin. Moreover, Defendants contend that they are immune from suit under the Eleventh Amendment. Second, Defendants argue that access to literacy is not a constitutionally protected right, so the failure to provide such access cannot constitute a valid claim under 28 U.S.C. § 1983. They also dispute the allegation that Plaintiffs have been treated differently on account of their races.
A description of the background of the matter will help to illuminate the posture of the suit, and the background will in turn help answer whether Defendants are indeed the proper parties to be sued. Thus, the Court will begin with a description of those facts.
I. Who Controls Detroit Schools? Plaintiffs assert, "[t]he State of Michigan is ultimately responsible for complying
with all constitutional mandates regarding public education. But it has particular responsibility for the schools in Detroit, as it has controlled the [Detroit Public Schools] (and now, [Detroit Public Schools Community District]) schools since 1999." ECF 1, PgID 46, ¶ 61. Accordingly, Plaintiffs hold Defendants "responsible for the education of all Michigan public school students and for the system of Michigan public schools[.]" Id. at 126, ¶ 200. Defendants counter that though the State has a supervisory role in education and eventually appointed an emergency manager, the State never had "direct control"
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over Detroit schools—at most, one local authority supplanted another. See ECF 60, PgID 505–09.
A. Education in Michigan 1. The Structure of Authority in Michigan Schools
In Michigan, educational responsibilities begin at the state level. The Michigan Constitution requires the legislature to "maintain and support a system of free public elementary and secondary schools" and every school district must "provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin." Mich. Const. art. VIII, § 2.1 The constitution further states that "[l]eadership and general supervision over all public education . . . is vested in a state board of education." Id. § 3.
Michigan's legislature exercised its constitutional obligations by passing and periodically updating the Revised School Code. The Code governs the various types of school districts in the State, Mich. Comp. Laws §§ 380.1131, 380.11a, and requires the board of each district to "establish and carry on the grades, schools, and departments it considers necessary or desirable for the maintenance and improvement of its schools and determine the courses of study to be pursued," id. § 380.1282(1). See also id.
1 Some of the Plaintiffs attend charter schools—technically "public school academies" under the Code. ECF 1, PgID 20, ¶ 23; Mich. Comp. Laws § 380.501. The Code states that a "public school academy is a public school" under the Michigan Constitution and the relevant provisions of the Code. Id. § 380.501(1). The Michigan Supreme Court affirmed the constitutionality of the charter-school provision and concluded that public school academies are "public schools." Council of Orgs. & Others for Educ. About Parochiaid, Inc. v. Governor, 455 Mich. 557, 576, 587 (1997).
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§ 380.1278 (requiring local school boards to establish certain curricula). Still, the Code also reaffirms the state board of education's role in "leadership and general supervision of all public education[.]" Id. § 388.1009.
2. Michigan's Successive Public Acts Circumstances sometime require more state involvement—especially when those circumstances involve finances. Over the last few decades, Michigan enacted several statutory schemes permitting state officials to appoint managers in the event of financial crises. See generally Phillips v. Snyder, 836 F.3d 707, 711–12. (6th Cir. 2016) (summarizing Michigan's various statutory schemes since 1988). Michigan used those mechanisms to intervene in Detroit's public schools more than once. In 1999, Public Act 10 went into effect. The Act required Detroit's mayor to appoint a "school reform board" charged with appointing a chief executive officer. Act of March 26, 1999, §§ 372(1), 374(1). The reform board was initially composed of seven members: six appointed by Detroit's mayor, and the seventh appointed by "the superintendent of public instruction or his or her designee." Id. § 372(2)(b).2 After five years, the mayor would gain the power to appoint the seventh member as well. Id. The arrangement ended in 2004, however, when a voter referendum returned governance of Detroit Public Schools to a locally elected board. ECF 1, PgID 51, ¶ 69; ECF 60, PgID 506. In 2008, the state again became involved. Plaintiffs assert that the Governor "invoked Public Act 72 to appoint an Emergency Financial Manager" for Detroit Public Schools. ECF 1, PgID 51, ¶ 69. Public Act 72, also known as the "Local Government
2 Plaintiffs assert that the Governor of Michigan appointed the seventh member. ECF 1, PgID 50, ¶ 68.
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Fiscal Responsibility Act," went into effect in 1990 and has since been repealed. But in 2008, it required the Governor to appoint an emergency financial manager for the district if certain financial conditions in a school district occurred. Mich. Comp. Laws § 141.1238(1). By the terms of the Act, the State's superintendent of public instruction prepared a list of potential nominees, the State's board of education narrowed the list down to three candidates, and the Governor made a final selection from them. Id. Plaintiffs concede that the emergency financial manager "shared power" with the locally elected school board, but aver the manager nevertheless "exercised authority not only over financial decision-making, but some educational decision-making as well." ECF 1, PgID 51, ¶ 69. Although the Complaint does not go into further detail, the characterization is consistent with the broad powers granted to the manager under the Act. See generally Mich. Comp. Laws §§ 141.1240, 141.1242 (repealed 2013).
In 2011, the emergency manger gained more power in governing the affairs of Detroit schools. That year, Michigan repealed Public Act 72 and replaced it with Public Act 4, the "Local Government and School District Fiscal Accountability Act." Public Act 4 did not last long—Michigan voters rejected it by referendum the following year—but the legislature soon replaced it with the very similar Public Act 436, which remains in effect. See Mich. Comp. Laws § 141.1541, et seq. Just as with the prior Public Acts, 4 and 436 also required the Governor to appoint a review board principally composed of state actors. Mich. Comp. Laws § 141.1512(4) (repealed by Prop. 12-1, Aug. 8, 2012); Id. § 141.1544(4). But the Acts also empowered the emergency managers to "[e]xercise solely, for and on behalf of the school district, all other authority and responsibilities affecting the school district that are prescribed by law to the school board and
6

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superintendent of the school district." Mich. Comp. Laws § 141.1520(f) (repealed by Prop. 12-1, Aug. 8, 2012); Id. § 141.1554(f).
3. Priority Schools and the Education Achievement Authority The State's interventions have not always been finance-driven. Detroit students' academic performance also prompted State intervention through additional measures: the designation of Priority Schools and the creation of the Educational Achievement Authority. Since 2010, the Code has required the State's Superintendent of Public Instruction to publish a list of the State's lowest-performing schools and place those schools "under the supervision of the state school reform/redesign officer," who is also known as the "SRO." Mich. Comp. Laws § 380.1280c. A school's designation as a "Priority School" triggers steps to devise a plan, including "input from the local teacher bargaining unit and the local superintendent." Id. § 380.1280c(2). One outcome of the requirements has been the creation of a "state school reform/redesign school district" over which the SRO acts as the superintendent. Id. § 380.1280c(6). The SRO "may exercise all the powers and duties otherwise vested by law in the school board that previously operated [the] school" other than taxation and borrowing. Id. § 380.1280c(6)(b). Notably, the SRO "accedes to all the rights, duties, and obligations of the school board with respect to that school." Id. All of the schools attended by Plaintiffs (that have not already closed) have been designated as "Priority Schools" and are supervised by the SRO. ECF 1, PgID 52, ¶ 70. The State has also intervened in Detroit schools through the Education Achievement Authority (EAA). Michigan law permits school districts and other governmental entities (with the Governor's approval) to enter into "interlocal agreements" to share powers and resources. Mich. Comp. Laws §§ 124.502, 505a, 510(1). Through
7

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those agreements, the government entities can create new legal entities, such as commissions, boards, or councils, which are then given significant powers. Id. § 124.507(1)–(2). In 2011, an emergency manager acting in the stead of the Detroit Public Schools' board entered into an interlocal agreement with Eastern Michigan University's Board of Regents that transferred 15 Detroit schools3 into a new, statewide district. ECF 1, PgID 54, ¶ 75, ECF 64, PgID 1453. Pursuant to the agreement,
Seven of the eleven members of the EAA's board of directors [were] appointed by the Governor, and the Governor also appoint[ed] the executive committee from among the board members. The executive committee then appoint[ed] the EAA chancellor, who ha[d] great autonomy and control over the administration of the EAA schools. ECF 1, PgID 54–55, ¶ 75. The EAA has since disbanded. B. Supervision or Control? In light of the foregoing, there is no question that the State has been heavily involved with Detroit schools for some time. Indeed, Public Act 10 went into effect before any of the Plaintiffs were of school age, and in most cases, before they were even born. There likewise is no question that Michigan law imbues the emergency managers—under any of their various legal descriptions—with significant power and authority to conduct the affairs of Detroit schools. The question, then, is whether the State's involvement described here makes its actors the proper parties to sue in the case. Defendants suggest that the answer is no and direct the Court to Phillips v. Snyder, 836 F.3d 707 (6th Cir. 2016). There, voters and elected officials sued Michigan's Governor and Treasurer and argued that Public Act 436 violated the United States
3 The EAA did not govern any of the named Plaintiffs' schools. But the putative class described in the Complaint would include students who attended EAA schools.
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Constitution as well as the Voting Rights Act. Phillips, 836 F.3d at 710. Specifically, the plaintiffs argued that the appointment of emergency managers "violate[d] their substantive due process right to elect local legislative officials." Id. The Court of Appeals affirmed the district court's dismissal of the due-process claims because "given the need for states to structure their political subdivisions in innovative ways, there is no fundamental right to have local officials elected." Id. at 715 (relying upon Sailors v. Bd. of Educ., 387 U.S. 105 (1967)). Arguably, the holding implicitly recognized that the emergency managers at issue were in fact local officials, but that question was not before the court and the opinion did not decide the matter.
Defendants also direct the Court to an earlier case, Moore v. Detroit Sch. Reform Bd., 293 F.3d 352 (6th Cir. 2002). There, students and teachers alleged Public Act 10 violated the Voting Rights Act, the United States Constitution, and Michigan's Constitution. Similar to the plaintiffs in Phillips, the Moore plaintiffs challenged the appointive nature of the School Reform Board created under the Act. Moore, 293 F.3d at 356. The Court of Appeals found Public Act 10 to be constitutional and noted that it satisfied rational-basis review because "[t]he Michigan Legislature was entitled to believe that [Public Act 10] would address the problems that the legislators perceived to exist" in Detroit's schools and the schools' sheer size "provide[d] a rational basis for adopting a different approach to governance." Id. at 371. But once again, the Court of Appeals did not address whether the appointed board was effectively an arm of the state.
Following the motion hearing in this case, Defendants submitted two supplemental and, as yet, unpublished authorities: Guertin v. Michigan, No. 16-cv-12412, 2017 WL 2418007 (E.D. Mich. June 5, 2017), and Gulla v. Snyder, No. 16-000298-MZ (Mich. Ct.
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Cl. Aug. 16, 2017). ECF 110. Both opinions concern the Flint water crisis and the role and status of emergency managers. Defendants aver that the cases support the proposition "that the State of Michigan does not operate or control schools in the City of Detroit because emergency managers are appointed local officials." ECF 110, PgID 2600.
Neither case, however, gives the Court particular guidance on the question now before it. In Guertin, Flint residents sued the Governor, Flint's emergency manager, and others, alleging that they actively concealed from residents the dangerous lead levels in the water. Guertin, 2017 WL 2418007, at *1. The governmental defendants argued that they were acting as an arm of the state and therefore entitled to immunity under the Eleventh Amendment of the Constitution. Id. at *14. The district court employed the Sixth Circuit's four-factor test to "determine whether the city defendants [were] an arm of the state," and ultimately concluded that they were not. Id. at *14–15 (applying Kreipke v. Wayne State Univ., 807 F.3d 768, 775 (6th Cir. 2015)). After finding that the "neardeterminative factor" of whether the state would be liable for any judgment weighed against the defendants, the court also concluded that "under state law, an emergency manager is a municipal agent and thus not subject to the protections of Eleventh Amendment Immunity." Id. at *15 (citing Kincaid v. City of Flint, 311 Mich. App. 76, 87– 88 (2015)). And Defendants rely on that assertion here.
Whether Defendants enjoy Eleventh Amendment immunity is a separate question from the broader inquiry of whether any of them could be said to have controlled Detroit schools.4 Any persuasive value of Guertin at this stage of the litigation is therefore misplaced. And though Kinkaid makes clear that emergency managers "act[] only on
4 The Court will undertake that inquiry below. 10

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behalf of numerous local officials," it also confirms that they "serve[] at the pleasure of the governor." 311 Mich. App. 76, 88 (2015) (citing Mich. Comp. Laws §§ 141.1515(5)(d), 1549(3)(d)) (emphasis original). Neither case answers the question of whether the Governor and his or her appointees should be held responsible for the conditions in Detroit schools.
Gulla v. Snyder is also not helpful. There, the Court of Claims reviewed the text of Public Act 436 to determine whether emergency managers are state actors. ECF 110, PgID 2707–09. But that analysis attempted to ascertain only whether that court had jurisdiction to hear the case under Michigan's Court of Claims Act and concluded only that: "emergency managers are not state officers for the purpose of MCL 600.6419(1)(a)." Id. at 2709 (emphasis added).
Even so, the Michigan Court of Appeals roundly criticized the Gulla opinion in a more recent, published opinion. See Mays v. Snyder, No. 335555, 2018 WL 559726, at *14 n.14, — N.W.2d — (Mich. Ct. App. Jan. 25, 2018). And the Mays court held precisely the opposite: "an emergency manager operates as an administrative officer of the state. Further, it is beyond dispute that at a minimum, an emergency manager must be characterized as an employee of the state." Id. at *14.
Defendants are not emergency managers. Rather, they are principally members of the State's Board of Education. The Governor, the Superintendent of Instruction, the Director of Michigan's Department of Technology, and the SRO are also defendants. As the Court explained above, however, those parties were responsible for the selection and appointment of the emergency managers. Emergency managers "serve[d] at the pleasure" of the Governor and ultimately the Governor decided when the financial
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emergency necessitating intervention was complete. See Mich. Comp. Laws §§ 141.1549(3)(d), 1562; but see id. § 141.1549(6)(c) (permitting the local government to remove the emergency manager after a year and a half with a supermajority). Nevertheless, all of the Defendants had a role in the designation and supervision of Priority Schools. In particular, Defendant Baker, as SRO, exercised significant control over schools.
What Phillips, Moore, and other cases5 suggest is that Detroit residents have repeatedly pushed back against the Public Acts and state actions that supplanted local control. At each step, courts affirmed the legality of the State's interventions. Now, facing the deplorable conditions alleged in the Complaint, Detroit students seek to hold someone responsible. They have adequately pled that state actors effectively control the schools, at least in part, and are therefore proper parties. II. Plaintiffs' Argument Defined
Before the Court proceeds further, one point is in order. The parties dispute whether Plaintiffs are asserting a right to literacy or a right of access to literacy. Defendants assert that Plaintiffs initially argued that Defendants denied them the right to "literacy" but then changed course and asserted a right to "access to literacy." ECF 96, PgID 1854. Defendants are incorrect: from the beginning of the case, Plaintiffs couched the claim in terms of the right to "access to literacy." See, e.g., ECF 1, ¶¶ 1, 4, 6–9, 19– 20. And that phrasing makes a difference here. Literacy is of course an outcome of
5 E.g., Martin v. Murray, 309 Mich. App. 37 (2015), in which the Michigan Court of Appeals affirmed an emergency manager's exclusive authority to fill vacancies on the Detroit Public Schools' Board of Education over the objections of its other members.
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education, whereas "access to literacy" speaks to an opportunity; and an opportunity is precisely what the Plaintiffs describe. See, e.g., id. at ¶¶ 34–35, 47, 57, 61, 91; cf. Access, Black's Law Dictionary (10th ed. 2014) ("A right, opportunity, or ability to enter, approach, pass to and from, or communicate with"). The proper inquiry is therefore whether Plaintiffs have identified anything Defendants have done or are affirmatively doing to either (1) violate Plaintiffs' alleged substantive right of access to literacy or (2) deny Plaintiffs access to literacy while granting it to others similarly situated. III. Standing
The Constitution limits federal courts' jurisdiction to cases and controversies. U.S. Const. art. III, § 2, cl. 1. A plaintiff's standing "is an essential and unchanging part" of the case-and-controversy requirement and for that reason, the party invoking federal jurisdiction bears the burden of establishing three elements: injury in fact, causal connection, and redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). An injury in fact is an "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical" Id. at 560 (internal citations omitted). The causal-connection, or "traceability" element, requires the complained-of injury to be "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Id. (alterations and internal citations omitted). Finally, to be redressable means that it is likely (and not merely speculative) that "the injury will be redressed by a favorable decision." Id. at 561 (quotation marks omitted). Defendants raise standing arguments based on all three requirements.
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A. Injury in Fact Defendants argue that Plaintiffs lack standing because they have not demonstrated an invasion of any legally protected interest. In support, they suggest that "federal courts have never deemed literacy to be a legally protected interest." ECF 60, PgID 512. In addition, they maintain that Plaintiffs "have not shown an injury that is concrete and particularized, or even actual or imminent." Id. Defendants' first argument is premature. The Court discusses infra whether access to literacy is a fundamental right. At the standing stage, however, the Court must consider the more general claim that Defendants violated Plaintiffs' due process rights. Cf. Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1092 (10th Cir. 2006) (en banc) ("For purposes of standing, the question cannot be whether the Constitution, properly interpreted, extends protection to the plaintiff's asserted right or interest. If that were the test, every losing claim would be dismissed for want of standing."). Plainly, a plaintiff who alleges a violation of his right to due process states a legally protected interest, and Plaintiffs have done so here. Still, Defendants posit that the Complaint amounts only to a "generalized grievance" and fails "to identify anything Defendants are affirmatively doing to violate [Plaintiffs'] alleged right to literacy." ECF 60, PgID 513. Accordingly, they conclude that Plaintiffs have not pled a violation that is concrete, particular, actual, or imminent. The Court disagrees. Plaintiffs allege that their school buildings, unlike those of other Michigan students, are replete with conditions "that make learning nearly impossible," and identify them with specific photographic allegations. See ECF 1, ¶¶ 119–37. They allege that their schools, unlike other Michigan students', lack enough teachers to hold classes in which they would learn to read. Id. at ¶¶ 144–54. They allege that, unlike other Michigan
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students, they lack books necessary to attain literacy. Id. at ¶¶ 79, 103–04, 107, 113–15.6 Those are concrete, particular, actual injuries that satisfy the standing requirement under both the Due Process claim and the Equal Protection claims.
B. Traceability Traceability is also satisfied. Defendants rightly point out that Plaintiffs must allege "which allegations apply to which defendant," ECF 60, PgID 481, and Plaintiffs have done so. Although the Complaint principally refers to actions (and inactions) of "the State," it also plainly lays out each Defendant's position in the State government and how that position relates to the operation of Detroit schools. See ECF 1, ¶¶ 28–32. For example, in paragraph 73, Plaintiffs allege that "the State has appointed four emergency managers and one transition manager since 2009 without regard to whether any of these individuals possessed professional competence or experience in the area of K-12 education." Id. at 53. As alleged in the Complaint and further explained supra, the Governor selects a school district's emergency manager based upon a list provided by the State's Board of Education and Superintendent of Public Instruction, all of whom are defendants. See id. at 48–51. In paragraph 70, Plaintiffs allege that the "SRO is charged with creating the necessary conditions for sustainable and positive student outcomes" and failed to do so. Id. at 52 (quotation marks and alteration omitted). The paragraph notes that the SRO (who is a Defendant) has been within the purview of both the Department of Education
6 Paragraph 116 and others implicate an inadequacy of books on subjects such as history and science. Because the alleged right specifically concerns literacy, it is not clear whether shortcomings other than the narrow task of teaching children to read are of consequence in the suit. But because other portions of the Complaint specifically concern access to literacy, the Court need not now address the matter.
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and the Department of Technology, Management, and Budget (the directors of both are defendants). Id. And paragraph 65 notes that under Michigan law, the State School Board has supervisory powers over public school districts and charter schools. See id. at 49. Traceability is therefore satisfied.
C. Causality The Complaint also provides the necessary description of a causal chain. As pled, Defendants are the parties "responsible for the education of all Michigan public school students and for the system of Michigan public schools" as well as being "particular[ly] responsibl[e] for the schools in Detroit" due to the State's interventions. ECF 1, ¶¶ 200, 207, 61. Michigan law requires students to attend school. Mich. Comp. Laws § 380.1561. If access to literacy is a fundamental right, Defendants would be liable for depriving Plaintiffs of it. See ECF 1, ¶ 200. And even if it is not a fundamental right, Defendants would be liable if they "denied Plaintiffs access to literacy equal to the access provided to students in other schools in the State on the basis of their race[.]" Id. at ¶¶ 208, 212. The causality requirement is therefore satisfied. D. Redressability Finally, Defendants insist that the relief sought could not redress the alleged injuries. To begin, they note that some of the Plaintiffs no longer attend the schools they have complained about, and the Complaint does not disclose their new schools, so there is no actual or imminent injury to redress.7 ECF 60, PgID 513. They also note that "[e]ven
7 Plaintiffs actually raised the point when they argued that there was no concrete or particularized injury. As is often the case with standing questions, the issues are tangled up. But the change of school defeats neither the injury-in-fact requirement, nor redressability.
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if Plaintiffs receive a favorable decision, it is unclear whether the children's individual injuries will be relieved[.]" Id. at 514. Many more factors affect a child's learning and academic success so "there is no guarantee that the children will become literate." Id.
Those statements are true, but again misapprehend the Plaintiffs' theory. Plaintiffs do not allege the deprivation of literacy, nor an entitlement to it; they plead only for access to literacy. It may be that some students unfortunately do not become literate—even with the benefit of all the measures Plaintiffs demand. But if they are given access to it, then the injury alleged by Plaintiffs would be redressed.
As for the change-of-schools argument: even if Defendants were correct that changing schools makes redressability impossible, the rest of the Plaintiffs still remain in Detroit schools and more could be included if any one Plaintiff prevails in certifying a class. So at most, Defendants' standing argument would knock out a few of the Plaintiffs, and the case would proceed forward. But redressability is possible even for the Plaintiffs who changed schools or matriculated because the alleged injury is the denial of access to literacy and part of the relief requested is remedial education for former students. ECF 1, PgID 132. Receiving belated access would redress their prior deprivations. IV. Immunity Under the Eleventh Amendment
Even an otherwise actionable suit must be halted at the motion to dismiss stage if the defendants are immune under the Eleventh Amendment. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145 (1993). Under the Amendment, an "unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 662–63 (1974). Defendants insist that, as state actors sued in their official capacities, they are immune.
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Eleventh Amendment immunity is nuanced. Under the doctrine set forth in Ex parte Young, 209 U.S. 123 (1908), "a suit challenging the constitutionality of a state official's action is not one against the State," but is instead against the officer who is "stripped of his official or representative character" and "subjected to the consequences of his official conduct." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984). The relief sought, however, must be forward-looking: "[W]hen a plaintiff sues a state official alleging a violation of federal law, the federal court may award an injunction that governs the official's future conduct, but not one that awards retroactive monetary relief." Id. at 102–03 (applying Edelman v. Jordan, 415 U.S. 651 (1974)). Courts may nonetheless "enjoin state officials to conform their future conduct to the requirements of federal law, even though such an injunction may have an ancillary effect on the state treasury." Quern v. Jordan, 440 U.S. 332, 337 (1979).
Defendants insist that Plaintiffs' requested relief is not "a request for a prospective declaration or rights as much as an expensive attempt to procure an improper remedy for an alleged past breach," similar to the relief sought in Edelman. ECF 60, PgID 516. Plaintiffs counter that although the Complaint "point[s] out the extensive harm caused by Defendants' past wrongful actions to demonstrate the unconstitutionality of those actions, the only remedy Plaintiffs seek is injunctive and declaratory relief compelling Michigan officials' prospective compliance with the Constitution and federal law[.]" ECF 64, PgID 1419. They contend that the relief they seek is therefore more in line with the relief contemplated in Ex parte Young. Id.
The Court agrees with Plaintiffs. The relief they seek is unquestionably sweeping— and undoubtedly costly—but it is prospective and injunctive in nature. See ECF 1, PgID
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131–32. Plaintiffs ask the Court to issue "a declaratory judgment that Defendants' actions and inaction" violate their rights and an injunction requiring Defendants to ensure that Plaintiffs (and putative class members) "have the opportunity to attain literacy," pursuant to a non-exhaustive list of precise programs. Id. As the Court is particularly well aware:
Reading and speech deficiencies cannot be eliminated by judicial fiat; they will require time, patience, and the skills of specially trained teachers. That the programs are also 'compensatory' in nature does not change the fact that they are part of a plan that operates prospectively to bring about [] delayed benefits[.] Milliken v. Bradley, 433 U.S. 267, 290 (1977). Whether Plaintiffs are entitled to the requested relief is a separate question, but the relief does not run afoul of the Eleventh Amendment. Defendants are not immune from suit. V. The Rooker-Feldman Doctrine and Res Judicata One final matter stands between the Court and consideration of the merits. Defendants assert that the Rooker-Feldman doctrine bars Plaintiffs' claims because the instant suit essentially seeks to undo the state court ruling in Moore v. Snyder, No. 16000153-MM (Mich. Ct. Cl. Aug. 4, 2016), ECF 60-10.8 Tangentially, they also assert that the Moore decision bars the instant suit under res judicata. The Rooker-Feldman doctrine takes its name from two cases with similar fact patterns: Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). In both cases: [t]he losing party in state court filed suit in a U.S. District Court after the state proceedings ended, complaining of an injury caused by the state-court judgment and seeking federal-court review and rejection of that judgment. Alleging federal-question jurisdiction, the plaintiffs in Rooker and Feldman
8 For convenience, the Court will cite to the slip copy of the order Defendants included as an exhibit to their motion.
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asked the District Court to overturn the injurious state-court judgment. [The Supreme Court] held, in both cases, that the District Courts lacked subjectmatter jurisdiction over such claims, for 28 U.S.C. § 1257 "vests authority to review a state court's judgment solely in [the Supreme Court]." Skinner v. Switzer, 562 U.S. 521, 531–32 (2011). The doctrine has limited scope, and the Supreme Court has emphasized that it is confined to "cases brought by state-court losers inviting district court review and rejection of the state court's judgments." Id. (alterations omitted). The state-court judgment at issue here is the Michigan Court of Claims's dismissal of the complaint in Moore v. Snyder. That case revolved around several Michigan laws that split Detroit Public Schools into two entities: the Qualifying School District (which is responsible for collecting taxes and discharging debts) and the Community District (which oversees the day-to-day operations of the schools). The plaintiffs made two principal claims: (1) the procedure used to pass the laws violated the Michigan Constitution so the laws were unenforceable, and (2) the laws violated the Equal Protection Clause of the U.S. Constitution because they permitted uncertified teachers to teach in the Detroit schools while every other Michigan district required certified teachers. See ECF 60-10, PgID 1313. The Court of Claims dismissed both claims, but for different reasons. The court determined that it lacked jurisdiction over the procedural claim because Michigan law requires parties to bring those claims in the Court of Appeals, not the Court of Claims. Id. at 1315. And the court dismissed the equal-protection claim because it was not ripe. Id. at 1316. Although the law had taken effect, the board empowered to hire uncertified teachers had not yet been elected. Unless and until an uncertified teacher was hired, the claim was premature. Moreover, the plaintiffs sued only Governor Snyder, who, the court
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pointed out, would not be involved in any future hiring. Id. The Court opined, "it would appear that the 'appropriate official' is or will be a local official" of the newly formed school district, but this observation was not part of the court's holding. See id.
Despite an overlap of topics, the reasoning and ruling in Moore does not implicate Rooker-Feldman. The Plaintiffs here were not parties in Moore and they have not alleged any harms resulting from the Moore judgment. Thus, the Rooker-Feldman doctrine is inapplicable. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (recognizing that the Rooker-Feldman doctrine "is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments").
Res judicata also does not establish a bar. Res judicata prevents a party from bringing a second suit when "(1) the prior action was decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the second case was, or could have been, resolved in the first." Adair v. State, 470 Mich. 105, 121 (2004); see also Nevada v. United States, 463 U.S. 110, 129–30 (1983). The constitutional violations alleged in Moore are separate from the violations alleged here. Additionally, the Moore court failed to reach the merits of any of the arguments; it dismissed the procedural claim on jurisdictional grounds and the equal-protection claim on ripeness grounds. It would seem, then, that the Court's "opinion that Plaintiffs have sued the wrong party" is dicta. ECF 60-10, PgID 1316. But even so, the Governor was the wrong party in Moore because the plaintiffs sought to enjoin him from tasks assigned to a community school district official. Compare ECF 60-9, PgID 1189 (seeking injunction of Snyder "from taking any executive action toward implementation of" a specific law) with ECF 60-10, PgID 1316
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(stating that the statute granted executive authority to community school district official). And finally, as Plaintiffs note, they are not in privity with the Moore plaintiffs, so the doctrine is inapplicable. ECF 64, PgID 1421 n.5.
Neither the Rooker-Feldman doctrine nor res judicata prevent Plaintiffs from proceeding in this suit. VI. The Constitutional Question
The proposition that persons are constitutionally entitled to some amount of education is not new. In the aftermath of a landmark California Supreme Court case in 1971,9 the U.S. Supreme Court took up San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). Rodriguez set in motion a series of Supreme Court cases that shaped how courts evaluate constitutional claims concerning public education. Plaintiffs' theory emerges from those precedents, so the cases merit some description here.
A. A Short History of the Supreme Court's Right-to-Education Cases Rodriguez concerned a state education funding mechanism. Beginning in the 1940s, Texas took a two-stage approach to funding its public school districts. A statewide fund provided about one-half of each district's budget. Local governments could then choose the taxation methods for raising the rest of the money. Most districts used local
9 In Serrano v. Priest, 487 P.2d 1241 (Cal. 1971), a putative class of California schoolchildren alleged that their state's funding scheme violated the Equal Protection Clause of the Fourteenth Amendment. California's Supreme Court agreed that the Plaintiffs had stated a valid claim and concluded that public-school financing systems that result in "wide disparities in school revenue" violate the Equal Protection Clause and recognized that "the right to an education in our public schools is a fundamental interest[.]" Serrano, 487 P.2d at 1244; see also San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29, 56 (1973) (recognizing the impact of Serrano).
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property taxes to pay for education, but in districts with higher property values, schools were funded at significantly higher rates than other districts. Students from one of the lowest-funded districts, therefore, claimed the funding scheme violated the Equal Protection clause.
The Supreme Court disagreed. First, the Court determined that rational-basis review—and not strict scrutiny—governed its analysis because education is not a fundamental right and because wealth is not a suspect classification. Rodriguez, 411 U.S. at 44. Then, the Court reaffirmed that the state had a legitimate interest in conferring to local governments the power and flexibility to devise their own taxation schemes. Id. at 55. The Court therefore concluded that the state's school funding system was rationally related to that interest. Id.
The Court also made a few significant distinctions. It explained that "[t]he argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth." Rodriguez, 411 U.S. at 23. And it noted that "[n]o scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact." Id. at 41. So the Court affirmed Texas's funding scheme and it remained intact.
Plyler v. Doe, 457 U.S. 202 (1982) was another case from Texas that the Supreme Court decided nine years later. There, the state required children who were not in the country legally to pay tuition if they wished to attend public schools. Again, the State insisted that the law was rationally related to a legitimate state interest, and was "simply
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a financial measure designed to avoid a drain on the State's fisc[.]" Plyler, 457 U.S. at 207. The Court again recognized that education is not a fundamental right and also held that undocumented aliens (and their children) are not a suspect class. But the Court nevertheless ruled in favor of the plaintiffs and struck down the law because it concluded the State's justifications for the law were "wholly insubstantial in light of the costs involved to these children, the State, and the Nation." Id. at 230.
Four years later, the Court decided Papasan v. Allain, 478 U.S. 265, 289 (1986). In 1817, the federal government granted land to the then-new state of Mississippi. The federal government had already divided the land into townships, and a portion of each township was to be set aside for schools. Granted land reserved for the Chickasaw Tribe also contained a portion to be set aside for schools. But the State sold the land for the Chickasaw schools and lost the ensuing funds through a failed investment. From then on, the State paid interest on the money it lost at a statutorily fixed rate. By 1984, Mississippi schools received their funding, in part, based on the revenues from their townships' granted lands or—in the case of the Chickasaw—the State's interest payments. But the revenues from the lands greatly exceeded the interest payments, which meant that the Chickasaw school districts received substantially less funding: $0.63 per Chickasaw pupil versus $75.34 per pupil in the rest of the state. Ultimately, the Court remanded the case and framed the question like this:
Given that the State has title to assets granted to it by the Federal Government for the use of the State's schools, does the Equal Protection Clause permit it to distribute the benefit of these assets unequally among the school districts as it now does? Id. at 289.
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The Court in Papasan also made two important observations. It recalled that the Rodriguez Court "declined to apply any heightened scrutiny based either on wealth as a suspect classification or on education as a fundamental right," id. at 283–84, and that the Plyler Court, "reiterated that education is not a fundamental right," id. at 285. Nevertheless, the Papasan Court still noted that the Court "has not yet definitively settled the questions whether a minimally adequate education is a fundamental right and whether a statute alleged to discriminatorily infringe that right should be accorded heightened equal protection review. . . . Nor does this case require resolution of these issues." Id. at 285–86. On remand, however, the parties resolved their dispute with a consent judgment, so no court established further precedent on the matter. Papasan v. United States, No. DC 81-90-B-O, 1989 U.S. Dist. LEXIS 17535 (N.D. Miss. Feb. 21, 1989).
Two years after Papasan, the Court walked a fine line in Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450 (1988). There, North Dakota permitted some school districts to charge a user fee for bus transportation. A student of modest means refused to pay the fee and claimed the law violated the Equal Protection Clause because it deprived those who could not afford to pay the fee "minimum access to education." Kadrmas, 487 U.S. at 458. Because the girl "continued to attend school during the time that she was denied access to the school bus" the Court concluded that she was raising two separate arguments: (1) "the busing fee unconstitutionally places a greater obstacle to education in the path of the poor than it does in the path of wealthier families," or (2) "the Equal Protection Clause affirmatively requires government to provide free transportation to school, at least for some class of students that would include [the plaintiff student]." Id.
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The Court rejected both arguments. It explained that a statute that affects the wealthy and the poor differently is not "on that account alone" subjected to strict equal protection scrutiny. Id. The Court had never "accepted the proposition that education is a 'fundamental right,' like equality of the franchise, which should trigger strict scrutiny when government interferes with an individual's access to it." Id. The Court therefore determined that the statute was not subject to strict scrutiny and satisfied rational basis review. Notably, however, Justice Marshall dissented and cited the same cases the Court had relied upon (Rodriguez, Plyler and Papsan) in the following footnote:
The Court therefore does not address the question whether a State constitutionally could deny a child access to a minimally adequate education. In prior cases, this Court explicitly has left open the question whether such a deprivation of access would violate a fundamental constitutional right. That question remains open today. Kadrmas, 487 U.S. at 466 n.1 (Marshall, J., dissenting) (internal citations omitted). B. The Applicability of the Education Cases Defendants contend that the foregoing line of cases compels the Court to grant their motion. In their view, the right to literacy—or the right of access to literacy—is foreclosed by the Supreme Court's pronouncements that education is not a fundamental right and that disparate access to it based on wealth does not trigger heightened scrutiny under the Equal Protection Clause. The questions raised in the instant case, however, are different from the prior cases in two respects. First, the right alleged is "access to literacy"—a distinct concept from the bare right to education or the right to an equally funded education. Second, unlike in Rodriguez, Plyler, Papasan, and Kadrmas, Plaintiffs are not challenging the validity of a state law or the State's educational structure or funding scheme. Plaintiffs' suit confronts their perceived dilemma: the laws are valid, the authority of school officials is valid, school
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attendance is compulsory, but they are not given any meaningful education at all. Thus, the claims here differ from those in the preceding cases.
In Rodriguez, the plaintiff students were accorded "an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process." 411 U.S. at 37. Here, Plaintiffs assert that they have not been given that opportunity. The Rodriguez Court specifically avoided ruling on whether the functional deprivation of literacy access would violate the Due Process Clause. See id. at 36–37 ("Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short."). Because Rodriguez did not reach the argument posed in Plaintiffs' complaint, it is not dispositive.
In Plyler, the Court reviewed a statute requiring alien children to pay tuition that effectively barred them from receiving a basic education. The Court weighed the societal cost of the deprivation against the state's justification for the law (state finances), and concluded that, on the evidence before it, the state's justification was irrational. At oral argument in the present case, Plaintiffs' counsel suggested that the Complaint alleges an analogous claim because "having a system that does not provide teachers, books, courses and the conditions conducive to learning fails even a rational basis test." ECF 109, PgID 2592. Although that may be so, the ambiguity of the phrase "having a system" makes this dispute more abstract than Plyler. The statutes that compose Michigan's "system" have already been determined to be valid and no statute is specifically challenged in the case. Rather, while Plaintiffs insist that they have not received a basic,
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minimal education at all, they reach that conclusion by alleging that Defendants have not done enough. Plyler is therefore highly instructive, but not wholly dispositive.
In Papasan, the terms of the Court's remand prevented a holding on the equalprotection claim and the Court never reached the fundamental-right argument because of its threadbare pleading—a finding that cannot be levied in this case. And even so, the factual scenario was inapposite to the allegations here:
The petitioners do not allege that schoolchildren in the Chickasaw Counties are not taught to read or write; they do not allege that they receive no instruction on even the educational basics; they allege no actual facts in support of their assertion that they have been deprived of a minimally adequate education. Papasan, 478 U.S. at 286. The case is therefore not dispositive. Kadrmas's focus on a specific statute sets it apart from this case too, but its facts make it distinct in another way. The plaintiff student in Kadrmas did actually attend school, even though she was denied access to the bus, and that fact led the Court to expressly rest its reasoning on the premise that she was not denied access to education, but that she was merely burdened in securing it. See 487 U.S. at 458. Plaintiffs' theory in this case is that the buildings they attend every day are "schools in name only" that are "functionally delivering no education at all." ECF 1, PgID 4, 19, ¶¶ 1, 21. Plaintiffs' theory here would be more similar to the Kadrmas plaintiff being permitted to ride the bus for free, only to be dropped off at an empty building. Thus, Kadrmas is also not entirely dispositive to the issues here.10
10 Defendants mention that Michigan parents do have some choice in the schools their children attend by way of charter schools and the State's "school of choice" option, ECF 60, PgID 511. While true, the mere existence of those options would not necessarily decide the matter; the alien children in Plyler had full access to the public schools—if they only found a way to pay for it. See In re Alien Children Educ. Litig., 501 F. Supp. 544, 555
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The Court is left to conclude that the Supreme Court has neither confirmed nor denied that access to literacy is a fundamental right. The Court must therefore cautiously take up the task.
C. Due Process The Due Process Clause of the Fourteenth Amendment states that, "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law," U.S. Const. amend. XIV, § 1. Courts have concluded that the clause "has both procedural and substantive components," Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014), and in this case, Plaintiffs raise only a substantive due process argument. Government actions that burden the exercise of a fundamental right or liberty interest "are subject to strict scrutiny, and will be upheld only when they are narrowly tailored to a compelling governmental interest." Seal v. Morgan, 229 F.3d 567, 574 (6th Cir. 2000). Plaintiffs' due-process claim turns on whether access to literacy is a fundamental right. To make that determination the Court must first define what is a "fundamental right." The Supreme Court recently explained: The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, has not been reduced to any formula. Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries.
(S.D. Tex. 1980) (noting how rare tuition payment was). At this stage of the litigation, the Court simply cannot assume there are meaningful options for Plaintiffs.
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Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015) (internal quotation marks and citation omitted). The Supreme Court has, however, historically employed a formula of sorts: fundamental rights are only those "objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997); see also Snyder v. Mass., 291 U.S. 97, 105 (1934) (using the phrase "so rooted in the traditions and conscience of our people as to be ranked as fundamental"); Obergefell, 135 S. Ct. at 2618 (Roberts, C.J., dissenting) (collecting cases). In a case like this one, the holding of Obergefell does not counsel a departure from that general approach. See Obergefell, 135 S. Ct. at 2602 (distinguishing the Glucksberg approach only in reference to intimate relationships). The Court will proceed in its analysis, mindful as it is that history and tradition do not set the "outer boundaries" of fundamental rights, id. at 2598.
The Supreme Court is historically "reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended." Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). By granting an asserted right the imprimatur of "fundamental" under the due process clause, the court "to a great extent, place[s] the matter outside the arena of public debate and legislative action." Glucksberg, 521 U.S. at 720. Errantly done, the liberty protected by the Due Process Clause can be "subtly transformed" into a court's policy preferences—however well-intentioned the preferences may be. Id. (citing Moore v. City of E. Cleveland, 431 U.S. 494, 501 (1977)). For this reason, fundamental rights are few and courts seldom recognize new ones. Seal, 229 F.3d at 575 (noting also that the
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Supreme Court has specifically cautioned against "judicial interposition in the operation of the public school system[s]").
Even when the Supreme Court has ventured to recognize a right as fundamental, it has typically limited them to "negative rights"—i.e., the right to be free from restraint or barrier. See, e.g., DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 195– 96 (1989) (recognizing that the Due Process Clause is "phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security" and thus concluding that "our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual").
Conceivably, a case like this one could be argued on either positive- or negativeright theories. As a positive right, access to literacy (i.e., a minimally adequate education) is so important that the state is compelled to provide it. As a negative right, access to literacy is so important that the state may not hinder Plaintiffs' attempts to secure it. The Complaint alleges that each Plaintiff was "denied access to literacy" and repeatedly speaks of the "denial of access to literacy." In a sense, the phrasing evokes the notion of a barrier: Defendants have kept Plaintiffs from accessing literacy and but for Defendants' obstruction, Plaintiffs could and would have the access. In other words, the allegations state the violation of a negative right.
But a violation of negative rights is not what the Complaint truly seems to argue. The Complaint explains, in great detail, that the instruction and resources in Plaintiffs' schools are inadequate. Plaintiffs aver the State "is the entity responsible for securing
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and ensuring Plaintiffs' opportunity to access literacy" yet have "failed to ensure a basic environment for teaching and learning that is the necessary prerequisite for the acquisition and transmission of literacy." ECF 1, ¶¶ 19, 109. The Complaint notes the compulsory nature of schooling in Michigan, see id. at ¶ 56 (citing Mich. Comp. Laws § 380.1561), and the Plaintiffs' response brief mentions, in a footnote, that Michigan's truancy law means "students at Plaintiffs' schools are unable to use mandatory school days in other productive ways," ECF 64, PgID 1431. But the relief sought is exclusively positive in nature: Plaintiffs believe that Defendants must implement "evidence-based programs for literacy instruction and intervention," universally screen students for literacy problems, and establish an accountability system, to name a few. See ECF 1, PgID 131–32. In sum, the Complaint points exclusively to a positive-right argument: Plaintiffs are entitled to a minimum level of instruction on learning to read, yet the State, vis-à-vis Defendants, has failed to give it to them. The Court will therefore construe the Complaint in that manner. Cf. Collins, 503 U.S. at 125 (recognizing that the "doctrine of judicial self-restraint" urges a court to "focus on the allegations in the complaint to determine how [a plaintiff] describes the constitutional right at stake" and what the state actor allegedly did to deprive plaintiff of the right).
Plainly, literacy—and the opportunity to obtain it—is of incalculable importance. As Plaintiffs point out, voting, participating meaningfully in civic life, and accessing justice require some measure of literacy. Applying for a job, securing a place to live, and applying for government benefits routinely require the completion of written forms. Simply finding one's way through many aspects of ordinary life stands as an obstacle to one who cannot read.
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But those points do not necessarily make access to literacy a fundamental right. The Supreme Court has repeatedly emphasized, in Rodriguez and elsewhere, that the importance of a good or service "does not determine whether it must be regarded as fundamental[.]" Rodriguez, 411 U.S. at 30; see also Lindsey v. Normet, 405 U.S. 56, 74 (1972) ("We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill."); DeShaney, 489 U.S. at 197 (rejecting the notion that the Due Process clause compelled a state to protect a child from abuse by his father). Courts of Appeals have done the same. See, e.g., Ransom v. Marrazzo, 848 F.2d 398, 413 (3d Cir. 1988) (concluding that there is no fundamental right to receive water and sewer service); Stiles ex rel. D.S. v. Grainger Cty., 819 F.3d 834, 853 (6th Cir. 2016) (rejecting the notion of a due-process right to be free from aggressive and physical bullying in school). In sum, federal courts have demonstrated a reticence to find positive rights to unquestionably important necessities of life.
Plaintiffs, however, argue that access to literacy is different. Relying heavily on Obergefell v. Hodges, they suggest that the Court should consider whether the State has put "its imprimatur on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied." ECF 64, PgID 1438 (quoting Obergefell, 135 S. Ct. at 2602) (alterations adopted). They aver that by denying Plaintiffs access to literacy, Defendants consign them to "instability in both social and economic terms," and demean them by "locking them out of valuable social and political institutions, from State academies of higher learning, to the marketplace of ideas, to the very texts that undergird our
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constitutional democracy." Id. at 1439 (quoting Obergefell, 135 S. Ct. at 2601–02) (alterations adopted and quotation marks omitted).
How Obergefell affects the calculus of substantive due process rights remains unsettled, but Plaintiffs' particular interpretation of the holding would put Obergefell in direct and unnecessary tension with much of the jurisprudence that came before it. Under Plaintiffs' reasoning, if the State's failure to provide a good or service to a person results in a limitation of future opportunities and social stigma, the good or service must be a fundamental right. Yet the same could presumably be said for a person who must go without a sanitary place to live, or must live in an abusive home—and neither of those implicate a fundamental right. See Lindsey, 405 U.S. at 74; DeShaney, 489 U.S. at 197.
Moreover, the Supreme Court's understanding of a "fundamental right," requires finding that neither liberty nor justice would exist absent state-provided literacy access. See Glucksberg, 521 U.S. at 720–21. That finding is difficult to square with the fact that "[t]here was no federal or state-run school system anywhere in the United States as late as 1830." Barry Friedman & Sara Solow, The Federal Right to an Adequate Education, 81 Geo. Wash. L. Rev. 92, 117 (2013) (citing Frederick M. Binder, The Age of the Common School, 1830–1865, at 20 (1974)). School districts at the time of the Constitution's ratification were formed "when a group of farms came together and decided to construct a public building for schooling, where their children could gather and be taught reading, writing, and moral codes of instruction." Id. at 112. The history evinces a deep American commitment to education, but runs counter to the notion that ordered society demands that a state provide one.
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The conclusion that education is not a fundamental right is arguably implicit even in Brown v. Board of Education. After the Court explained the inestimable importance of education in American life, it couched its holding in the following terms:
In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 493 (1954) (emphasis added). The holding is certainly instructive on Plaintiffs' equal-protection claim, but on the narrow matter of substantive due process, it points the other way: a state could choose not to undertake the provision of education at all. Finally, to the extent that constitutional rights might be said to expand with time— whether through "better informed understanding," Obergefell, 135 S. Ct. at 2602 or "evolving standards of decency," Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)—the notion that there is a positive right to literacy access is belied by the conclusions of the states themselves. State courts that have found a right to a minimum level of education have not done so based upon the intrinsic necessities of a free society, but rather, on the precise wording of the relevant state constitutions. See Friedman & Solow, supra, at 129–30. And Michigan has not even found that. See LM v. State, 307 Mich. App. 685, 697 (2014). The conditions and outcomes of Plaintiffs' schools, as alleged, are nothing short of devastating. When a child who could be taught to read goes untaught, the child suffers a lasting injury—and so does society. But the Court is faced with a discrete question: does the Due Process Clause demand that a State affirmatively provide each child with a
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defined, minimum level of education by which the child can attain literacy? Based on the foregoing analysis, the answer to the question is no.
D. Equal Protection Lastly, the Court arrives at Plaintiffs' Equal Protection claim. This cause of action rests on two theories: (1) Defendants deny Plaintiffs the fundamental right of access to literacy "by intentionally discriminating against them on the basis of race," and (2) Defendants have "functionally excluded Plaintiffs" from Michigan's schools on the basis of their race, and denied them "access to literacy equal to the access provided to students in other schools in the State on the basis of their race, and responded with deliberate indifference to such exclusion and such denial[.]" ECF 1, PgID 128, ¶¶ 207–08. The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler, 457 U.S. at 216). A plaintiff must therefore adequately plead that the government treated him or her "disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis." Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (quoting Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286, 299 (6th Cir. 2006)). Defendants contend that Plaintiffs have not satisfied the threshold requirement of disparate treatment. The Complaint hinges on comparisons to "students in other schools in the State," but according to Defendants, students in non-Detroit schools are not similarly situated, and are therefore not the appropriate comparison group. ECF 60, PgID 533. Rather, the appropriate comparison would be to other students in Plaintiffs' respective school districts, and Plaintiffs have made no argument that any students within
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these schools are treated differently from one another. So Defendants insist the Complaint fails to state a claim under the Equal Protection Clause.
The Court agrees that Michigan schools as a whole are not the proper comparator. Plaintiffs have not challenged a statewide funding scheme, a specific statute, or any particular decisions by Defendants applicable to all Michigan schools. Instead, they advance a kind of ambivalence theory: that Defendants could treat Plaintiffs' schools the way they treat other schools in Michigan, but they have chosen not to. Michigan's laws, however, put the State in a different posture with respect to distressed schools than schools that have not required state intervention. The SRO operates as the school board only in Priority Schools. The Governor and other state actors appoint financial managers only when a district is financially distressed. As described supra, sec. III.B., Defendants are the proper parties in this case specifically because of the State's involvement in Detroit schools pursuant to Michigan law. The appropriate comparators for an equalprotection claim are therefore other Michigan schools that have come under the control of emergency managers, been designated a Priority School, or were governed by the EAA. So framed, the Complaint fails to state an equal-protection claim under any of the three recognized theories.
1. Burdening a fundamental right The Court has already concluded that the Due Process Clause does not require a state to provide access to minimally adequate education. In other words, access to literacy is not a fundamental right—at least not in the positive-right sense. Accordingly, the State's alleged failure to provide literacy access to Plaintiffs fails to state an equalprotection claim on the basis of burdening a fundamental right.
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2. Targeting a suspect class Although the Complaint clearly establishes that Plaintiffs' schools predominantly serve children of color—four of the five schools are at least 97% African American and the fifth is 31.1% African-American and 64.2% Latino, ECF 1, PgID 62–63, ¶ 90—it makes no claim about the relevant comparator schools. The only specific reference to the racial makeup of other schools is to Grosse Pointe, which has not experienced the relevant state interventions. Id. at 6 n.2. The Complaint opines that the conditions in Plaintiffs' schools "would be unthinkable in schools serving predominantly white, affluent student populations," id. at 5, ¶ 1, but it does not state any instance where Defendants intervened in a school with a different racial makeup and treated that school disparately. Without this type of comparison, the Complaint fails to state a claim that Defendants have classified or otherwise differently treated Plaintiffs on account of race.
3. Lacking a rational basis When a classification involves neither fundamental rights nor suspect classes, it "is accorded a strong presumption of validity." Heller v. Doe, 509 U.S. 312, 319 (1993). In such cases, the classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993). For this reason, a plaintiff facing a motion to dismiss "must allege facts sufficient to overcome the presumption of rationality that applies to government classifications." In re City of Detroit, 841 F.3d 684, 701 (6th Cir. 2016) (quoting Wroblewski v. City of Washburn, 965 F.2d 452, 460 (7th Cir. 1992)). Rationality is a forgiving standard. "[A] government action is considered irrational only if it is 'unrelated to the achievement of any combination of the legitimate purposes.'"
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Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006) (quoting Warren v. City of Athens, 411 F.3d 697, 710 (6th Cir. 2005)). To prevail, a plaintiff must either "negativ[e] every conceivable basis which might support the government action," or demonstrate "that the challenged government action was motivated by animus or illwill." Id.
Plaintiffs insist that the State's actions, through Defendants, fail to satisfy rational basis review and suggest that "Plyler controls this case." ECF 64, PgID 1426. The mechanics of the two cases, however, make a difference in evaluating the equalprotection claim. In Plyler, a statute required one specific group to pay tuition, but not another. The statute did not survive rational-basis review, so the defendants were enjoined from enforcing it. Here, the Complaint references Michigan's funding scheme, ECF 1, PgID 49–50, ¶ 66, but does not allege it is irrational. The Complaint discusses Michigan's governance systems, but likewise fails to allege that they are (or were) irrational. Id. at 50–52, ¶¶ 68–70. And none of the relief requested implicates particular statutes. Id. at 131–32. Plaintiffs must mean, then, that Defendants' actions in implementing the various state laws are irrational—but the Complaint fails to provide a concrete example. Plaintiffs simply assert that "Michigan's failure to provide [] curriculum, teachers, and books" or "to eliminate the deplorable and unsafe conditions that deny access to literacy" does not satisfy rational-basis review. ECF 64, PgID 1434.
Plaintiffs must do more than point to the present conditions as prima facie evidence that the State—and Defendants specifically—have acted irrationally. The Court accepts as true the Complaint's factual allegations, but Plaintiffs must still plead facts that are more than "merely consistent with" Defendants' liability. Ashcroft v. Iqbal, 556 U.S. 662,
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678 (2009) (quoting Twombly, 550 U.S. at 557). Whether an action is rational depends on the available options. For instance, without allegations that identify the specific decisions Defendants made concerning Plaintiffs' schools that could have been made differently, Plaintiffs have not plausibly pled the irrationality of such decisions. The Complaint therefore fails to state a claim for relief based on the Equal Protection Clause and must be dismissed.

