B. et al v. Snyder et al
Filing
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]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
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.; JAIME R.,
a minor, by Karen R., guardian ad litem,
on behalf of themselves and all others
similarly situated,
Plaintiffs,
v.
RICHARD D. SNYDER, in his official
capacity as Governor of the State of
Michigan; JOHN C. AUSTIN,
MICHELLE FECTEAU, LUPE
RAMOS-MONTIGNY, PAMELA
PUGH; KATHLEEN N. STRAUS,
CASANDRA E. ULBRICH, EILEEN
WEISER, and RICHARD ZEILE, in
their official capacities as members of
the Michigan Board of Education;
BRIAN J. WHISTON, in his official
capacity as Superintendent of Public
Instruction for the State of Michigan;
DAVID B. BEHEN, in his official
capacity as Director of the Michigan
Department of Technology,
Management, and Budget; and
NATASHA BAKER, in her official
capacity as the State School
Reform/Redesign Officer,
Defendants.
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Civil Action No.: 16-CV-13292
CLASS ACTION COMPLAINT
TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
PARTIES..................................................................................................................17
FACTUAL ALLEGATIONS ..................................................................................23
I.
Literacy Is a Fundamental Right ...................................................................24
A.
B.
C.
Literacy Is the Foundation of Citizenship and Well-Being in a
Democratic Society .............................................................................30
The Tradition of Compulsory Education in the United States ............ 39
D.
II.
The Meaning of Literacy and Literacy Instruction .............................25
Exclusion from Access to Literacy Creates an Enduring Stigma ....... 40
The State of Michigan’s Role in Securing Education Rights........................43
A.
B.
III.
The State’s Authority Over Public Education in Detroit ....................44
The Decimation of the Detroit Public Schools Under State
Control .................................................................................................49
C.
The State’s Failed Interventions in Detroit Schools ...........................51
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.
C.
Failure to Meet Student Learning Needs ............................................95
D.
Unsupported and Unstable Teaching Staff .........................................98
E.
VI.
Decrepit and Unsafe Physical Conditions ...........................................84
Lack of Accountability for Charter Schools and School Closures ... 104
The State’s Failure to Implement Evidence-Based Reforms to Address
Literacy ........................................................................................................109
i
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
ii
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
1
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.
2
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.
3
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.
4
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.
5
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
6
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
7
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
8
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;
9
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
10
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
11
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,
12
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,
13
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:
14
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
15
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
16
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
17
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
18
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
19
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
20
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 Ramos-
Montigny, 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.
21
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
22
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.
23
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
24
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).
25
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
comprehension 8 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).
26
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.
27
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
28
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
29
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.
30
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
31
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
32
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.
33
(“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).
34
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).
35
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).
36
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.
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.
25
37
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).
38
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).
39
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
40
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.
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
39
41
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).
42
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).
43
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.
44
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
45
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
46
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
47
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.
48
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.
49
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
50
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
51
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
52
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
53
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.
54
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
55
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).
56
“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.
57
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
58
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.
89.
The Failure to Provide Access to Literacy in Plaintiffs’ Schools
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:
59
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.
60
Figure 1: District Achievement across Michigan in relation to percentage of
black students
61
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
62
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.
63
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
9.5
4.8
13.8
13.3
3.1
5.7
3.7
0.0
10.7
3.8
14.3
0.0
Experiencia
64
State of
46.0
45.2
Michigan
46.3
43.9
50.6
33.8
45
32.8
47.1
35.3
48.8
32.7
0
Figure 6: 2014-15 M-STEP Results for Plaintiffs’ High Schools
School
Osborn
MST
Osborn
Evergreen
Cody
MCH
State of
Michigan
92.
M-STEP Grade M-STEP Grade M-STEP Grade M-STEP Grade
11 English
11 Math
11 Science
11 Social
Percentage of
Percentage of
Percentage of
Studies
Students
Students
Students
Percentage of
Scoring
Scoring
Scoring
Students
Proficient or
Proficient or
Proficient or
Scoring
Above 2014-15 Above 2014-15 Above 2014-15
Proficient or
Above 2014-15
1.9
3.7
0.0
1.9
4.2
0.0
0.0
0.0
12.5
1.8
0.0
1.8
49.2
28.4
29.4
43.9
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:
65
Figure 7: 2013-14 MME Results for Plaintiffs’ High Schools
School
MME
Reading
Percentage
of Students
Scoring
Proficient or
Above
MME Math
Percentage
of Students
Scoring
Proficient
or Above
MME
Writing
Percentage
of Students
Scoring
Proficient
or Above
MME
Science
Percentage
of Students
Scoring
Proficient
or Above
Osborn
MST
Osborn
Evergreen
Cody
MCH
State of
Michigan
10
0
1
0
MME
Social
Studies
Percentage
of Students
Scoring
Proficient
or Above
1
11
0
4
0
0
13
0
2
0
0
58.7
28.8
51
28.4
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
66
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.
67
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
68
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
97.
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
Students
Scoring
Scoring
Scoring
Scoring
CollegeCollege-Ready College-Ready
Ready
College-Ready
12.5
0
5.4
1.8
2.2
0
2.2
0
10.2
58.4
0
33.5
1.7
36.1
0
32.4
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
69
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
70
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).
71
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
75
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
76
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
77
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.
78
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.
79
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.
80
Figures 11 and 12: Textbooks at Osborn MST, August 2016
81
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
82
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.
83
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).
84
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
85
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.
86
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
87
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
88
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.
89
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
91
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
92
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.
93
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
94
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/.
99
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).
104
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.
For example, two weeks before the school year was set to begin,
University YES Academy in Detroit abruptly announced the closure of its high
59
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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.
109
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.
112
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.
113
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
114
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).
116
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).
117
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.
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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
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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.
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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%
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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.
127
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.
129
Respectfully submitted,
Dated: September 13, 2016
PUBLIC COUNSEL
By:
lWtJ;~&~
YN . IDMANN
KAT
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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