Court Monitor

Can't Read, Can't Sue

Hundreds of billions of dollars are spent annually on public school education, yet millions of the students trapped in that system are not even being taught how to read. Lawsuits have sought to force states to spend more on public education, but it is obvious that the real problem is not a lack of money. It does not cost much to teach anyone how to become an excellent reader based on phonics. But perhaps some politicians prefer an illiterate population that votes as they are told on Election Day, because phonetic reading is typically not taught in public schools, and the results are disastrous.

Michigan, like most states, fails to teach many students how to read in public school. But unlike many states, most of the funding for public schools in Michigan comes from the state rather than local government. The Michigan Constitution requires that "the means of education shall forever be encouraged," and establishes that "the Legislature shall maintain and support a system of free elementary and secondary schools."

Claiming that students are receiving an inadequate public education in violation of the Michigan Constitution, the ACLU sued in state court on behalf of a group of students. The ACLU cited data indicating that 65% of fourth-grade students enrolled in the defendant school district tested lower than the proficiency level in reading, and 87% of them were deficient in math.

The Michigan Court of Appeals rejected the lawsuit and ruled that "the Michigan Constitution require[s] only that the Legislature provide for and finance a system of free public schools. The Michigan Constitution leaves the actual intricacies of the delivery of specific educational services to the local school districts. We conclude that plaintiffs have not stated a claim or cause of action arising directly under the Michigan Constitution." S.S. v. State, 2014 Mich. App. LEXIS 2148 (Nov. 6, 2014).

The Court emphasized, "All that can properly be expected of the state is that it maintain and support a system of public schools that furnishes adequate educational services to all children." The Michigan Constitution "merely 'encourage[s]' education, but does not mandate it."

In addition to rejecting the students' lawsuit under the Michigan Constitution, the Court also rejected the students' lawsuit under state statutes-Students who failed state-imposed testing did not have any right to obtain remedial instruction to improve their scores. State law "does not impose a duty on the state defendants to directly provide services for students who do not perform satisfactorily on the MEAP test," the Court held. The "MEAP" test is the standardized Michigan Educational Assessment Program exam, which is now being aligned with Common Core despite parents' objections.

The good news is that a Michigan appellate court has declined an invitation to engage in judicial activism, and has interpreted the Michigan Constitution narrowly. The bad news is that families will be stuck with failing scores on Common Core-aligned exams without any accountability for the public schools in Court. The ACLU plans to appeal.