ORDER

WHEREFORE, it is hereby ORDERED that Defendants' Motion to Dismiss [60] is

GRANTED and the case is DISMISSED WITH PREJUDICE.

This is a final order and closes the case.

SO ORDERED.

Dated: July 27, 2018

s/Stephen J. Murphy, III STEPHEN J. MURPHY, III United States District Judge

I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on July 27, 2018, by electronic and/or ordinary mail.
s/David P. Parker DAVID P. PARKER Case Manager

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 TERMS FOR SETTLEMENT AGREEMENT AND RELEASE BETWEEN ALL PLAINTIFFS AND THE GOVERNOR OF THE STATE OF MICHIGAN
IN ​GARY B., ET AL. v. WHITMER, ET AL.
Settlement Term Sheet (dated May 13, 2020)
Gary B.; Jessie K., a minor, by Yvette K., guardian ad litem; Cristopher R. and Isaias R., minors, by Escarle R., guardian ad litem; Esmeralda V., a minor, by Laura V., guardian ad litem; Paul M.; and Jaime R., a minor, by Karen R., guardian ad litem (the ​Plaintiffs​), and Gretchen Whitmer, as the Governor of the State of Michigan (the ​Governor​), hereby agree to settle all of the Plaintiffs’ claims (the ​Claims​) in the litigation entitled ​Gary B., et al. v. Governor Whitmer, et al.,​ No. 16-cv-13292 (E.D. Mich.) and Nos. 18-855/1871 (6th Cir.) (collectively the ​Settling Parties​).
Preamble.​ In 2016, a group of students initiated a lawsuit against the Governor of the State of Michigan, the members of the State Board of Education, the Superintendent of Public Instruction, the Director of the Department of Technology, Management, and Budget, and the State School Reform/Redesign Officer. In the ​Gary B.​ litigation, the student Plaintiffs alleged they were denied services required for an opportunity to achieve a minimum level of education while attending Detroit schools. After over four years of litigation, and a change in administration, the Governor reached a settlement agreement with the student Plaintiffs.
The Governor and the Plaintiffs agree, as a matter of principle, that all children deserve an opportunity to obtain a minimum basic education. In particular, the Governor agrees that every child in the State of Michigan should have access to an educational environment in which “it is plausible to attain literacy.” ​Gary B. v. Whitmer​, No. 18-1855, 2020 WL 1951894, at *35 (6th Cir. Apr. 23, 2020). Toward that end, and to eliminate the possibility of protracted and costly litigation, the Plaintiffs and the Governor have agreed to this settlement. The settlement involves a series of discretionary actions, to be taken by the Governor, and does not and should not be construed in itself to bind any other branch of government in Michigan, or any individual or entity that is not a signatory to this agreement.
Consideration.​ As full and complete compromise and release of all Claims, and in consideration of the promises, covenants, representations, and warranties contained herein, and for good and valuable consideration given hereunder, the settling parties hereby agree as follows:
Settlement Terms.
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I. Long-Term Support for Access to Literacy
The Governor will diligently propose and support legislation at appropriate times, as determined by the Governor in her sole discretion, before the end of her first term in office (and, if the legislation is not enacted and if she is re-elected to a second term, also during her second term of office) which, if enacted by the Legislature, would provide the Detroit Public School Community District (DPSCD) with at least $94.4M of funding for literacy-related programs and initiatives, including an appropriate combination of the following and/or similar evidence-based literacy programs and interventions:
● Multi-sensory training and certification for teachers, to improve reading intervention for struggling readers;
● Increasing Academic Interventionists (support staff to provide reading intervention to struggling readers in small groups and qualified to meet the needs of English learner students) from 1:250 students (K-8) and 1:400 (HS) to 1:150 all grade levels;
● Hiring certified teachers as full-time reading interventionists to work with struggling readers one-on-one and in small groups and to meet the needs of English learner students;
● Reducing K-3 class size to 20:1; ● Targeted improvements to facilities; and ● Books, workbooks, technology, and homework materials for students to take and use at
home.
This literacy-oriented funding will be additional to all current funding provided to the DPSCD.
The Plaintiffs agree that the Governor may seek to fund the initiatives described above either through legislation that provides direct funding of the programs or legislation that would achieve comparable funding through alternative means. For example, such alternatives may include:
an increase in per-pupil funding for pupils in the DPSCD, with multipliers for special education (70-100% based on severity of need), for English Language Learners (35-70% based on tested language needs), for students living in poverty (35%), and for students needing Career and Technical Education (10%);
propose legislation that, if approved by the Legislature ― and after DPS requests and receives an extension of the number of years in which its debt is to be repaid with its operating debt lenders ― would permit DPSCD to use the difference between what would have been annually paid to service the operating debt under the current timeline (“the current amount”) and what instead would be annually paid to service the operating debt under the extended timeline (“the restructured amount”), to fund literacy-related programs and initiatives described in this Section above.
The Plaintiffs agree that the Governor’s obligation in this Section I is considered fulfilled by proposing and supporting legislation consistent with the terms above and that the failure of the Legislature to enact some or all of the proposed legislation will not constitute a breach of this
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agreement. The Plaintiffs further agree that the Governor will not be deemed non-compliant if she does not propose and support such legislation in any given year based on a good-faith determination that, under then-prevailing budgetary or other circumstances, attaining satisfactory legislation is infeasible.
II. Prompt Executive Action
A. Upon dismissal with prejudice of the underlying action in ​Gary B, et al., v. Whitmer, et al.,​ the Governor will promptly cause currently available funds in the amount of $3M to be provided in settlement of this action. Of this amount, $280,000 will be placed in trust at the Detroit Public Schools Foundation to provide each named-student-plaintiff with access to a high-quality literacy program that will assess each student-plaintiff’s literacy and academic needs with individually tailored interventions; or to otherwise further their education (including education-related expenses, such as tuition, room and board, and books, and including appropriate post-secondary educational opportunities and workforce development opportunities). Each named-student-plaintiff will have access to a minimum of $40,000 to support literacy or education expenses up to 15 years after this signed agreement, and the trust’s funds and earnings not used by named-student-plaintiffs after 15 years will be redistributed to DPSCD for literacy efforts via the Detroit Public Schools Foundation.
Furthermore, upon dismissal with prejudice of the underlying action in ​Gary B, et al., v. Whitmer, et al.,​ the Governor will promptly cause currently available funds in the amount of $2.72M to be paid to the DPSCD to an account as designated by DPSCD to be applied to each of the following literacy-related supports:
● Increased number of literacy coaches for grades K-12 with duties similar to those described in MCL § 380.1280f(1)(b);
● Increased number of interventionists (tutors) for reading assistance in DPSCD; as used herein, an interventionist (tutor) is “an individual who provides supplemental evidenced based reading intervention”;
● Literacy-supporting resources for students’ use at home; ● Targeted improvement to facilities; and ● Offering GED opportunities for students residing in district boundaries.
DPSCD will post all expenditures as applied above in a form and manner consistent with MCL § 388.1618, and will otherwise comply with applicable and appropriate accountability obligations.
B. The Governor agrees that, under the School Bond Qualification, Approval, and Loan Act (SBQAL), Public Act 92 of 2005, MCL § 388.1921 ​et seq., a​ s enacted on the effective date of this Agreement, the State Treasurer is not prohibited from prequalifying and qualifying DPSCD bonds for capital expenditures under the SBQAL program under the same terms and conditions as are applicable to any other school district in Michigan. Where these terms and conditions are satisfied, the State Treasurer will prequalify any
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capital bonds proposed by DPSCD in accordance with the terms that are applicable to all other school districts in Michigan, ​see M​ CL § 388.1926.
C. After the signing of this agreement, the Governor will promptly request the Michigan Department of Education, within a reasonable time frame, to advise school districts throughout the State as to how they might use evidence-based literacy strategies, initiatives, and programs to improve access to literacy and literacy proficiency, with special attention to reducing class, racial, and ethnic disparities.
D. After the signing of this agreement, the Governor will promptly direct the State Treasurer, upon receipt of proper documentation from DPSCD, to prioritize making the determinations under MCL § 141.1638(2)(b) and (2)(f) pertaining to the waiver of oversight by the Financial Review Commission (FRC).
III. Detroit Literacy Equity Task Force and Detroit Educational Policy Committee
A. A Detroit Literacy Equity Task Force (Task Force) will be created to conduct yearly evaluations around literacy in Detroit, and the Governor will consider and may take action on recommendations put forward by the Task Force that pertain to state-level policy. The Task Force may also provide recommendations to local stakeholders, including DPSCD, including how the monies paid to DPSCD as a result of this settlement can best be used to provide students with access to literacy.
The Task Force will comprise and be created by:
● Three student representatives; ● Three parent- or caregiver-selected representatives; ● Two local community members; ● Two literacy experts; ● Two DPSCD-selected representatives; ● Two teacher-selected representatives; and ● One paraprofessional-selected representative.
DPSCD-selected representatives will be selected at the discretion of the DPSCD superintendent and with the approval of the DPSCD Board. Teacher and paraprofessional representatives will be selected at the discretion of the labor union(s) that represent them. All other members will be selected by the group that they represent via a process to be determined by the teacher, paraprofessional, and DPSCD members. The Task Force may elect, by a majority vote of its members, to add additional members to the Task Force representing different perspectives in the community.
The Task Force is advisory only and is not to be considered a state entity for any purposes. The obligations in Section III.A. will arise only if the Task Force is created in accordance with the requirements in Section III.A.
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B. The Governor and the Superintendent of Public Instruction will consider and may take action on recommendations put forward by a Detroit Educational Policy Committee (Committee), which will play an advisory role.
The Committee will make recommendations on the stability and quality of the overall educational ecosystem in Detroit; the accessibility of a quality school to all children in Detroit; and school improvement, facilities, teaching, and educational materials.
At her discretion, the Governor will either recognize a willing entity to serve as the Committee, such as the Community Education Commission (Detroit), or create a new advisory body within the executive branch for this purpose. If the governor creates a new advisory body, that body will exist for at least two years and will include the DPSCD superintendent; at least one representative from the DPSCD Board of Education; at least one representative from an authorizing body for public school academies within the City of Detroit; at least one representative from a public school academy operator within the City of Detroit; at least one representative from a labor union that represents Detroit school teachers; at least one representative from a labor union that represents Detroit school support staff; at least one representative from the Mayor’s Office of the City of Detroit; at least one representative from a group representing parents and students in the City of Detroit; and at least one community leader in the City of Detroit.
IV. Settlement and Dismissal Process
Voluntary Dismissal.​ Promptly after entering this Settlement Agreement, Plaintiffs will file appropriate motions or notices to voluntarily dismiss their appeal and the underlying case with prejudice as to all Defendants and without costs or attorney fees assessed to any party.
Limitations on Additional Litigation.​ Plaintiffs hereby covenant that they will refrain from commencing any action or proceeding, or prosecuting any pending action or proceeding, on account of any matter released hereunder. Plaintiffs and the Governor each further covenant that in this litigation they will not make any argument, either in writing or orally, to any court before which this case is or may be pending, other than to defend this settlement, to explain why this case is moot, and to explain the consequences of this case being moot for the court’s disposition of this case (including with respect to any motions by non-signatories for further litigation or to intervene or otherwise participate in this case).
General Release.​ Except for the obligations under this Agreement, Plaintiffs, for themselves, and their agents, representatives, beneficiaries, insurers, attorneys, predecessors, devises, heirs, trustees, personal representatives, successors and assigns, hereby release and forever discharge all Defendants and the State of Michigan and its departments, commissions, boards, institutions, arms and agencies, and their respective past, present, and future governors, directors, officers, employees, attorneys, agents, representatives, independent contractors, employees of independent contractors, predecessors- and successors-in-interest, assigns, indemnitors, and insurers from any and all known and unknown claims that Plaintiffs asserted in this action or could have asserted in this action. Notwithstanding the following provision on Enforcement and Applicable Law, all Defendants and the State of Michigan are considered third-party
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beneficiaries of this General Release Provision and may independently enforce the terms of this Release as if they were parties to it. Plaintiffs acknowledge the release and discharge set forth above is a general release and includes without limitation a release and waiver of all claims for attorney fees and costs relating to this litigation. Plaintiffs expressly waive and assume the risk of any and all claims for damages that exist as of this date or that may hereafter arise out of the incident that was the subject of the lawsuit, but of which they do not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect their decision to enter into this Agreement.
Enforcement and Applicable Law.​ Nothing in this settlement agreement is expressly or impliedly intended to confer any rights upon any person or entity other than the parties hereto. The right to seek judicial enforcement of this Settlement Agreement is vested exclusively in the parties to this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan.
Nothing in this Agreement is intended to conflict with any provisions of Michigan law or the Michigan Constitution or any applicable court order, or to supersede or otherwise alter any applicable legal requirements.
Authorization.​ The signatories hereto represent and warrant that they have the authority to sign this Settlement Agreement on behalf of their respective parties to this settlement.​ ​The signatories acknowledge that they have each read this Settlement Agreement, that they understand its meaning and intent, that they have executed it voluntarily and with opportunity to consult with legal counsel.
This agreement has been negotiated and drafted jointly by the Plaintiffs and the Executive Office of the Governor. This agreement will not be construed against either party as the sole author or drafter. The parties agree to cooperate fully and execute any and all documents and to take all additional actions that may be necessary and appropriate to give full force and effect to the terms and intent of this Agreement.
Beneficiaries.​ This Agreement shall be binding on and inure to the benefit of the heirs, successors, and assigns of the parties hereto.
Integration.​ This Settlement Agreement contains the entire agreement and understanding between the settling parties concerning the subject matter hereof, and any and all prior oral or written agreements or understandings between the parties related hereto are superseded. No representations, oral or otherwise, express or implied, other than those specifically referred to in this Settlement Agreement, have been made by any party hereto.
No amendments, waivers, or termination can be made to this Agreement, except in writing, signed by each of the settling parties.
Severability.​ If any portion of this Settlement Agreement is determined by a court or other government body of competent jurisdiction to be void or otherwise invalid and hence, unenforceable, such invalid or void portion shall be deemed to be separate and severable from
6

the balance of this Settlement Agreement, and neither that portion, nor its severance or deletion, shall affect the validity of the remaining provisions of this Settlement Agreement. Counterparts.​ The Settlement Agreement may be signed in separate counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the same Settlement Agreement, binding all settling parties hereto notwithstanding that all of the parties are not signatory to the original or the same counterpart. Confidentiality of Plaintiffs’ Names.​ The identities of Plaintiffs and their guardians ad litem, as disclosed in confidential Exhibit A to this Settlement Agreement, are confidential and shall not be disclosed to any persons other than the signatories and their counsel unless and until such identities are disclosed through authorized means. Execution.​ The Settlement Agreement shall be deemed fully executed as of the date of the last signature.
7

Dated: May 14, 2020 Dated: May 14, 2020

Gretchen Whitmer
__________________________________ Governor, State of Michigan
PUBLIC COUNSEL
By:__________________________________ Mark Rosenbaum Evan Caminker Carter Phillips Mark Haddad Tacy Flint Joshua E. Anderson Attorneys for Plaintiffs

8

EXHIBIT A: CONFIDENTIAL ― NAMES AND SIGNATURES OF ALL PLAINTIFFS 9

 
 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0124p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

GARY B., JESSIE K., CRISTOPHER R., ISAIAS R., ┐

ESMERALDA V., PAUL M., and JAIME R., minors,

│

Plaintiffs-Appellants,

│
>

│

v.

│

│

GRETCHEN WHITMER, et al.,

│
│ Defendants-Appellees. │

┘

Nos. 18-1855/1871

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:16-cv-13292—Stephen J. Murphy, III, District Judge.

Argued: October 24, 2019

Decided and Filed: April 23, 2020

Before: CLAY, STRANCH, and MURPHY, Circuit Judges. _________________

COUNSEL

ARGUED: Carter G. Phillips, SIDLEY AUSTIN LLP, Washington, D.C., for Appellants. Raymond O. Howd, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees. ON BRIEF: Carter G. Phillips, SIDLEY AUSTIN LLP, Washington, D.C., Mark D. Rosenbaum, Anne Hudson-Price, Kathryn A. Eidmann, PUBLIC COUNSEL, Los Angeles, California, Mark E. Haddad, UNIVERSITY OF SOUTHERN CALIFORNIA, Los Angeles, California, Evan H. Caminker, UNIVERSITY OF MICHIGAN, Ann Arbor, Michigan, Tacy F. Flint, Lawrence P. Fogel, Suzanne Brindise Notton, Jennifer M. Wheeler, SIDLEY AUSTIN LLP, Chicago, Illinois, Joshua E. Anderson, SIDLEY AUSTIN LLP, Los Angeles, California, Bruce A. Miller, MILLER COHEN, PLC, Detroit, Michigan, for Appellants. Raymond O. Howd, Joshua S. Smith, Toni L. Harris, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees. James E. Burke, Bryce J. Yoder, Amanda B. Stubblefield, KEATING MUETHING & KLEKAMP PLL, Cincinnati, Ohio, David J. Strom, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Washington, D.C., Anton Metlitsky, O’MELVENY & MYERS LLP, New York, New York, Tara J. Plochocki, LEWIS

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BAACH KAUFMANN MIDDLEMISS PLLC, Washington, D.C., Michael J. Dell, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Scott Burnett Smith, Julian D. Miller, BRADLEY ARANT BOULT CUMMINGS LLP, Huntsville, Alabama, Lena Konanova, David S. Flugman, Jessica Underwood, Bria Delaney, Nicholas J. Klenow, SELENDY & GAY PLLC, New York, New York, Jenice C. Mitchell, DETROIT PUBLIC SCHOOLS COMMUNITY DISTRICT, Detroit, Michigan, Daniel S. Korobkin, Michael J. Steinberg, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, Jerome D. Goldberg, Detroit, Michigan, for Amici Curiae.
CLAY, J., delivered the opinion of the court in which STRANCH, J., joined. MURPHY, J. (pp. 62–85), delivered a separate dissenting opinion.
_________________
OPINION _________________
CLAY, Circuit Judge. Plaintiffs in this appeal are students at several of Detroit’s worstperforming public schools. They credit this substandard performance to poor conditions within their classrooms, including missing or unqualified teachers, physically dangerous facilities, and inadequate books and materials. Taken together, Plaintiffs say these conditions deprive them of a basic minimum education, meaning one that provides a chance at foundational literacy.
In 2016, Plaintiffs sued several Michigan state officials, who they say are responsible for these abysmal conditions in their schools. Plaintiffs allege that state actors are responsible, as opposed to local entities, based on the state’s general supervision of all public education, and also on the state’s specific interventions in Detroit’s public schools. The state argues that it recently returned control to local officials, and so it is now the wrong party to sue.
Plaintiffs’ underlying claims, brought under 42 U.S.C. § 1983, are all based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Plaintiffs argue that while other Michigan students receive an adequate education, the students in Plaintiffs’ schools do not, amounting to a violation of their right to equal protection of the laws. They also argue that the schools they are forced to attend are schools in name only, and so the state cannot justify the restriction on their liberty imposed by compulsory attendance. And in their most significant claim, Plaintiffs ask this Court to recognize a fundamental right to a basic minimum education, an issue the Supreme Court has repeatedly discussed but never decided.

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While the district court found that Defendants were in fact the proper parties to sue, it dismissed Plaintiffs’ complaint on the merits. First, it found that Plaintiffs had not alleged a proper comparator for their equal protection claim, nor had they highlighted any state policy or action that was not supported by a rational basis. Second, it found that Plaintiffs had not sufficiently pleaded their compulsory attendance theory, and so the court only viewed their due process claim as seeking an affirmative fundamental right. Third, the court held that a basic minimum education is not a fundamental right, and so Plaintiffs’ due process claim was dismissed. Plaintiffs then appealed.
Though Plaintiffs failed to adequately plead their equal protection and compulsory attendance claims, the same cannot be said for their central theory: that they have been denied a basic minimum education, and thus have been deprived of access to literacy. A review of the Supreme Court’s education cases, and an application of their principles to our substantive due process framework, demonstrates that we should recognize a basic minimum education to be a fundamental right. Furthermore, under this circuit’s precedents, Defendants are proper parties to sue in this case. Accordingly, we affirm in part and reverse in part the district court’s order, and remand this case for further proceedings.
I. BACKGROUND
A. History of Detroit’s Schools and State Control
Plaintiffs are students at several Detroit public schools that “serve almost exclusively low-income children of color.” (Compl., R. 1 at PageID #4.) They filed suit in this case against several Michigan state officers, who they say are proper defendants based both on the state’s constitutional and statutory authority to oversee the statewide education program and on the state’s specific interventions into the governance of Detroit’s schools.
Michigan’s constitution provides that the state’s legislature “shall maintain and support a system of free public elementary and secondary schools.” Mich. Const. art. VIII, § 2. The constitution also vests “[l]eadership and general supervision over all public education” in the state board of education, which serves “as the general planning and coordinating body for all public education.” Id. art. VIII, § 3. The board also appoints the superintendent of public

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instruction, who is responsible for executing the board’s policies and serves as head of the state department of education. Id.
According to Plaintiffs, education is a state-level concern and school districts are simply “creations and agents of the State.” (Compl., R. 1 at PageID #48–50.) The Michigan Supreme Court has “repeatedly held that education in this state is not a matter of local concern, but belongs to the state at large.” Bd. of Educ. v. Bacon, 162 N.W. 416, 416 (Mich. 1917) (quoting Collins v. City of Detroit, 161 N.W. 905, 907 (Mich. 1917)). Under Michigan law, the state board of education has oversight authority over school districts and public schools within the state. See, e.g., Mich. Comp. Laws §§ 380.1281, 388.1007, 388.1009; see also Council of Orgs. & Others for Educ. About Parochiaid, Inc. v. Engler, 566 N.W.2d 208, 216 (Mich. 1997) (noting that state funding and oversight provisions place public schools “under the ultimate and immediate control of the state and its agents”). But beneath this oversight and supervisory authority, the day-to-day administration of Michigan schools is usually entrusted to the boards of local school districts and their appointees. See, e.g., Mich. Comp. Laws § 380.1282.
But usually is not always. Beyond the state’s general authority with respect to public education, Plaintiffs also allege that the state has repeatedly intervened in the day-to-day management of Detroit’s schools, and that it directly oversaw public education in Detroit from 1999 through the time the complaint was filed in this case. See Gary B. v. Snyder, 329 F. Supp. 3d 344, 350–54 (E.D. Mich. 2018) (discussing state interventions in Detroit’s schools). As stated in the complaint, “the State has directly controlled [the Detroit school system] for most of the past fifteen years through variations of an emergency manager system.” (Compl., R. 1 at PageID #16–17.) And while this intervention may have been intended to help address shortcomings in the city’s schools, Plaintiffs say that by “placing the Detroit schools largely in the hands of administrators with no backgrounds in education,” the state only made the problem worse. (Id.)
These interventions began in the 1990s, partially in response to “fiscal deficit and failing student achievement outcomes” in Detroit Public Schools (“DPS”), the former Detroit school district. (Id. at #50.) In 1999, the state adopted Public Act 10, which “replac[ed] Detroit’s elected school board and superintendent with a seven member ‘reform board.’” (Id.) The reform board consisted of seven members: six appointed by the mayor, and (at least for five years after

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passage) either the state superintendent of public instruction or her designee. 1999 Mich. Pub. Acts 10, § 372(2).1 The board required unanimous consent to appoint the school district’s chief executive, id. § 374(1), which Plaintiffs say gave the state an effective “veto power over the selection of the CEO as well as every other decision” (Compl., R. 1 at PageID #50–51).
While in 2006, control of DPS was returned “to a locally elected school board . . . as a result of a Detroit voter referendum,” this change was short-lived. (Id. at #51.) In December 2008, the governor declared a fiscal emergency and appointed an “Emergency Fiscal Manager for DPS.” (Id.) This emergency manager shared power with the locally elected school board, but in doing so, the manager “exercised authority not only over financial decision-making, but some educational decision-making as well.” (Id.)
In 2011, this power-sharing arrangement ended, as the state significantly expanded the authority of the state’s emergency manager. The manager was effectively given total control over DPS, and was empowered to “[e]xercise solely, for and on behalf of the school district, all . . . authority and responsibilities affecting the school district that are prescribed by law to the school board and superintendent.” Mich. Comp. Laws § 141.1554(f); see also Gary B., 329 F. Supp. 3d at 350–51 (discussing the history and various versions of Michigan’s emergencymanager laws).
While a state-appointed transition manager controlled Detroit’s schools at the time the complaint was filed, the state also created a new school district, the Detroit Public Schools Community District (“DPSCD”), to run Detroit’s schools, while keeping DPS in charge of paying down debt. See Ann Zaniewski, New Detroit School Board Takes Reins of District, Det. Free Press, Jan. 11, 2017. The first elections for DPSCD’s board were held in January 2017, and Defendants claim that “the locally elected DPSCD Board of Education and its superintendent now have direct control over the operation of the schools in the district; there is no longer an emergency manager.” (Defs.’ Br. at 27.) That said, the complaint notes that “the State’s Financial Review Commission will remain involved in the oversight of the Detroit schools, and
1Plaintiffs instead allege that this seventh member was “appointed by the Governor” (Compl., R. 1 at PageID #50), but this makes no difference to their case, since both the governor and the state superintendent are defendants here.

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has not yet revealed the scope of authority or direction that will be granted to the elected board.” (Compl., R. 1 at PageID #51.)2
Beyond the emergency managers and other interventions into DPS or DPSCD, “the State also has assumed a special responsibility over what it calls Priority Schools, or the most poorly performing five percent of schools in the State.” (Id. at #52.) At the time the complaint was filed, this included all of Plaintiffs’ schools that remained open. These Priority Schools were managed by a state entity called the State School Reform/Redesign Office (“SRO”). See 2009 Mich. Pub. Acts 204, § 1280c (repealed 2019). According to Defendants, the SRO and Priority Schools were eliminated as of June 30, 2019.
Plaintiffs also allege that the state intervened in Detroit schools through an entity called the Education Achievement Authority (“EAA”). The EAA was a statewide school district administered by the state in conjunction with Eastern Michigan University, and included fifteen of the state’s lowest-performing schools. But according to Plaintiffs, “[t]he EAA schools have not improved on the State’s watch. In fact, the most recent Michigan state achievement test results reflect that fewer than 5% of EAA students are proficient in core subject areas.” (Compl., R. 1 at PageID #55.) As a result, the state closed the district and transferred Detroit’s EAA schools back into DPSCD. See Gary B., 329 F. Supp. 3d at 351–52. However, none of Plaintiffs’ individual schools were part of the EAA. Id. at 351 n.3.3
Finally, Plaintiffs point to state-level policy interventions that affect Detroit schools. For example, Plaintiffs claim that in June 2016, the state adopted legislation allowing “noncertificated, nonendorsed teacher[s]” to work in the new Detroit school district. (Compl., R. 1 at PageID #59.) According to Plaintiffs, “[n]owhere else in Michigan may children in

2This commission includes the state treasurer, the director of the Department of Technology, Management and Budget (who is one of the defendants here) or her designee, and several appointees of the governor, along with certain officers from DPSCD and the City of Detroit. See Mich. Comp. Laws § 141.1635(1)–(2). State officers and appointees constitute a majority of the commission. Id.
3Plaintiffs also discuss inadequate teachers, decrepit conditions, and a shortage of materials at Marion Law Academy, one of the schools managed by the EAA. While the conditions described at the school seem horrendous (see, e.g., Compl., R. 1 at PageID #58 (“In one fourth-grade classroom, a leaking hole in the ceiling created what students called ‘the lake,’ and the teacher surrounded the area with yellow caution tape after multiple requests for repairs were ignored.”)), none of the named plaintiffs attended Marion Law Academy.

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public school be taught by teachers who lack appropriate state-mandated credentials and qualifications.” (Id.) Plaintiffs also allege that the state has threatened to close and then flip-flopped on closing “all of Plaintiffs’ schools that are currently operating and 47 schools in Detroit.” (Id. at #60–62.) They say that these threatened closures exacerbated their problems by sending “students and teachers scrambling, leaving them worried and confused when they should have instead been preparing to start the new school year. Moreover, the State has offered no plan to ensure that any contemplated school closing will not disrupt students’ educations, further entrenching denials of access to literacy.” (Id. at #61.)
B. Conditions Alleged in Plaintiffs’ Schools
Plaintiffs’ schools are “five of the lowest performing schools in Detroit.” (Id. at #5.) Three of them are traditional public high schools: Osborn Academy of Mathematics (“Osborn MST”), the Osborn Evergreen Academy of Design and Alternative Energy (“Osborn Evergreen”), and the Medicine and Community Health Academy at Cody (“Cody Health”). The other two are charter schools: Hamilton Academy (“Hamilton”), which was an elementary school, and Experiencia Preparatory Academy (“Experiencia”), which taught students at the elementary through high-school levels.4
The core of Plaintiffs’ complaint is that the conditions in their schools are so bad—due to the absence of qualified teachers, crumbling facilities, and insufficient materials—that those schools fail to provide access to literacy. “Plaintiffs sit in classrooms where not even the pretense of education takes place, in schools that are functionally incapable of delivering access to literacy.” (Id. at #4.) Because of this, Plaintiffs attend “schools in name only, characterized by slum-like conditions and lacking the most basic educational opportunities that children elsewhere in Michigan and throughout the nation take for granted.” (Id.) “[T]hey wholly lack the capacity to deliver basic access to literacy, functionally delivering no education at all.” (Id. at #19; see also id. at # 10–11 (“The schools Plaintiffs attend, and attended, are not truly schools by any traditional definition or understanding of the role public schools play in affording access to literacy.”).)
4These charter schools are treated as public schools under Michigan law and are subject to the authority of the state board of education. E.g., Mich. Comp. Laws § 380.501(1); Parochiaid, 566 N.W.2d at 215–21.

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As noted above, the inadequacies that Plaintiffs point to can be grouped into three main categories: teaching, facilities, and materials. We discuss examples of each of these problems below.
1. Teaching
With respect to teaching, Plaintiffs claim that their schools “lack the qualified teaching staff required to bring students to literacy—that is, teachers who are certificated, properly trained, and assigned to a class within the area of their qualifications and expertise.” (Id. at #15.) This shortfall can be seen in the schools’ substantial reliance on Teach for America instructors and through other sources of high teacher turnover, which in many cases lead to midyear vacancies.
“In the 2016–2017 school year, there were up to 200 vacancies [in Detroit’s public schools] just before the start of the school year.” (Id. at #102.) There are also substantial shortterm absences, with some teachers “absent as many as 50 days in one year.” (Id. at #105.) Because of these shortages, Plaintiffs’ “classes are covered by non-certificated paraprofessionals, substitutes, or misassigned teachers who lack any expertise or knowledge in the subject-matter of the course.” (Id. at #15–16.) Other times, classes are combined on short notice, with up to sixty students in a single classroom. In perhaps the most notable case, “an eighth grade student was put in charge of teaching seventh and eighth grade math classes for a month because no math teacher was available.” (Id. at #16.)
When there are teachers, they also often lack meaningful experience. For example, at Hamilton, a majority of teachers were starting their first year when the complaint was filed. At Experiencia, about half of the teachers who started in 2012 quit by the end of their second semester.
In June 2016, the state adopted legislation “permitting non-certificated instructors to teach in DPSCD schools. This legislation does not apply to any school elsewhere in the State.” (Id. at #16.) At Hamilton, a paraprofessional who was teaching middle school science said “she does not understand the material and cannot lead classroom experiments.” (Id. at #102–03.)

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In several other cases, long-term substitutes are used, or teachers are changed frequently through the year.
Beyond the teachers themselves, Plaintiffs also complain of their schools’ failure to use adequate curricula that could plausibly impart literacy. According to Plaintiffs, “[t]here is no consistent literacy instruction program in Plaintiffs’ elementary schools, and the schools lack the staffing and capacity required to effectively implement such a program.” (Id. at #76.) At Experiencia, “teachers dedicated significant class time to reading aloud from books with reading levels multiple grades below the chronological age of the class, yet students struggled to sound out simple words.” (Id. at #77–78.) Plaintiffs’ high schools fare little better, as teachers receive no support or training in literacy education and “lack access to curricular materials such as lesson plans, pacing guides, and teacher editions of textbooks.” (Id. at #77.) One of Plaintiffs’ high schools attempted to address literacy issues with school reading groups; despite being a high school, “[t]he most advanced of the reading groups read books at a fourth- and fifthgrade reading level.” (Id.) The problem is also exacerbated as the students advance in grade, since higher-grade teachers “lack appropriate training to support students who are performing far below grade level.” (Id. at #79–80.)5
2. Facilities
Turning to the schools themselves, Plaintiffs allege that their classrooms feature decrepit or even unsafe physical conditions, meaning they “have been unable to satisfy minimal state health and safety standards.” (Id. at #12.) “The City of Detroit admitted that during the 2015–16 academic year, none of the school district’s buildings were in compliance with city health and safety codes,” and that some of Plaintiffs’ schools were still not in compliance at the time the complaint was filed. (Id. at #87.) Taken together, Plaintiffs claim that these conditions “make learning nearly impossible.” (Id. at #12.)
“Classroom temperatures in Plaintiffs’ schools regularly exceed 90 degrees during both the summer and winter due to malfunctioning furnaces and, at other times during winter, are
5Plaintiffs also allege that their schools fail to employ adequate instructors for students whose first language is not English. In one case, this failure was despite the school claiming to be “a dual language immersion school.” (Compl., R. 1 at PageID #99.)

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frequently so cold that students and their teachers can see their breath and must wear layers of winter clothing indoors.” (Id.) These temperatures sometimes require school closings or early dismissals. For example, “there is no air conditioning at Hamilton, and one west-facing classroom has reached 110 degrees during the school year. . . . On the first day of the 2016–17 school year, the temperatures in the school grew so extreme that multiple students fainted, both students and teachers got so sick they threw up, and multiple teachers developed heat rashes.” (Id. at #90.) During the winter months, Plaintiffs face extreme cold instead: “students and teachers had to wear winter coats, hats, and scarves” inside their classrooms. (Id.) In some cases, temperatures remained below freezing, “and students were periodically sent home when the classrooms were too cold.” (Id. at #91.)
“Mice, cockroaches, and other vermin regularly inhabit Plaintiffs’ classrooms, and the first thing some teachers do each morning is attempt to clean up rodent feces before their students arrive. Hallways and classrooms smell of dead vermin and black mold . . . .” (Id. at #13.) “Students and teachers have frequently encountered mice, mice droppings, rats, bedbugs, and/or cockroaches.” (Id. at #88; see also id. at #88–89 (including additional allegations and pictures).)
“The drinking water in some of Plaintiffs’ schools is hot, contaminated and undrinkable. Bathrooms are filthy and unkempt; sinks do not work; toilet stalls lack doors and toilet paper. In some classrooms, ceiling tiles and plaster regularly fall during class time.” (Id. at #13.) At several of Plaintiffs’ schools, pipes or roofs leaked as well, and broken windows are covered with cardboard. (See id. at #95, #97 (pictures of damaged facilities).)
Plaintiffs also complain of overcrowding within their classrooms, with as many as fifty students in a single classroom and insufficient desks and chairs, requiring students to stand or sit on the floor. Even when students have chairs, “classes are often so full that the desks are crammed wall-to-wall, with no room for aisles.” (Id. at #97.)
3. Materials
Plaintiffs allege that their schools lack the books and materials needed to plausibly provide literacy. “Many classes in Plaintiffs’ schools do not have appropriate textbooks.

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Where they are provided, they are often long out of date, torn and beyond repair, or marked up to be unreadable in places.” (Id. at #11; see also id. at #84–85 (pictures of Plaintiffs’ textbooks).) Plaintiffs also allege there were so few copies that they had to share a single book among four or more students during class, and could not take them home after school, meaning their teachers could not assign meaningful homework. In several cases, the schools’ libraries were inaccessible or had no books available either, even outside of textbooks.
In addition to their allegations of outdated, insufficient, or damaged books, Plaintiffs also claim that their schoolbooks were not appropriate to their grade level. For example, “the only books in the third-grade classroom at Hamilton were picture books, until the teacher purchased others with her own money more than halfway through the year.” (Id. at #8.) “There are no textbooks for the Earth Science, Physics, or Research and Development science classes at Osborn MST, so the teachers in each of those classes rely on a section of the Biology textbook most closely related to the subject they are teaching.” (Id. at #83.)
Beyond books, Plaintiffs also claim that their classrooms lack other basic school supplies, such as pens, pencils, and paper. Teachers attempt to make up for this shortfall by spending substantial amounts out of pocket or by requesting donations online.
C. Educational Outcomes from Plaintiffs’ Schools
According to Plaintiffs, the school conditions discussed above led to abysmal educational outcomes, which further supports the claim that their schools cannot provide access to literacy. Turning to outcome data, Plaintiffs contend that while outcomes are not dispositive of access, they remain relevant because aggregate results shed light on the degree of opportunity afforded to students. “Achievement data reveal that in Plaintiffs’ schools, illiteracy is the norm. The proficiency rates in Plaintiffs’ schools hover near zero in nearly all subject areas.” (Id. at #7 (emphasis omitted); see also id. at #62 (“[L]iteracy instruction provided in Plaintiffs’ schools is so wholly insufficient that ninety percent or more of the students are unable to meet state proficiency standards.”).) And looking beyond Michigan, Detroit’s schools “ranked last in reading and math proficiency among all big-city school districts.” (Id. at #47.)

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The numbers from Plaintiffs’ individual schools demonstrate significant underperformance compared to state educational standards. Looking first to elementary school students, at Hamilton, just 4.2% of third-graders scored “proficient or above” in the state’s English assessment, compared to 46.0% of third-graders statewide. (Id. at #8.) Similarly, at Experiencia, only 9.5% of third-graders scored as proficient. Other grade levels have even worse numbers, including zero or near-zero proficiency rates.
Turning to Plaintiffs’ high schools, at Cody MCH, 12.5% of eleventh-graders scored as proficient in English, compared to 49.2% statewide. And at Osborn MST, only 1.8% of eleventh-graders were proficient. In other subject areas, proficiency numbers were even lower. Additionally, results from the ACT college-admissions test reveal that students in Plaintiffs’ schools dramatically underperform the rest of the state, with between 12.5% and 0% achieving “college ready” scores. (Id. at #71–72.)
Plaintiffs argue that these data translate into significantly reduced literacy skills in their schools, in which students “struggle to write proper paragraphs or even complete sentences.” (Id. at #7.) For example, in their elementary schools, Plaintiffs allege that many third-grade students have a vocabulary of only “a couple hundred words,” are still learning handwriting, and that some “cannot even sound out letters.” (Id. at #8; accord id. at #77–79.)
These issues persisted at Plaintiffs’ high schools as well:
At Cody MCH, the ninth-grade English-Language Arts teacher spent a good part of the year reading, paragraph by paragraph, a novel with a third-grade reading level, because no more lexically advanced novel would have been readable by his students. When the class was asked to read the book aloud in class, a number of students experienced enormous difficulty reading monosyllabic words. Similarly, at Experiencia, the ninth and tenth grade class was assigned a book with a fourthgrade reading level, because the students lacked the literacy skills to access more complex texts and because they were the only books available. At Osborn MST, . . . [a] number of the students struggled to sound out basic words when they read aloud in class, and one student asked her classmate how to spell the word “the.”
(Id. at #9–10; accord id. at #79.)

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Looking to national-level data, Detroit schools average “2.3 grade levels below their actual grade level in basic reading proficiency. Because Plaintiffs’ schools are among the poorest performing schools in Detroit, this means that students in Plaintiffs’ schools are performing far lower.” (Id. at #72 (emphasis omitted).) Plaintiffs allege that these issues also cause “high drop-out and low college attainment rates” within their schools. (Id. at # 27; accord id. at #73–76.)
While literacy is the crux of Plaintiffs’ complaint, they also note that the failure of their schools is uniform across “nearly all subject areas.” (Id. at #7.) “[B]ecause the rest of the curriculum assumes a level of literacy that the students do not attain, they are also unable to learn State-mandated content in all other subject areas.” (Id. at #7–8.) Of Plaintiffs’ high schools that remain open, each of their eleventh-grade classes scored “0% proficiency in at least one of Math, Science, or Social Studies.” (Id. at #10 (emphasis omitted).)
D. The District Court’s Opinion and Order
On September 13, 2016, Plaintiffs filed their complaint in the Eastern District of Michigan. They alleged three causes of action at issue in this appeal: (1) denial of their “fundamental right of access to literacy,” violating both the substantive due process and equal protection requirements of the Fourteenth Amendment; (2) violation of the Equal Protection Clause due to race-based discrimination; and (3) a claim for declaratory relief based on these other causes of action. (Compl., R. 1 at PageID #126–30.)6
Defendants moved to dismiss. First, while not expressly phrased in terms of mootness, Defendants argued that they no longer control Plaintiffs’ schools, and so cannot be sued for those schools’ conditions. Defendants also claimed that the Eleventh Amendment barred Plaintiffs’ requested relief on sovereign-immunity grounds.
Turning to the merits, Defendants argued that there is no fundamental right to access to literacy, calling it “a mere proxy for a right to education, which has long been rejected as a fundamental right.” (Mot. to Dismiss, R. 60 at PageID #519–27.) And since there is no such

6Plaintiffs voluntarily abandoned their other two causes of action.

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right, any equal protection claim not based on a protected class must be reviewed under the rational-basis standard, a review that Defendants argued would show that the claim fails under the Supreme Court’s prior education cases. Finally, Defendants said that Plaintiffs failed to plead a race-based equal protection claim because the conditions they complain of “equally affect all students within the same schools regardless of race.” (Id. at #532–35.)
While the district court ultimately granted Defendants’ motion, Gary B., 329 F. Supp. 3d at 369, how it came to that conclusion is important on appeal. Before reaching the merits of Plaintiffs’ complaint, the district court first addressed Defendants’ argument that they did not operate Plaintiffs’ schools and so were the wrong parties to sue. Id. at 349. The court rejected this view, finding that Plaintiffs had “adequately pled that state actors effectively control the schools, at least in part, and are therefore proper parties.” Id. at 354. The court also rejected Defendants’ Eleventh Amendment argument, finding that Plaintiffs sought prospective injunctive relief, and therefore could sue state officers in their official capacities. Id. at 356–57.
Plaintiffs fared worse on the merits. Turning first to their due process claims, the court noted that “a case like this one could be argued on either positive- or negative-right theories.” Id. at 364. Negative rights, in this view, are freedoms from government intervention or intrusion; positive rights, by contrast, entail affirmative obligations that the state must afford its citizens. “But the relief sought [was] exclusively positive in nature,” and so the district court only considered the due process claim in terms of whether access to literacy is a fundamental right. Id. at 364–65. And on that point, noting federal courts’ “reticence to find positive rights [even] to unquestionably important necessities of life,” the court held there was no such fundamental right. Id. at 365–66.
On the equal protection claim, the court first found that while Plaintiffs attempted to compare their education to that provided by other schools throughout the State of Michigan, this was not the right comparison. Id. at 367. According to the court, because schools like Plaintiffs’—those under emergency management or experiencing other state interventions—were in a different position from other schools, only schools undergoing state interventions could serve as comparators in assessing their equal protection claims. Id. Using that framework, the district court rejected Plaintiffs’ race-based equal protection claim, finding that the complaint

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failed to allege “any instance where Defendants intervened in a school with a different racial makeup and treated that school disparately.” Id. at 367–68. Left with only rational basis review, the court found that Plaintiffs had failed to allege any specific, irrational actions taken by Defendants, holding that Plaintiffs could not use the conditions in their schools alone to dispel the presumption of rationality. Id. at 368. Accordingly, the district court dismissed Plaintiffs’ complaint in its entirety with prejudice. Id. at 369.
E. The Parties’ Arguments on Appeal
On appeal, both sides argue that the district court erred (though Defendants of course believe the ultimate outcome was correct). Plaintiffs say that the court was wrong in finding there is no fundamental right to access to literacy, and thus the district court should not have dismissed their due process claim. They also argue that the court should have considered a negative-rights version of their due process theory, under which Defendants violated their right to liberty by compelling them to attend “schools in name only” that fail to provide even a minimal education. (Pls.’ Br. at 36–43.)
On equal protection, while not addressing their race-based claims, Plaintiffs say that because Defendants control the entire statewide education system, other schools throughout the state are proper comparators. When viewed against these statewide comparators, Plaintiffs say their schools are so much worse that Defendants’ actions violate the Equal Protection Clause under any level of scrutiny.
For Defendants’ part, they begin by reiterating that they do not control Plaintiffs’ schools, and so are not proper defendants in this case. They now raise this argument under the guise of mootness, contending that changes in state law and practice have removed their day-to-day control over education in Detroit. As a result, they also argue that any remaining claims are for retroactive rather than prospective relief, and so are barred by the Eleventh Amendment.
Following this section of their brief, which was styled “Argument for All Defendants” (Defs.’ Br. at 26), Defendants seem to part ways. Most of the defendants say that because Plaintiffs’ claims are moot, they will not argue against their merits on appeal. (Id. at 25.) But two of the defendants proceed in a further section titled “Argument of Michigan Board of

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Education Members Tom McMillin and Nikki Snyder Only.” (Id. at 36; accord id. at 25.) This section contains Defendants’ arguments on the merits of Plaintiffs’ constitutional theories, in which they say the district court correctly dismissed Plaintiffs’ claims.7
These issues are now before the Court.
II. DISCUSSION
A. Standard of Review
We review a district court’s grant of a motion to dismiss de novo. E.g., Majestic Bldg. Maint., Inc. v. Huntington Bancshares, Inc., 864 F.3d 455, 458 (6th Cir. 2017). A motion to dismiss is properly granted if the plaintiff has “fail[ed] to state a claim upon which relief can be granted.” Fed R. Civ. P. 12(b)(6).
The reviewing court must accept the factual allegations in the complaint as true and construe the complaint in the light most favorable to the plaintiff. E.g., Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005). But we may affirm the district court’s dismissal of the plaintiff’s claims on any grounds present in the record, including grounds not relied upon by the district court. E.g., Long v. Insight Commc’ns of Cent. Ohio, LLC, 804 F.3d 791, 794 (6th Cir. 2015); In re Comshare, Inc. Sec. Litig., 183 F.3d 542, 547–48 (6th Cir. 1999).
To survive a motion to dismiss, the plaintiff must allege facts that are sufficient “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
7It is unclear how McMillin and Snyder have the authority to pursue separate arguments on their own behalf. Both are members of a collegial body—the state board of education—and were sued in their official capacities. In such a case, it is the decision of the body itself, not its individual members, that governs the conduct of litigation. See, e.g., Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 543–45 (1986) (holding that a school board member sued in his official capacity was bound by the board’s litigation decisions and could not file his own notice of appeal); Smuck v. Hobson, 408 F.2d 175, 177–78 (D.C. Cir. 1969) (en banc) (plurality opinion) (finding that because a board of education’s “decisions are made by vote as a collective whole,” an individual member “has no appealable interest” contrary to a majority vote taken by the board).
But since the remaining defendants have not objected to McMillin’s and Snyder’s arguments, and indeed have included them in their brief (albeit separately labeled), we consider these arguments to be made on behalf of all defendants and refer to them in this manner below. This seems particularly appropriate because the board as a whole (along with the other state officers) is the master of how this litigation is defended, and thus can decide which arguments to pursue in its briefs and whether and to what extent it should further press this appeal.

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(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
The determination to dismiss with prejudice, as opposed to without, is reviewed under an abuse of discretion standard. E.g., United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 644 (6th Cir. 2003); Craighead v. E.F. Hutton & Co., 899 F.2d 485, 495 (6th Cir. 1990).
B. Mootness and Sovereign Immunity
At the outset, Defendants say that there is no need to reach the merits of this appeal, because Plaintiffs sued the wrong people. This is because, in the past several years, Defendants have shifted the administration of Plaintiffs’ schools back to local officials, and so any complaints about the conditions in these schools must instead be addressed to the local school board. Defendants also argue that since they no longer control the day-to-day events at Plaintiffs’ schools, any suit against them would have to be for retroactive monetary relief, and so would run afoul of the Eleventh Amendment’s grant of sovereign immunity. The district court found against Defendants on each of these points. Gary B., 329 F. Supp. 3d at 354, 357.
While the Eleventh Amendment generally prohibits lawsuits against states in federal court, under Ex parte Young, 209 U.S. 123, 155–56 (1908), a plaintiff can sue state officers to enjoin an unconstitutional state policy. When challenging a state policy, the officer sued must “have some connection” with the policy’s enforcement or execution. Id. at 157. Even when a function is administered on a day-to-day level by local officials, a state officer’s supervisory authority can still make her a proper defendant under Ex parte Young. E.g., Russell v. Lundergan-Grimes, 784 F.3d 1037, 1048–49 (6th Cir. 2015). So long as the named defendants are “actively involved” with the challenged conduct, they can be sued for injunctive relief without implicating the Eleventh Amendment. Id.; accord Doe v. DeWine, 910 F.3d 842, 848– 49 (6th Cir. 2018).

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By arguing that the day-to-day management of Plaintiffs’ schools has been returned to DPSCD, Defendants misconstrue Plaintiffs’ central claim in this case, which is that the state—as the primary authority for public schools in Michigan—has failed to provide them with a basic minimum education. While their complaint also discusses Defendants’ prior, more extensive interventions into Detroit’s schools, the gravamen of Plaintiffs’ argument is that the state, by virtue of its supervisory authority over all public education in Michigan, has a responsibility to ensure that each school it oversees at least provides access to literacy.
This Court has previously rejected an argument that is analogous to Defendants’ here:
The Secretary [of State] and Governor also maintain that they are not proper parties to this action in that any alleged errors were the fault of local [boards of election] rather than high-level state officials. The district court properly rejected this argument. The Secretary of State of Ohio is the state’s chief election officer ex officio. The Governor of Ohio is the state’s chief executive officer. Both officials have the authority to control the [boards of election] and are proper parties here.
League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 475 n.16 (6th Cir. 2008) (citations omitted); see also, e.g., Doe v. DeWine, 910 F.3d at 848–49; Russell, 784 F.3d at 1048–49.
This logic applies here too. The state board of education has “[l]eadership and general supervision over all public education.” Mich. Const. art. VIII, § 3. The superintendent executes the board’s policies and is the chief education officer of Michigan. Id. The governor is the chief executive officer. Id. art. V, § 1. And while the state has delegated much of the management of individual school districts and schools to local authorities, these remain “under the ultimate and immediate control of the state and its agents.” Parochiaid, 566 N.W.2d at 216.8

8Although the changes highlighted by Defendants do not alter this general relationship between the state and its subordinate school districts, they may affect whether certain individual defendants should remain in this case. For example, the SRO appears to have been eliminated in June 2019. While the parties did not raise this issue directly with respect to individual officers, they could do so following remand in the district court. See, e.g., Chisom v. Jindal, 890 F. Supp. 2d 696, 728 (E.D. La. 2012) (approving the voluntary dismissal of an official-capacity defendant after the office in question was eliminated); see also, e.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.”).

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Furthermore, any remedy that the district court could order would almost certainly implicate Defendants, who have policymaking and financial responsibility for the statewide education system. The rule advocated by Defendants could create 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. In Futernick v. Sumpter Township, 78 F.3d 1051, 1055 n.5 (6th Cir. 1996), abrogated on other grounds by Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), we rejected a similar argument on these grounds:
The [defendants] also argue that only the officer with immediate control over the challenged act or omission is amenable to § 1983. We find this claim ridiculous. Such a rule would allow a state agency to avoid, or defer, liability merely by transferring the defendant in a particular case, or by changing the scope of the defendant official’s authority. The directors of a state agency, no matter how far removed from the actions of agency employees, are proper parties to a suit for an injunction under § 1983.
In fact, even if Plaintiffs’ claims were limited to the state’s direct intervention in Detroit’s schools, Defendants’ recent transfer of day-to-day management to DPSCD would still not require dismissal. “A defendant’s ‘voluntary cessation of a challenged practice’ does not moot a case. Rather, voluntary conduct moots a case only in the rare instance where ‘subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” League of Women Voters, 548 F.3d at 473 (citations omitted) (first quoting Ammex, Inc. v. Cox, 351 F.3d 697, 704 (6th Cir. 2003); and then quoting Akers v. McGinnis, 352 F.3d 1030, 1035 (6th Cir. 2003)). Given Defendants’ repeated interventions in and changes to the governance structure of Detroit’s education system, there is no assurance that Defendants will not again inject themselves into the administration of Plaintiffs’ schools, nor do they attempt to make such a commitment in their brief. Despite the greater consideration afforded to government officials’ cessation of allegedly unlawful conduct, e.g., Ammex, 351 F.3d at 705; Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990), there is no basis to believe this change is a permanent one.
Finally, Defendants’ argument that this lawsuit is really an attempt to seek payment for past harms, and so is barred by the Eleventh Amendment, misstates both Plaintiffs’ requested remedy and the law. As Defendants themselves repeatedly argue, Plaintiffs are requesting

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affirmative injunctive relief to improve the conditions in their schools. Such an injunction “fits squarely within the prospective-compliance exception” to the Eleventh Amendment, even if funds from the state treasury are needed to carry it out. Milliken v. Bradley, 433 U.S. 267, 289 (1977); see also id. at 288–90 (affirming an order requiring Michigan state officers to fund remedial education measures). The cases cited by Defendants all involved cash payments to claimants for previously incurred liabilities, see Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1220 (11th Cir. 2000) (“If the prospective relief sought is ‘measured in terms of a monetary loss resulting from a past breach of a legal duty,’ it is the functional equivalent of money damages and Ex parte Young does not apply.” (quoting Edelman v. Jordan, 415 U.S. 651, 668 (1974))), and so are completely inapplicable to this case.
In sum, 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. Accordingly, its officers are proper defendants in this case under Ex parte Young, and the transfer of some control back to local officials does not render this lawsuit moot.
C. Plaintiffs’ Equal Protection Claim
Faced now with the merits of Plaintiffs’ complaint, we turn first to their equal protection claim. The crux of this claim is that Defendants discriminated against Plaintiffs by failing to provide the same access to literacy they give to other Michigan students. Thus, even if there is no fundamental right to a basic minimum education, Defendants—by choosing to provide a basic education to some students but not to others—have still violated Plaintiffs’ constitutional rights. There is some debate over what level of scrutiny applies when a discrete group is denied access to education. Plaintiffs argue that under Plyler v. Doe, 457 U.S. 202 (1982), a form of heightened scrutiny applies in such cases, see id. at 230 (“If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest.”). They also contend that even if this heightened scrutiny did not apply, there could be no rational justification for denying Plaintiffs an adequate education while providing one to other students throughout the state.

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But a review of Plaintiffs’ complaint shows they have not adequately pleaded an equal protection claim, regardless of the level of scrutiny. This is because their complaint, while reflecting the awful conditions faced in Plaintiffs’ schools, has not alleged any disparity in the state’s allocation of resources between their schools and others. Nor do Plaintiffs attack any specific decision or policy implemented by Defendants that treats their schools differently from others in the state. Thus, because Plaintiffs have not identified a governmental action or policy that discriminates against them, the district court was correct to dismiss this claim.
1. Equal Protection Framework
“When a state distributes benefits unequally, the distinctions it makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment.” Zobel v. Williams, 457 U.S. 55, 60 (1982). At its core, the Clause says that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Thus, plaintiffs alleging an equal protection claim have to make two showings: first, that the defendants treated them differently from other similarly situated persons, and second, that this difference in treatment is not supported by a sufficiently strong governmental interest. E.g., id. at 439–40; Jolivette v. Husted, 694 F.3d 760, 771 (6th Cir. 2012); Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011); Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006).
Much of the Supreme Court’s equal protection case law concerns the second part of this test, and specifically how strong the governmental interest must be. For example, if a government policy discriminates based on race or another immutable, protected characteristic, the Court applies “strict scrutiny” and will uphold the policy only if it furthers a “compelling state interest” and is narrowly tailored in doing so. Cleburne, 473 U.S. at 440; accord, e.g., Grutter v. Bollinger, 539 U.S. 306, 326 (2003); see also, e.g., Zablocki v. Redhail, 434 U.S. 374, 388 (1978) (also applying strict scrutiny “[w]hen a statutory classification significantly interferes with the exercise of a fundamental right”).9

9Classifications based on gender are reviewed under “intermediate scrutiny,” in which the challenged policy “must serve important governmental objectives and must be substantially related to achievement of those

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On the other hand, if the policy does not concern a protected class, “rational basis” review is used, and the policy will be sustained if it “is rationally related to a legitimate state interest.” Cleburne, 473 U.S. at 440. This rational basis standard is extremely forgiving. The
challenged action is presumed to be constitutional, and the burden is on Plaintiffs to negate “every conceivable basis” that might support it. Heller v. Doe ex rel. Doe, 509 U.S. 312, 320
(1993) (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). Further, “[w]hen social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude.” Cleburne, 473 U.S. at 440.
Plyler v. Doe throws a wrench in this. In Plyler—discussed more extensively later, see infra Part II.E.2—the Supreme Court faced a Texas policy that required undocumented children to pay tuition before they could attend public school, 457 U.S. at 205–06, 206 n.2. In assessing the plaintiffs’ equal protection challenge, the court noted that “[u]ndocumented aliens cannot be treated as a suspect class,” and that education as a general matter is not a
fundamental right. Id. at 223. And so, rational basis must apply.
But the Court went on:
[M]ore is involved in these cases than the abstract question whether [the challenged policy] discriminates against a suspect class, or whether education is a fundamental right. [The policy] imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining the rationality of [the policy], we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in [Texas’s policy] can hardly be considered rational unless it furthers some substantial goal of the State.

objectives.” Craig v. Boren, 429 U.S. 190, 197 (1976); see also, e.g., Plyler, 457 U.S. at 217–18, 218 n.16 (discussing the application of intermediate scrutiny to classifications that, “while not facially invidious, nonetheless give rise to recurring constitutional difficulties”).

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Id. at 223–24 (emphasis added). Thus, while still couched in rational basis review, the Plyler court held that when a discrete group of children is denied a basic public education, such a policy can survive only if “if furthers some substantial state interest.” Id. at 223–24, 230.10
2. Application to Plaintiffs’ Claims
As noted above, to state an equal protection claim, a plaintiff must allege both a difference in treatment from others and that this difference cannot be supported by a sufficiently important governmental interest. E.g., Ctr. For Bio-Ethical Reform, 648 F.3d at 379. But the current version of Plaintiffs’ complaint fails to demonstrate disparate treatment, because it focuses on school conditions and inadequately alleges state policies or actions that caused those conditions within Plaintiffs’ schools and not in others. Plaintiffs’ allegations thus fail to highlight any difference in treatment that suggests the state discriminated against them, and so they have failed to adequately allege that “the government treated [Plaintiffs] disparately as compared to similarly situated persons.” Jolivette, 694 F.3d at 771 (quoting Ctr. For Bio-Ethical Reform, 648 F.3d at 379); see also, e.g., Scarbrough, 470 F.3d at 260 (“The threshold element of an equal protection claim is disparate treatment . . . .”).
The primary comparison Plaintiffs allege between their own schools and others in the state is that Plaintiffs’ schools face significantly worse “performance data,” which is based on state proficiency tests in several subject matter areas. (Compl., R. 1 at PageID #65–76.) For example, Plaintiffs allege that in their schools, low-single-digit percentages of students are rated as “proficient or above” in English, compared to a state average in the mid-to-high forties. (Id. at #8–10, #65–69.) The same is true for several other subject matter areas, with some schools scoring as low as 0% proficient in certain areas.

10In a later case, the Supreme Court may have attempted to limit this holding. See Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 459 (1988) (“We have not extended [Plyler’s] holding beyond the ‘unique circumstances’ that provoked its ‘unique confluence of theories and rationales.’” (citation omitted) (first quoting Plyler, 457 U.S. at 239 (Powell, J., concurring); and then quoting Plyler, 457 U.S. at 243 (Burger, C.J., dissenting))); see also Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind 360–61 (2018). But it is unclear why the “unique circumstances” of Plyler would be limited to the immigration context, as opposed to any case in which a discrete group of children—though not a protected class—is denied a basic education.

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But the Constitution cannot guarantee educational outcomes, and while performance outcome data provides some insight into access to education, the differences in these numbers are not supported by additional allegations suggesting, for example, that Defendants provided different levels of financial resources to other schools across the state. Plaintiffs’ articulation of the state action being challenged is necessary to assess that action’s rationality, see, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 44–55 (1973), and to determine whether attendees of Plaintiffs’ schools are in fact a “discrete group” being denied a basic education when compared to the rest of the state, see Plyler, 457 U.S. at 223–34, 230.
Plaintiffs also suggest that the conditions faced in their schools are different from those in other schools throughout Michigan, particularly those in “schools serving predominantly white, affluent student populations.” (Compl., R. 1 at PageID #4–5.) But while Plaintiffs extensively describe the conditions found in their own schools, they include almost no allegations regarding these comparator schools or what Defendants did differently with respect to them. Similarly, while Plaintiffs’ brief claims that Defendants “operate a system in which most schools do provide access to literacy, and some do not” (Pls.’ Br. at 52), their complaint does not adequately allege how the successful schools are operated or how Defendants treated them differently.
Nor do Plaintiffs sufficiently point to policies implemented or enforced by Defendants, other than school assignments, that separate students into discrete groups and deprive one or more of them of a basic minimum education. One policy discussed in the complaint might, standing alone, implicate equal protection—it concerns the provision allowing the hiring of “noncertificated, nonendorsed teacher[s]” only in the Detroit school district. (Compl., R. 1 at PageID #59–60, #106.) But without tying any disparity to a specific policy or action taken by Defendants that caused differences in school resources or conditions, we cannot assess whether that action or policy furthers a sufficient governmental objective.
Plaintiffs largely fault the district court’s decision for using the wrong comparator in assessing their claim of disparate treatment. In its opinion, the district court correctly noted that “Plaintiffs have not challenged a statewide funding scheme, a specific statute, or any particular decisions by Defendants applicable to all Michigan schools.” Gary B., 329 F. Supp. 3d at 367.

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Thus, the district court reasoned that Plaintiffs’ complaint had to be based on Defendants’ specific interventions in Detroit schools, and so the appropriate comparators were “other Michigan schools that have come under the control of emergency managers” or were otherwise taken over by the state. Id. But Plaintiffs argue that this misconstrues their claim, which is based on Defendants’ management of the state education system as a whole: “While the State has ensured adequate resources and properly certificated teachers in other schools sufficient to provide students with access to literacy, it has made no such provision for Plaintiffs’ schools— instead allowing those schools to deteriorate to the point of providing no meaningful education at all.” (Pls.’ Br. at 49.)
This point is well taken. If Plaintiffs’ argument is that the state has supervisory authority over the Michigan public school system, and that every other school (or almost every other school) in this system is given the resources needed to provide access to literacy, but theirs is not, it is hard to see why only schools that experienced more direct state interventions are the correct comparators.11 But as discussed above, Plaintiffs have not identified which state policy or action they are challenging as discriminatory, regardless of what comparator is used. Without this threshold allegation, their equal protection claim cannot survive.
While Plaintiffs’ complaint also lists a cause of action for race-based discrimination, in their brief on appeal, the only discussion of race in the equal protection context is the statement that Plaintiffs are “a group of almost entirely low-income children of color.” (Pls.’ Br. at 45.) Nor do Plaintiffs argue in this Court that strict scrutiny should apply due to any race-based classification. Thus, they have abandoned this theory on appeal. E.g., In re Darvocet, Darvon, and Propoxyphene Prods. Liab. Litig., 756 F.3d 917, 936 n.6 (6th Cir. 2014); Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 390 (6th Cir. 2009).
Nor have Plaintiffs adequately pleaded disparate treatment based on race. In their complaint, Plaintiffs claim to be “a discrete class—nearly all children of color and low-income— who have been excluded from the access to literacy that public education provides to other
11This statewide approach may open itself to statewide justifications by Defendants, though. See, e.g., Rodriguez, 411 U.S. at 44–55 (upholding Texas’s school-funding regime as justified by local autonomy concerns, despite uneven results). That said, there is no need to address the viability of such a claim in the first instance here.

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students in the State of Michigan.” (Compl., R. 1 at PageID #18.) Plaintiffs further note that the students at their schools are all over 95% people of color (over 97% African American in four cases, and 64.2% Latino and 31.1% African American in the fifth), and that the vast majority are entitled to free or reduced-price lunch (a proxy for their socioeconomic status). But they fail to make any specific allegations showing Defendants’ different treatment of predominantly white schools; conclusory statements that merely allude to race-based discrimination are not sufficient. (See, e.g., id. at #53 (“The State’s period of control has been marked by decisions affecting the education of minority children that would never be permitted in predominantly white school districts.”).)
This is not to say it is impossible for Plaintiffs to allege an equal protection claim in this case. After all, Plyler said that, “[i]f the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest.” 457 U.S. at 230. It also implied that a “basic education” is the standard at issue, id. at 223, and so a state action that results in the provision of a not-even-basic education could be subject to the same increased scrutiny. To state such a claim, Plaintiffs must identify the actions taken or policies implemented by Defendants that treated their schools differently from others in the state and caused the disparities at issue in this case. Since the current version of their complaint fails to do this, the dismissal of Plaintiffs’ equal protection claims must be affirmed.
3. Leave to Amend
Finally, Plaintiffs argue that even if this Court does not revive their equal protection claim, the district court still erred by dismissing their complaint with prejudice and not giving them leave to amend. This is because, if given the chance, Plaintiffs “could have identified further ‘concrete examples’” needed to support their claims, and so an amendment would not have been futile. (Pls.’ Br. at 57.)
But in this circuit, at least for represented parties, “a district court does not abuse its discretion in failing to grant a party leave to amend where such leave is not sought.” Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1041–42 (6th Cir. 1991). While Plaintiffs asked for

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leave to amend to their complaint if the district court found that “local school officials are necessary defendants in this lawsuit” (Opp’n, R. 64 at PageID #1454 n.22), the district court dismissed Plaintiffs’ complaint on other grounds. Nor did Plaintiffs ask to reopen the judgment or otherwise seek leave to amend after the district court’s decision. See, e.g., Benzon v. Morgan Stanley Distribs., Inc., 420 F.3d 598, 613 (6th Cir. 2005).
After this case is remanded, however, the district court itself could grant leave to amend following a proper request by Plaintiffs. Under the governing rule, leave to amend should be “freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also, e.g., Benzon, 420 F.3d at 613 (discussing the factors considered in deciding motions to amend); Morse v. McWhorter, 290 F.3d 795, 799–800 (6th Cir. 2002) (same). And of course, the question of whether any such amendment is proper must be guided by this Court’s opinion. See, e.g., Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (“A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.”).
D. Plaintiffs’ Compulsory Attendance Claim
Plaintiffs next argue that the district court erred by considering their due process claim only through the lens of a fundamental right, since their complaint also raises a “negative rights” argument. (Pls.’ Br. at 36–43.) Under this theory, Plaintiffs argue that a central element of their due process rights—the right to freedom of movement and freedom from state custody—is restricted by the state’s compulsory education law, which forces them to attend their schools. While this restraint would be allowed if the state, in return, provided them with an adequate education, Plaintiffs argue that by detaining them at “schools in name only,” the state has failed to meet this burden, rendering the detention arbitrary and violating their substantive due process rights. (Id.) The district court declined to address this theory, saying that Plaintiffs’ complaint “points exclusively to a positive-right argument.” Gary B., 329 F. Supp. 3d at 364.
The legal theory behind this claim appears to have strong support in the law. It seems beyond debate that confining students to a “school” that provides no education at all would be an arbitrary detention, prohibited by the common law’s understanding of due process tracing back to the Magna Carta. See, e.g., Jennings v. Rodriguez, 138 S. Ct. 830, 861 (2018) (Breyer, J.,

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dissenting). But as things presently stand, the district court was correct to dismiss this claim: Plaintiffs’ complaint does not provide notice that they were pursuing a claim based on Michigan’s compulsory attendance requirement and fails to allege sufficient facts for the Court to address its plausibility. We address both the governing law and Plaintiffs’ complaint below.
1. Substantive Due Process and Compulsory Attendance
The main case Plaintiffs rely on to support their compulsory attendance theory is Youngberg v. Romeo, 457 U.S. 307 (1982). In Youngberg, a thirty-three-year-old man with severe intellectual disability was deemed unable to care for himself and involuntarily committed to a state facility. Id. at 309–10. After a series of injuries and physical restraints imposed during his commitment, Romeo sued under the Fourteenth Amendment, arguing that that the state failed to protect his liberty interests in “safety, freedom of movement, and training within the institution.” Id. at 310–11, 314–15.
First discussing his safety claim, the Court “noted that the right to personal security constitutes a ‘historic liberty interest’ protected substantively by the Due Process Clause.” Id. at 315 (quoting Ingraham v. Wright, 430 U.S. 651, 673 (1977)). Similarly, the Court found that “[l]iberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Id. at 316 (alteration in original) (quoting Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 18 (1979) (Powell, J., concurring in part and dissenting in part)).
Romeo’s last claim proved to be more complicated. He conceded that, because of the severity of his disability, no amount of training would make it possible for him to be released. Id. at 317. That said, Romeo still argued he was entitled to training that would reduce his aggression, thereby increasing his safety and decreasing the need for restraint within the facility. Id. at 317–18.
In addressing his claims, the Court noted that while Romeo retained “liberty interests in safety and freedom from bodily restraint,” these interests were not absolute. Id. at 319–20. For example, the facility would be entitled to restrain the movement of residents to protect their safety and the safety of others. Id. at 320. “The question then is not simply whether a liberty

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interest has been infringed but whether the extent or nature of the restraint . . . is such as to violate due process.” Id. In answering this question, the Court balances “the individual’s interest in liberty against the State’s asserted reasons for restraining individual liberty.” Id. Applying this principle to Romeo’s claim, the Court held that he was entitled to improved safety, lesser restraint, and appropriate training, but that in shaping this remedy on remand, the trial court should afford significant deference to the professionals responsible for Romeo’s care. Id. at 321–25.
Other cases indicate that this balancing principle is the crux of any due process analysis where the state restrains core liberty interests like freedom of movement. For example, in Cruzan—a case about the right to refuse life-saving medical care—the Supreme Court reiterated that “whether [a plaintiff’s] constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests.” Cruzan ex rel. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 279 (1990) (quoting Youngberg, 457 U.S. at 321). United States v. Salerno, 481 U.S. 739, 750–51 (1987), similarly observed this balancing principle, finding that while individuals have a “strong interest in liberty[,] . . . this right may, in circumstances where the government’s interest is sufficiently weighty, be subordinated to the greater needs of society.” And in Foucha v. Louisiana, 504 U.S. 71 (1992), the Court held that “[d]ue process requires that the nature of [a] commitment bear some reasonable relation to the purpose for which the individual is committed,” id. at 79; see also Jackson v. Indiana, 406 U.S. 715, 738 (1972) (“At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.”). While the degree of deprivation is obviously greatest in a case like involuntary commitment, there is no reason why this balancing principle should not apply to less-extensive restraints as well. See Youngberg, 457 U.S. at 319–21.
Compulsory school attendance laws are a restraint on Plaintiffs’ freedom of movement, and thus implicate the core protections of the Due Process Clause. See, e.g., Foucha, 504 U.S. at 80; Youngberg, 457 U.S. at 316. If the state required a group of people to sit in a building for several hours a day without any justification, such a restraint would clearly offend their right to liberty. See, e.g., Ly v. Hansen, 351 F.3d 263, 276–77 (6th Cir. 2003) (citing Demore v. Kim,

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538 U.S. 510, 531–33 (2003) (Kennedy, J., concurring)) (noting that the Due Process Clause prohibits arbitrary deprivations of liberty), abrogated on other grounds by Jennings, 138 S. Ct. 830; see also, e.g., Jennings, 138 S. Ct. at 861 (Breyer, J., dissenting) (“The Due Process Clause—itself reflecting the language of the Magna Carta—prevents arbitrary detention.”); Reno v. Flores, 507 U.S. 292, 315 (1993) (O’Connor, J., concurring) (same); cf. Meyer v. Nebraska, 262 U.S. 390, 402 (1923) (“In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. . . . [But] it hardly will be affirmed that any Legislature [in our country today] could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution.”). And so, if compulsory school attendance is constitutional, it must be because the relevant state interest outweighs any deprivation of liberty.
On the other hand, while never directly addressing this issue, the Supreme Court has recognized that, given the important governmental interest in educating its citizens, the state generally has the power to compel attendance at school. E.g., Wisconsin v. Yoder, 406 U.S. 205, 213 (1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534 (1925); Meyer, 262 U.S. at 402. Given this repeated dictum, it seems clear that in most cases, a state-provided education will justify the deprivation of liberty caused by compulsory attendance.
Taken together, it is clear from these cases that, at least for compulsory education in a general sense (which is the only type of schooling that the complaint concerns), there is some level of education that justifies whatever deprivation of liberty is caused by a mandatory attendance or schooling requirement. See, e.g., Pierce, 268 U.S. at 534; Meyer, 262 U.S. at 402. But at the same time, forcing students to attend a “school” in which they are simply warehoused and provided no education at all would run afoul of the Due Process Clause’s protections.12

12The dissent suggests that Youngberg categorically does not apply to claims based on compulsory attendance laws. But the cases it relies on all concern the state’s failure to protect a student within the school environment from private harms like third-party violence or medical conditions, not whether the state’s mandatory attendance requirement was itself permissible in the first place. See Stiles ex rel. D.S. v. Grainger County, 819 F.3d 834, 840 (6th Cir. 2016); Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 910 (6th Cir. 1995). There is a difference between the custody exception to DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 198–200 (1989), which concerns whether the state has a duty to protect an individual in its custody against private

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Such a deprivation would bear no reasonable relationship to the state’s asserted purpose, see, e.g., Foucha, 504 U.S. at 79, and thus would be outweighed by the individual’s interest in liberty, see, e.g., Cruzan, 497 U.S. at 279; Salerno, 481 U.S. at 750–51; Youngberg, 457 U.S. at 320. For cases in the middle, the question is whether the state’s interest—here, the education it provides—is enough to justify the restraint.
2. Application to Plaintiffs’ Complaint
While Plaintiffs’ negative-rights claim seems to have support in the law and was argued in their brief on appeal, it is noticeably absent from their complaint. The complaint certainly includes the statement that Michigan has compulsory school attendance (see, e.g., Compl., R. 1 at PageID #27 (“Michigan . . . compels children to attend school full time . . . .”); id. at #43 (same)), but there is no indication that Plaintiffs are alleging that this deprivation of liberty is unconstitutional. The closest Plaintiffs come to highlighting this claim is by saying that, since education “is required of every child,” there is “a special relationship between the state and children between the ages of 6 and 18.” (Id. at #42.) But Plaintiffs never expand this beyond noting the “special relationship,” and their only cause of action regarding due process puts it solely in terms of “the fundamental right of access to literacy,” and not any right to freedom from restraint. (Id. at #126–27.)13 Other than these two statements, Plaintiffs do not mention compulsory attendance anywhere else in their complaint or otherwise indicate that the requirement could play any role in a violation of their constitutional rights.
To satisfy the federal rules, while a “short and plain statement of the claim” is enough, the complaint must still “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (alteration in original) (first quoting Fed. R. Civ. P. 8(a)(2); and then quoting Twombly, 550 U.S. at 555). In this case,

violence, and the question of whether the state’s restriction of a person’s liberty—custodial or otherwise—is itself allowed under the Due Process Clause.
13In fact, the complaint’s discussion of compulsory education suggests it was included to show that education is seen as an essential state function, in support of Plaintiffs’ fundamental right theory. (See Compl., R. 1 at PageID #43 (“These compulsory attendance laws reflect a national judgment that education is so essential to the maintenance of democracy and the ability to participate in public and private life that compelling it is justified.”).)

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Plaintiffs’ complaint gave no notice of their claim that Defendants violated their right to freedom of movement, or any other right through the compulsory attendance requirement.
Additionally, Plaintiffs’ factual allegations are insufficient for us to assess the viability of this claim, because they fail to provide information about the extent or nature of the restraint on their liberty. Other than the broader allegations concerning the conditions of their schools, the only allegation relevant to this theory is that “Michigan’s compulsory attendance laws require Plaintiffs to attend [their] schools.” (Compl., R. 1 at PageID #4; accord, e.g., id. at #27, #42–43.)
By Youngberg’s own terms, analyzing this claim requires balancing the extent of the deprivation against the education being provided by the state. See 457 U.S. at 320 (“In determining whether a substantive right protected by the Due Process Clause has been violated, it is necessary to balance ‘the liberty of the individual’ and ‘the demands of an organized society.’” (quoting Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting))). For such a claim to be viable outside a fundamental right to a basic minimum education, Plaintiffs would have to show that the degree of restraint imposed on them cannot be justified by whatever education, however negligible, they are receiving. While Plaintiffs have alleged sufficient facts to infer the extent of the education they are being provided (or at least the extent it does not exceed), they provide inadequate information about the duration or nature of the restraint faced in their schools, such as the hours per day of compulsory attendance, the number of days per year, or the restrictions on Plaintiffs’ liberty throughout the typical school day. Without these allegations, it is impossible for us to conduct Youngberg balancing and “draw the reasonable inference that [Defendants are] liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
As with their equal protection claim, after this case is remanded, Plaintiffs could seek leave to amend from the district court and attempt to correct these deficiencies. But as their complaint stands now, their allegations fail to provide sufficient notice of their claim, and are insufficient for the Court to assess its viability. Accordingly, Plaintiffs’ negative-rights claim was correctly dismissed.

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E. The Fundamental Right to a Basic Minimum Education
Having addressed Plaintiffs’ two alternative claims for relief, we are left with the central issue in this appeal: whether Plaintiffs have a fundamental right to a basic minimum education, meaning one that provides access to literacy. Plaintiffs contend that access to literary, as opposed to other educational achievements, is a gateway milestone, one that unlocks the basic exercise of other fundamental rights, including the possibility of political participation. While the Supreme Court has repeatedly discussed this issue, it has never decided it, and the question of whether such a right exists remains open today. After employing the reasoning of these Supreme Court cases and applying the Court’s substantive due process framework, we recognize that the Constitution provides a fundamental right to a basic minimum education.
Access to a foundational level of literacy—provided through public education—has an extensive historical legacy and is so central to our political and social system as to be “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (quoting Palko v. Connecticut, 302 U.S. 319, 325–26 (1937), overruled by Benton v. Maryland, 395 U.S. 784 (1969)). In short, without the literacy provided by a basic minimum education, it is impossible to participate in our democracy.
Applying this right to Plaintiffs’ allegations, their complaint plausibly alleges that Defendants denied them a basic minimum education. Accordingly, the district court’s dismissal of this claim must be reversed.
1. Recognition of Fundamental Rights Under Substantive Due Process
The Due Process Clause of the Fourteenth Amendment says that no state shall “deprive any person of life, liberty, or property, without due process of law.” The Clause is most commonly seen as guaranteeing procedural protections whenever the state attempts to deprive someone of their life, liberty, or property interests—so-called procedural due process. Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). But the Clause has also been read to recognize that certain interests are so substantial that no process is enough to allow the government to restrict them, at least absent a compelling state interest. E.g., Glucksberg,

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521 U.S. at 719–21; Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846–47 (1992); Collins, 503 U.S. at 125. This substantive due process is the basis for Plaintiffs’ claim.
“The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights,” which are deemed to be “incorporated” into the Due Process Clause. Casey, 505 U.S. at 847. But this is not the end of the Clause’s protections, which also extend to other rights and liberties recognized by the courts to be “fundamental.” E.g., Glucksberg, 521 U.S. at 720–21; Flores, 507 U.S. at 301–02. For example, in Meyer, the Court stated:
While [the Supreme Court] has not attempted to define with exactness the liberty thus guaranteed [by the Due Process Clause], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
262 U.S. at 399.
Despite the breadth of the Court’s statement in Meyer, later cases prescribe circumspection when deciding whether an asserted right is fundamental. “As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins, 503 U.S. at 125. But this reluctance is not the end of the matter:
The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office.
Casey, 505 U.S. at 849.

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Faced with this tension, the Supreme Court has developed a two-prong analysis it applies when determining whether an asserted right is fundamental. First, “the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’” Glucksberg, 521 U.S. at 720–21 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)). The Supreme Court has applied a holistic approach to this historical analysis, tracing the evolution of an asserted right through or even beyond the history of our country, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2593–97 (2015); Glucksberg, 521 U.S. at 710–19. A few Justices have instead embraced a narrower version, however, looking to whether the right in question would have been recognized as a protected interest at the time the Fourteenth Amendment was adopted. E.g., Obergefell, 135 S. Ct. at 2628 (Scalia, J., dissenting).
Even if a specific iteration of a right lacks substantial historical roots, this alone is not enough to foreclose recognition under the Due Process Clause. As the Court noted in Casey, “[i]t is tempting, as a means of curbing the discretion of federal judges, . . . to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. But such a view would be inconsistent with our law.” 505 U.S. at 847 (citation omitted); see also Obergefell, 135 S. Ct. at 2598 (majority opinion) (“History and tradition guide and discipline this inquiry but do not set its outer boundaries. That method respects our history and learns from it without allowing the past alone to rule the present.” (citation omitted)).
Thus, the second prong of the inquiry looks to whether the asserted right is “‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’” Glucksberg, 521 U.S. at 721 (quoting Palko, 302 U.S. at 325–26). While these prongs are sometimes tied together, see, e.g., Kerry v. Din, 135 S. Ct. 2128, 2134 (2015) (plurality opinion), Obergefell made clear that this historical inquiry may illuminate even newly recognized injustices that reveal a fundamental right:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its

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dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
135 S. Ct. at 2598.
2. The Supreme Court’s Education Cases
Beyond the general framework for assessing whether an asserted right is fundamental, the Supreme Court has also, in a series of cases, addressed the extent of constitutional rights with respect to state-provided education. Its education jurisprudence teaches several lessons. First, the Court has found that there is no broad, general right to education. Rodriguez, 411 U.S. at 33– 39; see also, e.g., Seal v. Morgan, 229 F.3d 567, 575 (6th Cir. 2000) (citing Rodriguez, 411 U.S. at 33–37). Second, while no general right to education exists, the Supreme Court has specifically distinguished and left open “whether a minimally adequate education is a fundamental right.” Papasan v. Allain, 478 U.S. 265, 285 (1986); see also Rodriguez, 411 U.S. at 36–37. The Sixth Circuit also appears to have been silent on this issue. Third, education is, at minimum, highly important to “maintaining our basic institutions,” and so the denial of public education to a discrete group of students “must be justified by a showing that it furthers some substantial state interest.” Plyler, 457 U.S. at 221–24, 230. And fourth, the Court has addressed the critical link between education and race discrimination in America. We discuss the Court’s relevant education cases in turn, beginning chronologically.
First, the history of public education in this country, as with many things, is inextricably tied to race. See infra Part II.E.3.a. And so, while it did not directly concern substantive due process, Brown v. Board of Education, 347 U.S. 483 (1954), is important in assessing whether any aspect of education amounts to a fundamental right. Brown of course examined whether racially segregated schools inherently violated the Equal Protection Clause of the Fourteenth Amendment. Id. at 487–88. The Court found they did, holding that “in the field of public education the doctrine of ‘separate but equal’ has no place.” Id. at 495.

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During this equal protection discussion, the Court noted the critical importance of education:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
Id. at 493.
As argued by the parties, this passage can be read two ways. On the one hand, if “education is perhaps the most important function of state and local governments” and is “required in the performance of our most basic public responsibilities,” id., how could it not be “implicit in the concept of ordered liberty” or otherwise fundamental to our social order? Glucksberg, 521 U.S. at 721 (quoting Palko, 302 U.S. at 325). On the other, how could the state be compelled to provide an education if education needs to be equal only “where the state has undertaken to provide it”? Brown, 347 U.S. at 493.
Nearly twenty years after Brown, this question returned to the Supreme Court. In San Antonio Independent School District v. Rodriguez, the plaintiffs challenged the constitutionality of Texas’s public-school finance system, arguing that differences in funding across school districts denied them equal protection of the law. 411 U.S. at 4–6, 15–16. Texas employed a “dual approach” to school finance, a system to which both local school districts and the state contributed. Id. at 6–7. But local funding (via property taxes) rapidly outpaced what was provided by the state, meaning that variations in property values led to substantial disparities in available funds. Id. at 7–15. During the litigation, “Texas virtually concede[d]” that the system could not survive strict scrutiny, and so if the uneven funding of schools interfered with a fundamental constitutional right, it would have to be invalidated by the Court. Id. at 16–17.

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In assessing whether education was a fundamental right, the Court began by referencing Brown, noting the country’s “historic dedication to public education” and agreeing that “‘the grave significance of education both to the individual and to our society’ cannot be doubted.” Id. at 29–30 (quoting Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280, 283 (W.D. Tex. 1971), rev’d, 411 U.S. 1). Despite this, the Supreme Court found that education was not a fundamental right, saying that “the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic legislation.” Id. at 35.
In denying the plaintiffs’ claim, the Court specifically responded to their argument that “education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote.” Id. The Court found this argument lacking, as the plaintiffs’ claim to “effective” First Amendment speech and “intelligent utilization” of the ballot was tantamount to demanding a guarantee of “the most effective speech or the most informed electoral choice,” neither of which were protected by the Constitution. Id. at 35–36.
The Court’s conclusion regarding this argument is especially notable:
Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short. Whatever merit appellees’ argument might have if a State’s financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where—as is true in the present case—no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.
Id. at 36–37. Thus, the Court never ruled on the right to such a basic minimum education, and as shown more explicitly in its later cases, saved the question for another day.
Next is Plyler v. Doe. In Plyler, the plaintiffs—“undocumented school-age children” also living in Texas—sued to challenge policies that denied state-level funding and charged tuition for students “who could not establish that they had been legally admitted into the United

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States.” 457 U.S. at 205–06, 206 n.2. The question was whether these policies violated the
Equal Protection Clause, and what level of scrutiny to use in that analysis. Id. at 216–18.
Looking to the interaction between education and the Constitution, the Court reiterated
the holding in Rodriguez, while also noting the heightened significance of education and the
special constitutional considerations that follow:
Public education is not a “right” granted to individuals by the Constitution. But neither is it merely some governmental “benefit” indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. . . . We have recognized “the public schools as a most vital civic institution for the preservation of a democratic system of government,” and as the primary vehicle for transmitting “the values on which our society rests.” “[A]s . . . pointed out early in our history, . . . some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.” . . . In addition, education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.
Id. at 221 (some alterations in original) (citations omitted) (first quoting School Dist. v. Schempp,
374 U.S. 203, 230 (1963) (Brennan, J., concurring); then quoting Ambach v. Norwick, 441 U.S.
68, 76 (1979); and then quoting Yoder, 406 U.S. at 221).
Invoking Brown, the Plyler Court also noted the distinct role of education as a social
equalizer:
In addition to the pivotal role of education in sustaining our political and cultural heritage, denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit. Paradoxically, by depriving the children of any disfavored group of an education, we foreclose the means by which that group might raise the level of esteem in which it is held by the majority.
Id. at 221–22.

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Based on this reasoning, the Court found that the challenged provisions violated the Equal Protection Clause. Id. at 223–30. The Court noted that the denial of a “basic education”—framed in the context of literacy—would have a substantial negative impact on both the children in question and society at large, and so any assessment of rationality must also account for these costs. Id. at 223–24. Thus, “[i]n light of these countervailing costs,” the challenged provisions could only be upheld if they “further[ed] some substantial goal of the State.” Id. at 224. Since the state’s proffered interests failed to meet this standard, the Court invalidated the Texas policy. Id. at 224–30.
After Rodriguez and Plyler comes Papasan v. Allain. In Papasan, schoolchildren in counties originally held by the Chickasaw Nation received a reduced amount of state educational funding compared to other counties in Mississippi, and so they sued the governor and state officials in federal court. 478 U.S. at 268–74. While this might sound like a repeat of Rodriguez, their allegations contained a twist: while the Rodriguez plaintiffs did not claim a failure to provide them with “an opportunity to acquire . . . basic minimal skills,” 411 U.S. at 36–37, the Papasan plaintiffs did exactly that, arguing that the state’s funding scheme deprived them of a “minimally adequate level of education” and that their right to such an education was fundamental, 478 U.S. at 274, 285.
In assessing this claim, the Court noted that, “[a]s Rodriguez and Plyler indicate, [the Supreme Court] has not yet definitively settled the question[] [of] whether a minimally adequate education is a fundamental right.” Id. at 285. But Papasan did not provide an answer. Instead, the Court found that, assuming such a right existed, the plaintiffs had failed to allege sufficient facts in support of their claim. Id. at 286. They did not allege that they were “not taught to read or write,” or that they did not receive “instruction on even the educational basics.” Id. In short, “they allege[d] no actual facts in support of their assertion that they have been deprived of a minimally adequate education.” Id. An answer on pleadings, sure, but not on constitutional law.14

14A similar outcome was reached by the Fifth Circuit in School Board v. Louisiana State Board of Elementary & Secondary Education, 830 F.2d 563, 568 (5th Cir. 1987), which employed rational-basis review

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Finally, the Court essentially repeated this non-answer in Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 452–56 (1988), a case that concerned a fee charged for use of the school bus. While the plaintiff there argued that those who could not afford the bus fee were deprived of “minimum access to education,” she still attended the school despite this fee, meaning her claim could not have been for actual deprivation of a basic minimum education, but rather that the fee made it harder for poor families to access the school than rich families. Id. at 458. The Court then proceeded to uphold the statute under rational-basis review, since wealth is not a protected class and there were alternative means by which students could still access the school. Id. at 458, 460–62, 465.
In his dissent in Kadrmas, Justice Marshall noted that the Court had still not decided “whether a State constitutionally could deny a child access to a minimally adequate education.” Id. at 466 n.1 (Marshall, J., dissenting). This question—whether “a minimally adequate education is a fundamental right,” Papasan, 478 U.S. at 285—remains unanswered today.
3. Is Access to Literacy a Fundamental Right?
With guidance but no answers from the education cases above, this Court must assess whether a basic minimum education—meaning one that plausibly provides access to literacy—is a fundamental right. Applying the substantive due process framework from Glucksberg and Obergefell, and looking to the reasoning of Rodriguez and Plyler, we conclude that the answer is yes.
First, the history of public education in our country reveals a longstanding practice of free state-sponsored schools, which were ubiquitous at the time of the Fourteenth Amendment’s adoption. Public schools are now universal in the United States, and Americans take it for granted that state-sponsored education will be provided for their children as of right. But in the face of this progress, the history of education in the United States also demonstrates a substantial relationship between access to education and access to economic and political power, one in which race-based restrictions on education have been used to subjugate African Americans and

because “the record contain[ed] no evidence whatever that any Louisiana schoolchild was deprived of a minimally adequate education.”

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other people of color. This racial history of education in America—and the efforts subsequently taken to confront it—reveals the importance earlier generations placed on education. Taken together, this history establishes that education has held paramount importance in American history and tradition, such that the denial of education has long been viewed as a particularly serious injustice.
Second, the role of basic literacy education within our broader constitutional framework suggests it is essential to the exercise of other fundamental rights. Most significantly, every meaningful interaction between a citizen and the state is predicated on a minimum level of literacy, meaning that access to literacy is necessary to access our political process. Further, the unique role of public education as a source of opportunity separate from the means of a child’s parents creates a heightened social burden to provide at least a minimal education. Thus, the exclusion of a child from a meaningful education by no fault of her own should be viewed as especially suspect.
In sum, the state provision of a basic minimum education has a longstanding presence in our history and tradition, and is essential to our concept of ordered constitutional liberty. Under the Supreme Court’s substantive due process cases, this suggests it should be recognized as a fundamental right.
a. The Historical Prevalence and Significance of Education
“We begin, as we do in all due process cases, by examining our Nation’s history, legal traditions, and practices.” Glucksberg, 521 U.S. at 710. This examination reveals that stateprovided education is ubiquitous throughout all but the earliest days of the United States, a historical fact that today leads its citizens to expect a basic public education as of right. Such an expectation demonstrates that the right to a basic minimum education is “deeply rooted in this Nation’s history and tradition,” id. at 720–21 (quoting Moore, 431 U.S. at 503), supporting its recognition as a fundamental right under the Due Process Clause.
The Supreme Court’s cases on education repeatedly discuss the historical prevalence and importance of state-provided education. For example, in Wisconsin v. Yoder, the state noted that the essential nature of education was touted by Thomas Jefferson in the earliest days of our

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history. 406 U.S. at 221. Meyer v. Nebraska similarly noted that “[t]he American people have always regarded education and acquisition of knowledge as matters of supreme importance,” pointing to the Northwest Ordinance’s prescription, in 1787, that “schools and the means of education shall forever be encouraged.” 262 U.S. at 400. Similarly, Papasan extensively discussed the history of public-school land grants, which “stretche[d] back over 200 years” and predated the Constitution itself. 478 U.S. at 268–69. And outside the education context, when discussing the right to privacy in marriage, the Court compared marriage to other bulwark institutions of American society and democracy, calling it “older than the Bill of Rights—older than our political parties, older than our school system.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (emphasis added).
This historical prevalence of education supports the view that it is deeply rooted in our history and tradition, even under an originalist view. See, e.g., Obergefell, 135 S. Ct. at 2628 (Scalia, J., dissenting) (analyzing the fundamental right to marriage based on state policies “[w]hen the Fourteenth Amendment was ratified in 1868”); McDonald v. City of Chicago, 561 U.S. 742, 777 (2010) (same for the right to keep and bear arms). “An astonishing thirty-six out of thirty-seven states in 1868—an Article V, three-quarters consensus [i.e., well over the number of states needed to amend the Constitution]—imposed a duty in their constitutions on state government to provide a public-school education.” Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 Tex. L. Rev. 7, 108 (2008). These states accounted for 92% of the population. Id. at 109. And near the time of the Fourteenth Amendment’s adoption, Senator Charles Sumner argued that “[t]he New England system of common schools is part of the republican form of government as understood by the framers of the Constitution.” (Amicus Br. of ACLU of Mich. at 22 (quoting David Herbert Donald, Charles Sumner 426 (1996)).)
Furthermore, this history should not be viewed as only a static point. The continued expansion of education through the adoption of the Fourteenth Amendment resulted in universal compulsory education by 1918, and it has continued to develop since. See Barry Friedman & Sara Solow, The Federal Right to an Adequate Education, 81 Geo. Wash. L. Rev. 92, 127–32

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(2013). And while state-supported education may have a different cultural significance than marriage, see Obergefell, 135 S. Ct. at 2593–94 (majority opinion) (framing the marriage right as the product of “untold references . . . in religious and philosophical texts spanning time, cultures, and faiths”), it is certainly both so longstanding and uniform as to be taken for granted in twentyfirst-century America.
Though focused on the equal protection context instead of due process, the words of Brown v. Board of Education are still instructive: “In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted . . . . We must consider public education in the light of its full development and its present place in American life throughout the Nation.” 347 U.S. at 492–93. Such a view reveals state-sponsored (and even mandated) education as a ubiquitous feature of our country, provided as of right to the people. Based on this uniform presence, the people have come to expect and rely on this education—second perhaps only to the immediate family—in order to provide the basic skills needed for our children to participate as members of American society and democracy.
Our nation’s history of racial discrimination further reveals the historical and lasting importance of education, and the significance of its modern ubiquity. Education, and particularly access to literacy, has long been viewed as a key to political power. Withholding that key, slaveholders and segregationists used the deprivation of education as a weapon, preventing African Americans from obtaining the political power needed to achieve liberty and equality. While most starkly displayed during the time of slavery, this history is one of evolution rather than paradigm shift, and so what began in the slave codes of the antebellum South transformed into separate-and-unequal education policies that persisted well after Brown v. Board of Education.
In the beginning of our country’s history, teaching slaves to read was a crime. E.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 387–88 (1978) (Marshall, J., concurring in part and dissenting in part); South Carolina v. Katzenbach, 383 U.S. 301, 311 n.10 (1966). These laws were widespread among Southern states, driven by a desire to prevent escapes or rebellion. (See, e.g., Amicus Br. of ACLU of Mich. at 18–19); see also, e.g., United States v. Rhodes, 27 F. Cas. 785, 793 (C.C.D. Ky. 1866) (“[A law in Louisiana] not only forbids

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any person teaching slaves to read or write, but it declares that any person using language in any public discourse from the bar, bench, stage, or pulpit, or any other place, or in any private conversation, or making use of any sign or actions having a tendency to produce discontent among the free colored population or insubordination among the slaves, or who shall be knowingly instrumental in bringing into the state any paper, book, or pamphlet having a like tendency, shall, on conviction, be punishable with imprisonment or death, at the discretion of the court.”); cf. Frederick Douglass Bicentennial Commission Act, Pub. L. No. 115-77, § 2(3), 131 Stat. 1251, 1251 (2017) (“Douglass continued to teach himself to read and write and taught other slaves to read despite risks including death.”).
This trend continued through extrajudicial violence during the Reconstruction era. (See, e.g., Amicus Br. of ACLU of Mich. at 19–22.) During this period, “Klansmen targeted schoolteachers for violent retribution and Black parents who sent their children to school frequently ‘received visits from white men eager to reinforce the nuances of the established racial order.’” (Id. at 20 (quoting George C. Rable, But There Was No Peace: The Role of Violence in the Politics of Reconstruction 97 (2007)).) And while the federal government responded through civil rights legislation and prosecutions, see, e.g., Rhodes, 27 F. Cas. at 785–86, 793–94; (Amicus Br. of ACLU of Mich. at 20–21), the end of Reconstruction heralded legislative and policy efforts designed to limit the education of African Americans, see Katzenbach, 383 U.S. at 310–13, 311 n.10 (noting that Southern states “rapidly instituted racial segregation in their public schools” following the Civil War, and discussing the interplay between these efforts to restrict literacy and efforts to restrict the vote).
While Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown, 347 U.S. 483, is perhaps the best-known case of the Supreme Court’s “separate but equal” doctrine, several other cases upheld segregation specifically with respect to American schools. For example, in Cumming v. Board of Education, 175 U.S. 528, 544 (1899), the Court declined to intervene when a local school board closed a preexisting black high school and “used the funds in its hands to assist in maintaining a high school for white children without providing a similar school for colored children.” Similarly, the Court upheld the ability of states to force private schools to segregate themselves based on race. Berea Coll. v. Kentucky, 211 U.S. 45, 51–54, 58 (1908),

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abrogated by Brown, 347 U.S. 483. And in Lum v. Rice, 275 U.S. 78, 85–87 (1927), abrogated by Brown, 347 U.S. 483, the Court upheld the state’s decision to bar a Chinese American student from attending a white public high school.
While Brown was handed down in 1954 and held that “[s]eparate educational facilities are inherently unequal,” 347 U.S. at 495, segregation and unequal treatment in schools have persisted long after that decision. Despite the Supreme Court’s instruction for desegregation “with all deliberate speed,” Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 301 (1955), school segregation cases continued to reach the Court for decades, see, e.g., Milliken v. Bradley, 418 U.S. 717 (1974).
There are two main takeaways from this history of racial discrimination in education, as well as from past interventions by the courts. First, access to literacy was viewed as a prerequisite to the exercise of political power, with a strong correlation between those who were viewed as equal citizens entitled to self-governance and those who were provided access to education by the state. Second, when faced with exclusion from public education, would-be students have repeatedly been forced to rely on the courts for relief. The denials of education seen in these cases and beyond are now universally accepted as serious injustices, ones that conflict with our core values as a nation. Furthermore, the substantial litigation devoted to addressing these exclusions reveals the unparalleled value assigned to literacy, which is viewed by our society as essential for students to obtain even a chance at political and economic opportunity.
For all of these reasons, we find that the right to a basic minimum education—access to literacy—is so “deeply rooted in this Nation’s history and tradition” as to meet the historical prong of the Supreme Court’s substantive due process test. Glucksberg, 521 U.S. at 720–21 (quoting Moore, 431 U.S. at 503).
b. Whether a Basic Minimum Education Is “Implicit in the Concept of Ordered Liberty”
Beyond this look to our history, we must also assess whether an asserted right is “implicit in the concept of ordered liberty.” Glucksberg, 521 U.S. at 721 (quoting Palko, 302 U.S. at 325).

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Put differently, this Court must “exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” Obergefell, 135 S. Ct. at 2598.
As Plaintiffs note, individuals with low or no literacy are incomparably disadvantaged in their economic and social lives, see, e.g., Plyler, 457 U.S. at 222 (“Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life.”). Even Meyer indicated that the right “to acquire useful knowledge” was protected by the Due Process Clause. 262 U.S. at 399. But neither of these is enough to transform the right into one that is fundamental and thus guaranteed by the Constitution. See, e.g., Maher v. Roe, 432 U.S. 464, 479 (1977) (“[T]he Constitution does not provide judicial remedies for every social and economic ill.” (quoting Lindsey v. Normet, 405 U.S. 56, 74 (1972))). Rather, a basic minimum education—meaning one that plausibly provides access to literacy—is fundamental because it is necessary for even the most limited participation in our country’s democracy.
The Supreme Court has recognized that basic literacy is foundational to our political process and society. In Yoder, the Court noted that “some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.” 406 U.S. at 221. And while Rodriguez rejected a general right to education on the grounds that no one is guaranteed the most effective or intelligent political participation, 411 U.S. at 35–36, the right asserted by Plaintiffs in this case is far more fundamental. The degree of education they seek through this lawsuit—namely, access to basic literacy—is necessary for essentially any political participation.
Effectively every interaction between a citizen and her government depends on literacy. Voting, taxes, the legal system, jury duty—all of these are predicated on the ability to read and comprehend written thoughts. Without literacy, how can someone understand and complete a voter registration form? Comply with a summons sent to them through the mail? Or afford a defendant due process when sitting as a juror in his case, especially if documents are used as evidence against him?

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Even things like road signs and other posted rules, backed by the force of law, are inaccessible without a basic level of literacy. In this sense, access to literacy “is required in the performance of our most basic public responsibilities,” Brown, 347 U.S. at 493, as our government has placed it “at the center of so many facets of the legal and social order,” Obergefell, 135 S. Ct. at 2601; see also Steven G. Calabresi & Michael W. Perl, Originalism and Brown v. Board of Education, 2014 Mich. St. L. Rev. 429, 552 (“At a minimum, children must be taught to read so they can read the laws for themselves—a task that many of the Framers would have thought was fundamental.”).
Access to literacy also “draws meaning from related rights,” further indicating that it must be protected. Obergefell, 135 S. Ct. at 2590. “[T]he right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.” Bd. of Educ. v. Pico, 457 U.S. 853, 867 (1982) (plurality opinion) (emphasis omitted); see also Rodriguez, 411 U.S. at 35 (“The ‘marketplace of ideas’ is an empty forum for those lacking basic communicative tools.”). In this sense, access to literacy is itself fundamental because it is essential to the enjoyment of these other fundamental rights, such as participation in the political process. See, e.g., Harper v. Va. State Bd. of Elections, 383 U.S. 663, 667 (1966) (citing Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886); Reynolds v. Sims, 377 U.S. 533, 561–62 (1964)). And “the political franchise” is perhaps the most fundamental of all such rights, because it is the central element of our democracy. Id. (quoting Yick Wo, 118 U.S. at 370).
While the Supreme Court in Rodriguez said that “the importance of a service performed by the State does not determine whether it must be regarded as fundamental,” 411 U.S. at 30, this principle is stretched past its breaking point when the right in question is important because it is necessary to other, clearly fundamental rights, cf., e.g, id. at 35 n.78 (noting that there is a “protected right, implicit in our constitutional system, to participate in state elections on an equal basis with other qualified voters”). And this is not just a right deemed to be important, or even very important; rather, “[p]roviding public schools ranks at the very apex of the function of a State.” Yoder, 406 U.S. at 213. It is hard to see how this apex function could be fulfilled by a system that does not provide a reasonable opportunity to obtain literacy, the foundation necessary to the exercise of many other fundamental rights.

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Defendants argue that “[a]ccess to literacy is not so fundamental to ordered liberty and justice.” (Defs.’ Br. at 49.) To support this view, they note that “at the time of the adoption of the U.S. Constitution, public education that went beyond rudimentary local cooperation was nonexistent.” (Id. at 51–52 (citing Gary B., 329 F. Supp. 3d at 365–66).) According to Defendants, since the country existed at that time, how could “ordered society” require a stateprovided education? (Id.)
Suffice it to say that the practices of the 1700s cannot be the benchmark for what a democratic society requires. “The nature of injustice is that we may not always see it in our own times.” Obergefell, 135 S. Ct. at 2598. That states uniformly created entitlements to education in the years leading up to and soon after the Fourteenth Amendment’s adoption reflects the identification of such an injustice, and demonstrates the people’s view that such a right is “implicit in the concept of ordered liberty.” Glucksberg, 521 U.S. at 721 (quoting Palko, 302 U.S. at 325); see also Obergefell, 135 S. Ct. at 2598 (cautioning against “allowing the past alone to rule the present”).15
Beyond the fact that a basic minimum education is essential to participation in our political system, there is another reason why access to literacy is implicit in the ordered liberty of our nation. “[T]hat education is a means of achieving equality in our society” is a belief “that has persisted in this country since the days of Thomas Jefferson.” Hunnicutt v. Burge, 356 F. Supp. 1227, 1237 (M.D. Ga. 1973) (citing Godfrey Hodgson, Do Schools Make a Difference?, Atlantic, Mar. 1973, at 35). In this sense, education has historically been viewed as a “great equalizer”: regardless of the circumstances of a child’s birth, a minimum education provides some chance of success according to that child’s innate abilities. See, e.g., David Rhode et al., The Decline of the “Great Equalizer,” Atlantic, Dec. 19, 2012 (quoting Horace Mann, politician and education reformer, in 1848, and Arne Duncan, Secretary of Education, in 2011); Roslin Growe & Paula S. Montgomery, Educational Equity in America: Is Education the Great

15As discussed above, see supra Part II.E.3.a, Defendants’ argument goes well beyond even the originalist views of Justice Alito in McDonald and Justice Scalia in his dissent to Obergefell. Defendants essentially propose looking back to the earliest days of our country to determine the maximum scope of the Due Process Clause, ignoring that the Fourteenth Amendment was adopted nearly a century later.

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Equalizer?, Prof. Educator, Spring 2003, at 23 (discussing Mann and the history of the “great equalizer” concept).
As the Plyler Court noted, “education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. . . . [The] denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit.” 457 U.S. at 221–22. And Brown further supports this view, finding that “[i]n these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” 347 U.S. at 493.
This is especially true considering our history of segregated and unequal education based on race, a history that began for the express purpose of limiting African Americans’ political power. See supra Part II.E.3.a. The Supreme Court’s desegregation cases make clear that stateprovided public education is important not just to provide a shot at achievement in the face of inequalities of wealth and power, but specifically as a means of addressing past racial discrimination that restricted educational opportunities, and of course to maintain as best we can whatever equal opportunity has already been achieved.
It may never be that each child born in this country has the same opportunity for success in life, without regard to the circumstances of her birth. But even so, the Constitution cannot permit those circumstances to foreclose all opportunity and deny a child literacy without regard to her potential. See Plyler, 457 U.S. 219–20 (“[I]mposing disabilities on the . . . child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth . . . .” (second alteration in original) (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972))). Providing a basic minimum education is necessary to prevent such an arbitrary denial, and so is essential to our concept of ordered liberty.
We hold, therefore, that the right to a basic minimum education—one that can plausibly impart literacy—is “implicit in the concept of ordered liberty.” Glucksberg, 521 U.S. at 721 (quoting Palko, 302 U.S. at 325). When combined with the historical analysis discussed above,

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this means that access to such a basic minimum education is a fundamental right protected by the Due Process Clause of the Fourteenth Amendment.
c. Some Arguments (and Responses) Against Recognizing a Fundamental Right
Beyond Defendants’ arguments with respect to the Glucksberg/Obergefell due process framework, it is worth addressing two additional points they make against recognizing a fundamental right in this appeal. The first—raised in nearly every substantive due process case—is that the recognition of a “new” fundamental right is almost always improper, as it compromises the will of the people by exchanging the policy judgments of unelected judges for those of their elected representatives. The second, which is more specifically applicable here, is that the Constitution is a charter of negative liberties, and so (in most cases) only tells the government what it cannot do rather than what it must do. While neither of these arguments carries the day, they are repeated enough to warrant a separate discussion and response.
i. Judicial Restraint Suggests Deference to the Political Process
The classic argument against extending substantive due process is that recognition of a right as “fundamental” removes it from and so short-circuits the political process. See, e.g., Obergefell, 135 S. Ct. at 2625 (Roberts, C.J., dissenting) (“By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance.”); see also, e.g., Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. by Any Means Necessary (BAMN), 572 U.S. 291, 313 (2014) (plurality opinion) (“First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.”). Since the political branches are better equipped to address general social wrongs, the argument goes, the courts should not intervene by recognizing calcified and inflexible constitutional rights. See, e.g., Griswold, 381 U.S. at 482 (“We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.”).

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But it is unsurprising that our political process, one in which participation is effectively predicated on literacy, would fail to address a lack of access to education that is endemic to a discrete population. The affected group—students and families of students without access to literacy—is especially vulnerable and faces a built-in disadvantage at seeking political recourse. The lack of literacy of which they complain is exactly what prevents them from obtaining a basic minimal education through the normal political process. This double bind provides increased justification for heightened judicial scrutiny and the recognition of the right as fundamental. See, e.g., Rodriguez, 411 U.S. at 28 (noting that heightened scrutiny is warranted when a class is “saddled with . . . disabilities” or is “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process”); cf. Schuette, 572 U.S. at 334–35 (Breyer, J., concurring in the judgment) (discussing the Supreme Court’s “political process” equal protection cases).16
ii. The Due Process Clause Provides Only Negative, Not Positive Rights
Another often-repeated argument raised by Defendants and the dissent is that the Fourteenth Amendment—which speaks in terms of deprivation or denial—does not provide positive, affirmative rights. The Due Process Clause says what the government cannot do, not what it must do, and so recognizing an obligation of the state to provide a basic minimum education would turn the language of the Clause “on its head.” (Defs.’ Br. at 43.)
To be sure, several cases have reflected this view of the Clause. For example, in Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983), Judge Posner said that “the Constitution is a charter of negative rather than positive liberties.” And the Supreme Court itself has held “that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government
16Though this partakes of both the equal protection and due process inquiries, the Supreme Court endorsed such an approach in Obergefell, which discussed the partial convergence of the Fourteenth Amendment’s Equal Protection and Due Process Clauses. See 135 S. Ct. at 2602–03 (“The Due Process Clause and the Equal Protection Clause are connected in a profound way . . . . Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.”).

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itself may not deprive the individual.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989).
Though not as explicitly described, this negative liberty framing is also imbedded in several of the Supreme Court’s key substantive due process cases. For example, in Casey, the Court portrayed its decision as defending “a realm of personal liberty which the government may not enter.” Casey, 505 U.S. at 847. And even Obergefell framed substantive due process as protecting “certain personal choices,” implicitly a negative-rights construction. 135 S. Ct. at 2597 (majority opinion).
But the Court has recognized affirmative fundamental rights. Aside from specifically enumerated rights incorporated into the Fourteenth Amendment, such as the right to counsel, see, e.g., Strickland v. Washington, 466 U.S. 668, 684–86 (1984); Gideon v. Wainwright, 372 U.S. 335, 339–43 (1963), one affirmative right repeatedly endorsed by the Court is the right to marry. For example, in Loving v. Virginia, 388 U.S. 1 (1967), the Court found that “[m]arriage is one of the ‘basic civil rights of man,’” id. at 12 (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)). That marriage is a fundamental right and must be provided by the state without undue restriction was further affirmed in Zablocki v. Redhail, 434 U.S. at 385–87, and in Turner v. Safley, 482 U.S. 78, 94–96 (1987). And in Obergefell, despite using the negative-rights frame of “choice” discussed above, 135 S. Ct. at 2597, the Court reiterated that the “right to marry is protected by the Constitution” and “is fundamental under the Due Process Clause,” id. at 2598.
Since access to marriage was so uniformly provided by the states and expected by the people as of right, it took on a fundamental character under the Due Process Clause, even though the performance of a marriage is an affirmative act by the state. The same could be said for education. See supra Part II.E.3.a (discussing the historical evolution and prevalence of statesponsored education in the United States). And while the burden involved in performing a marriage is substantially less than the burden in providing an education, the marriage cases at least show that the Constitution does not categorically rule out the existence of positive rights.

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Further, the Supreme Court’s cases expressly left open the possibility of the right to a basic minimum education, which works to negate the argument that its recognition is impossible given its positive or affirmative nature. If Defendants were correct, the Court could easily have disposed of any claim to an education-related fundamental right, instead of taking pains to distinguish and reserve decision on “whether a minimally adequate education is a fundamental right.” Papasan, 478 U.S. at 285. While the dissent distinguishes these cases by arguing that the Supreme Court was referring to an equal protection fundamental right, and not a substantive due process fundamental right,17 that distinction finds no support in the Supreme Court’s case law and is foreclosed by our own, which holds that a fundamental right is a fundamental right, regardless of which clause the claim is brought under. See Scarbrough, 470 F.3d at 260–61 (discussing the merger of equal protection and substantive due process claims based on the deprivation of a fundamental right).18
One additional point from the dissent is worth noting. The dissent compares the right to a basic minimum education to a right to state-provided food, housing, or health care, and claims that DeShaney foreclosed any affirmative right to these or other benefits. This is because, our colleague says, DeShaney stands for the proposition that “[s]ubstantive due process does not regulate a state’s failure to provide public services,” regardless of the context. (Dissent at 76 (citing DeShaney, 489 U.S. at 194–97).)

17The dissent appears to conflate the equal protection inquiry in Rodriguez and its progeny, which assessed whether the state’s unequal provision of any level of education violated the Constitution’s equality mandate, with the question alluded to in Rodriguez but explicitly reserved in Papasan: whether access to some basic minimum level of education is a fundamental right.
18As we explained in Scarborough, when the state denies an individual one of her fundamental rights, that claim sounds under the Due Process Clause because the state cannot deprive someone of a fundamental right without a compelling governmental reason, regardless of whether that denial is discriminatory. 470 F.3d at 260–61. The dissent mischaracterizes the majority’s position on this point, citing Shapiro v. Thompson, 394 U.S. 618 (1969), overruled in part by Edelman, 415 U.S. 651, to suggest that a basic minimum education is nothing more than “public aid,” and so the question is simply whether or not that aid is provided equally. (Dissent at 81.) Unlike in this case, the plaintiffs in Shapiro did not allege that they were denied a fundamental right; rather, they claimed that the state discriminated against them by denying welfare benefits on the basis of residency. See 394 U.S. at 627–29. Because that discrimination implicated the already-recognized fundamental right to travel between states, the statute was reviewed under strict scrutiny. Id. at 630–31, 633–34. Thus, Shapiro says nothing about whether the right to a basic minimum education should be classified as fundamental under the Constitution, and so has no bearing on the question faced in this appeal.

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But DeShaney—a case in which a child sued the state for failing to stop his father from abusing and seriously injuring him—concerned the state’s failure to prevent harm caused by a private actor. 489 U.S. at 191–95. The dissent’s alternative reading—that DeShaney forecloses any affirmative obligation of the state under any circumstance, regardless of whether a private harm is at issue—is divorced from the text of that case. DeShaney itself couched its holding in this public-private distinction, saying “[a]s a general matter, then, we conclude that a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” Id. at 197; see also id. at 195 (“[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.”); Jones v. Reynolds, 438 F.3d 685, 688, 690 (6th Cir. 2006) (“[W]hen a claimant argues that government officials failed to prevent private individuals from causing another injury, . . . [DeShaney] and its progeny rarely permit the claim to go forward.”).
Simply put, education is different. As discussed above, see supra Part II.D.3.a, universal, state-provided public education was nearly ubiquitous at the time the Fourteenth Amendment was adopted, and has only grown since then to be expected as a given by the public. Through this, the state has come to effectively occupy the field in public education, and so is the only practical source of learning for the vast majority of students. We can think of no other area of day-to-day life that is so directly controlled by the state. And with that control must come responsibility, particularly because some minimal education—enough to provide access to literacy—is a prerequisite to a citizen’s participation in our political process. DeShaney implied such a responsibility, resting its holding on the fact that the state had played no role in creating or worsening the threat of harm the victim faced. 489 U.S. at 201.19

19For this reason, the dissent errs when it describes public schooling as merely a subsidy of the private exercise of a fundamental right. The case the dissent relies on for this is Regan v. Taxation with Representation of Washington, 461 U.S. 540, 541–43 (1983), which addressed whether Congress could exclude donations to organizations that engage in substantial lobbying from tax-deductibility under 26 U.S.C. § 501(c)(3). The Court’s finding that “Congress has not violated [an organization’s] First Amendment rights by declining to subsidize its First Amendment activities” through tax-deductible status, id. at 548, is not analogous to a state’s failure to provide a basic minimum education at certain schools when the entire educational system is dominated by the state.

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Thus, even if DeShaney’s framework were applied here (despite the lack of a private harm), this Court has recognized substantive due process claims under the state-created danger doctrine. Kallstrom v. City of Columbus, 136 F.3d 1055, 1065–67 (6th Cir. 1998). While the dissent argues against the right to a basic minimum education by comparing it to a constitutional right to food, a better analogy is a world in which the state took charge of the provision of food to the public, to the exclusion of nearly all private competitors. If the state then left the shelves on all the stores in one city bare, with no compelling governmental reason for this choice, such an action would place the residents of that city in heightened danger no less than the actions of the state in other cases where courts have allowed claims under the Due Process Clause. See, e.g., id. at 1059–60, 1069–70; Kneipp v. Tedder, 95 F.3d 1199, 1201–03, 1213–14 (3d Cir. 1996). Thus, while the dissent’s arguments amount to sound advice for us to proceed with special caution when considering any positive fundamental right, the case law on this issue does not foreclose recognizing the right to a basic minimum education.
d. Contours of the Right to a Basic Minimum Education
Beyond simply recognizing the existence of a right to a basic minimum education, it is also important to define its contours, at least for the purposes of this case. The Supreme Court has “required in substantive-due-process cases a ‘careful description’ of the asserted fundamental liberty interest.” Glucksberg, 521 U.S. at 721 (quoting Flores, 507 U.S. at 302). This description does not need to circumscribe the outer-most limit of the right, but must at least define the extent of the right needed to resolve the matter at hand. See, e.g., Obergefell, 135 S. Ct. at 2602 (noting that rights can be described in a more “comprehensive sense,” leaving questions on whether a particular state action or inaction is required by that right for subsequent determination).
Importantly, the right defined in this opinion is narrow in scope. It does not guarantee an education at the quality that most have come to expect in today’s America (but that many are nevertheless denied). Rather, the right only guarantees the education needed to provide access to skills that are essential for the basic exercise of other fundamental rights and liberties, most importantly participation in our political system. As described by Plaintiffs, this amounts to an

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education sufficient to provide access to a foundational level of literacy—the degree of comprehension needed for participation in our democracy.20
At this stage of the litigation—a motion to dismiss in which no evidence has been discovered or presented—it would be difficult to define the exact limits of what constitutes a basic minimum education sufficient to provide such access. This task is best suited for the district court in the first instance. But a few key principles can trace the contours of the right, providing guideposts for the parties as they continue this litigation.
At the outset, Defendants are correct that this Court cannot prescribe a specific educational outcome, such as literacy or proficiency rates. Though these measures may provide some useful evidence of whether the state is in fact providing a basic minimum education,21 they are not sufficient evidence alone, because a court order cannot guarantee that educational opportunity is translated into student performance. Rather, the requirement to provide a basic minimum education means the state must ensure that students are afforded at least a rudimentary educational infrastructure, such that it is plausible to attain literacy within that system.22
While the precise contours of this infrastructure must be defined though the course of further litigation and examination of the parties’ evidence, it would seem to include at least three basic components: facilities, teaching, and educational materials (e.g., books). For each of these components, the quality and quantity provided must at least be sufficient for students to plausibly attain literacy within the educational system at issue. This question of fact is entrusted to the trial court, which can assess the sufficiency of these measures in the first instance after hearing

20This narrow definition of the right also helps dispel the concern that recognizing such a claim could “open the floodgates of litigation” and “overwhelm the federal courts.” United States v. City of Loveland, 621 F.3d 465, 472 (6th Cir. 2010). Several of these claims have already been rejected not because no such right exists, but because the facts alleged by the plaintiffs were insufficient to allege a deprivation. E.g., Papasan, 478 U.S. at 286; Rodriguez, 411 U.S. at 36–37; La. State Bd., 830 F.2d at 568; cf. Kadrmas, 487 U.S. at 458.
21Looking to other schools or school systems, these educational-outcome measures may also be helpful evidence of what specific resources are needed to provide access to literacy.
22Using Defendants’ example of the right to counsel, this approach would not transform the right to counsel into the right to an acquittal. Rather, the right is akin to the promise of effective counsel, e.g., Strickland, 466 U.S. at 686 (citing McMann v. Richardson, 397 U.S 759, 771 n.14 (1970)), from which no outcome is guaranteed, but the lawyer’s objective failure cannot be the source of the client’s loss.

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evidence and likely employing the assistance of expert witnesses as to what resources are necessary.
Our dissenting colleague criticizes this approach, implying that our holding today will create a free-wheeling right that allows federal judges to micromanage the work of local school boards. We do not believe this is a fair description of the limited right embraced in our opinion, which promises only an education sufficient to provide basic access to literacy. And while this right could be impacted by the conditions of a school’s facilities, the age of its textbooks, or the number of teachers in its classrooms, this does not mean that any of these things individually has a “constitutionally required” minimum level. (Dissent at 63.) Rather, the question is whether the education the state offers a student—when taken as a whole—can plausibly give her the ability to learn how to read.23
Similarly, the dissent suggests that the recognition of this right—requiring that a state’s system of public education provide at least a shot at literacy, irrespective of which school district a student is assigned to—would somehow stymie innovation and create a one-size-fits-all, national program of education. But how each state reaches the basic minimum level of education discussed above can vary dramatically, and nothing in our recognition of this right—or even any resulting remedy in this case—could alter the broad powers of the states under our federalist system. The state is free to fashion its own school system in any number of ways, but however it does so, it must give all students at least a fair shot at access to literacy—the minimum level of education required to participate in our nation’s democracy.
4. Application of the Right to Plaintiffs’ Allegations
Beyond the abstract question of whether there is a fundamental right to a basic minimum education, Plaintiffs must also have plausibly alleged that they were deprived of such an education. See Iqbal, 556 U.S. at 678 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). Looking to their complaint as a whole, Plaintiffs’
23Just because “the complaint makes allegations about physics and economics courses too” (Dissent at 77), does not mean we agree that those additional areas of study are required as part of a fundamental right providing access to basic literacy.

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allegations—if proven true—would demonstrate that they have been deprived of an education providing access to literacy.
The core of Plaintiffs’ complaint is that they are forced to “sit in classrooms where not even the pretense of education takes place, in schools that are functionally incapable of delivering access to literacy.” (Compl., R. 1 at PageID #4; see also id. at #19 (“[Plaintiffs’ schools] wholly lack the capacity to deliver basic access to literacy, functionally delivering no education at all.”).) But we cannot simply credit Plaintiffs’ legal conclusions. Iqbal, 556 U.S. at 677–78 (citing Twombly, 550 U.S. at 555–57, 570). To avoid dismissal, Plaintiffs must have pleaded enough factual material to plausibly support this claim. Id. at 678–79.
The most important allegations for this point concern the specific conditions in Plaintiffs’ schools. Plaintiffs allege significant teacher shortages, coupled with unqualified instructors when they do have someone in the classroom. They allege dangerous and significantly distracting conditions within their school buildings, including extreme temperatures, overcrowding, and a lack of hygiene. They also allege a dearth of textbooks and other school supplies, with those they do have being in an abysmal or near unusable condition. These allegations are supported by specific examples, including several photographs reproduced within the complaint. At the motion-to-dismiss stage, this permits an inference that Plaintiffs’ schools cannot provide access to literacy.
Plaintiffs further support their claim by citing data that show a zero or near-zero percentage of subject-matter proficiency among students at their schools. As noted above, these figures alone are not enough to state a claim, because the right to a basic minimum education cannot guarantee a specific educational outcome. See supra Part II.E.3.d. Further development of the record will be necessary to determine how these measures—largely put in terms of “grade level” or “proficiency”—are correlated with the type of foundational literacy at issue here. But for now, these data further support the inference that Plaintiffs’ schools are woefully insufficient, especially when combined with qualitative descriptions of their classes’ literacy shortcomings.

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In sum, Plaintiffs allege facts concerning inadequate books and materials, insufficient or unqualified teaching staff, and decrepit and dangerous school conditions (and include photographs within their complaint). They then allege that nearly zero percent of students at these schools were graded as proficient in English or other subject-matter tests administered by the state. Taking the allegations of the complaint as true, and drawing all reasonable inferences in Plaintiffs’ favor, see, e.g., Cahoo v. SAS Analytics, Inc. 912 F.3d 887, 897 (6th Cir. 2019), Plaintiffs have plausibly been deprived of an education that could provide access to literacy. Defendants have not argued otherwise—they rest on the legal argument that there is no implicated fundamental right—and also have not argued that this deprivation is narrowly tailored to advance a compelling state interest. E.g., Glucksberg, 521 U.S. at 721 (citing Flores, 507 U.S. at 302). While Plaintiffs still face the burden of proving their factual contentions at trial, under the standards governing a motion to dismiss, this is enough to get them through the courthouse doors. Accordingly, the district court’s dismissal of this claim must be reversed.
III. CONCLUSION
The recognition of a fundamental right is no small matter. This is particularly true when the right in question is something that the state must affirmatively provide. But just as this Court should not supplant the state’s policy judgments with its own, neither can we shrink from our obligation to recognize a right when it is foundational to our system of self-governance.
Access to literacy is such a right. Its ubiquitous presence and evolution through our history has led the American people universally to expect it. And education—at least in the minimum form discussed here—is essential to nearly every interaction between a citizen and her government. Education has long been viewed as a great equalizer, giving all children a chance to meet or outperform society’s expectations, even when faced with substantial disparities in wealth and with past and ongoing racial inequality.
Where, as Plaintiffs allege here, a group of children is relegated to a school system that does not provide even a plausible chance to attain literacy, we hold that the Constitution provides them with a remedy. Accordingly, while the current versions of Plaintiffs’ equal protection and compulsory attendance claims were appropriately dismissed, the district court erred in denying

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their central claim: that Plaintiffs have a fundamental right to a basic minimum education, meaning one that can provide them with a foundational level of literacy. The district court’s order is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

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_________________
DISSENT _________________
MURPHY, J., dissenting. The complaint in this case alleges school conditions that would significantly impair any child’s ability to learn. If I sat in the state legislature or on the local school board, I would work diligently to investigate and remedy the serious problems that the plaintiffs assert. But I do not serve in those roles. And I see nothing in the complaint that gives federal judges the power to oversee Detroit’s schools in the name of the United States Constitution. That document does not give federal courts a roving power to redress “every social and economic ill.” Lindsey v. Normet, 405 U.S. 56, 74 (1972). It instead gives federal courts a limited power “to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). And the law has long been clear: Unlike the right to free speech in the First Amendment or the right to a jury trial in the Seventh, education “is not among the rights afforded explicit protection under our Federal Constitution.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973). So, while I agree with the majority that the defendants have not shown that this case is moot, I must respectfully dissent from its view that the complaint alleges a valid “substantive due process” claim.
The plaintiffs argue that the Due Process Clause imposes a one-size-fits-all duty on all 50 states to devote an unspecified level of taxpayer dollars to an unspecified level of education. Their novel request for a positive right to education will “mark a drastic change in our understanding of the Constitution.” Harris v. McRae, 448 U.S. 297, 318 (1980). The Due Process Clause has historically been viewed, consistent with its plain text, as a negative limit on the states’ power to “deprive” a person of “liberty” or “property.” U.S. Const. amend. XIV, § 1. It has not been viewed as a positive command for the states to protect liberty or provide property. A state’s decision “not to subsidize the exercise of a fundamental right” has never been thought to “infringe the right,” even in areas where the states have long provided that assistance. Regan v. Taxation With Representation of Wash., 461 U.S. 540, 549 (1983). While, for example, a party may have a constitutional right against state aggression, the party has no constitutional right to state protection against private violence. DeShaney v. Winnebago Cty. Dep’t of Soc.

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Servs., 489 U.S. 189, 195–96 (1989). This traditional understanding ends today. The states that make up this circuit now must meet the school-quality standards that federal judges find necessary to enforce the plaintiffs’ nebulous right to “access literacy.” That is now the law of this circuit even though the Supreme Court has repeatedly explained that “[p]ublic education is not a ‘right’ granted to individuals by the Constitution.” Plyler v. Doe, 457 U.S. 202, 221 (1982).
This positive right to a minimum education will jumble our separation of powers. It will immerse federal courts in a host of education disputes far outside our constitutionally assigned role to interpret legal texts. Cf. Washington v. Glucksberg, 521 U.S. 702, 721 (1997). How should those courts remedy the schools that they conclude are not meeting the constitutionally required quality benchmarks? May they compel states to raise their taxes to generate the needed funds? Or order states to give parents vouchers so that they may choose different schools? How old may textbooks be before they become constitutionally outdated? What minimum amount of training must teachers receive? Which HVAC systems must public schools use? Our judicial commissions give us no special insights into these “difficult questions of educational policy.” Rodriguez, 411 U.S. at 42. But the states’ ability to experiment with diverse solutions to challenging policy problems has long been a cherished aspect of our federalism. United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring). I would leave the difficult problems of education policy presented by this case where they have traditionally been—with the states and their people.
These legal points are not meant to deny much of what the majority eloquently says. The majority correctly recognizes “the vital role of education in a free society.” Rodriguez, 411 U.S. at 30. No one disputes the importance of education for children to have a chance at life, just as no one disputes the importance of their having enough food to eat or a sturdy roof over their heads. Yet my view that education is important as a policy matter says nothing about whether I may find it compelled as a constitutional one. Id. at 32–34. That is what our Framers meant when they said that judges exercise “neither FORCE nor WILL but merely judgment.” The Federalist No. 78, at 464 (A. Hamilton) (Clinton Rossiter ed., 1961). The constitutional question in this case turns on a legal judgment about the meaning of the Constitution’s words; it

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does not turn on a policy assessment about education’s societal value. And I see nothing in the Constitution’s language that creates a substantive entitlement to a state-funded education.
The majority also correctly notes that the Fourteenth Amendment does include words designed to remedy our country’s sad history of racial discrimination in the public schools. Brown v. Board of Education, 347 U.S. 483 (1954), stands out as a bedrock Supreme Court precedent, righting the legal wrong that was Plessy v. Ferguson, 163 U.S. 537 (1896). The Equal Protection Clause compels courts to apply the most exacting scrutiny to a state’s racially discriminatory decisions. Johnson v. California, 543 U.S. 499, 505 (1995). But the plaintiffs’ due-process claim here does not implicate this equality mandate. They do not argue that the purported school conditions arose from racial discrimination violating core equal-protection guarantees. And, as the majority explains, their equal-protection claim fails because they merely allege poor school conditions. They do not identify any discrete unequal treatment by the state defendants.
For these reasons and those that follow, I would affirm the district court’s judgment.
I
The plaintiffs allege that they have a fundamental “right to State-provided access to literacy protected by the Due Process Clause.” Apt. Br. 25. Both portions of this proposed right—the state-provided portion and the access-to-literacy portion—depart from settled doctrine. The Supreme Court has repeatedly held that education is not a “fundamental right.” And even if some minimum education could attain fundamental-right status, the plaintiffs’ claim still must fail. Substantive due process has never compelled states to provide their residents with the funds they need to exercise fundamental rights. It has instead barred states from interfering with the exercise of those rights. In short, the plaintiffs seek an unprecedented subsidy for an unprecedented right.

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A
At the outset, the plaintiffs’ assertion that they have a fundamental right to a minimum education faces stiff precedential headwinds. The Supreme Court has refused to treat education as a fundamental right every time a party has asked it to do so. Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 458 (1988); Papasan v. Allain, 478 U.S. 265, 284–86 (1986); Plyler v. Doe, 457 U.S. 202, 223 (1982); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35, 37 (1973). From a circuit judge’s perspective, these decisions should make us think long and hard before adopting the plaintiffs’ novel right to a minimally adequate education.
This line of precedent begins with Rodriguez. It considered whether Texas’s reliance on local taxes to fund schools, which caused gross financial disparities across school districts, violated the Equal Protection Clause. 411 U.S. at 9–15. While conceding education’s importance to our society, the Court recognized that “the importance of a service performed by the State does not determine whether it must be regarded as fundamental.” Id. at 30. Rather, education’s status as a fundamental right turns on whether “there is a right to education explicitly or implicitly guaranteed by the Constitution.” Id. at 33. The Court could find no such right. Education “is not among the rights afforded explicit protection under our Federal Constitution.” Id. at 35. And the Court refused to find education implicitly guaranteed on the ground that it was necessary to exercise other rights, such as the right to free speech or to vote. Id. at 35–36.
In a trio of equal-protection decisions since, the Court has repeatedly reaffirmed this conclusion. In Plyler, a Texas law gave school districts discretion to deny education to immigrant children who were in this country illegally. 457 U.S. at 205. Some of these children challenged a school district’s decision to require them to pay tuition. Id. at 206 & n.2. While the Court ultimately found that this law violated equal protection under the relaxed standards that apply when fundamental rights are not at stake, it repeated: “Nor is education a fundamental right.” Id. at 223. Papasan next addressed a challenge to Mississippi’s unequal distribution of the income produced from its public-school lands. 478 U.S. at 267–68. The Court interpreted Rodriguez and Plyler to hold that “education is not a fundamental right.” Id. at 284–85. Kadrmas lastly considered a challenge to North Dakota laws that allowed some school districts to charge for bus services but mandated that others offer those services for free. 487 U.S. at 452.

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The Court noted for a fourth time: “Nor have we accepted the proposition that education is a ‘fundamental right[.]’” Id. at 458. These decisions could not be clearer: “[A]ccess to education is not guaranteed by the Constitution.” Ambach v. Norwick, 441 U.S. 68, 77 n.7 (1979).
The plaintiffs assure us that we can disregard these many statements. That is so, they say, because Papasan noted that the Court has “not yet definitively settled the question[] whether a minimally adequate education is a fundamental right.” 478 U.S. at 285. Unlike the complaint in Papasan, the plaintiffs add, their complaint pleads that the state has not given them even a “minimally adequate” education. I am skeptical that we may sidestep this long line of authority so easily. But we need not decide whether the Constitution includes a fundamental right to a minimum education (or “access to literacy”). Even if the Constitution contains this implied right, the plaintiffs’ substantive-due-process claim must fail for a more rudimentary reason.
B
The Supreme Court has long recognized a “basic” constitutional difference between a state’s use of its coercive power to regulate its residents and the state’s refusal to use its spending power to give them things. Maher v. Roe, 432 U.S. 464, 475 (1977). To list one of many examples: Just because the Free Speech Clause bars a state from banning its citizens’ political speech, Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 222–23 (1989), does not mean that the clause requires the state to give them the funds they need to engage in that speech, Ysursa v. Pocatell Educ. Ass’n, 555 U.S. 353, 364 (2009). Under the Due Process Clause, too, this difference between state coercion and state assistance finds support in constitutional text, in Supreme Court precedent, in our federalist structure, and in the nature of the judicial power. These factors all lead me to reject the plaintiffs’ novel claim that the Due Process Clause compels every state in this nation to affirmatively provide some minimum level of education.
1
Start with text. The Due Process Clause provides: “[N]or shall any state deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. This language is “phrased in the negative.” Archie v. City of Racine, 847 F.2d 1211, 1220 (7th

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Cir. 1988) (en banc). By barring a state from “depriv[ing]” individuals of their “life, liberty, or property,” the clause limits the state’s power to “take away” the people’s lives, their liberty, or their property (at least without due process). Noah Webster, An American Dictionary of the English Language 358 (1882); see Joseph E. Worcester, A Dictionary of the English Language 386 (1878). The text would be a poor choice of words if the clause’s Framers meant to compel a state to protect its people’s lives, to promote their liberties, or to provide them with property.
This ordinary meaning comports with the way in which the text would have been viewed at the time of its enactment: as a limit on the states’ power to intrude on private rights. By 1868, the Supreme Court had already held that the Fifth Amendment’s Due Process Clause has its roots in Magna Carta and so imposes a “restraint on the legislative as well as on the executive and judicial powers of the government.” Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 276 (1856). Conversely, “[t]he Framers would have been astounded to hear” that the clause compelled Congress to offer public services. David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864, 865–66 (1986). Similar provisions in state constitutions were also interpreted to limit “the aggressive tendency of power,” not to command state assistance. Thomas M. Cooley, A Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the States of the American Union 351 (1868); see Edward J. Eberle, Procedural Due Process: The Original Understanding, 4 Const. Comment. 339 (1987) (discussing cases). The Supreme Court thus quickly read the Fourteenth Amendment’s Due Process Clause in the same limited fashion—as “secur[ing] the individual from the arbitrary exercise of the powers of government.” Daniels v. Williams, 474 U.S. 327, 331 (1986) (quoting Hurtado v. California, 110 U.S. 516, 527 (1884)); see Davidson v. City of New Orleans, 96 U.S. 97, 101–04 (1878).
The plaintiffs have not even attempted to reconcile their proposed positive right with this constitutional text. They do not argue that the State of Michigan has “take[n] away” their liberty to obtain a minimum education of their choice. Webster, supra, at 358. They do not, for example, allege that the state bars them from attending a private school, Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925), or from learning a particular subject, Meyer v. Nebraska, 262 U.S. 390, 400–03 (1923). No, the plaintiffs say that the state has deprived them of an

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education because the state has not provided them with an education. But the text does not require states to provide their people with any services, let alone an unidentified level of schooling. Only in an area where “process” equals “substance” could “deprive” equal “provide.”
Nor would Americans at the time of the Due Process Clause’s adoption have read it to compel states to operate schools. No one would have viewed the clause as a check on the states’ “aggressive tendency” to be stingy with their public services. Cooley, supra, at 351; see Daniels, 474 U.S. at 331. Such an unusual reading would have meant that Congress had been violating the Fifth Amendment for decades. After all, the federal government had not adopted a national system of schools. And most people would have thought that Article I of the Constitution did not give it that power. See United States v. Lopez, 514 U.S. 549, 565–66 (1995). Simply put, any claim that the Due Process Clause imposes a duty on states to provide a minimum education to their residents requires us to rewrite the text and to ignore the backdrop against which it was enacted.
2
Turn to precedent. The Supreme Court’s substantive-due-process decisions have long been controversial “because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). But these controversies have involved a different topic altogether—the meaning of the phrase “due process,” not the verb “deprive.” Justices have debated when language sounding in process can impose absolute limits on a state’s power to take away a person’s liberty or property no matter the process provided. The Court has considered such things as whether states may limit the hours that people work, compare Lochner v. New York, 198 U.S. 45, 56 (1905), with id. at 75–76 (Holmes, J., dissenting); eliminate their ability to obtain an abortion, compare Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846–53 (1992), with id. at 979–81 (Scalia, J., dissenting); or impose large punitive-damages awards, compare State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416–18 (2003), with id. at 430–31 (Ginsburg, J., dissenting). Whoever has the better of these debates, they unquestionably addressed limits on the states’ regulatory power.

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These decisions have not, by contrast, touched the states’ spending power. Until now, the Due Process Clause has left little room for debate that a state generally “is under no constitutional duty to provide substantive services for those within its border.” Youngberg v. Romeo, 457 U.S. 307, 317 (1982). While minimum levels of food, housing, and medical care are critical for human flourishing and for the exercise of constitutional rights, due process does not compel states to spend funds on these necessities of life. True, the Supreme Court has never treated food, housing, or medical care themselves as “fundamental rights” triggering heightened scrutiny. Lyng v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW, 485 U.S. 360, 369 (1988) (food); Maher, 432 U.S. at 469 (medical care); Lindsey v. Normet, 405 U.S. 56, 73–74 (1972) (housing). But the Court has drawn this same distinction between state coercion and state subsidies when fundamental rights were on the line. The Due Process Clause generally confers “no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989).
Take abortion. The Court has held that substantive due process forbids the states from banning all abortions. Casey, 505 U.S. at 846. But the Court has rejected the notion that substantive due process also requires them to pay for abortions, Rust v. Sullivan, 500 U.S. 173, 201 (1991), or to provide access to abortion facilities, Webster v. Reprod. Health Servs., 492 U.S. 490, 507–08 (1989). That is because “[a] refusal to fund protected activity, without more, cannot be equated with the imposition of a ‘penalty’ on that activity.” Rust, 500 U.S. at 193 (citation omitted). Or, in the Constitution’s words, a state does not “deprive” individuals of their “liberty” interest in abortion merely by failing to provide access to the procedure.
The Court has kept to this rule even where the inclination to create an exception would reach its apex. Substantive due process bars a state from arbitrarily injuring its residents (which deprives them of their liberty or lives). County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998); Guertin v. State, 912 F.3d 907, 917, 920–21 (6th Cir. 2019). Yet the doctrine gave fouryear-old Joshua DeShaney no relief when a county failed to protect him from his abusive father. DeShaney, 489 U.S. at 195–96. Joshua’s father beat him “so severely that he fell into a life-

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threatening coma” and was “expected to spend the rest of his life confined to an institution.” Id. at 193. The boy nevertheless could not use substantive due process to challenge the state’s deficient aid because “a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” Id. at 197.
The plaintiffs’ claim all but requires us to overrule this caselaw. I do not see how the Due Process Clause can compel Michigan to provide the plaintiffs with educational services when it did not require Winnebago County to provide Joshua DeShaney with protective services. Their claim must fail for the same reason his did: The Due Process Clause “confer[s] no affirmative right to governmental aid[.]” Id. at 196. Nor can the plaintiffs sidestep this rule with Papasan’s dicta reserving whether a minimum education might qualify as a “fundamental right.” 478 U.S. at 285. Even when constitutional rights are at stake, the government has no duty to spend funds to promote those rights. Rust, 500 U.S. at 201. Before today, this rule would have foreclosed any due-process request for a taxpayer-funded education. The plaintiffs’ new right thus unmoors substantive due process (an already amorphous doctrine) from a clear limit on its reach.
3
Next consider the Framers’ constitutional design. The Constitution’s federalist structure gives “few and defined” powers to the federal government and leaves “numerous and indefinite” powers to the states. The Federalist No. 45, at 289 (J. Madison) (Clinton Rossiter ed., 1961). This federalism enhances our liberty by allowing local communities to make local decisions free from a less accountable and more distant central power. Bond v. United States, 564 U.S. 211, 221–22 (2011). So “[t]he maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state action.” Rodriguez, 411 U.S. at 44 (citation omitted); cf. Kurt T. Lash, The Lost History of the Ninth Amendment 352–53 (2009). That is especially true for substantive due process. Federal courts undercut the people’s interest in local decisionmaking whenever they nationalize new extratextual rights. That expansion “place[s] the matter outside the arena of public debate and legislative action” within each state. Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

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This federalism concern has great urgency here. The plaintiffs’ proposed right to a stateprovided education asks the federal government to intervene in an area that has long been “a traditional concern of the States.” Lopez, 514 U.S. at 580 (Kennedy, J., concurring); see Horne v. Flores, 557 U.S. 433, 448 (2009). Countless examples show this tradition. To give but one, when a member of Congress proposed a national school system in 1870, many expressed constitutional doubts and the bill did not even get a vote. See David P. Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 466–67 (2008); Gordon Canfield Lee, The Struggle for Federal Aid, First Phase: A History of the Attempts to Obtain Federal Aid for the Common Schools, 1870-1890, 42–55 (1949). (The legislator had relied primarily on the Constitution’s Preamble and its Guarantee Clause as the purported basis for this congressional power.) Yet the plaintiffs’ view that due process compels the states to provide a minimum education would trigger Congress’s enforcement power under the Fourteenth Amendment, U.S. Const. amend. XIV, § 5, and so could allow Congress for the first time to “regulate the educational process directly,” Lopez, 514 U.S. at 565.
To be sure, “it is doubtful that any State” would disagree with the plaintiffs’ goal: States should strive to alleviate poor school conditions. Id. at 581 (Kennedy, J., concurring). But “considerable disagreement exists about how best to accomplish that goal.” Id. Should states fix the problem of failing schools by sending more money into them? Cf. DeRolph v. State, 780 N.E.2d 529, 537–38 (Ohio 2002) (Moyer, C.J., dissenting). Or should they fix the problem by giving children a choice to attend other schools? Cf. Zelman v. Simmons-Harris, 536 U.S. 639, 644–45 (2002). Each state may choose a different policy mix to confront the “intractable economic, social, and even philosophical problems” associated with this issue. Rodriguez, 411 U.S. at 42 (citation omitted). “In this circumstance, the theory and utility of our federalism are revealed, for the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.” Lopez, 514 U.S. at 581 (Kennedy, J., concurring); New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). The plaintiffs’ nationwide right would undercut the educational experimentation so necessary to find solutions that work. Cf. District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 73 (2009).

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Public education also requires public funds. States facing tight budgets must make delicate tradeoffs about how much money to devote to education as compared to other priorities like healthcare, welfare, or police protection. “Higher quality [education] may come at the expense of a higher budget for the police or [the roads], or at the expense of higher taxes that induce people to relocate to low-service (and low-tax) jurisdictions.” Archie, 847 F.2d at 1223–24. The Supreme Court has traditionally given states wide discretion to make these financial tradeoffs. Rodriguez, 411 U.S. at 40. Yet the plaintiffs’ claim would disrupt state fiscal policies too by creating an “extraordinary” positive right to education. Harris v. McRae, 448 U.S. 297, 318 (1980).
And while the Due Process Clause has traditionally imposed only negative limits on states, the people of each state may impose positive duties in their state constitutions. Jeffrey S. Sutton, 51 Imperfect Solutions 35 (2018). For centuries, states have done just that in this educational setting. See Steven G. Calabresi & Michael W. Perl, Originalism and Brown v. Board of Education, 2014 Mich. St. L. Rev. 429, 450–54 & nn.97–126 (2015). Yet, as evidenced by the “linguistic diversity of the various states’ education clauses,” Conn. Coal. for Justice in Educ. Funding, Inc. v. Rell, 990 A.2d 206, 244 (Conn. 2010), their decisions have been far from uniform. While many courts have recently read their states’ education clauses as giving them the authority to compel a certain level of education, id. at 244–50 & n.55, many others have read their clauses as leaving education policies to state legislatures, see, e.g., Citizens for Strong Sch., Inc. v. Fla. State Bd. of Educ., 262 So. 3d 127, 129–30 (Fla. 2019) (per curiam); King v. State, 818 N.W.2d 1, 4 (Iowa 2012); Bonner ex rel. Bonner v. Daniels, 907 N.E.2d 516, 521–22 (Ind. 2009). Some two years before this case, for example, Michigan courts rejected a claim that the Michigan Constitution required public schools to meet a certain level of educational quality. See LM v. State, 862 N.W.2d 246, 253 (Mich. Ct. App. 2014), appeal denied, SS v. State, 869 N.W.2d 273 (Mich. 2015). The plaintiffs’ nationwide rule thus would deprive the people in each state of their “political” liberty to decide for themselves the scope of any educational right that they want in their state constitutions. Bond, 564 U.S. at 221.

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4
Lastly consider the nature of our own authority. Article III gives federal courts the “judicial Power.” U.S. Const. art. III, § 1. This power does not allow federal courts to declare state action unconstitutional “merely because it is, in their judgment, contrary to the principles of natural justice.” Calder v. Bull, 3 U.S. 386, 399 (1798) (opinion of Iredell, J.). It allows them to declare state action unconstitutional only because the Constitution’s text qualifies as “law” and takes supremacy over state law when an “irreconcilable variance” exists between the two. The Federalist No. 78, supra, at 466–67; Marbury v. Madison, 5 U.S. 137, 177 (1803). In other words, we have “the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012) (Roberts, C.J.). So we must “‘exercise the utmost care whenever we are asked to break new ground in this field,’ lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Glucksberg, 521 U.S. at 720 (citations omitted).
The proposed right to a state-provided education shows why courts must exercise this caution. The right would entangle courts in policy controversies well outside their authority “to say what the law is.” Marbury, 5 U.S. at 177. Many education disputes, for example, arise from a “shortage of money.” Sutton, supra, at 38. Does the right to “access literacy” give federal judges the power to direct states to increase their taxes to provide the required education? Or allow courts to compel spending cuts for healthcare to free up the needed funds? I, for one, would be troubled by a federal court instructing a state legislature that “[b]ecause education is one of the state’s most important functions, lack of financial resources will not be an acceptable reason for failure to provide the best educational system.” Campbell Cty. Sch. Dist. v. State, 907 P.2d 1238, 1279 (Wyo. 1995). The Supreme Court has told us not “to second-guess state officials charged with the difficult responsibility of allocating [their] limited public . . . funds among the myriad of potential” programs. Dandridge v. Williams, 397 U.S. 471, 487 (1970). And it has said that we “lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues.” Rodriguez, 411 U.S. at 41.

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Debates over the best way to help children stuck in failing schools likewise “involve[] the most persistent and difficult questions of educational policy.” Id. at 42. Consider, for example, questions about the root causes of poorly performing schools. The plaintiffs in this case allege that “high teacher turnover,” including heavy reliance on teachers from Teach for America, has partially caused the poor learning environments. Compl., R.1, PageID#101. A similar California suit, by contrast, alleged that the state’s tenure rules—which entrenched bad teachers in the state’s public schools—caused those poor learning environments. See Vergara v. California, 209 Cal. Rptr. 3d 532, 539–40 (Cal. Ct. App. 2016). Who’s right? Federal courts are not equipped to determine personnel policies or teacher-certification rules for the schools across this country.
Next consider questions about the best solutions for failing schools. The plaintiffs in this case request an injunction that would require Michigan to, among other things, fix public schools with “insufficient teacher capacity” or “deplorable school conditions.” Compl., R.1, PageID#132. A similar Connecticut suit, by contrast, sought to enjoin “Anti-Opportunity Laws” that reduced the ability of children to choose other schools. See Martinez v. Malloy, 350 F. Supp. 3d 74, 80–81 (D. Conn. 2018). Do federal courts get to pick between investing more in traditional schools or investing more in alternatives? It would be ironic if the voucher system that the Supreme Court narrowly upheld for the City of Cleveland could be constitutionally compelled for the entire nation. See Zelman, 536 U.S. at 653.
Our judicial power gives us no “specialized knowledge and experience” about the best education policies. Rodriguez, 411 U.S. at 42. Just as the Due Process Clause “does not enact Mr. Herbert Spencer’s” views in the economic sphere, Lochner, 198 U.S. at 75 (Holmes, J., dissenting), so too it does not enact Milton Friedman’s, Horace Mann’s, or any other individual’s views in this education sphere. The Constitution instead leaves these debates about education policy with the states and their people.

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II
To reach a contrary result, the majority invokes Glucksberg’s substantive-due-process test; makes analogies to other allegedly “positive” rights; relies on the dicta in the Supreme Court’s education decisions; and recounts our history of racially discriminatory education. None of these points permits the positive right to education that the majority finds in the Due Process Clause.
A
The majority cites Glucksberg’s historical framework for substantive-due-process claims and notes that most state constitutions have long included some type of clause about education or schools. Majority Op. 41–51. But Glucksberg’s framework does not extend to this distinct subsidy context, and it would not justify the plaintiffs’ proposed right even if it did.
Glucksberg considered a law that banned physician-assisted suicide; it did not consider a law refusing to pay for the practice. In that regulatory context, the Supreme Court asked whether the activity that the state prohibited (suicide) was “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Glucksberg, 521 U.S. at 721 (citation omitted). This test should not even enter the field when a plaintiff challenges a state’s alleged failure to provide a public service (as in this case), as opposed to its deprivation of a liberty or property interest (as in cases like Glucksberg or Casey). Relying on Glucksberg to find a right to a taxpayer-funded education is like relying on Roe v. Wade, 410 U.S. 113 (1973), to find a right to a taxpayer-funded abortion. But see Maher, 432 U.S. at 475–76.
DeShaney proves my point. That case did not ask whether state protection from private violence was deeply rooted in our history or implicit in the concept of ordered liberty. See 489 U.S. at 194–203. It is, of course, both. As for history, “[p]rotection” from private violence has always been the government’s job. Corfield v. Coryell, 6 F. Cas. 546, 551 (Washington, Circuit Justice, C.C.E.D. Pa. 1823). Early state constitutions noted that “[e]ach individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws.” Mass. Const. of 1780, pt. I, art. X; cf. Pa. Const. of 1776, Declaration of Rights, art. VIII; Va. Declaration of Rights § 3 (1776). As for ordered liberty,

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under the original social contract, individuals give up some of their freedom in exchange for security (not education) from the government. See John Locke, Two Treatises of Government 184–86 (Thomas I. Cook, ed., Hafner Publ’g Co. 1947) (1690); 1 William Blackstone, Commentaries on the Laws of England *226. If Glucksberg’s test extends to public services, DeShaney cannot stand. DeShaney instead adopted a much simpler rule: Substantive due process does not regulate a state’s failure to provide public services. 489 U.S. at 194–97. Any claim for a state-provided education falls within DeShaney’s rule, not Glucksberg’s.
Even if Glucksberg’s framework applied, the plaintiffs’ proposed right would not satisfy it. Other than the fact that they label their claim a right to “access literacy,” I see little daylight between that claim and the one Rodriguez rejected. The plaintiffs rely on state constitutional provisions as their main support for the argument that literacy is “deeply rooted in this Nation’s history and tradition.” Glucksberg, 521 U.S. at 721 (citation omitted). But these clauses address schools or education generally; they do not mention access to literacy specifically. See Calabresi & Perl, supra, at 450–54 & nn.97–126. The provisions thus provide no basis for a standalone right to literacy apart from a general right to education. If the Supreme Court thought that these clauses justified a fundamental right to education, it would have said so in Rodriguez.
The plaintiffs also merely cite these state education clauses; they do not discuss how the states have applied them. For most of our country’s history, “[t]he overwhelming majority of States” did not treat the clauses as creating judicially enforceable individual rights to a minimum education (in contrast to a general mandate for the legislature to set up a statewide school system). John C. Eastman, When Did Education Become a Civil Right? An Assessment of State Constitutional Provisions for Education 1776-1900, 42 Am. J. Legal Hist. 1, 2 (1998). That is why, in 1992, a commentator could describe an “emerging” right to education, not a longstanding one. See Allen W. Hubsch, The Emerging Right to Education Under State Constitutional Law, 65 Temple L. Rev. 1325 (1992). And even under an approach using “reasoned judgment” to discover new rights, Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015), these more recent suits have been met with decidedly mixed results. See Sutton, supra, at 30. Some courts have declined to adopt a state right to a minimum education precisely because of the way in which their sister courts have “struggled in [their] self-appointed role[s] as

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overseer[s] of education” to find workable standards. City of Pawtucket v. Sundlun, 662 A.2d 40, 59 (R.I. 1995); cf. Ex Parte James, 836 So. 2d 813, 819 (Ala. 2002) (per curiam). This practical concern has far greater force as applied to the national due-process right that the plaintiffs ask us to mandate for all 50 states.
In that respect, Glucksberg requires a plaintiff to articulate “a ‘careful description’ of the asserted fundamental liberty interest.” 521 U.S. at 721 (citation omitted). Here, however, the plaintiffs propose a vague right to the “access to literacy” without clearly identifying its contours. Their proposal would mandate far more day-to-day federal oversight of the states’ schools than any narrow claim that children “are not taught to read or write.” Papasan, 478 U.S. at 286. The complaint suggests that this right will require federal courts to evaluate such things as the minimum qualifications for teachers, Compl., R.1, PageID#120, the maximum number of students per class, id., PageID#97–98, and the appropriate types and conditions of textbooks, id., PageID#82–83. Their proposed right also does not appear limited to literacy, as the complaint makes allegations about physics and economics courses too. Id., PageID#82, 104. All told, the plaintiffs seek to enforce the right to education that Rodriguez rejected simply by relabeling it.
B
Even if DeShaney sets the default rule in this subsidy context, the majority next says, the Supreme Court has created two other “exceptions” that are like the exception that the majority creates today. Majority Op. 52–53. Neither justifies the majority’s departure from DeShaney.
As its first exception, the majority notes that the Sixth Amendment’s right to counsel (as incorporated by the Due Process Clause) requires a state to provide a criminal defendant with a taxpayer-funded lawyer. Gideon v. Wainwright, 372 U.S. 335, 344 (1963). But the state’s prosecution triggering this right seeks to deprive the defendant of life, liberty, or property. So Gideon “did not expand the definition of deprivation to encompass the failure to provide services; it merely determined what constituted the process due when the state sought actively to deprive the individual of life, liberty, or property by means of the criminal law.” Currie, supra, 53 U. Chi. L. Rev. at 874; Archie, 847 F.2d at 1221–22. It no more establishes a right to “public services” than does the right to a jury trial, which a state likewise must furnish before taking a

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person’s liberty. Regardless, the Sixth Amendment right to “counsel” contains affirmative language; the Constitution contains no similar right to “education” that could be applied against the states under modern incorporation principles. See McDonald v. City of Chicago, 561 U.S. 742, 763–67 (2010).
As its second exception, the majority notes that the Due Process Clause protects the right to marry even though “the performance of a marriage is an affirmative act by the State.” Majority Op. 53. But the Supreme Court has treated the “right to marry” not as a right to state aid, but as “part of the fundamental ‘right of privacy’” that bars a state from interfering in an individual’s intimate decisions. Zablocki v. Redhail, 434 U.S. 374, 384 (1978). “[I]t would make little sense to recognize a right of privacy with respect to other matters of family life,” the Court has said, “and not with respect to the decision to enter the relationship that is the foundation of the family in our society.” Id. at 386. It has thus found this right violated by criminal laws that deprived people of liberty merely for marrying. Id. at 387; Loving v. Virginia, 388 U.S. 1, 2–3 (1967); cf. Poe v. Ullman, 367 U.S. 497, 545–46 (1961) (Harlan, J., dissenting). The Court made this same connection when holding that same-sex couples have the right to marry: “Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.” Obergefell, 135 S. Ct. at 2599.
These decisions have not, however, compelled states to provide public assistance so that parties may exercise their privacy rights. Apart from the abortion cases I have discussed, Rust, 500 U.S. at 201, other examples support this distinction. Families have a right to live together, Moore v. City of East Cleveland, 431 U.S. 494, 504–06 (1977) (plurality op.), but they do not have a right to public funds for the rent, cf. Lindsey, 405 U.S. at 73–74. Parents have a right to send their children to private schools, Pierce, 268 U.S. at 534–35, but they do not have a right to public funds for the tuition, cf. Harris, 448 U.S. at 318. The right to marry fits this same mold. While the government may not bar two people from marrying, Obergefell, 135 S. Ct. at 2605, the Supreme Court has never held that the government must give married couples any minimum level of public benefits. To the contrary, the Court has held that the government does not violate the right even when it stops providing benefits to individuals who choose to marry. Califano v.

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Jobst, 434 U.S. 47, 53–54 (1977); see Druker v. Comm’r, 697 F.2d 46, 50 (2d Cir. 1982) (Friendly, J.).
If the majority believes that Obergefell jettisoned DeShaney and allows courts to discover a new font of positive rights, I disagree. Obergefell “held invalid” state marriage laws “to the extent they exclude[d] same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” 135 S. Ct. at 2605. It did not set any minimum “terms and conditions” for those laws. And even were I wrong on this point, the Supreme Court has given clear marching orders to lower courts in this context: “[I]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237 (1997) (citation omitted). DeShaney has direct application to, and so controls, this case.
C
The majority next notes that Rodriguez and the Supreme Court’s other education cases “left open the possibility of the right to a basic minimum education, which works to negate the argument that its recognition is impossible given its positive or affirmative nature.” Majority Op. 54. When Rodriguez refused to find a right to education in the right to speak or vote, it stated: “Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short.” 411 U.S. at 36–37. Papasan read this sentence to reserve “whether a minimally adequate education is a fundamental right.” 478 U.S. at 285. Even assuming these statements could be read to support a fundamental right to a minimum education, these decisions did not involve substantive due process, so their statements do not support any education exception to DeShaney’s default rule.
These cases instead considered equal-protection claims. That makes all the difference. Unlike the Due Process Clause, which does not generally compel a minimum level of public services, the Equal Protection Clause does sometimes compel an equal level of public services.

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The rigor with which courts review the unequal provision of state aid turns on whether a state’s distinctions “proceed[] along suspect lines” or “involv[e] fundamental rights.” Heller v. Doe, 509 U.S. 312, 319 (1993). If state action does either, the Court applies demanding “strict scrutiny” review; if it does not, the Court applies forgiving rational-basis review. See id. at 319–20. As has been clear since Brown v. Board of Education, 347 U.S. 483 (1954), strict scrutiny applies to suspect racial classifications in education. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007). Absent those pernicious classifications, parties have asked the Court to apply strict scrutiny to any unequal treatment in education on the ground that education is a “fundamental right.” The Court has repeatedly said “no.” See Kadrmas, 487 U.S. at 458.
This context clarifies what Papasan meant when it said that the Court has left open “whether a minimally adequate education is a fundamental right.” 478 U.S. at 285. The Court did not reserve whether the Constitution contains a positive right to a minimum education. It reserved only “whether a statute alleged to discriminatorily infringe that [potential] right should be accorded heightened equal protection review.” Id. If, for example, a state refused to set up a school system in disfavored counties, Papasan suggests (perhaps) that this discrimination could trigger stricter equal-protection scrutiny. The majority, by contrast, reads Papasan to conflict with cases holding that states need not subsidize fundamental rights. Yet by the time of Papasan, the Court had already “held in several contexts that a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right[.]” Regan v. Taxation With Representation of Wash., 461 U.S. 540, 549 (1983). Nothing in Papasan so much as hints at a retreat from this rule.
Rodriguez’s reasoning confirms this conclusion. Any hypothetical right to a minimum education would in part flow out of the right to free speech. Rodriguez, 411 U.S. at 35–37. It has, however, been black-letter law for decades that the Free Speech Clause does not require states to “affirmatively assist” speech. Ysursa, 555 U.S. at 364. As Justice Douglas said, the Supreme Court has rejected any “notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.” Cammarano v. United States, 358 U.S. 498, 515 (1959) (Douglas, J., concurring). If we were to conclude that a state must subsidize

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education because individuals need education to exercise free speech, we would be concluding that states must subsidize speech in conflict with this longstanding authority.
Nor is this distinction between substantive due process and equal protection meant to deny, as the majority rightly notes, that “a fundamental right is a fundamental right.” Majority Op. 54. But the fundamental-rights analysis differs depending on the constitutional clause at issue. A state’s provision of unequal public aid to subsidize a fundamental right of some (without extending that aid to others) can trigger heightened equal-protection scrutiny. See Shapiro v. Thompson, 394 U.S. 618, 638 (1969). And a state’s regulatory restriction on the exercise of a fundamental right can trigger heightened substantive-due-process scrutiny. See Casey, 505 U.S. at 846. But a state’s refusal to subsidize a fundamental right (in contrast to its restriction on the right) has not traditionally triggered heightened substantive-due-process scrutiny. See Maher, 432 U.S. at 475–76. And here, all agree that the plaintiffs’ equalprotection claim fails. Nor do the plaintiffs argue that Michigan has unconstitutionally prohibited them from obtaining a minimum education from other sources. See Pierce, 268 U.S. at 534–35. Instead, they seek something quite novel: heightened scrutiny under substantive due process for Michigan’s failure to properly subsidize their alleged fundamental right to a minimum education. The Supreme Court’s equal-protection cases do not support that substantive-due-process request.
In all events, I do not think the Court’s statements in these decisions can justify the plaintiffs’ alleged fundamental right. Whatever Papasan meant by a fundamental right to a “minimally adequate education,” 478 U.S. at 285, Plyler shows that this language does not cover the plaintiffs’ claim that they have been “functionally excluded from Michigan’s statewide system of public education,” Compl., R.1, PageID#20. The immigrant children in Plyler were legally excluded from Texas’s statewide system of public education because they could not attend without paying a “full tuition fee.” 457 U.S. at 206 n.2. That case thus would have implicated any fundamental right to state-provided literacy if such a thing existed. But the Court made clear that “[p]ublic education is not a ‘right’ granted to individuals by the Constitution.” Id. at 221. And while courts have read Plyler as using heightened rational-basis review, see Toledo v. Sanchez, 454 F.3d 24, 33 (1st Cir. 2006), the Court certainly did not apply the strict

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scrutiny that would govern if that case concerned a fundamental right, cf. Shapiro, 394 U.S. at 634. If the legal exclusion from a free education did not implicate a fundamental right, Plyler, 457 U.S. at 223, I cannot see how the functional exclusion from a free education could either.
D
The majority lastly notes that our country’s history of racial injustice in education supports a right to a minimum education. Majority Op. 44–46. I agree that the Fourteenth Amendment was designed to stop the rampant discrimination that the majority describes. But I respectfully disagree that the amendment’s Framers did so by creating a substantive right to a minimum education. They instead created an equality right that applies once the state decides to provide for education. Both precedent and original meaning support this distinction.
Since at least Strauder v. West Virginia, 100 U.S. 303 (1880), the Supreme Court has explained that the “central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.” Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 867 (2017) (citation omitted). The amendment thus bars racial distinctions in the provision of many public services that a state, as an initial matter, has no constitutional duty to provide. A state, for example, need not provide protection against private violence, but it cannot discriminate along racial lines in any protection it grants. See DeShaney, 489 U.S. at 195–97 & 197 n.3. A state also need not provide welfare to poorer residents, but it cannot engage in racial discrimination if it chooses to offer that aid. See Dandridge, 397 U.S. at 485–86 & 485 n.17.
The Supreme Court’s decision in Brown extended this logic to the educational context. Brown recognized that “education is perhaps the most important function of state and local governments.” 347 U.S. at 493. But nowhere did it suggest that the Constitution compels all states to provide a minimum education. Rather, it held that the right to an education, “where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” Id. (emphasis added). And it found that segregated schools deny “children of the minority group . . . equal educational opportunities.” Id. No other Supreme Court decision suggests that the Due Process Clause creates an educational entitlement. When, for example, the Court held

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that a state must give students process before expelling them from schools that they have a statelaw right to attend, it suggested that the states were not “constitutionally obligated to establish and maintain a public school system.” Goss v. Lopez, 419 U.S. 565, 574 (1975); cf. Kadrmas, 487 U.S. at 462.
This same substance-versus-equality distinction permeates the congressional debates over what became the Civil Rights Act of 1875, an act passed under Congress’s power to enforce the Fourteenth Amendment. See Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1036–45 (1995); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1425–33, 1462–63 (1992). That law, as enacted, barred racial discrimination in public accommodations and jury selection. Civil Rights Act of 1875, ch. 114, §§ 1, 4, 18 Stat. 335, 336–37. (The Supreme Court would later hold that the publicaccommodations provisions exceeded Congress’s power as applied against private actors. Civil Rights Cases, 109 U.S. 3, 11 (1883).) But earlier versions of the law also would have barred segregated schools. McConnell, supra, at 987–90 & 987 n.183. As Congress debated these bills, “half or more [of the legislators] voted repeatedly to abolish segregated schools under authority of the Fourteenth Amendment.” Id. at 986.
The supporters of this desegregation decree did not dispute that the substantive “decision whether to have public schools . . . was regarded as a question of policy for the states.” Harrison, supra, at 1428. Rather, they contended that, once a state opted to have schools, the state must open the schools equally to all races. Id. One senator, for example, “explained that the civil rights bill ‘does not say that schools shall be kept at all, but it contemplates this: that where there are free schools kept at public expense, . . . in such cases there shall be an equal right to participate in the benefit of those schools created by common taxation.’” McConnell, supra, at 1041 (quoting Cong. Globe, 42d Cong., 2d Sess. 3191 (1872)). And when opponents argued that southern states would close their schools if this desegregation mandate passed, the proponents responded with statements like the following: “Let justice be done though the common schools and the very heavens fall.” Id. at 1045 (quoting 2 Cong. Rec. 4151 (1874)). These legislators recognized that the Fourteenth Amendment required states to desegregate the schools that they

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opened, even if it did not compel them to open schools to begin with. Brown thus has roots in the Fourteenth Amendment’s original understanding in a way that today’s decision does not.
III
Aside from a positive right to a state-funded education, the plaintiffs fall back on a “negative” substantive-due-process right. They point out that Michigan’s compulsoryattendance laws force most children to attend school and so do deprive them of liberty. This restriction on children’s liberty passes constitutional muster, the plaintiffs argue, only if a state reciprocates by operating schools that meet a minimum level of quality. I agree with the majority that the plaintiffs did not raise this claim below and so have forfeited it here. Majority Op. 31–32. But I disagree with any suggestion that this theory otherwise has “strong support in the law.” Id. at 27.
The plaintiffs rely on Youngberg for their claim. That decision carved out a narrow exception to the rule that a state has no duty to provide public aid, but this exception generally applies only for those individuals under strict state control. See 457 U.S. at 317. “[W]hen the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs— e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.” DeShaney, 489 U.S. at 199–200. The Court has applied this rule to prisoners, Farmer v. Brennan, 511 U.S. 825, 833 (1994), and to individuals that the state has civilly “institutionalized,” Youngberg, 457 U.S. at 317. The rule might also apply if, for example, a state monopolized the distribution of food to its citizens and barred them from obtaining food from private sources. See Majority Op. 56; see also Archie, 847 F.2d at 1222.
This exception, though, has never reached students. Courts have “consistently rejected” the argument that Youngberg’s custody exception covers children “based on compulsory attendance laws.” Stiles ex rel. D.S. v. Grainger County, 819 F.3d 834, 854 (6th Cir. 2016); Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 911 (6th Cir. 1995) (collecting cases). Although “a school system has an unmistakable duty to create and maintain a safe environment for its

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students as a matter of common law, its in loco parentis status or a state’s compulsory attendance laws do not sufficiently ‘restrain’ students to raise a school’s common law obligation to the rank of a constitutional duty.” Doe v. Claiborne County, 103 F.3d 495, 510 (6th Cir. 1996). If compulsory-attendance laws do not trigger a constitutional duty to provide students with a safe learning environment, see id., those laws also cannot trigger a constitutional duty for states to provide an adequate learning environment.
This precedent comports with the nature of compulsory-attendance laws. Youngberg’s exception applies only in situations in which the state has “restrain[ed] the individual’s freedom to act on his own behalf.” DeShaney, 489 U.S. at 200. When, by contrast, “the government does not monopolize the avenues of relief . . . it has no further obligation to give aid.” Archie, 847 F.2d at 1222. Michigan’s compulsory-attendance laws (like those of all other states) do not establish “a legal or a practical monopoly” on the schools that children must attend. Kadrmas, 487 U.S. at 460. The Supreme Court has held for nearly a century that substantive due process would in fact bar states from forcing children to attend public schools against their parents’ wishes. Pierce, 268 U.S. at 534–35. Michigan law thus provides several options to satisfy its school-attendance requirement, including charter schools, private schools, cyber schools, and homeschooling. See Mich. Comp. Laws §§ 380.501, 380.553a, 380.1561. It does not compel attendance at any particular school, including the schools about which the plaintiffs complain in this case.
* * *
My answer to this case’s constitutional questions should not “be viewed as placing [any] judicial imprimatur on the status quo.” Rodriguez, 411 U.S. at 58. As I said at the outset, the plaintiffs make concerning allegations about the conditions of their schools. “But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.” Id. at 59. I would affirm the district court’s judgment in all respects.

 
 CLOSED,APPEAL
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:16−cv−13292−SJM−APP

B. et al v. Snyder et al Assigned to: District Judge Stephen J. Murphy, III Referred to: Magistrate Judge Anthony P. Patti Case in other court: U.S. Court of Appeals − Sixth Circuit,
18−01855/18−01871 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 09/13/2016 Date Terminated: 06/29/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Gary B.

represented by Alisa l. Hartz Public Counsel 610 South Ardmore Ave. Los Angeles, CA 90005 213−385−2977 Fax: 213−385−9089 Email: ahartz@publiccounsel.org TERMINATED: 01/28/2020 ATTORNEY TO BE NOTICED

Bruce A. Miller Miller Cohen, PLC 7700 Second Ave. Ste. 335 Detroit, MI 48202 (313) 964−4454 Fax: (313) 964−4490 Email: brucemiller@millercohen.com ATTORNEY TO BE NOTICED

Carter Glasgow Phillips Sidley Austin LLP 1501 K. Street, N.W. Washington, DC 20005−1401 202−736−8270 Fax: 202−736−8711 Email: cphillips@sidley.com ATTORNEY TO BE NOTICED

Cary S. McGehee Pitt, McGehee, 117 W. Fourth Street Suite 200 Royal Oak, MI 48067−3804 248−398−9800 Email: cmcgehee@pittlawpc.com ATTORNEY TO BE NOTICED

Joshua E. Anderson Sidley Austin LLP 555 W. 5th St. Suite 4000 Los Angeles, CA 90013 213−896−6687 Fax: 213−896−6600 Email: janderson@sidley.com ATTORNEY TO BE NOTICED

Kathryn Ann Eidmann Public Counsel

Plaintiff
Jessie K. a minor, by Yvette K., guardian ad litem

610 South Armore Ave. Los Angeles, CA 90005 213−385−2977 Fax: 213−385−9089 Email: keidmann@publiccounsel.org ATTORNEY TO BE NOTICED
Mark Edmonde Haddad Sidley Austin LLP 555 W. 5th St. Suite 4000 Los Angeles, CA 90013 213−896−6604 Email: mhaddad@sidley.com ATTORNEY TO BE NOTICED
Mark Dale Rosenbaum Public Counsel 610 South Ardmore Ave. Los A ngeles, CA 90005 213−385−2977 Fax: 213−385−9089 Email: mrosenbaum@publiccounsel.org ATTORNEY TO BE NOTICED
Michael C. Kelley Sidley Austin LLP 555 W. 5th St. Suite 4000 Los Angeles, CA 90013 213−896−6000 Fax: 213−896−6600 Email: mkelley@sidley.com TERMINATED: 12/10/2018 ATTORNEY TO BE NOTICED
Tacy F. Flint Sidley Austin LLP One South Dearborn Chicago, IL 60603 312−853−7875 Fax: 312−853−7036 Email: tflint@sidley.com ATTORNEY TO BE NOTICED
Jennifer M. Wheeler Sidley Austin LLp One South Dearborn Chicago, IL 60603 312−853−7000 Email: jwheeler@sidley.com ATTORNEY TO BE NOTICED
represented by Alisa l. Hartz (See above for address) TERMINATED: 01/28/2020 ATTORNEY TO BE NOTICED
Bruce A. Miller (See above for address) ATTORNEY TO BE NOTICED
Carter Glasgow Phillips

Plaintiff
Christopher R. a minor by Escarle R., guardian ad litem

(See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Joshua E. Anderson (See above for address) ATTORNEY TO BE NOTICED
Kathryn Ann Eidmann (See above for address) ATTORNEY TO BE NOTICED
Mark Edmonde Haddad (See above for address) ATTORNEY TO BE NOTICED
Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Michael C. Kelley (See above for address) TERMINATED: 12/10/2018 ATTORNEY TO BE NOTICED
Tacy F. Flint (See above for address) ATTORNEY TO BE NOTICED
Jennifer M. Wheeler (See above for address) ATTORNEY TO BE NOTICED
represented by Alisa l. Hartz (See above for address) TERMINATED: 01/28/2020 ATTORNEY TO BE NOTICED
Bruce A. Miller (See above for address) ATTORNEY TO BE NOTICED
Carter Glasgow Phillips (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Joshua E. Anderson (See above for address) ATTORNEY TO BE NOTICED
Kathryn Ann Eidmann (See above for address) ATTORNEY TO BE NOTICED
Mark Edmonde Haddad (See above for address)

Plaintiff
Isaias R. a minor by Escarle R., guardian ad litem

ATTORNEY TO BE NOTICED
Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Michael C. Kelley (See above for address) TERMINATED: 12/10/2018 ATTORNEY TO BE NOTICED
Tacy F. Flint (See above for address) ATTORNEY TO BE NOTICED
Jennifer M. Wheeler (See above for address) ATTORNEY TO BE NOTICED
represented by Alisa l. Hartz (See above for address) TERMINATED: 01/28/2020 ATTORNEY TO BE NOTICED
Bruce A. Miller (See above for address) ATTORNEY TO BE NOTICED
Carter Glasgow Phillips (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Joshua E. Anderson (See above for address) ATTORNEY TO BE NOTICED
Kathryn Ann Eidmann (See above for address) ATTORNEY TO BE NOTICED
Mark Edmonde Haddad (See above for address) ATTORNEY TO BE NOTICED
Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Michael C. Kelley (See above for address) TERMINATED: 12/10/2018 ATTORNEY TO BE NOTICED
Tacy F. Flint (See above for address) ATTORNEY TO BE NOTICED
Jennifer M. Wheeler (See above for address)

Plaintiff Esmeralda V. a minor by Laura V., guardian ad litem
Plaintiff Paul M.

ATTORNEY TO BE NOTICED
represented by Alisa l. Hartz (See above for address) TERMINATED: 01/28/2020 ATTORNEY TO BE NOTICED
Bruce A. Miller (See above for address) ATTORNEY TO BE NOTICED
Carter Glasgow Phillips (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Joshua E. Anderson (See above for address) ATTORNEY TO BE NOTICED
Kathryn Ann Eidmann (See above for address) ATTORNEY TO BE NOTICED
Mark Edmonde Haddad (See above for address) ATTORNEY TO BE NOTICED
Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Michael C. Kelley (See above for address) TERMINATED: 12/10/2018 ATTORNEY TO BE NOTICED
Tacy F. Flint (See above for address) ATTORNEY TO BE NOTICED
Jennifer M. Wheeler (See above for address) ATTORNEY TO BE NOTICED
represented by Alisa l. Hartz (See above for address) TERMINATED: 01/28/2020 ATTORNEY TO BE NOTICED
Bruce A. Miller (See above for address) ATTORNEY TO BE NOTICED
Carter Glasgow Phillips (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee

Plaintiff
Jaime R. a minor by Karen R. guardian ad litem

(See above for address) ATTORNEY TO BE NOTICED
Joshua E. Anderson (See above for address) ATTORNEY TO BE NOTICED
Kathryn Ann Eidmann (See above for address) ATTORNEY TO BE NOTICED
Mark Edmonde Haddad (See above for address) ATTORNEY TO BE NOTICED
Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Michael C. Kelley (See above for address) TERMINATED: 12/10/2018 ATTORNEY TO BE NOTICED
Tacy F. Flint (See above for address) ATTORNEY TO BE NOTICED
Jennifer M. Wheeler (See above for address) ATTORNEY TO BE NOTICED
represented by Alisa l. Hartz (See above for address) TERMINATED: 01/28/2020 ATTORNEY TO BE NOTICED
Bruce A. Miller (See above for address) ATTORNEY TO BE NOTICED
Carter Glasgow Phillips (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Joshua E. Anderson (See above for address) ATTORNEY TO BE NOTICED
Kathryn Ann Eidmann (See above for address) ATTORNEY TO BE NOTICED
Mark Edmonde Haddad (See above for address) ATTORNEY TO BE NOTICED
Mark Dale Rosenbaum (See above for address)

V. Defendant Richard D. Snyder in his official capacity as Govenor of the State of Michigan
Defendant John C. Austin in his official capacity as a member of the Michigan Board of Education

ATTORNEY TO BE NOTICED
Michael C. Kelley (See above for address) TERMINATED: 12/10/2018 ATTORNEY TO BE NOTICED
Tacy F. Flint (See above for address) ATTORNEY TO BE NOTICED
Jennifer M. Wheeler (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan S. Ludwig MI Dept of Attorney General P.O. Box 30758 Lansing, MI 48909 517−373−7700 Fax: 517−335−1152 Email: ludwigj1@michigan.gov ATTORNEY TO BE NOTICED
Joshua S. Smith MI Department of Attorney General Health Education and Family Services P.O. Box 30758 Lansing, MI 48909 517−335−7603 Email: smithj46@michigan.gov ATTORNEY TO BE NOTICED
Katherine J. Bennett Michigan Department of Attorney General 525 W. Ottawa St. P.O. Box 30758 Lansing, MI 48933 517−373−7700 Fax: 517−335−1152 Email: BennettK1@michigan.gov ATTORNEY TO BE NOTICED
Timothy J. Haynes Michigan Department of Attorney General 525 Ottawa Street Box 30758 Lansing, MI 48933 517−373−7700 Fax: 517−335−1152 Email: haynest3@michigan.gov ATTORNEY TO BE NOTICED
represented by Jonathan S. Ludwig (See above for address) ATTORNEY TO BE NOTICED
Joshua S. Smith (See above for address)

Defendant Michelle Fecteau in her official capacity as a member of the Michigan Board of Education
Defendant Lupe Ramos−Montigny in her official capacity as a member of the Michigan Board of Education
Defendant Pamela Pugh in her official capacity as a member of the Michigan Board of Education
Defendant

ATTORNEY TO BE NOTICED
Katherine J. Bennett (See above for address) ATTORNEY TO BE NOTICED
Timothy J. Haynes (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan S. Ludwig (See above for address) ATTORNEY TO BE NOTICED
Joshua S. Smith (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Bennett (See above for address) ATTORNEY TO BE NOTICED
Timothy J. Haynes (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan S. Ludwig (See above for address) ATTORNEY TO BE NOTICED
Joshua S. Smith (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Bennett (See above for address) ATTORNEY TO BE NOTICED
Timothy J. Haynes (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan S. Ludwig (See above for address) ATTORNEY TO BE NOTICED
Joshua S. Smith (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Bennett (See above for address) ATTORNEY TO BE NOTICED
Timothy J. Haynes (See above for address) ATTORNEY TO BE NOTICED

Kathleen N. Straus in her official capacity as a member of the Michigan Board of Education
Defendant Casandra E. Ulbrich in her official capacity as a member of the Michigan Board of Education
Defendant Eileen Weiser in her official capacity as a member of the Michigan Board of Education
Defendant Richard Zeile in his official capacity as a member of the Michigan Board of Education

represented by Jonathan S. Ludwig (See above for address) ATTORNEY TO BE NOTICED
Joshua S. Smith (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Bennett (See above for address) ATTORNEY TO BE NOTICED
Timothy J. Haynes (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan S. Ludwig (See above for address) ATTORNEY TO BE NOTICED
Joshua S. Smith (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Bennett (See above for address) ATTORNEY TO BE NOTICED
Timothy J. Haynes (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan S. Ludwig (See above for address) ATTORNEY TO BE NOTICED
Joshua S. Smith (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Bennett (See above for address) ATTORNEY TO BE NOTICED
Timothy J. Haynes (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan S. Ludwig (See above for address) ATTORNEY TO BE NOTICED
Joshua S. Smith (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant Brian J. Whiston in his official capacity as Superintendent of Public Instruction for the State of Michigan
Defendant David B. Behan in his official capacity as Director of the Michigan Department of Technology, Management, and Budget TERMINATED: 10/03/2016
Defendant Natasha Baker in her official capacity as the State School Reform/Redesign Officer
Defendant David B. Behen in his offical capacity as Director of the Michigan Department of Techology

Timothy J. Haynes (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan S. Ludwig (See above for address) ATTORNEY TO BE NOTICED
Joshua S. Smith (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Bennett (See above for address) ATTORNEY TO BE NOTICED
Timothy J. Haynes (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan S. Ludwig (See above for address) ATTORNEY TO BE NOTICED
Joshua S. Smith (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Bennett (See above for address) ATTORNEY TO BE NOTICED
Timothy J. Haynes (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan S. Ludwig (See above for address) ATTORNEY TO BE NOTICED
Joshua S. Smith (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Bennett (See above for address) ATTORNEY TO BE NOTICED
Timothy J. Haynes (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua S. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine J. Bennett

Amicus American Federation of Teachers, AFL−CIO
Amicus Kappa Delta Pi
Amicus International Literacy Association
Amicus National Association for Multicultural Education Amicus Michigan Education Law and Policy Professors Amicus The City of Detroit

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy J. Haynes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan S. Ludwig (See above for address) ATTORNEY TO BE NOTICED
represented by Marshall J. Widick Nickelhoff & Widick, PLLC 2211 E. Jefferson Ave., Ste. 200 Detroit, MI 48207 313−496−9472 Fax: 313−965−4602 Email: mwidick@sachswaldman.com ATTORNEY TO BE NOTICED
represented by Dennis J. Clark 645 Griswold Street Suite 2200 Detroit, MI 48226 313−962−2233 Email: djclarklaw@gmail.com ATTORNEY TO BE NOTICED
represented by Dennis J. Clark (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Clark (See above for address) ATTORNEY TO BE NOTICED
represented by Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky O'Melveny & Myers LLP 7 Times Square New York, NY 10036 212−326−2000 Fax: 212−326−2061 Email: ametlitsky@omm.com ATTORNEY TO BE NOTICED
Eli Savit City of Detroit Mayor's Office 2 Woodward Avenue Suite 1126

Amicus 482Forward
Amicus The Skillman Foundation

Detroit, MI 48226 269−267−5422 Email: savite@detroitmi.gov ATTORNEY TO BE NOTICED
Melvin B. Hollowell The Miller Law Firm, P.C. 950 W. University Dr Ste. 300 Rochester, MI 48307 248−841−2200 Email: mbh@millerlawpc.com ATTORNEY TO BE NOTICED
represented by Mark C. Brewer Goodman Acker 17000 W. Ten Mile Road 2nd Floor Southfield, MI 48075 248−483−5000 Fax: 248−483−3131 Email: mbrewer@goodmanacker.com ATTORNEY TO BE NOTICED
represented by Samuel McCargo Lewis & Munday 535 Griswold Suite 2300 Detroit, MI 48226 313−961−2550 Email: smccargo@lewismunday.com ATTORNEY TO BE NOTICED

Date Filed 09/13/2016
09/13/2016 09/13/2016 09/13/2016 09/13/2016

# Docket Text
1 COMPLAINT filed by Jaime R., Jessie K., Gary B., Paul M., Christopher R., Isaias R., Esmeralda V. against John C. Austin, Natasha Baker, David B. Behan, Michelle Fecteau, Pamela Pugh, Lupe Ramos−Montigny, Richard D. Snyder, Kathleen N. Straus, Casandra E. Ulbrich, Eileen Weiser, Brian J. Whiston, Richard Zeile. Plaintiff requests summons issued. Receipt No: 0645−5866259 − Fee: $ 400. County of 1st Plaintiff: Wayne − County Where Action Arose: Wayne − County of 1st Defendant: Wayne. [Previously dismissed case: No] [Possible companion case(s): None] (Wheeler, Jennifer) Modified on 9/13/2016 (DWor). [RELATED CASE NO: 16−cv−10400 − JUDGE DAVID M. LAWSON] (Entered: 09/13/2016)
2 NOTICE of Appearance by Jennifer M. Wheeler on behalf of Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Wheeler, Jennifer) (Entered: 09/13/2016)
3 NOTICE of Appearance by Bruce A. Miller on behalf of Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Miller, Bruce) (Entered: 09/13/2016)
4 MOTION to Seal by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Wheeler, Jennifer) (Entered: 09/13/2016)
5 Ex Parte MOTION for Protective Order Permitting Plaintiffs To Proceed Under Pseudonyms by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Attachments: # 1 Declaration of Kathryn A. Eidmann) (Wheeler, Jennifer) (Entered: 09/13/2016)

09/13/2016
09/13/2016
09/13/2016
09/13/2016
09/13/2016
09/13/2016 09/20/2016 09/20/2016 09/20/2016 09/20/2016 09/20/2016 09/20/2016 09/20/2016 09/20/2016 09/20/2016 09/20/2016 09/20/2016 09/26/2016 09/26/2016 09/26/2016 09/27/2016
10/03/2016

6 PETITION For Appointment Of Guardian Ad Litem (Ex Parte) by Isaias R.. (Attachments: # 1 Declaration OF Isaias R., # 2 Declaration of Escarle R.) (Wheeler, Jennifer) (Entered: 09/13/2016)
7 PETITION For Appointment of Guardian Ad Litem (Ex Parte) by Christopher R.. (Attachments: # 1 Declaration of Christopher R., # 2 Declaration of Escarle R.) (Wheeler, Jennifer) (Entered: 09/13/2016)
8 PETITION For Appointment of Guardian Ad Litem (Ex Parte) by Jessie K.. (Attachments: # 1 Declaration of Jessie K., # 2 Declaration of Yvette K.) (Wheeler, Jennifer) (Entered: 09/13/2016)
9 PETITION For Appointment of Guardian Ad Litem (Ex Parte) by Esmeralda V.. (Attachments: # 1 Declaration of Esmeralda V., # 2 Declaration of Laura V.) (Wheeler, Jennifer) (Entered: 09/13/2016)
10 PETITION For Appointment of Guardian Ad Litem (Ex Parte) by Jaime R.. (Attachments: # 1 Declaration of Jaime R., # 2 Declaration of Karen R.) (Wheeler, Jennifer) (Entered: 09/13/2016)
11 SUMMONS Issued for * All Defendants * (DWor) (Entered: 09/13/2016)
12 CERTIFICATE of Service/Summons Returned Executed. Brian J. Whiston served on 9/15/2016, answer due 10/6/2016. (Wheeler, Jennifer) (Entered: 09/20/2016)
13 CERTIFICATE of Service/Summons Returned Executed. Casandra E. Ulbrich served on 9/15/2016, answer due 10/6/2016. (Wheeler, Jennifer) (Entered: 09/20/2016)
14 CERTIFICATE of Service/Summons Returned Executed. Eileen Weiser served on 9/15/2016, answer due 10/6/2016. (Wheeler, Jennifer) (Entered: 09/20/2016)
15 CERTIFICATE of Service/Summons Returned Executed. John C. Austin served on 9/15/2016, answer due 10/6/2016. (Wheeler, Jennifer) (Entered: 09/20/2016)
16 CERTIFICATE of Service/Summons Returned Executed. Kathleen N. Straus served on 9/15/2016, answer due 10/6/2016. (Wheeler, Jennifer) (Entered: 09/20/2016)
17 CERTIFICATE of Service/Summons Returned Executed. Lupe Ramos−Montigny served on 9/15/2016, answer due 10/6/2016. (Wheeler, Jennifer) (Entered: 09/20/2016)
18 CERTIFICATE of Service/Summons Returned Executed. Michelle Fecteau served on 9/15/2016, answer due 10/6/2016. (Wheeler, Jennifer) (Entered: 09/20/2016)
19 CERTIFICATE of Service/Summons Returned Executed. Natasha Baker served on 9/15/2016, answer due 10/6/2016. (Wheeler, Jennifer) (Entered: 09/20/2016)
20 CERTIFICATE of Service/Summons Returned Executed. Pamela Pugh served on 9/15/2016, answer due 10/6/2016. (Wheeler, Jennifer) (Entered: 09/20/2016)
21 CERTIFICATE of Service/Summons Returned Executed. Richard D. Snyder served on 9/15/2016, answer due 10/6/2016. (Wheeler, Jennifer) (Entered: 09/20/2016)
22 CERTIFICATE of Service/Summons Returned Executed. Richard Zeile served on 9/15/2016, answer due 10/6/2016. (Wheeler, Jennifer) (Entered: 09/20/2016)
23 NOTICE of Appearance by Timothy J. Haynes on behalf of All Defendants. (Haynes, Timothy) (Entered: 09/26/2016)
24 NOTICE of Appearance by Katherine J. Bennett on behalf of All Defendants. (Bennett, Katherine) (Entered: 09/26/2016)
25 NOTICE of Appearance by Joshua S. Smith on behalf of All Defendants. (Smith, Joshua) (Entered: 09/26/2016)
26 NOTICE of Appearance by Joshua E. Anderson on behalf of Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Anderson, Joshua) (Entered: 09/27/2016)
27 ORDER to issue an amended summons to defendant David B. Behen to correct the case docket. Signed by District Judge Stephen J. Murphy, III. (DPer) (Entered: 10/03/2016)

10/03/2016 10/05/2016 10/05/2016 10/06/2016 10/07/2016 10/07/2016 10/07/2016 10/13/2016 10/14/2016
10/14/2016 10/14/2016 10/14/2016 10/14/2016 10/14/2016 10/14/2016 10/14/2016 10/14/2016 10/14/2016 10/14/2016

28 SUMMONS Issued for *David B. Behen* (DPer) (Entered: 10/03/2016)
29 NOTICE of Appearance by Carter Glasgow Phillips on behalf of All Plaintiffs. (Phillips, Carter) (Entered: 10/05/2016)
30 NOTICE of Appearance by Michael C. Kelley on behalf of All Plaintiffs. (Kelley, Michael) (Entered: 10/05/2016)
31 STIPULATED ORDER to Extend Time for Defendants to File Responsive Pleadings and Increase Page Limitations. Signed by District Judge Stephen J. Murphy, III. (CCoh) (Entered: 10/06/2016)
32 NOTICE of Appearance by Mark Dale Rosenbaum on behalf of Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Rosenbaum, Mark) (Entered: 10/07/2016)
33 NOTICE of Appearance by Kathryn Ann Eidmann on behalf of Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Eidmann, Kathryn) (Entered: 10/07/2016)
34 NOTICE of Appearance by Alisa l. Hartz on behalf of Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Hartz, Alisa) (Entered: 10/07/2016)
35 ORDER Granting 4 Motion to Seal; and Granting 5 Motion for Protective Order. Signed by District Judge Stephen J. Murphy, III. (CCoh) (Entered: 10/13/2016)
36 SEALED Unredacted Declaration of Kathryn A. Eidmann re 5 Ex Parte MOTION for Protective Order Permitting Plaintiffs To Proceed Under Pseudonyms by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Wheeler, Jennifer) (Entered: 10/14/2016)
37 SEALED Unredacted Declaration of Isaias R. re 6 Petition by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Wheeler, Jennifer) (Entered: 10/14/2016)
38 SEALED Unredacted Declaration of Escarle R. re 6 Petition by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Wheeler, Jennifer) (Entered: 10/14/2016)
39 SEALED Unredacted Declaration of Cristopher R. re 7 Petition by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Wheeler, Jennifer) (Entered: 10/14/2016)
40 SEALED Unredacted Declaration of Escarle R. re 7 Petition by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Wheeler, Jennifer) (Entered: 10/14/2016)
41 SEALED Unredacted Declaration of Jessie K. re 8 Petition by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Wheeler, Jennifer) (Entered: 10/14/2016)
42 SEALED Unredacted Declaration of Yvette K. re 8 Petition by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Wheeler, Jennifer) (Entered: 10/14/2016)
43 SEALED Unredacted Declaration of Esmeralda V. re 9 Petition by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Wheeler, Jennifer) (Entered: 10/14/2016)
44 SEALED Unredacted Declaration of Laura V. re 9 Petition by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Wheeler, Jennifer) (Entered: 10/14/2016)
45 SEALED Unredacted Declaration of Jaime R. re 10 Petition by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Wheeler, Jennifer) (Entered: 10/14/2016)
46 SEALED Unredacted Declaration of Karen R. re 10 Petition by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Wheeler, Jennifer) (Entered: 10/14/2016)

10/14/2016
10/14/2016 10/14/2016 10/14/2016 10/14/2016 10/14/2016 10/14/2016 10/14/2016 10/14/2016 10/14/2016 10/14/2016 10/25/2016 10/26/2016 11/17/2016
01/09/2017 01/10/2017 01/12/2017

47 DECLARATION by Kathryn A. Eidmann (Redacted) In Support Of Plaintiffs Ex Parte Motion For Protective Order Permitting Plaintiffs To Proceed Under Pseudonyms filed by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V. (Wheeler, Jennifer) (Entered: 10/14/2016)
48 DECLARATION by Isaias R. (Redacted) re 6 Petition filed by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V. (Wheeler, Jennifer) (Entered: 10/14/2016)
49 DECLARATION by Escarle R. (Redacted) re 6 Petition filed by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V. (Wheeler, Jennifer) (Entered: 10/14/2016)
50 DECLARATION by Cristopher R. (Redacted) re 7 Petition filed by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V. (Wheeler, Jennifer) (Entered: 10/14/2016)
51 DECLARATION by Escarle R. (Redacted) re 7 Petition filed by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V. (Wheeler, Jennifer) (Entered: 10/14/2016)
52 DECLARATION by Jessie K. (Redacted) re 8 Petition filed by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V. (Wheeler, Jennifer) (Entered: 10/14/2016)
53 DECLARATION by Yvette K. (Redacted) re 8 Petition filed by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V. (Wheeler, Jennifer) (Entered: 10/14/2016)
54 DECLARATION by Esmeralda V. (Redacted) re 9 Petition filed by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V. (Wheeler, Jennifer) (Entered: 10/14/2016)
55 DECLARATION by Laura V. (Redacted) re 9 Petition filed by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V. (Wheeler, Jennifer) (Entered: 10/14/2016)
56 DECLARATION by Jaime R. (Redacted) re 10 Petition filed by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V. (Wheeler, Jennifer) (Entered: 10/14/2016)
57 DECLARATION by Karen R. (Redacted) re 10 Petition filed by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V. (Wheeler, Jennifer) (Entered: 10/14/2016)
58 NOTICE of Appearance by Mark Edmonde Haddad on behalf of All Plaintiffs. (Haddad, Mark) (Entered: 10/25/2016)
59 NOTICE of Appearance by Tacy F. Flint on behalf of Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Flint, Tacy) (Entered: 10/26/2016)
60 MOTION to Dismiss and Brief in Support by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12) (Haynes, Timothy) (Entered: 11/17/2016)
61 STIPULATED ORDER to Increase Page Limitations. Signed by District Judge Stephen J. Murphy, III. (DPar) (Entered: 01/09/2017)
62 ORDER Granting Plaintiffs' Ex Parte Motions for Appointment of Guardians Ad Litem re 6 , 7 , 8 , 9 , 10 Petition. Signed by District Judge Stephen J. Murphy, III. (DPar) (Entered: 01/10/2017)
63 MOTION for Leave to File a Brief Amicus Curiae in Support of Plaintiffs' Complaint by American Federation of Teachers, AFL−CIO. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Proposed Amicus Curiae Brief of AFT, # 3 Exhibit B − Dow Chemical Co v. United States) (Widick, Marshall) (Entered: 01/12/2017)

01/12/2017 01/12/2017 01/12/2017
01/13/2017 01/13/2017 01/13/2017 01/13/2017 01/13/2017 01/19/2017 01/19/2017 01/19/2017
01/19/2017
01/19/2017 01/19/2017 01/19/2017 01/20/2017 01/24/2017 01/24/2017

64 RESPONSE to 60 MOTION to Dismiss and Brief in Support filed by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Flint, Tacy) (Entered: 01/12/2017)
65 ATTORNEY APPEARANCE: Dennis J. Clark appearing on behalf of Kappa Delta Pi, International Literacy Association, National Association for Multicultural Education (Clark, Dennis) (Entered: 01/12/2017)
66 MOTION for Leave to File as Amici Curiae a Brief in Opposition to Defendants' Motion to Dismiss by International Literacy Association, Kappa Delta Pi, National Association for Multicultural Education. (Attachments: # 1 Exhibit A − Brief of Kappa Delta Pi, the International Literacy Association, and the National Association for Multicultural Education as Amici Curiae in Opposition to Defendants' Motion to Dismiss) (Clark, Dennis) (Entered: 01/12/2017)
67 NOTICE of Appearance by Cary S. McGehee on behalf of All Plaintiffs. (McGehee, Cary) (Entered: 01/13/2017)
68 MOTION for Leave to File Brief of Amici Curiae Michigan Education Law and Policy Professors in Opposition to Defendants' Motion to Dismiss by All Plaintiffs. (McGehee, Cary) (Entered: 01/13/2017)
69 NOTICE of Appearance by Cary S. McGehee on behalf of Michigan Education Law and Policy Professors. (McGehee, Cary) (Entered: 01/13/2017)
70 MOTION for Leave to File Brief of Amici Curiae Michigan Education Law and Policy Professors in Opposition to Defendants' Motion to Dismiss by Michigan Education Law and Policy Professors. (McGehee, Cary) (Entered: 01/13/2017)
71 RESPONSE to 60 MOTION to Dismiss and Brief in Support filed by Michigan Education Law and Policy Professors. (McGehee, Cary) (Entered: 01/13/2017)
72 NOTICE of Appearance by Eli Savit on behalf of The City of Detroit. (Savit, Eli) (Entered: 01/19/2017)
73 NOTICE of Appearance by Anton Metlitsky on behalf of The City of Detroit. (Metlitsky, Anton) (Entered: 01/19/2017)
74 MOTION of Local Counsel for Out−Of−State Counsel To Appear As Attorneys For Proposed Amicus Curiae The City Of Detroit (UNOPPOSED) by The City of Detroit. (Attachments: # 1 Affidavit of Bradley N. Garcia, # 2 Affidavit of James W. Crooks, # 3 Affidavit of Samantha M. Goldstein) (Savit, Eli) (Entered: 01/19/2017)
75 MOTION for Leave to File A Brief As Amicus Curiae In Support Of Plaintiffs' Response In Opposition to Defendants' Motion To Dismiss (UNOPPOSED) by The City of Detroit. (Attachments: # 1 Exhibit A − Amicus Brief) (Savit, Eli) (Entered: 01/19/2017)
76 ATTORNEY APPEARANCE: Melvin J. Hollowell, Jr appearing on behalf of The City of Detroit (Hollowell, Melvin) (Entered: 01/19/2017)
77 NOTICE of Appearance by Mark C. Brewer on behalf of 482Forward. (Brewer, Mark) (Entered: 01/19/2017)
78 MOTION for Leave to File A Brief of Amicus Curiae In Support Of Plaintiffs by 482Forward. (Brewer, Mark) (Entered: 01/19/2017)
79 NOTICE of Appearance by Jonathan S. Ludwig on behalf of All Defendants. (Ludwig, Jonathan) (Entered: 01/20/2017)
80 RESPONSE to 66 MOTION for Leave to File a Brief Amicus Curiae in Support of Plaintiffs' Complaint filed by All Defendants. (Haynes, Timothy) Modified on 1/24/2017 (LGra). (Entered: 01/24/2017)
81 RESPONSE to 66 MOTION for Leave to File as Amici Curiae a Brief in Opposition to Defendants' Motion to Dismiss filed by John C. Austin, Natasha Baker, David B. Behan, David B. Behen, Michelle Fecteau, Pamela Pugh, Lupe Ramos−Montigny, Richard D. Snyder, Kathleen N. Straus, Casandra E. Ulbrich, Eileen Weiser, Brian J. Whiston, Richard Zeile. (Haynes, Timothy) (Entered: 01/24/2017)

01/24/2017 01/25/2017 01/25/2017 01/25/2017 01/30/2017
01/30/2017 01/31/2017 01/31/2017 01/31/2017 01/31/2017 01/31/2017 01/31/2017 02/02/2017 02/02/2017 02/02/2017 02/08/2017
03/09/2017 03/09/2017

82 RESPONSE to 63 MOTION for Leave to File a Brief Amicus Curiae in Support of Plaintiffs' Complaint filed by All Defendants. (Haynes, Timothy) (Entered: 01/24/2017)
83 RESPONSE to 75 MOTION for Leave to File A Brief As Amicus Curiae In Support Of Plaintiffs' Response In Opposition to Defendants' Motion To Dismiss (UNOPPOSED) filed by All Defendants. (Haynes, Timothy) (Entered: 01/25/2017)
84 RESPONSE to 78 MOTION for Leave to File A Brief of Amicus Curiae In Support Of Plaintiffs filed by All Defendants. (Haynes, Timothy) (Entered: 01/25/2017)
85 RESPONSE to 70 MOTION for Leave to File Brief of Amici Curiae Michigan Education Law and Policy Professors in Opposition to Defendants' Motion to Dismiss filed by All Defendants. (Haynes, Timothy) (Entered: 01/25/2017)
86 Notice of E−mail Delivery Failure as to attorney Melvin J. Hollowell, Jr. Bounced NEF for 79 Notice of Appearance, 77 Notice of Appearance, 76 Attorney Appearance, 78 MOTION for Leave to File A Brief of Amicus Curiae In Support Of Plaintiffs. (SSch) (Entered: 01/30/2017)
87 ORDER Granting 63 , 66 , 68 , 70 , 75 , 78 MOTION for Leave to File; Granting 74 MOTION to Allow Out−of−State Counsel. Signed by District Judge Stephen J. Murphy, III. (DPar) (Entered: 01/30/2017)
88 Amicus Curiae BRIEF by American Federation of Teachers, AFL−CIO (Widick, Marshall) (Entered: 01/31/2017)
89 NOTICE by The City of Detroit re 87 Order on Motion for Leave to File,,,, Order on Motion − Free,, (Notice of Appearance of Bradley N. Garcia) (Metlitsky, Anton) (Entered: 01/31/2017)
90 NOTICE by The City of Detroit re 87 Order on Motion for Leave to File,,,, Order on Motion − Free,, (Notice of Appearance of James W. Crooks) (Metlitsky, Anton) (Entered: 01/31/2017)
91 NOTICE by The City of Detroit re 87 Order on Motion for Leave to File,,,, Order on Motion − Free,, (Notice of Appearance of Samantha M. Goldstein) (Metlitsky, Anton) (Entered: 01/31/2017)
92 Amicus Curiae BRIEF by The City of Detroit (Metlitsky, Anton) (Entered: 01/31/2017)
93 Amicus Curiae BRIEF by 482Forward (Brewer, Mark) (Entered: 01/31/2017)
94 Amicus Curiae BRIEF by International Literacy Association, Kappa Delta Pi, National Association for Multicultural Education (Clark, Dennis) (Entered: 02/02/2017)
95 RESPONSE to 60 MOTION to Dismiss and Brief in Support filed by Michigan Education Law and Policy Professors. (McGehee, Cary) (Entered: 02/02/2017)
96 REPLY to Response re 60 MOTION to Dismiss and Brief in Support filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Exb 1, # 3 Exhibit Exb 2, # 4 Exhibit Exb 3) (Haynes, Timothy) (Entered: 02/02/2017)
97 Notice of E−mail Delivery Failure as to attorney Melvin J. Hollowell, Jr. Bounced NEF for 93 Amicus Curiae Brief, 88 Amicus Curiae Brief, 80 Response to Motion, 84 Response to Motion, 90 Notice (Other), 92 Amicus Curiae Brief, 89 Notice (Other), 87 Order on Motion for Leave to File,,,, Order on Motion − Free,, 81 Response to Motion, 85 Response to Motion, 94 Amicus Curiae Brief, 83 Response to Motion, 82 Response to Motion, 91 Notice (Other). (SSch) (Entered: 02/08/2017)
98 MOTION for Leave to File Brief as Amica Curiae by The Skillman Foundation. (McCargo, Samuel) (Entered: 03/09/2017)
99 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by The Skillman Foundation identifying Corporate Parent Skillman Foundation for The Skillman Foundation. (Attachments: # 1 Document Continuation, # 2 Document Continuation) (McCargo, Samuel) (Entered: 03/09/2017)

03/13/2017 03/13/2017 03/13/2017 03/13/2017 03/13/2017 03/13/2017 04/12/2017 05/16/2017 08/04/2017 08/10/2017
08/18/2017
08/29/2017 09/08/2017 06/29/2018 06/29/2018 07/26/2018
07/27/2018 07/27/2018

100 ORDER Granting 98 MOTION for Leave to File as Amicae Curiae Brief. Signed by District Judge Stephen J. Murphy, III. (DPar) (Entered: 03/13/2017)
101 RESPONSE Brief in Response to Amicus of Kappa Delta Pi by All Defendants. (Haynes, Timothy) (Entered: 03/13/2017)
102 RESPONSE Brief in Response to Amicus of 482Forward by All Defendants. (Haynes, Timothy) (Entered: 03/13/2017)
103 RESPONSE Brief in Response to Amicus of Amer. Fed. of Teachers by All Defendants. (Haynes, Timothy) (Entered: 03/13/2017)
104 RESPONSE Brief in Response to Amicus of Michigan Education Law and Policy Professors by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2) (Haynes, Timothy) (Entered: 03/13/2017)
105 RESPONSE Brief in Response to Amicus of City of Detroit by All Defendants. (Haynes, Timothy) (Entered: 03/13/2017)
106 RESPONSE to 98 MOTION for Leave to File Brief as Amica Curiae by All Defendants. (Haynes, Timothy) (Entered: 04/12/2017)
107 NOTICE OF HEARING on 60 MOTION to Dismiss and Brief in Support, (Motion Hearing set for 8/10/2017 02:00 PM before District Judge Stephen J. Murphy III). (DPar) (Entered: 05/16/2017)
108 NOTICE by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V. re 64 Response to Motion − Notice of Supplemental Authority (Kelley, Michael) (Entered: 08/04/2017)
Minute Entry for proceedings before District Judge Stephen J. Murphy, III: Motion Hearing held on 8/10/2017 re 60 MOTION to Dismiss and Brief in Support. Disposition: Motion taken under advisement. (Court Reporter: Linda Cavanagh) (DPar) (Entered: 08/10/2017)
109 TRANSCRIPT of Motion to Dismiss held on 08/10/2017. (Court Reporter/Transcriber: Linda M. Cavanagh) (Number of Pages: 50) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 9/8/2017. Redacted Transcript Deadline set for 9/18/2017. Release of Transcript Restriction set for 11/16/2017. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Cavanagh, Linda) (Entered: 08/18/2017)
110 NOTICE by All Defendants re 60 MOTION to Dismiss and Brief in Support Notice of Supplemental Authority (Haynes, Timothy) (Entered: 08/29/2017)
111 RESPONSE to 110 Notice (Other) by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V.. (Kelley, Michael) (Entered: 09/08/2017)
112 [DOCKETING ERROR − INCOMPLETE DOCUMENT] OPINION and ORDER Granting Defendants' 60 Motion to Dismiss. Signed by District Judge Stephen J. Murphy, III. (DPar) (Entered: 06/29/2018)
113 JUDGMENT. Signed by District Judge Stephen J. Murphy, III. (DPar) (Entered: 06/29/2018)
114 NOTICE OF APPEAL by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V. re 112 Order on Motion to Dismiss, 113 Judgment. Receipt No: 0645−6835076 − Fee: $ 505 − Fee Status: Fee Paid. (Flint, Tacy) (Entered: 07/26/2018)
115 Certificate of Service re 114 Notice of Appeal. (NAhm) (Entered: 07/27/2018)
116 NOTICE of Correction re 112 Order on Motion to Dismiss. (DPar) (Entered: 07/27/2018)

07/27/2018 07/30/2018 07/30/2018 12/10/2018 12/10/2018 01/02/2019 01/03/2019 07/02/2019
09/20/2019
09/20/2019
10/29/2019 01/17/2020 01/28/2020 04/23/2020
04/24/2020
05/19/2020

117 OPINION and ORDER Granting Defendants' 60 MOTION to Dismiss and Brief in Support, re 116 Notice of Correction. Signed by District Judge Stephen J. Murphy, III. (DPar) (Entered: 07/27/2018)
118 NOTICE OF APPEAL by Gary B., Jessie K., Paul M., Christopher R., Isaias R., Jaime R., Esmeralda V. re 112 Order on Motion to Dismiss, 117 Memorandum Opinion & Order, 113 Judgment. Receipt No: 0645−6837884 − Fee: $ 505 − Fee Status: Fee Paid. (Flint, Tacy) (Entered: 07/30/2018)
119 Certificate of Service re 118 Notice of Appeal,. (LGra) (Entered: 07/30/2018)
120 MOTION for Withdrawal of Attorney Michael C. Kelley by All Plaintiffs. (Kelley, Michael) (Entered: 12/10/2018)
TEXT−ONLY ORDER Granting 120 MOTION for Withdrawal of Attorney. Signed by District Judge Stephen J. Murphy, III. (DPar) (Entered: 12/10/2018)
121 [STRICKEN] Letter from Alisha M. Walls (SSch) Modified on 1/4/2019 (SSch). (Entered: 01/03/2019)
122 ORDER to Strike 121 Letter. Signed by District Judge Stephen J. Murphy, III. (SSch) (Entered: 01/04/2019)
123 ORDER from U.S. Court of Appeals − Sixth Circuit re 114 Notice of Appeal filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R., 118 Notice of Appeal, filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R. [Appeal Case Number 18−1855/18−1871] (SKra) (Entered: 07/02/2019)
124 ORDER from U.S. Court of Appeals − Sixth Circuit re 114 Notice of Appeal filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R., 118 Notice of Appeal, filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R. [Appeal Case Number 18−1855/18−1871] (DWor) (Entered: 09/20/2019)
125 ORDER from U.S. Court of Appeals − Sixth Circuit re 114 Notice of Appeal filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R., 118 Notice of Appeal, filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R. [Appeal Case Number 18−1855/18−1871] (DWor) (Entered: 09/20/2019)
126 ORDER from U.S. Court of Appeals − Sixth Circuit re 114 Notice of Appeal filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R., 118 Notice of Appeal, filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R. [Appeal Case Number 18−1855] (SKra) (Entered: 10/29/2019)
127 MOTION for Withdrawal of Attorney Alisa Louise Hartz by All Plaintiffs. (Rosenbaum, Mark) (Entered: 01/17/2020)
128 ORDER Granting 127 Motion to Withdraw as Attorney. Signed by District Judge Stephen J. Murphy, III. (DPar) (Entered: 01/28/2020)
129 OPINION from U.S. Court of Appeals − Sixth Circuit re 114 Notice of Appeal filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R., 118 Notice of Appeal, filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R. [Appeal Case Number 18−1855/18−1871] (SKra) (Entered: 04/23/2020)
130 ORDER from U.S. Court of Appeals − Sixth Circuit re 114 Notice of Appeal filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R., 118 Notice of Appeal, filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R. [Appeal Case Number 18−1855/18−1871] (SKra) (Entered: 04/24/2020)
131 ORDER from U.S. Court of Appeals − Sixth Circuit re 114 Notice of Appeal filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R., 118 Notice of Appeal, filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R. [Appeal Case Number 18−1855/18−1871] (SKra) (Entered: 05/20/2020)

06/11/2020

132 ORDER from U.S. Court of Appeals − Sixth Circuit re 114 Notice of Appeal filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R., 118 Notice of Appeal, filed by Jessie K., Gary B., Esmeralda V., Jaime R., Isaias R., Paul M., Christopher R. [Appeal Case Number 18−1855/18−1871] (SKra) (Entered: 06/11/2020)